The fact remains that the legislation passed between 1866 and 1875 was incredibly radical, reaching to discrimination not just by government but by individuals. And the 1875 Civil Rights Act legislatively banned discrimination in public accomodations and multiple votes in the 1870s had majorities in favor of banning segregation in public schools.
What clearer "original intent" for the meaning of the 14th Amendment do you need than legislation passed by the very legislators who wrote it?
I'm not saying that original intent is the best approach to constitutional law. I'm on record as being against almost all judicial activism in the name of the Constitution, so I don't have that much of a horse in the battle.
But "textualism" doesn't get you much more, and original intent on the 14th Amendment is on our side.
Nathan Newman
----- Original Message ----- From: "andie nachgeborenen" <andie_nachgeborenen at yahoo.com> To: <lbo-talk at lbo-talk.org> Sent: Monday, July 19, 2004 4:15 PM Subject: Re: [lbo-talk] 2d Amendment/Rule of Law (Was: The curse of literacy)
No, it's not flat wrong, it's dead right. Read Bickle's great Harv L. Rev piece on the subject, he waffles b/c he wanted to make Brown sound good to Frankfurter, for which the piece was originally a law clerk's memo, but he gives all the unequivocal textual evidence from the debates you want about how the sponsors and writers expressly opposed "political" and "social" equality as opposed to "civil rights" (to vote, serve on juries, be witnesses, sue and be sued, make contracts and hold propert -- and that's IT). I can't see how anyone reading the debates or Bickle's summary, and bearing in mind that B was trying to make it sound ambiguous, could see it any other way. This Radical Congress was the one that didn't desegregate DC, which was totally under federal control, . . . well, I could go on. But on this point, I think it is Nathan who is mistaken. jks
--- Nathan Newman <nathanne at nathannewman.org> wrote:
> ----- Original Message -----
> From: "andie nachgeborenen"
> <andie_nachgeborenen at yahoo.com>
> >As for legislative history, to take as analogy, we
> >know as well pretty much beyond a any doubt that
> the
> >framers of the equal protection clause did not
> >support, and i=did not intent the 14A to support,
> >integration in schools or public accomomdations.
>
> This is flat wrong.
>
> The very people who enacted the 14th Amendment also
> enacted the 1875 Civil
> Rights Act, which required the integration of public
> accomodations.
>
> They would have included schools as well, since they
> had a majority of
> House and Senate members in support, but filibusters
> by the opposition
> blocked including integration of the schools in that
> 1875 Bill.
>
> But the Radical Republicans who passed the 14th
> Amendment were quite
> radical.
>
> Unfortunately, the quite conservative Supreme Court
> gutted the
> Reconstruction laws and licensed lynchings and Jim
> Crow across the South.
>
> We'd be far better off if the Supreme Court actually
> did pay attention to
> legislative intent in passing the 14th Amendment.
>
> Corporations wouldn't be people under the law and
> Reconstruction wouldn't
> have been ended by judicial fiat.
>
> Nathan Newman
>
> ___________________________________
>
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>
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