The relevance of a doctrine's being "born in bigotry"
Randy E. Barnett
rbarnett at bu.edu
Tue Mar 23 13:52:17 PST 2004
Quoting earl maltz <emaltz at crab.rutgers.edu>:
> 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.
One of the burdens I have found of being an originalist is that you need to
know the historical evidence pretty well to have a knowledgeable opinion, and
on this issue I do not. But I do know that in 1873 the Slaughter-House Cases
ignored the original meaning of the Privileges or Immunities Clause thereby
skewing the Fourteenth Amendment. Whereas the P or I Clause was the principal
provision to be applied to "laws"--whether laws that discriminated or laws
that equally abridged every citizen's privileges or immunities--the Equal
Protection Clause was primarily about "protection"--e.g. discrimination in
enforcing otherwise proper laws. Jim Crow laws fit into the former category.
Michael's common carrier theory of public accommodations fits into the
latter. With his example, the common law did not violate privileges or
immunity, but the states refusal to protect blacks from discrimination in
public accommodations violated equal protection of the laws.
After 1873 we would expect those who favored civil rights to adjust
their "paradigm" in response to the Court's redaction of the Amendment. This
undoubtedly led to the expansion of both the Equal Protection Clause and the
Due Process Clause beyond their original meaning to take up SOME of the space
left by the purged Privileges or Immunities Clause. So Earl may be correct,
but this may be because the Court had forced Republicans to shift their
doctrinal focus to remain within the original paradigm of the Fourteenth
Amendment *as a whole.* And later, courts followed suit.
Randy E. Barnett
Austin B. Fletcher Professor
Boston University School of Law
765 Commonwealth Ave.
Boston, MA 02215
http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty Page)
http://www.lysanderspooner.org (Lysander Spooner Page)
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