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

[earl maltz]

The paradigm shift to which I was referring was not from the Privileges and
Immunities Clause to the Equal Protection Clause, but rather from the
protection of civil rights to the protection of political rights.  

At 01:52 PM 3/23/2004 -0500, Randy Barnett wrote:
>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
>Phone: 617-353-3099
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>http://www.randybarnett.com
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>