Balkinization: The 150th Anniversary of the Fourteenth Amendment

Comments:

"They are either unaware or dismissive of the people who saved the Constitution in 1868."

Some thought and still think it did not truly "save" the Constitution, opposing significant chunks of what the Fourteenth Amendment says and stands for.

I think CSPAN should do more on the Reconstruction and the 14A in particular. They had a few segments, but they focus a lot more in the weekend history segments on the Civil War.

Many of the Landmark Cases series dealt with the 14A. Amy Coney Barrett wrote a law article getting some play that talked about the 14A as well.

https://t.co/0v0CBQwr12

And, not just that early comment.

# posted by

Joe : 11:09 AM

Is there a suggestion in this post that the 14th A incorporated the DoI as least in part?

# posted by

Shag from Brookline : 11:36 AM

This comment has been removed by the author.

# posted by

Joe : 11:44 AM

I think that is a valid statement & some thought the 13A did that as well.

Lincoln on DOI in 1858:

"They erected a beacon to guide their children and their children's children, and the countless myriads who should inhabit the earth in other ages."

He argued it was an idealistic statement that would grow truer in action over time, as events allowed.

Some others also already argued the Constitution should be applied as much as possible in honor of its tenets. Future Chief Justice of the United States Salmon Chase in his argument in Jones v. Van Zandt was a example. Chase argued that state law presumed freedom and that the slave provisions in the Constitution should be applied strictly to honor liberty as much as reasonably possible. The DOI in part was part of the "spirit" infusing the document.

# posted by

Joe : 12:30 PM

It would be fascinating to ask the next SCOTUS nominee for their view of the P&I Clause and whether it enforces the entire BOR against the states.

# posted by

Bart DePalma : 1:32 PM

Alas, that "spirit" had little voice in the Constitution's antebellum days. To a limited extent via common law adopted from the English, states, even some slave states, provided some relief to the slave provisions based on Lord Mansfield's decision in the Somerset case (1772). But that common law relief was not applied in the Dred Scott case (1857). Can it be said that fear of that "spirit" led to the secession movement and the Civil War? That beacon Lincoln referenced in 1858 did not shine very bright.

And how did that "spirit" work out post-Reconstruction until the civil rights movement beginning in the 1950s? And how is that "spirit" working out post-Obama? That "spirit" was not strong enough to ratify the ERA.

I referenced at another thread several article published by constitutional scholars on the DoI on July 4th just past, with some differing views, asking if original public meaning should be applied to its words. The Lincoln quote suggests evolving meaning. Assuming a big takeaway of the DoI is equality, how does America understand and apply equality today?

# posted by

Shag from Brookline : 1:35 PM

Shag: Alas, that "spirit" had little voice in the Constitution's antebellum days...

That voice was a majority of the country and the reason for southern secession and the Civil War.

And how did that "spirit" work out post-Reconstruction until the civil rights movement beginning in the 1950s?

This is why courts should be restricted to enforcing the original public meaning of the the law as written.

how does America understand and apply equality today?

We are one step away from eliminating government racial discrimination. All it will take is a Court majority who will rule that equal means equal.

# posted by

Bart DePalma : 2:31 PM

This Op-Ed in today's NYTimes online: "150 Cheers for the 14th Amendment" By Amanda Bellows, a historian, describes how the 14th A has been applied over the years. Here's the closing paragraph looking to the future:

***

The question remains: How will the Supreme Court interpret the rights promised by this critical amendment in future cases of national importance? We can only hope that, in the words of Frederick Douglass, it will continue to “give full freedom to every person without regard to race or color in the United States.” While 150 years have passed since the ratification of the 14th Amendment, it is not too late to give this powerful document its due.

***

Regarding views of judicial nominees on certain matters, a number of articles of fairly recent reporting note that many nominees all of a sudden seem to be declining furnishing their views on whether Brown v. Bd. of Educ. (Unanimous, 1954) was correctly decided in accordance with the Constitution. I wonder if The Federalist Society and the Heritage Foundation might have influenced this as the Trump Administration seems to rely upon their recommendation for judicial appointments, or whether it reflects the views of the Trump Administration for political reasons. A number of prominent originalists have expressed their views that Brown was correctly decided under the Constitution applying principles of originalism.

