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If the constitutional law casebooks are a reliable guide, most teach the Fourteenth Amendment, like other parts of the Constitution, by presenting separately the various doctrinal topics it has raised.[1] The principal clauses of the Amendment, or really those in the second sentence of Section 1[2]—the Equal Protection, Due Process, and Privileges or Immunities Clauses—are generally extracted from its text and classes are structured around the leading cases decided under each and the resulting doctrine. Cases under the Equal Protection or Due Process Clause may be further separated. Based on the class of claimants, for instance, the cases involving racial and gender equality and affirmative action may be presented as distinct topics. Further subdivision may group the cases involving education, employment, and voting, for instance. Sometimes equal protection and due process both appear, either because claimants raised, or opinions addressed, each constitutional hook or because an equal protection claim against the federal government was necessarily brought under the Fifth Amendment's Due Process Clause. Incorporation receives some, although much briefer, treatment, casebook page allocation suggests.[3]Some such conceptual approach is common and sensible. It is important for students to learn something about the history, doctrine, and analytical approaches regarding the various distinct clauses of the Fourteenth Amendment, to read the important cases and understand the arguments the Court found convincing and those it rejected. And it is impossible to begin to understand the Fourteenth Amendment without studying its principal clauses.

The present article focuses on the ratification debate in North Carolina. That debate is instructive for several reasons. In the first place, the legislature considered the amendment on two separate occasions. In December 1866, the legislature overwhelmingly rejected it. Little more than eighteen months later, a new legislature overwhelmingly endorsed it. Second, North Carolinians fought several political battles between 1866 and 1868, and in those battles they often debated the meaning of the fourteenth amendment. Third, North Carolinians adopted a new constitution in 1868 and thereafter enacted reform legislation, much of which reflected their understanding of the concepts embodied in the fourteenth amendment. Finally, North Carolinians throughout this period argued incessantly about two topics critical to any understanding of the fourteenth amendment: the status of blacks and the relationship between the national and state governments.

At the close of the Civil War, the federal government was faced with the serious problem of protecting the newly freed negro from restrictions which the state governments might see fit to impose upon him. The War had been won and the negro freed, but there was no power in the federal government which could insure his civil liberties against state action. The Bill of Rights formed a bulwark against invasion of personal rights by the federal government, but it had no application to other jurisdictions. It was to remedy this situation that the Fourteenth Amendment was proposed and adopted. The control which it gives over state legislation is both positive and negative in character—the negative control being the more frequently invoked.

Underscoring so much while leaving so much unsaid, this book is a powerful plea for post-1937 trends and constructions--not merely in the Supreme Court, but now in Congress. How does the nation, the Court, the Congress, make good a lost century? Chief Justice Waite's triumph--decidedly more modest in my estimation than in Dr. Magrath's--was that he dared, tried, succeeded--at least by half. The country's failure was that it so long did not--has not yet--even by half. Twenty years and three constitutional amendments after emancipation too many of our forebears, including all members of this Court except the former Union colonel and converted slaveholder, Mr. Justice Harlan, let themselves be persuaded, as too many others have since, that American governments still lacked the mandate and the power to do, after emancipation and amendment, in behalf of"liberty," what those same governments originally, for three quarters of a century, had been able to do, and had done, against "liberty,"in defense of slavery and slave "property." No mandate and no power to protect the "li(ves), liberty and property" of "persons" at last free, nor of those newly-made "Citizens of the United States" for whose double, triple, above all, equal protection, these three overlapping guarantees and clauses again had been employed, both affirmatively and negatively, as they had been employed incessantly for two generations. No mandate and no power to protect as free "persons," and as"Citizens of the United States," those whom this antislavery generation at least, believed governments had the power and the duty to protect even as enslaved "persons."Two years short of the fourteenth amendment centennial, let us speak no more of the "failures" and of the "miserable draftsmanship"of that Joint Committee of Fifteen. John A. Bingham and his colleagues did very well indeed. The date, remember, was 1866.