| Book Review | The American Historical Review, 110.2

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| Book Review | The American Historical Review, 110.2 | The History Cooperative

Book Review

Canada and the United States

Earl M. Maltz. The Fourteenth Amendment and the Law of the Constitution. Durham: Carolina Academic Press. 2003. Pp. ix, 182. $30.00.
In this specialized but accessible book, Earl M. Maltz offers a new and sympathetic assessment of the Supreme Court's use of the Fourteenth Amendment in its dealing with issues concerning citizenship, economic regulation, political rights and civil rights in the late nineteenth century. Standard literature tends to criticize the Court and its conservative rulings for undermining radical Republicans' efforts to build a new American state and nation based on the principles of racial equality and the primacy of the national government in protecting citizens' rights. For Maltz, such criticism is not entirely fair, because the Court's interpretation of the Reconstruction amendments during this period was, instead of completely conservative, a mixed legacy. Cautioning scholars not to "understate the complexity of the forces" that shaped the decisions of the Court, Maltz argues that the guiding forces of the judicial interpretation of the Reconstruction-related amendments and laws "were the principles of distinctively legal analysis rather than Republican ideology" (p. viii).	1
To substantiate his argument, Maltz devotes his first chapter—the longest of seven—to examining how the key concepts that would eventually be embodied in the Section 1 of the Fourteenth Amendment—namely, privileges and immunities, due process, and equal protection—had evolved through a variety of cases decided by both state and federal courts in the antebellum period. Historically retrievable as far back as English constitutional theory and legal precedents, none of these key principles was "invented for use in the dispute over slavery" but had long occupied "a well-established place in general antebellum constitutional theory" (p. 3). Both antislavery and proslavery forces had used such legal principles as absolute right to protection and privileges and immunities to respectively advocate their causes. Federal courts remained at best ambiguous about what rights were to be regarded as "fundamental" and whether or not free blacks were entitled to absolute right to protection for much of the antebellum period until the Dred Scott decision.	. . .

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