In constitutional law scholarship, broad consensus exists among legal historians and constitutional scholars on several foundational questions concerning the Thirteenth, Fourteenth, and Fifteenth Amendments to the United States Constitution - collectively known as the Reconstruction Amendments. Scholars across institutions broadly agree on what these amendments were designed to accomplish, that they effected a fundamental transformation of the constitutional order, and that the Fourteenth Amendment in particular remains one of the most litigated and consequential provisions in American constitutional law. Significant interpretive disagreement persists, however, on questions of original meaning, incorporation, the scope of Section 1 of the Fourteenth Amendment, and congressional enforcement power under Section 5 - areas where active scholarly and judicial debate continues.
Constitutional law scholars broadly agree that the Reconstruction Amendments represent a categorical break from the antebellum constitutional structure rather than a mere adjustment to it. Eric Foner, Bruce Ackerman, and Akhil Reed Amar - working from different methodological premises - each reach the conclusion that the Amendments fundamentally restructured the relationship between the federal government, the states, and individual citizens.1) Ackerman's framing of Reconstruction as a “constitutional moment” - a higher lawmaking event that reorganized constitutional meaning - is contested in its theoretical specifics, but the underlying empirical claim that the Amendments altered federal-state relations is not seriously disputed among mainstream constitutional scholars.
The Thirteenth Amendment (1865) abolished chattel slavery and involuntary servitude except as criminal punishment, and scholars agree it was the first constitutional provision to grant Congress explicit power to regulate private conduct.2)
There is consensus among constitutional law scholars that Section 1 of the Fourteenth Amendment - comprising the Citizenship Clause, Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause - was intended to constitutionalize the Civil Rights Act of 1866 and to place the citizenship and basic rights of formerly enslaved persons beyond the reach of hostile state legislation.3) This consensus is supported by extensive congressional record evidence and is not seriously contested in mainstream scholarship.
There is also broad agreement that the Supreme Court's early interpretation of the Fourteenth Amendment substantially narrowed its scope. The Slaughterhouse Cases (1873) effectively gutted the Privileges or Immunities Clause as an instrument of substantive federal protection,4) and the Civil Rights Cases (1883) restricted the Fourteenth Amendment's reach to state action rather than private discrimination.5) Legal historians broadly agree these decisions departed significantly from the Amendment's framing-era purposes, regardless of whether scholars view those decisions as legally defensible on other grounds.6)
A working consensus now exists in both doctrine and scholarship that the Fourteenth Amendment incorporates most provisions of the Bill of Rights against state governments through the Due Process Clause - the doctrine known as “selective incorporation.” The Supreme Court has incorporated the great majority of Bill of Rights protections on this basis since Gitlow v. New York (1925),7) and the doctrinal framework has been repeatedly reaffirmed, most recently in McDonald v. City of Chicago (2010).8)
Scholarly consensus on the legal history underlying incorporation is less uniform. Amar and Curtis argue that the Fourteenth Amendment was designed to apply the Bill of Rights to the states through the Privileges or Immunities Clause, not the Due Process Clause.9) This historical argument is widely credited in scholarship even by those who accept selective incorporation as settled doctrine. The doctrinal route the Court chose is broadly regarded as historically anomalous, even if its practical results are accepted.
Constitutional scholars agree that the Fifteenth Amendment (1870) was designed to prohibit denial of the franchise on the basis of race, color, or previous condition of servitude, and that it was systematically circumvented in the post-Reconstruction South through facially neutral mechanisms - poll taxes, literacy tests, grandfather clauses, and white primaries - that produced near-total disenfranchisement of black voters in former Confederate states.10) This historical record is not seriously contested. The Voting Rights Act of 1965 is broadly understood among legal historians as the legislative mechanism that finally gave the Fifteenth Amendment practical effect.11)
There is general agreement in constitutional scholarship that the Enforcement Clauses of each Reconstruction Amendment (Sections 2, 5, and 2, respectively) grant Congress affirmative power to legislate in furtherance of the amendments' guarantees - a power not present in the original unamended Constitution with respect to state action. The scope of this power is, however, an area of active judicial and scholarly controversy, particularly following City of Boerne v. Flores (1997), which established that Congress's Section 5 power is “remedial” rather than substantive and must be congruent and proportional to identified constitutional violations.12) This congruence-and-proportionality standard is accepted as controlling doctrine but remains contested in scholarship as an accurate reading of Reconstruction-era intent.
The following questions are not resolved by existing consensus and remain areas of active scholarly or judicial disagreement:
The following pages document viewpoints that challenge aspects of the mainstream constitutional law consensus described above: