The relevance of a doctrine's being "born in bigotry"
jack.balkin at yale.edu
Mon Mar 22 20:52:54 PST 2004
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.
At 12:05 PM 3/22/2004 -0800, conlawprof-request at lists.ucla.edu wrote:
>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,
>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
>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
>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
>power to prohibit private action, especially private action that has implicit
>state sanction, that deprives individuals of their civil rights, but that
>the only plausible meaning of the language, nor, would I argue, is it the
>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
>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
>My latest book, You Can't Say That!
>The Growing Threat to Civil Liberties
>from Antidiscrimination Laws, has just
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