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102 Marq. L. Rev. 949 (2018-2019)
Dying Constitutionalism and the Fourteenth Amendment

handle is hein.journals/marqlr102 and id is 975 raw text is: DYING CONSTITUTIONALISM AND THE FOURTEENTH AMENDMENT ERNEST A. YOUNG* I.THE FOURTEENTH AMENDMENT'S LOST YEARS.... .................952 II.THE LIVING CONSTITUTIONALIST CASE FOR RE-ENTRENCHED RACIAL OPPRESSION ................................................ 962 III.THE LESSONS OF CONSTITUTIONAL FAILURE .......................975 My marching orders from Dean Kearney for this year's Boden Lecture are to commemorate the sesquicentennial of the Constitution's Fourteenth Amendment, which was ratified in 1868. This ought to be a much easier task now than it would have been at the demisesquicentennial-halfway between 1868 and today-because I think it's fair to say that the Fourteenth Amendment largelyfailed to live up to its promise during the first half of its existence. At that halfway mark in 1943, African Americans, who were supposed to be the amendment's primary beneficiaries, suffered under a pervasively authoritarian Jim Crow regime in the South and faced rampant discrimination and hostility in the North. The Supreme Court had begun to chip away at Jim Crow in a few isolated decisions, but these hadn't made much practical difference. Fourteenth Amendment demisesquicentennialists-if there were any-would have had very little to cheer about in 1943. We live in a very different constitutional world today, with a robust and vital Fourteenth Amendment at its center. And so it would be easy to tell you a heartwarming story about the amendment's second act as one of the great comeback sagas in American history. But failures are often more interesting than successes. I want to focus on the Fourteenth Amendment's bad years, because I think that they can tell us something important about constitutional theory. * Alston & Bird Professor, Duke Law School. This essay is a lightly edited version of the Robert F. Boden Lecture presented at Marquette Law School on September 20, 2018. 1 am grateful to Dean Joseph Kearney for his invitation and wonderful hospitality during my visit to Milwaukee, to my friend David Strauss for his commentary, and to Joseph Blocher, Erin Blondel, James Boyle, Guy Charles, Thavolia Glymph, Craig Goldblatt, Sean Griffith, Jed Purdy, and Richard Squire for comments on the manuscript.

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