# posted by

Shag from Brookline : 2:42 PM

Alas, SPAM's simple "equal means equal" may be the Trump Administration's Manifesto

# posted by

Shag from Brookline : 2:51 PM

In the old days of the Volokh Conspiracy, I would be having a drink right now.

# posted by

Dilan : 3:00 PM

Shag:

The Bingham quote above suggests he knew equal means equal.

# posted by

Bart DePalma : 3:12 PM

The entire Declaration was. likely not included. For instance, it is doubtful that the 14th Amendment would consider Native Americans to be savages.

# posted by

JackD : 3:36 PM

For imbibing, perhaps a popular scotch of my youth might be appropriate:

https://scotchwhisky.com/whiskypedia/2322/black-white/

and even more appropriately for this thread, on the rocks.

# posted by

Shag from Brookline : 3:43 PM

"He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions."

In 1868, many still thought they were savages, and the 'Indians not taxed' language was still included. The people of '76 had some Native Americans on their side, so I guess maybe the DOI didn't mean to include all of them as "merciless Indian Savages."

Anyway, go ahead take a drink anyway, maybe some Tennessee whiskey.

# posted by

Joe : 3:44 PM

JackD is of course correct. The "spirit" of the DoI, its ideal, has to do with all men being created equal, to enjoy freedom and life, liberty and the pursuit of happiness. The meanings of equal and equality are not that simple. The Bingham quote regarding the equal protection clause is not that simple. And the entire 14th A is complex, considering the vagaries and varieties of SCOTUS decisions and the many articles by constitutional scholars over the years.that never seem to end with the vagaries and varieties of originalism that have surfaced over more recent years.

And keep in mind, as the NYTimes Op-Ed points out: "Section 5 of the 14th Amendment gave Congress 'power to enforce, by appropriate legislation, the provisions of this article.'” Note that there is no time limit under Section 5.

# posted by

Shag from Brookline : 4:08 PM

I don't read books anymore because of eyesight issues. I used to read a lot of books. I was lured to this NYTimes Op-Ed a short time ago by its title: "What Is a Southern Writer, Anyway?" by Margaret Renal. It was a nice read in this day and age. Here's a paragraph that ties into my reference to the Trump Administration's Manifesto on equality:

"Great writers everywhere do the same thing, but the South’s legacy of slavery and its overt and enduring racism make the truth a Southern writer speaks especially urgent — never more so than now, when our president and his enablers stoke the lie of white supremacy, in their words and deeds, nearly every day."

# posted by

Shag from Brookline : 4:43 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 5:02 PM

Shag: The meanings of equal and equality are not that simple.

No meaning could be simpler or more enduring. What part of providing everyone the same protections of the law can't you understand? There is absolutely no legitimate ground for the government discriminating for or against anyone on the basis for race - period.

There would be a certain karmic justice if the POTUS Democrats slander as a white supremicist appointed the justices who finally enforced the Constitution's mandate of equal protection under the law.

# posted by

Bart DePalma : 5:40 PM

All animals are equal. Some animals are more equal than others. E.g. "White voters" vs. minority voters" in Texas, Ohio, North Carolina, Michigan, Wisconsin, and Alabama to name a few.

# posted by

JackD : 6:31 PM

SPAM at 5:40 PM closes with this:

"There would be a certain karmic justice if the POTUS Democrats slander as a white supremicist appointed the justices who finally enforced the Constitution's mandate of equal protection under the law."

I do so in case SPAM decides to trash his trashy comment to preserve this portion for posterity.

# posted by

Shag from Brookline : 7:17 PM

Bart:

Was the Freedman's Bureau unconstitutional?

# posted by

Dilan : 8:28 PM

"No meaning could be simpler or more enduring."

That's daft. First, even as a concept it's not simple: does equality mean treating everyone the same or like cases (similarly situated) alike? What does it mean to treat everyone equally when something the government might be interested in can only involve one group and not another (think pregnancy)? Is something like the ADA, which demands different treatment for people, violating or fulfilling equality?

