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

earl maltz emaltz at crab.rutgers.edu
Tue Mar 23 12:37:57 PST 2004 

I take a different lesson from the invokation of the authority to enforce
the Equal Protection Clause.  To me, it simply illustrates the fact that in
1875, Republicans were operating under a different paradigm from that which
animated the framers of the Fourteenth Amendment itself.

To illustrate this point, of consider the constitutionality of
congressional action requiring states to allow African-Americans to vote in
1869, prior to the  ratification of the Fifteenth Amendment.  Once could
make the same argument--that it was necessary to ensure that
African-Americans would in fact receive equal protection of the law.  Yet
throughout the debates in 1866, Republicans consistently took the position
that the Fourteenth Amendment would have no impact on state prerogatives
with respect to suffrage. 

At 09:38 AM 3/23/2004 -0700, Michael McConnell wrote:
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>
>
>
>
>
>
>  This strikes
>me as an illuminating example of the difference
>
>between Congress's
>remedial authority under Section Five and the courts'
>
>authority as a
>matter or ordinary judicial review. I disagree with Earl's
>
>conclusion
>that this example shows that the authors of the CRA of 1875
>were out 
>of
>step with the original understanding of the Fourteenth
>
>Amendment.
> 
>  "  
>   Although the CRA of 1875 permitted civil and
>criminal action 
>directly
>against the private parties, the constitutional
>basis was *not* that
>
>private conduct could violate the Fourteenth
>Amendment, but that a
>State's 
>failure to enforce the common law right of
>access to common
>carriers, on account 
>of race, was a denial *by the State*
>of the equal
>protection of the 
>law.
> 
>-- Michael McConnell 
>
>
>
>From:
>conlawprof-bounces at lists.ucla.edu on 
>behalf of Earl Maltz
>Sent: Mon
>3/22/2004 7:59 PM
>To: 
>conlawprof at lists.ucla.edu
>Subject: Re: Fwd: Re:
>The relevance of a 
>doctrine's being "born in bigotry"
>
>
>
>The idea that
>the Civil Rights Act of 1875 is a reliable 
>indicator of the
>  It was
>drafted by
>a different group of people operating in an 
>entirely different
>political
>  For example, the jury provision 
>is clearly inconsistent with
>the
>original understanding; if anything is clear 
>from the legislative
>history,
>it is that political rights were not protected 
>by section
>one.
>
>At 09:48 PM 3/22/2004 -0500, Jack Balkin wrote
>
>wrote:
>
>>>
>>>
>>>David is right that one could have 
>drafted the
>Fourteenth Amendment
>>>differently, and, as he knows, there 
>was
>considerable controversy about
>>>  However, the 
>best evidence that the
>Congress that passed
>>>>>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
>>>  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
>>>  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
>>>><>
>>>>Content-Type: text/plain; 
>charset="us-ascii"
>>>>
>>>>In a message dated 3/22/2004 
>2:12:49 PM Eastern Standard Time,
>>>>DavidEBernstein 
>writes:
>>>>  
>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
>>>>  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
>>>>  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
>>>>  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
>>>>  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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>>>
>>>
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