Fundamental Rights and the Fourteenth Amendment: The Nineteenth Century Understanding of 'Higher' Law

Abstract

This article analyzes the legal understanding regarding fundamental rights that was prevalent during the Nineteenth Century. The article notes that legal commentators drew from diverse sources, including not only English common law, but also from the Roman and continental legal systems. It also observes that the approach to interpretation was fundamentally positivist. While commentators spoke of unwritten law, they emphasized that it was at the bottom of the hierarchy of legal rules governing cases. Unwritten or natural law did not trump the plain language of the text that was being interpreted. Finally, the article applies the theoretical framework prevalent within the legal community at the time regarding fundamental rights to interpretation of the Fourteenth Amendment.

Keywords: constitution, fourteenth amendment, natural law, John Norton Pomeroy, fundamental rights, citizenship, constitutional interpretation