Secondly, the hardest part about any of the broad principles/concepts involved in the Constitution is when and how they are to be applied to concrete situations. Does equality mean blacks and whites must be able to utilize the same schools? Does it mean men and women must utilize the same restrooms (must there be an equal number of restrooms for each? equal size? equal number of toilets? same kind?).

I think when Bart and his ilk says something is 'simple' it's more that they think, and would like to keep thinking, simply about these matters.

# posted by

Mista Whiskas : 8:43 PM

JackD: All animals are equal. Some animals are more equal than others. E.g. "White voters" vs. minority voters" in Texas, Ohio, North Carolina, Michigan, Wisconsin, and Alabama to name a few.

Progressive Democrats invented majority minority districts and argued they were required by the VRA. By all means eliminate them and all other progressive racism.

# posted by

Bart DePalma : 9:36 PM

BD: "No meaning could be simpler or more enduring."

That's daft. First, even as a concept it's not simple...

Once again, go to the text of the Constitution: "No State shall...deny to any person within its jurisdiction the equal protection of the laws."

What persons do you propose to deny the protections of what law?

The reality is progressive Democrats wish to remove any meaning from equal protection to give the government the power to give preference to those groups progressives favor or who favor progressives and to discriminate against groups progressives disfavor or who disfavor progressives.

# posted by

Bart DePalma : 10:01 PM

You're just reverting to current propaganda talking points.

I asked specific questions, can you not answer them?

"First, even as a concept it's not simple: does equality mean treating everyone the same or like cases (similarly situated) alike? What does it mean to treat everyone equally when something the government might be interested in can only involve one group and not another (think pregnancy)? Is something like the ADA, which demands different treatment for people, violating or fulfilling equality?

Secondly, the hardest part about any of the broad principles/concepts involved in the Constitution is when and how they are to be applied to concrete situations. Does equality mean blacks and whites must be able to utilize the same schools? Does it mean men and women must utilize the same restrooms (must there be an equal number of restrooms for each? equal size? equal number of toilets? same kind?)."

# posted by

Mista Whiskas : 10:11 PM

I am still waiting to hear if the Freedman's Bureau is unconstitutional.

# posted by

Dilan : 10:20 PM

I asked specific questions, can you not answer them?

I take that is a rhetorical question.

Just the text, ma'am. Ask Gorsuch and Kavanaugh.

# posted by

Joe : 10:20 PM

Kavanaugh is highly unlikely to answer any questions that might apply a principle to a fact pattern. Principles, in principle, are quite clear. Principles applied to fact patterns are way too messy and originalism says nothing about them at all. Why is it that the 2d Amendment doesn't limit citizens to ownership of smooth bore, muzzle loading long guns and hand guns with ball and black powder?

# posted by

JackD : 10:45 PM

Mr. W:

I am well aware of the the judicially created EPC tests, most of which are designed to rubber stamp unequal progressive policy.

We need to get back to first principles: What persons are being denied the protections of what law?

If equal means equal, all government benefits must be public goods made available to and all taxes, duties or prohibitions of harm must apply to all people within that jurisdiction equally. No more class legislation. No more redistributions of wealth. No more rational relationship test rubber stamping both.

If equal means equal, the EPC prohibits most of the progressive political economy, which as I noted, grants the government the power to give preference to those groups progressives favor or who favor progressives and to discriminate against groups progressives disfavor or who disfavor progressives.

If you believe my description of progressivism is "propaganda," what progressive policies do not fall under the categories of class legislation or redistributions of wealth favoring some and harming others?

# posted by

Bart DePalma : 10:55 PM

SPAM is engaged in propaganda in ignoring so much of America's history of white supremacy that has openly resurfaced with Trump's presidency. It seems clear that for SPAM those were America's MAGA days. As SPAM's forbears might say, "Genug ist genug."

By the Bybee (expletives deleted, despite Gina), just who are SPAM's "POTUS Democrats" that SPAM would accuse of slander? SPAM's screed is that white supremacy is threatened by progressives. Presumably this would include the 16th A?

# posted by

Shag from Brookline : 5:41 AM

By SPAM's standards (more accurately, lack of standards), the 13th, 14th and 15th As were progressive. Also, the 17th and a9th As were progressive. Likewise the 23rd, 24th and 26th As.

