New York University Law Review
The meaning and scope of the fourteenth amendment and the Civil Rights Act of 1866 remain among the most controversial issues in American constitutional law. Professor Kaczorowski contends that the issues have generated more controversy than they warrant, in part because scholars analyzing the legislative history of the amendment and statute have approached their task with preconceptions reflecting twentieth century legal concerns. He argues that the most important question for the framers was whether national or state governments possessed primary authority to determine and secure the status and rights of American citizens. Relying on records of the congressional debates as well as letters, newspaper clippings, and other contemporaneous evidence of the views of congressmen, federal judges, and federal attorneys, Professor Kaczorowski describes a Republican consensus that such power must ultimately lie in the national government He concludes that this Republican commitment to the primacy of national citizenship helps explain why racist politicians, with the support of racist constituents, worked to ensure legal protection for the civil rights of blacks.
Robert J. Kaczorowski,
Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction , 61 N.Y.U. L. Rev. 863
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/466
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