Fourteenth Amendment & colorblindness

[michael curtis]

Actually, as I recall the quote about the charming indefiniteness, it came 
from someone else--a critic-- describing Bigham's pleasure with his phrase & 
it is far from clear that the characterization was Bingham's and not the 
speaker's critique of Bingham's drafting .

Michael Curtis
----- Original Message ----- 
From: "Paul Finkelman" <pfink at albanylaw.edu>
To: <ssiegel at condor.depaul.edu>; <CONLAWPROF at lists.ucla.edu>
Sent: Monday, June 04, 2007 5:41 PM
Subject: Re: Fourteenth Amendment & colorblindness


> Many of us who have looked at the 14th Amendment debates at great
> length, and have spent a good part of our scholarly careers trying to
> explain and understand the whole era know that no one can offer an
> "absolute" understanding of the intention of the framers of the
> amendment or a certain meaning for the amendment.  And sure, it is
> silly, at best, to argue that the framers of the Amendment  intended a
> certain outcome today, based on what they knew or intended then. As best
> we can do is understand their general goals, which are much easier to
> understand.  The authors and supporters of the Amendment wanted
>
> 1: to protect the civil rights and liberties and the political rights of
> the former slaves;
> 2:  they wanted to insure equality before the law (equal protection of
> the law) as the law developed and changed over time.
> 3:  they understood that some policies had to be overtly color conscious
> -- such as the in the Freedmen's Bureau -- which Congress had created.
> 4:  they expected federal passage of laws (such as the Civil Rights Act
> of 1866) and federal enforcement of those laws, to protect civil rights
> from states, individuals, and collective terrorists (such and the KKK).
>
> 5:  they were smart enough to understand that equal protection of the
> law might in fact require color conscious legislation to create a nation
> where equality was possible.
> 6:  finally they were smart enough to understand that openend
> constitutional language -- such as privileges and immunities, due
> process, or equal protection -- was the key to long term success.  John
> Bingham declared at one point that the indefinate language of Sec. 1 of
> the 14th was its "charm."
>
> I should add that most of the debate was not about the goals or language
> of Sec. 1, but about the sections dealing with Confederate
> disfranchisement; COnfederate debt, and black suffrage.
>
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
>     and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York   12208-3494
>
> 518-445-3386
> pfink at albanylaw.edu
>>>> Stephen Siegel <ssiegel at condor.depaul.edu> 06/04/07 5:16 PM >>>
> I would like to hear more about Eugene's claim about some of the
> literature on the original meaning of the 14th amendment.  Eugene
> say that, in the view of some scholars, the 14th amendment applied only
> in
> a limited area (civil rights) but in that area imposed an absolute bar
> to
> color-conscious laws.  It follows from this that such laws as
> Reconstruction
> era spending programs benefiting blacks were permissible because they
> were
> not within the limited ambit of the 14th amendment.
>
> But Congressional debate in the 39th Congress makes clear, I think, that
> Florida's system of taxing all citizens but excluding blacks from
> schools
> would be a 14th amendment violation.  In other words, after the 14th
> amendment, government might segregate schools, but not exclude
> African-Americans.
>
> This suggests that the Fourteenth amendment applied a rule of
> reasonableness across the board.  With regard to civil rights, no
> color-consciousness was reasonable; with regard to other areas
> color-consciousness might be.
>
> Justice Brown's comment in Plessy, explaining why a law requiring
> segregated sidewalks would not be permitted while a law requiring
> segregated street railways was permissible, exemplifies this
> understanding.
>
> It does not strike me as likely that in the Reconstruction and
> Gilded Age eras, government spending programs that were facially limited
> to benefiting whites would have been upheld as beyond the scope of the
> 14th
> amendment?
>
> My sense is that most would have been voided.  Not all, of
> course, as Cumming v. Richmond County School Bd (1899) case, allowing
> spending on white high schools when there were no black high schools,
> illustrates.  But this illustrates the rule of reasonableness, not the
> limited scope of the 14th amendment.
>
> Stephen Siegel
> DePaul University College of Law
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly
> or wrongly) forward the messages to others.
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are 
> posted; people can read the Web archives; and list members can (rightly or 
> wrongly) forward the messages to others.
>