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

Randy E. Barnett rbarnett at
Tue Mar 23 13:52:17 PST 2004

Quoting earl maltz <emaltz at>:

> 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
Phone: 617-353-3099
Fax: 617-353-3077 (Structure of Liberty Page) (Lysander Spooner Page)

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