Publication Date
2024
Publication Title
Stanford Law Review
Abstract
The Fourteenth Amendment’s Section One is central to our constitutional law. Yet its underlying principles remain surprisingly obscure. Its drafting history seems filled with contradictions, and there is no scholarly consensus on what rights it protects, or even on what kind of law defines those rights.
This Article presents a new lens through which to read the Fourteenth Amendment—new to modern lawyers, but not to the Amendment’s drafters. That lens is general law, the unwritten law that was taken to be common throughout the nation rather than produced by any particular state. Though later disparaged in the era of Erie Railroad Co. v. Tompkins, general law was legal orthodoxy when the Amendment was written.
Recommended Citation
William Baude, Jud Campbell & Stephen E. Sachs, "General Law and the Fourteenth Amendment," 76 Stanford Law Review 1185 (2024).
