Fourteenth Amendment Concepts in the Antebellum Era

Much of the literature discussing the original understanding of section one the Fourteenth Amendment takes one of two basic positions. One group of scholars, perhaps best exemplified by William E. Nelson, argues that the language of the equal protection, due process, and privileges and immunities clauses was not understood as distinctively legal concepts, but rather as expressing general political principles. By contrast, another school of thought, which can be traced to the work of scholars such as Howard Jay Graham and Jacobus Ten Broek, takes the view that the language of the Fourteenth Amendment embodied legal concepts that were derived specifically from abolitionist legal thought.This article, first published in 1988 in the American Journal of Legal History and later incorporated into a book entitled The Fourteenth Amendment and the Law of the Constitution, takes a different view. The article contends that the language of section one was derived from distinctively legal concepts that evolved in connection with issues that were unrelated to the dispute over slavery, and that both proslavery and antislavery legal theorist had made use of these concepts in making their arguments during the antebellum era

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