# posted by

Shag from Brookline : 7:38 AM

"If equal means equal, all government benefits must be public goods made available to and all taxes, duties or prohibitions of harm must apply to all people within that jurisdiction equally. No more class legislation."

Hmm. So my local government building, with a parking lot that has spaces for the disabled and pregnant women, and restrooms designated for men and women (and one for diaper changes), is in violation of the Constitution in your view?

# posted by

Mista Whiskas : 8:08 AM

Correction: In my 7:38 AM comment "a9th" in the second sentence should be "19th".

How does SPAM propose to undo all these progressive As to the Constitution. SPAM should keep in mind that these progressive As would provide protection after demographic changes to shifted to minority status. Or is SPAM's remedy to somehow avoid demographic changes?

# posted by

Shag from Brookline : 8:23 AM

TRUMP'S CHOICE

Trump's SCOTUS nominee,
Judge Brett Kavanaugh,
Provides Trump's remedy:
That he's above the law.

# posted by

Shag from Brookline : 8:33 AM

Mr. W:

Once again, what persons are being denied the protections of what law?

So long as everyone can use your parking lot, no one is being denied its benefit

# posted by

Bart DePalma : 8:43 AM

Nope. I can't park in the disabled or pregnant spaces (which are the closest and best ones). And I can't use the women's restroom (which is the closest to the door), and since my kids are grown I can't use the diaper change restroom (which is the biggest).

# posted by

Mista Whiskas : 8:58 AM

Shag: By SPAM's standards (more accurately, lack of standards), the 13th, 14th and 15th As were progressive. Also, the 17th and [19th] As were progressive. Likewise the 23rd, 24th and 26th As.

The 13-15, 17, 19, 23-24A are classical liberalism. The 26A simply set the age for the franchise.

Progressives supported the latter amendments because they provided progressive politicians with a contemporary political advantage.

When they gained power, though, progressives moved large swaths of absolute power from the elected branches and courts to the bureaucracy with the express purpose of avoiding our representative democracy and its accountability to the people.

# posted by

Bart DePalma : 9:01 AM

But reserved spaces might as a practical matter deny benefits to some for whom space is not reserved.

# posted by

Shag from Brookline : 9:01 AM

Mr. W:

Under your hypo, the only benefit the law denies you as a healthy male is access to a changing platform in a bathroom. There, you should have an equal protection claim.

# posted by

Bart DePalma : 9:06 AM

Perhaps SPAM can take us back to the days of classic liberalism (whenever that was) to see how classic liberalism addressed the subjects of the 13th, 14th, 15th, 16, 17th, 19th, 23rd and 24th As. In those days of classic liberalism was there anything like the Civil War that led to the 13rh-15th As?

# posted by

Shag from Brookline : 9:11 AM

Mr. W:

Because people construe the term "equal" to suit their own agendas, I agree we need to amend the Constitution to address equal protection at greater length to expressly define public goods; prohibit class legislation, redistributions of wealth and discrimination based on anything but ability; but expressly allow government benefits for those who cannot help themselves - children, elderly and the disabled.

# posted by

Bart DePalma : 9:17 AM

Shag:

Among the bedrock principles of classical liberalism are representative democracy and equal protection. All of your cited amendments fall under these principles.

# posted by

Bart DePalma : 9:20 AM

Bart: "and all taxes, duties or prohibitions of harm must apply to all people within that jurisdiction equally." Just as the law, in its majestic impartiality, forbids rich and poor alike from sleeping under bridges, the tax code provides that both rich and poor, black and white, must pay the higher rate of income tax if they earn a million a year. Similarly smokers and non-smokers, abstainers and alcoholics, must pay excise duties on the cigarettes and whiskey they buy. How do such taxes violate equal treatment?

# posted by

James Wimberley : 9:27 AM

JW: the tax code provides that both rich and poor, black and white, must pay the higher rate of income tax if they earn a million a year.

Ah, but the poor middle class and most of the wealthy do not earn a million dollars a year.

