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

[DavidEBernstein at aol.com]

In a message dated 3/22/2004 2:12:49 PM Eastern Standard Time, 
DavidEBernstein writes:
Right, but that's why I said they were incompetent.  If you want to create 
new Congressional powers, a good lawyer/legislator will write language that will 
be so clear that even a hostile judge will have a hard time ruling against 
you later.  Instead, the plain language of the 14th Amendment says that no state 
shall deny anyone equal protection of the law, and that Congress has the 
power to enforce this provision.  Granted, this could be read as including the 
power to prohibit private action, especially private action that has implicit 
state sanction, that deprives individuals of their civil rights, but that is not 
the only plausible meaning of the language, nor, would I argue, is it the most 
natural meaning of the language.  For all the blame that is heaped on the 
Supreme Court for its state action rulings, spare a little for the Radical 
Republicans for drafting the Fourteenth Amendment so poorly (consider also the fact 
that we are still arguing over what they meant by privileges or immunities, 
equal protection, and due process--masters of clarity, they weren't).  
Well-intentioned incompetence is still incompetence.

In a message dated 3/22/2004 2:01:19 PM Eastern Standard Time, 
MGRABER at gvpt.umd.edu writes:
2. I do think they meant primarily to empower Congress (see Nelson's book and 
an essay I wrote on Amar in Richmond).  And with Republican appointees on the 
high bench, they might have had the future gone differently.


Professor David E. Bernstein
George Mason University School of Law
http://mason.gmu.edu/~dbernste 
blog: http://volokh.com/index.htm?bloggers=DavidB
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My latest book, You Can't Say That!
The Growing Threat to Civil Liberties
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