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

Tue Mar 23 12:44:05 PST 2004

I have yet to see any convincing (or even marginally persuasive) evidence
that the 1866 statute had anything at all to do with private action.
Indeed, at the time there was even considerable doubt regarding federal
power to reach state action.

With respect to the 1870 and 1871 statutes, the situation is more
complicated.  I would argue that both statutes were aimed at private
interference with rights that the state was bound to protect and respect
under the Fourteenth and Fifteenth Amendments.  This is quite different
from a general power to reach private discrimination per se.

At 10:20 AM 3/23/2004 -0600, Doug Laycock wrote:
>         It is not just the 1875 Act, but the whole series of civil rights 
>legislationin 1866, 1870, 1871, and 1875 that repeatedly reached private 
>action.  Whatever they thought about the state action language in 
>judicially enforceable section 1, they clearly believed that Congress had 
>power to reach private action under section 5.
>
>
>At 09:59 PM 3/22/2004 -0500, you wrote:
>>The idea that the Civil Rights Act of 1875 is a reliable indicator of the 
>>original understanding is not supported by the evidence.  It was drafted 
>>by a different group of people operating in an entirely different 
>>political context.  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 
>>>>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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>>>>>------------------------------
>>>>
>>>>
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>>
>>
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>
>
>
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX  78705
>         512-232-1341 (voice)
>         512-471-6988 (fax)
>         dlaycock at mail.law.utexas.edu
>
>