Under our current tax code, the majority compel under criminal penalty a minority of one-fifth of the people to pay nearly three-quarters of the federal tax burden, an amount substantially in excess of their share of the national income and of the government benefits they receive.

Is there a more egregious facial violation of equal protection?

# posted by

Bart DePalma : 9:37 AM

So the antebellum Constitution did not reflect many of classical liberalism's "bedrock principles"? Provide cites for such "bedrock principles." SPAM does not accept that times change, falling back of classical liberalism as engrained in bedrock rather than accepting concepts of progress. But the history of life on earth has been progress.

# posted by

Shag from Brookline : 9:43 AM

"Because people construe the term "equal" to suit their own agendas"

This is just a dodge. I asked *you*, does the parking spots for disabled persons and pregnant women and the different bathrooms for men and women violate the EPC? You said it was simple to understand the EPC so why has it taken you several posts and still no answer to these basic questions on it?

# posted by

Mista Whiskas : 9:49 AM

"Is there a more egregious facial violation of equal protection?"

Lol, this is akin to saying that roads are a violation of the EPC because some people don't use them at all, some use them some and some use them constantly but are still taxed the same for them.

# posted by

Mista Whiskas : 9:50 AM

The 16th A was ratified many years after the 14th A. SPAM's response to JW perhaps suggests that SPAM doesn't accept that the 16th A is constitutional because of the 14th A's EPC.

# posted by

Shag from Brookline : 9:59 AM

BD: "Is there a more egregious facial violation of equal protection?"

Mr. W: Lol, this is akin to saying that roads are a violation of the EPC because some people don't use them at all, some use them some and some use them constantly but are still taxed the same for them.

In what possible way is this analogous with a tax code which imposes the vast majority of the burden on a small minority of the people?

# posted by

Bart DePalma : 10:04 AM

BD: "Because people construe the term "equal" to suit their own agendas"

Mr. W: This is just a dodge. I asked *you*...

Your question, which I answered BTW, is a perfect example of how people construe the term "equal" to suit their own agendas and thus requires the Constitution to more fully address the subject.

# posted by

Bart DePalma : 10:07 AM

You didn't answer at all. Are parking spots for the disabled and pregnant a violation of the equal protection of the law or not? Are separate and different bathrooms for men and women violations of the equal protection of the law or not?

# posted by

Mista Whiskas : 10:31 AM

Mr. W:

8:43 and 9:06 am

# posted by

Bart DePalma : 10:41 AM

Here's Section 1 of the 14th A:

"1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

What is the role of a state under the EPC with respect to federal taxes under the 16th A? Here's what SPAM said in his response to JW:

"Ah, but the poor middle class and most of the wealthy do not earn a million dollars a year.

"Under our current tax code, the majority compel under criminal penalty a minority of one-fifth of the people to pay nearly three-quarters of the federal tax burden, an amount substantially in excess of their share of the national income and of the government benefits they receive.

Is there a more egregious facial violation of equal protection?"

9:37 AM

How does the 14th A's EPC impact federal tax law?

# posted by

Shag from Brookline : 10:47 AM

Those aren't answers. The pregnant and disabled spots are the choice ones and can only be used by the pregnant and disabled. The women's bathroom is closer to the door and is different (more stalls). So, are they violations of equal protection? If you say they are not then you are conceding that the government can treat classes of persons that are seen as differentially situated differently and you've got the answer to your tax complaint. More importantly you can see how this is no simple matter.

# posted by

Mista Whiskas : 10:51 AM

This reminds me of Atticus Finch's closing statement to the jury. In part:

“One more thing, gentlemen, before I quit. Thomas Jefferson once said that all men are created equal, a phrase that the Yankees and the distaff side of the Executive branch in Washington are fond of hurling at us. There is a tendency in this year of grace, 1935, for certain people to use this phrase of context, to satisfy all conditions. The most ridiculous example I can think of is that people who run public education promote the stupid and idle along with the industrious—because all men are created equal, educators will gravely tell you, the children left behind suffer terrible feelings of inferiority. We know all men are not created equal in the sense some people would have us believe—some people are smarter than others, some people have more opportunity because they’re born with it, some men make more money than others, some ladies make better cake than others—some people are born gifted beyond the normal scope of men.

