The essay I propose to write for ASLH 2000 will be drawn from my current research and writing on the fourteenth amendment's founding. The objectives of this project include reconsidering principles of popular sovereignty at the core of theories and practices of constitutionalism in the United States. Among other things, this project will examine ways those principles have been realized or not in actual political practices and will explore some of the implications of this analysis for rethinking fundamental and recurring problems of constitutional meaning and authority, particularly patterns of normative continuity and change.

The paper will offer a preliminary treatment of these topics. One issue to explore will be relationships between theories and practices invoking the sovereignty of "the people" and corresponding positions on issues of constitutional meaning, authority, continuity, and change. The paper will also confront problems of fourteenth amendment historiography and reconstruction historiography more generally while seeking to develop parts of a revised narrative of the fourteenth amendment's founding.

My analysis will both draw upon and depart from (a) formalistic accounts of the fourteenth amendment's founding based on assumptions of compliance with the requirements of article V and (b) alternative accounts such as Bruce Ackerman's based more directly on principles of popular sovereignty. Among other things, I will explore some of the advantages and disadvantages of an unconventionally graded account of constitutional norm creation according to which the fourteenth amendment had only partial original legitimacy based on principles of popular sovereignty.