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

[Jack Balkin]

David is right that one could have drafted the Fourteenth Amendment 
differently, and, as he knows, there was considerable controversy about its 
language.  However, the best evidence that the Congress that passed the 
Fourteenth Amendment intended to reach at least some private action under 
its new section 5 powers is the Civil Rights Act of 1875, which was drafted 
by many of the same people who passed the Fourteenth Amendment, and which 
the Supreme Court struck down in the Civil Rights Cases.

Remember too that Harlan invokes Congress's power to enforce Citizenship 
Clause, which has no state action requirement.  In addition, section 5 
riffs off of McCulloch's notion of appropriateness, meaning that it should 
be read particularly broadly.

After the Compromise of 1877, (and even before if you agree with Brandwein) 
the Court was unwilling to allow much interference with the states.  We 
should read the Civil Rights Cases and U.S. v. Harris as reflecting an 
important change in understandings about the meaning of the Reconstruction 
Amendments rather than (as Rehnquist suggests in Morrison) accurately 
reflecting the original understanding of Congress's powers under section 5.

Jack Balkin


At 12:05 PM 3/22/2004 -0800, conlawprof-request at lists.ucla.edu wrote:
>Message: 10
>Date: Mon, 22 Mar 2004 14:13:18 EST
>From: DavidEBernstein at aol.com
>Subject: Re: The relevance of a doctrine's being "born in bigotry"
>To: Conlawprof at lists.ucla.edu
>Message-ID: <12f.3d6b1950.2d9094ce at aol.com>
>Content-Type: text/plain; charset="us-ascii"
>
>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
>***********************************************
>My latest book, You Can't Say That!
>The Growing Threat to Civil Liberties
>from Antidiscrimination Laws, has just
>been published
>***********************************************
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