We have advanced past the idea that slaves or even maybe blacks were not among "the people" but "equal" still requires some work. To continue:

“But there is one way in this country which all men are created equal—there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man equal of an Einstein, and an ignorant man equal of any college president. That institution, gentlemen, is a court. It can be the Supreme Court of the United States or the humblest J.P. court in the land, or this honourable court which you serve. Our courts have their faults, as does any human constitution, but in this country our courts are the great levellers, and in our courts all men are created equal.

And, then he later became a supporter of White Citizenship Councils per the eventual release of the "sequel" to "To Kill a Mockingbird."

https://genius.com/Harper-lee-to-kill-a-mockingbird-atticus-finchs-closing-speech-annotated

# posted by

Joe : 11:05 AM

Mr. W:

Your hypo was easy. I answered it in two lines.

Just because you disagree with the answer hardly means the answer was not given.

# posted by

Bart DePalma : 11:09 AM

I still want to know if Bart thinks the Freedman's Bureau violated the EPC.

# posted by

Dilan : 12:11 PM

Dilan:

The Freedman's Bureau was a mixed bag.

Government relief from damages and injury caused by the government's prosecution of the war and made available to everyone should pass muster.

Benefits limited to a single class like emancipated slaves may be problematic depending how they are delivered. For example, the the military government of rebel state built schools for emancipated slaves in order to make the state's delivery of public education equal, then this passes muster. However, the military government is seizing property and giving it to emancipated slaves would not pass muster under equal protection and likely under property rights.

# posted by

Bart DePalma : 12:40 PM

Bart:

Has it occurred to you that the existence of the Freedman's Bureau, and its functions, is some evidence of how equal protection was originally understood?

(To be clear, this isn't a trap. It is possible to distinguish modern affirmative action programs from the FB. But it seems to me the 14th Amendment was originally understood less dogmatically and more flexibly than you see it.)

# posted by

Dilan : 12:53 PM

Dilan:

The actions taken during wars and their aftermath are hardly the best means of interpreting the scope of the rights guaranteed by our Constitution. One of the first casualties of war are our freedoms.

# posted by

Bart DePalma : 1:02 PM

Those aren't answers. The examples I gave are clearly ones where the government treats different people differently. If you see no EPC problem there you shouldn't see it in other examples of the same such as progressive tax rates.

# posted by

Mista Whiskas : 2:09 PM

"One of the first casualties of war are our freedoms."

It's hilarious that Bart is referring to the Freedman's Bureau as a casualty of freedom.

# posted by

Mista Whiskas : 2:11 PM

"The actions taken during wars and their aftermath are hardly the best means of interpreting the scope of the rights guaranteed by our Constitution. One of the first casualties of war are our freedoms."

I think you are recharacterizing the FB into a wartime measure, which isn't really right. It was a slavery reparations measure. The freedmen weren't being compensated for having lived through a war-- obviously lots of whites lived through the same war and in fact, the war was in many ways a net benefit for the freedmen, as it freed them. They were being compensated for the fact that they had been slaves.

And if we are really going to be originalists, I don't think there's any way that the Civil War amendments can be seen as not having anything to do with righting the wrongs of slavery. Again, this doesn't mean that's what it means now, and it doesn't mean that every single program justified by a compensation or diversity rationale that exists now is constitutional or has to be accepted by an originalist. There are sometimes very decent arguments as to why they are distinguishable from post-Civil War reparations.

But it seems to me that you can't claim to be an ORIGINALIST and then say that the EPC is a dogmatic rule that requires precisely color-blind treatment of all people and bars any attempt to compensate a person for any sort of oppressive treatment. That may be a plausible textual interpretation of the 14th Amendment, but it isn't how it was originally understood. The original understanding was there were going to be some programs to compensate former slaves and they were constitutionally permissible.

# posted by

Dilan : 2:50 PM

Mr. W:

You are using the wrong measure. Go back to the text.

# posted by

Bart DePalma : 3:04 PM

Dilan:

Reconstruction was a military occupation government of a conquered wartime enemy.

Equal protection of the law or any other right was not high on the military list of priorities during the occupation.

The rights of former revels was nowhere on the radar of the GOP Congress.

