Hastings Constitutional Law Quarterly


Earl M. Maltz


April 28th, 1866 was by any standard, a pivotal moment in the evolution of American constitutional law. On that date, the Joint Committee on Reconstruction voted to replace a provision of the proposed Fourteenth Amendment that focused only on racial discrimination with the current text of section one. This decision created the predicate for much of modern constitutional law, including but not limited to the Court's treatment of gender discrimination, abortion, gay rights, criminal procedure, and freedom of speech.

This article provides a detailed analysis of the forces that shaped the Joint Committee's decision. The article contends that the decision to abandon race-specific language in favor of the current formulation of section one must be viewed through the lens of the efforts of the Republican party to put forward a detailed, politically viable plan of reconstruction in the aftermath of the Civil War. The article concludes by discussing the significance of this insight for efforts to divine the original meaning of section one.