The relevance of a doctrine's being "born in bigotry"

[Stephen Siegel]

I would like to add to Sandy's observation the "unneutrality" of
judicial uses of history, the fact that Justice Thomas's historical
understanding of the Blaine amendmends is itself contestible.  The historians
brief, submitted by Steven Green, as amicus in Locke v. Davey recognizes
anti-Catholic bigotry as but one strand in the politics that produced the
amendments.  Among the tidbits, which, given the nature of politics, Green
properly treats as neither here not there, is that "there is no evidence
that Blaine had any personal animosity toward Catholics.  His mother was a
Cathloic and his daughters were educated in Catholic schools."

Stephen Siegel
DePaul University College of Law

On Mon, 22 Mar 2004, Levinson wrote:

> In preparing to teach Mitchell v. Helms tomorrow, I am struck by Justice Thomas's eloquent statment that "This doctri [i.e., the Blaine Amendment's prevention of aid to religious schools], born of bigotry, should be buried now."  What I can't help thinking of, however, is that a variety of "state action" cases were also "born in bigotry" (think of US v. Harris for starters), i.e., part of the "settlement" of Reconstruction by accepting the return of white hegemony in the South and the disregard of tyranny directed against African Americans, so long as a fig-leaf of "private action" could be found.  (Think also of the Civil Rights Cases, the basic rock upon which the Court builds Morrison.)  The Court usually writes as if the Civil War never happened or, to be a bit fairer, as if the proper understanding of the War were Andrew Johnsons's (i.e., no secession, no formal slavery), and not, say, Charles Sumner's.  (It would be too tendentious to invoke Lincoln, for there is truly no reason to have confidence as to what his Reconstructions policies would have been.)
>
> Just some musings about the "unneutrality" of deciding when we look to history to provide the context for what is (or, as in the case of the Blaine Amendment, not) in the Constitution.
>
> sandy
>
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