# posted by

Bart DePalma : 3:08 PM

"The rights of former revels was nowhere on the radar of the GOP Congress."

That's not the issue. The issue is what was on the radar screen. And more particularly, under originalism, it is how the guarantee of equal protection was UNDERSTOOD at the time it was enacted.

And what I am suggesting to you is that it was understood as permitting compensatory measures to assist people who had been denied equal protection in the past.

Now, you don't have to be an originalist about this. You can ignore originalism in favor of the text. But that move applies to other parts of the Constitution too- the entire conservative construction of the 11th Amendment involves ignoring the text in favor of alleged originalism.

Part of my problem with conservative judicial philosophies is precisely this flip-flopping back and forth. In fact, there's no simple solution to interpreting the Constitution. Equal protection is not a simple concept, and what it entails requires a great deal of thought, reference to text, philosophy, precedent, and, yes, original understanding. You want it to be simple so you can rule off all sorts of liberal arguments without actually thinking about them and refuting them. It isn't simple. You have to deal with why equal protection might permit some compensatory measures and not others.

# posted by

Dilan : 3:31 PM

Scalia and Thomas have received pushback (e.g., Rick Hasen in his book, as I recall, cites Scalia got pushback from his own clerks; Prof. Eric Segall has written articles arguing neither justice on various issues is "originalist" -- I put quotes since the term is so plastic) for not defending their position on affirmative action on originalist grounds in an adequate fashion.

# posted by

Joe : 4:05 PM

BD: The rights of former revels was nowhere on the radar of the GOP Congress."

Mr, W: That's not the issue. The issue is what was on the radar screen. And more particularly, under originalism, it is how the guarantee of equal protection was UNDERSTOOD at the time it was enacted.

You follow the law as written, not as a drafter or bystander" understood" it.

The term "equal" means the same thing today as it meant then. The problem was the government at that time was not faithfully applying the 14A as they wrote it.

# posted by

Bart DePalma : 5:19 PM

"You follow the law as written, not as a drafter or bystander" understood" it. "

If so then arguments common among conservatives like "Ogberfell was wrong because the people that ratified the 14th certainly didn't think they were protecting gay anything" are of course wrong.

# posted by

Mista Whiskas : 7:28 PM

Mr. W:

Of course.

# posted by

Bart DePalma : 8:37 PM

SPAM's "Of course." response to Mr. W suggests that for SPAM it's textualism uber originalism? (Except, of course, when neither fulfill SPAM's desires, when he goes off all Humpty-Dumpty.)

# posted by

Shag from Brookline : 9:33 AM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:35 AM

Dilan: You can ignore originalism in favor of the text. But that move applies to other parts of the Constitution too- the entire conservative construction of the 11th Amendment involves ignoring the text in favor of alleged originalism. Part of my problem with conservative judicial philosophies is precisely this flip-flopping back and forth.

If interpretation is performed properly, there is no flip-flopping.

Centuries of Anglo/American law established basic rules for interpreting text from contracts, legal documents and laws.

Unless ambiguous, the Court enforces the text as written under the original meaning of the words and phrases.

If ambiguous, the Court may consider parol evidence such as intent and practice of the parties.

# posted by

Bart DePalma : 9:57 AM

This is, as an historical-empirical matter, nonsense. Take the Statute of Frauds, a touchstone of contract law. Almost immediately after it was passed the courts of equity set upon it with exceptions not demanded in the text. The Founders knowledgeable in law were of course familiar with this.

# posted by

Mista Whiskas : 10:01 AM

SPAM's closing in response to Dilan at 9:36 AM:

"If ambiguous, the Court may consider parol evidence such as intent and practice of the parties."

may be appropriate for purposes of contract law, but by what magic would our Humpty-Dumpty of meaning/interpretation discern such from a collective group such as the Framers AND even larger group of the Ratifiers of the Constitution and amendments thereto?

# posted by

Shag from Brookline : 10:05 AM

Mr. W:

"If interpretation is done properly" being the money quote.

The problem is how to compel courts to do so, especially with ideological judges who lie about applying the law as written and who are in fact committed to rubber stamping or imposing their preferred policy?

