Fourteenth Amendment & colorblindness. Framers of 14th & of the Constitt...
rs at robertsheridan.com
Wed Jun 6 08:29:56 PDT 2007
Could it be that the level of generality enunciated in Amendment 14
was the result of legislative drafting compromise intended to avoid
becoming too specific and thus raise or harden objections, leaving
the specifics for another day and another body? That wouldn't be the
first, or last, time this has happened? Avoiding specifics often
garners votes to ensure passage. See the way the Court itself works
in circulating, draft opinions seeking 'joins.'
Didn't the original Framers kick a lot under the rug to await
cleaning up in a later day?
Saying that a few words in the Constitution prohibiting secession
would have been wonderful is like saying that it would have been
wonderful had that first Dutch ship off Virginia in 1619 not unloaded
the first people sold as slaves. That might've saved a bunch.
The more I read these debates over the history, as much a history
respecter as I am, the more I question their utility, not because I
disdain the effort, but because I question their relevance, when I
know full well, especially when a question seems irresolvable
historically, that it's today's needs that must be accorded primary
weight when deciding today's questions.
On Jun 6, 2007, at 7:48 AM, DavidEBernstein at aol.com wrote:
> No one doubts the Fourteenth Amendment's Framer's good intentions,
> and I don't doubt that they improved the Constitution by providing
> guarantees against state oppression. But Michael's point that they
> gave us "a requirement that states adhere to the guarantees of the
> Bill of Rights" goes to my question. It would have been quite
> simple to draft a provision that stated something along the lines
> that "henceforth, all rights protected against the Federal
> government under the first eight amendments shall also be
> protected against the states." Or perhaps, all rights protected
> by first eight amendments, as well as those other rights that have
> been recogized as the privileges or immunities of American
> citizens, shall be protected against the states. Instead, though
> Michael and others have made a strong case that that's what was
> intended, it is not at all apparent from the text that this is the
> case, and the idea that the 14th Amendment protects all of the
> rights in the BofR against the states STILL has never received a 5
> vote majority among the Justices, and several Justices have written
> learned opinions arguing, that, e.g., the criminal justice
> provisions of the BofR are not covered at all by the 14th Amendment.
> Putting aside the substantive criticisms of the 1789 Constitution,
> perhaps I was too quick to praise their precision. Some language
> about secession, for example, would have come in awfully handy
> around 1860. But the 1789 Framers had a substantially more complex
> task before them, setting up an entire government. All we needed
> from the 14th Amendment Framers was some idea of what rights would
> henceforth be protected against the states, whether through
> Congressional action or judicial interpretation.
> In a message dated 6/6/2007 10:30:19 AM Eastern Daylight Time,
> curtism at bellsouth.net writes:
> David Bernstein asks, "Is it fair to say that the Framers of the
> 14th Amendment were full of good intentions, but compared to James
> Madison and crew, they were not learned in political theory or law,
> and thus were at a loss as to how to write their good intentions
> into law, settling instead for vague generalities that bedevil us
> to this day?" No, that is not a fair assessment. First, the
> framers of the original Constitution and Bill of Rights gave us
> their share of vague generalities that bedevil us to this day.
> E.g., the recent discussion of cruel and unusual punishment,
> unreasonable search and seizure ban, the scope of free speech, the
> meaning of the ban on deprivation of liberty without due process
> (see e.g., the Hamdi case) , the scope of the commerce clause, the
> republican government guarantee, the nature of the 10th Amendment,
> the idea of state sovereign immunity,etc.
> Second, the framers of the Reconstruction Amendments, espeically
> the 14th, gave us a Constitution that was substantially improved
> over that provided by James Madison and crew--a requirement that
> states adhere to the guarantees of the Bill of Rights (or at least
> most, according to the Court); a national standard that states
> provide due process; the great contributions of the equal
> protection clause. And of course, the abolition of slavery.In
> fact, a number of the framers of the 14th were learned in law (and
> no doubt political theory too). Are these guarantees some what
> vague. Yes. That is the nature of many constitutional provisions,
> both in the original Constitution, the Bill of Rights, the 10th
> Amendment, etc.Both sets of framers made substantial
> contributions. Both had their share of "vague generalities." But
> the original constitution with its fugative slave clause
> interpreted as it was in Prigg and its other recognitions of
> slavery; no national standard of free speech thus allowing the
> suppression of anti-slavery ideas in the South, etc. clearly had
> some very significant imperfections.
> Finally, I think the tendency to disparage the framers of the 14th
> comes in large part from the fact that while the South lost the
> war, it won the battle for the interpreation of history for quite a
> long time--with Reconstruction being dismissed as partisan evil,
> the denial of the right to vote to blacks being accepted as
> essentially o.k., etc. See, e.g., "John A. Bingham and the Story
> of American Liberty: The Lost Cause Meets the 'Lost Clause"" 36 U.
> Akron L. Rev. 617 (2003). The more you know about leading framers
> of the 14th Amendment--e.g. Bingham, Howard, & James Wilson, for
> example, the better they look, at least to me. They were struggling
> to bring the nation closer to the ideals of the Declaration and the
> Bill of Rights--and that was a good thing.
> Michael Curtis
> See what's free at AOL.com.
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