NIU Law Professor Evan Bernick was interviewed for the Wall Street Journal article, “The Amendment That Remade America” on his new book, “The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021).” Professor Bernick is featured in the article with his co-author, Georgetown Law School Professor Randy E. Barnett.
Adopted in 1868, the Fourteenth Amendment profoundly changed the Constitution, giving the federal judiciary and Congress new powers to protect the fundamental rights of individuals from being violated by the states. Yet, according to Randy Barnett and Evan Bernick, the Supreme Court has long misunderstood or ignored the original meaning of the amendment’s key clauses, covering the privileges and immunities of citizenship, due process of law, and the equal protection of the laws.
Barnett and Bernick contend that the Fourteenth Amendment was the culmination of decades of debates about the meaning of the antebellum Constitution. Antislavery advocates advanced arguments informed by natural rights, the Declaration of Independence and the common law. They also utilized what is today called public-meaning originalism.
Although antislavery arguments lost in antebellum courts, the Republican Party was formed to advance an antislavery political agenda, eventually bringing about abolition. Then, when abolition alone proved insufficient to thwart Southern repression and provide for civic equality, the Fourteenth Amendment was enacted. It went beyond abolition to enshrine in the Constitution the concept of Republican citizenship and granted Congress power to protect fundamental rights and ensure equality before the law. Finally, Congress used its powers to pass Reconstruction-era civil rights laws that tell us much about the original scope of the amendment.
With evenhanded attention to primary sources, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit shows how the principles of the Declaration eventually came to modify the Constitution and proposes workable doctrines for implementing the key provisions of Section One of the Fourteenth Amendment.
Professor Bernick joined the NIU Law faculty in 2021. He teaches courses in constitutional law, criminal law, criminal procedure, administrative law and legislation. From 2020 to 2021, Professor Bernick was a visiting professor at the Georgetown University Law Center and the executive director of the Georgetown Center for the Constitution. Before that, he served as a clerk to Judge Diane S. Sykes of the United States Court of Appeals for the Seventh Circuit. From April 2017 to April 2019, he was a visiting lecturer at Georgetown and a resident fellow of the Center for the Constitution.
His scholarship covers a range of topics, from constitutional law, to philosophy of law, to social movements, to law enforcement. He has published with the Georgetown Law Journal, the Notre Dame Law Review, the William and Mary Law Review and the George Mason Law Review, among other journals. His book, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (2021), with Randy E. Barnett, was published by Harvard University Press under its Belknap imprint “for books of long-lasting importance, superior in scholarship and physical production, chosen whether or not they might be profitable.”