Professional standards, laws or even a constitutional provision (my preference)?

Accountability through appeals, elections and/or impeachment?

# posted by

Bart DePalma : 10:07 AM

Mr. W: The Founders knowledgeable in law were of course familiar with this.

The Founders considered the courts to be the weakest branch and had no apparent clue how judicial power would be abused in the future.

# posted by

Bart DePalma : 10:09 AM

Shag, it seems to me that the 'textualism' described leaves lots of room, indeed it demands, what Brett objects to as a 'living Constitution.' The Constitution charges us to police government actions for concepts such as 'reasonableness,' 'cruelty,' etc., and, indeed, these terms or concepts 'means the same thing today as [they] meant then.' But of course how the concepts apply to modern situations with modern understandings and knowledge may require different applications than the writers/ratifiers expected or 'understood.' It may have been 'reasonable' for police to use deadly force to stop fleeing suspected felons when the IV was written, but in today's world where a felony could mean not getting the correct permit to develop your property that's no longer 'reasonable.' Likewise, flogging the retarded might not have seemed prohibitively cruel to the writers/ratifiers of the VIII, but with our modern knowledge and sensibilities most would find it 'cruel.' The word 'cruel' or 'reasonable' didn't change meanings in time, but the application of the concepts commonly will. I submit that most of what is decried as 'living constitutionalism' is just this common sense idea about the application of general concepts to changing understandings of specific fact patterns.

# posted by

Mista Whiskas : 10:10 AM

"The Founders considered the courts to be the weakest branch and had no apparent clue how judicial power would be abused in the future."

But, as you say, this is irrelevant. What's important is what they *wrote*: "The judicial Power shall extend to all Cases..."

# posted by

Mista Whiskas : 10:12 AM

BD: "If ambiguous, the Court may consider parol evidence such as intent and practice of the parties."

Shag: may be appropriate for purposes of contract law, but by what magic would our Humpty-Dumpty of meaning/interpretation discern such from a collective group such as the Framers AND even larger group of the Ratifiers of the Constitution and amendments thereto?

Scalia's point exactly and one with which I generally agree.

However, where constitutional text is truly ambiguous, there is no real alternative apart from declaring the provision void for vagueness.

# posted by

Bart DePalma : 10:12 AM

"there is no real alternative apart from declaring the provision void for vagueness"

The court should invalidate a Constitutional measure passed via a supermajority process as 'void for vagueness?' Talk about judicial supremacy!

# posted by

Mista Whiskas : 10:18 AM

The recent travel ban case reaction is so interesting to me. Ostensible libertarians and small government conservatives celebrating a ruling based on the 'plenary power' which is, at best, rooted in implication from text (the precedent utilized doesn't even pretend that) and is as deferential and broad to the federal government as a barn. This is yet another indicator that their ostensible principles are conveniences at best.

# posted by

Mista Whiskas : 10:26 AM

BD: "there is no real alternative apart from declaring the provision void for vagueness"

Mr W: The court should invalidate a Constitutional measure passed via a supermajority process as 'void for vagueness?' Talk about judicial supremacy!

Precisely.

On the rare occasion when the text of a constitutional provision is truly ambiguous, there is no alternative to considering parol evidence of original intent.

# posted by

Bart DePalma : 10:26 AM

Mr W:

Article I grants Congress specific powers to regulate commerce and naturalization.

Article II grants POTUS general CiC and executive powers.

The specific former trump the general latter.

The travel ban order easily passed constitutional muster because barring entry from nations occupied by a wartime enemy is well within POTUS's CiC power and Congress's statutory word on the matter granted the POTUS extremely broad discretion.

# posted by

Bart DePalma : 10:32 AM

The 'void for vagueness' doctrine is judicially created, not textual.

# posted by

Mista Whiskas : 10:57 AM

"Article I grants Congress specific powers to regulate commerce and naturalization."

That's not migration.

"The travel ban order easily passed constitutional muster because barring entry from nations occupied by a wartime enemy"

We are not at war from any of the countries listed.

# posted by

Mista Whiskas : 10:59 AM

So, you're outside the text here.

# posted by

Mista Whiskas : 10:59 AM