Brown v Board & the14th Amendment

Posted: October 14, 2012 in Constitution, Evolution, Government, Lincoln

This was originally a part of the Multiregionalism and Race essay.  Because there was a long discussion in the comments section, I’ve decided to keep the relevant part of the essay here under the above title:

6.  Who was Carleton Putnam?

In the 1950s, many States in the United States still required racial segregation in schools and in other facilities, such as restaurants.  In this way, white society tried to exclude blacks from social interaction with whites.  I’m a white guy―at least from what I have been able to discern by way of visual inspection―but I’m sure if I had been around at that time, I would have been excluded just on general principle.

There are pictures from that era and even later times of white versus colored water fountains, or white versus colored bathrooms, or white versus colored basketball players―though I think I may be on good grounds in questioning whether there ever were white basketball players.  Such pictures have probably been faked and are part of a conspiracy to put whites into basketball games, for which they have no aptitude, and for which they have no native traditions in their own homelands that encourage basketball among native white children.

It is my opinion that most of the white vs. colored pictures sort of look like morality tales about how benighted things were in the past compared with our supposedly more enlightened age.  I can’t help but think there is a certain amount of self-righteousness at work in those who like to point out the sins of our forefathers, as if we have always been pure from sin and historically enlightened.  Modern “progressive” historians in their discussion of past racism often do so with a level of social self-righteousness that reminds one of the Pharisee who prayed thus, “God, I thank thee, that I am not as other men are. . . .” (Luke 18:11).

In 1954 the Supreme Court of the United States rendered the Brown v. Board of Education decision that ended any and all school segregation in the United States based on race.  Prior to that time, the Court had upheld laws requiring separate but equal facilities: schools, universities, law schools, etc.  For instance, under the separate but equal principle if a State was going to have a white only law school, it would have to provide a law school of equal caliber for blacks.  If a State chose not to set up a segregated institution, and blacks were allowed to attend a white institution, there could be no discrimination against blacks who attended such a school.

Now, the Supreme Court’s separate-but-equal decision was more or less in keeping with the 14th Amendment.  Many people might not want to admit that fact, but then again many people do not want to admit that they enjoy a Charlie Sheen meltdown, or that they like to make genitalia jokes about Congressman Anthony Weiner mainly because of his last name, or that a Richard Simmons’ exercise video causes them to smile in a sickly way.  The fact is, the 14th Amendment only protected a black man’s fundamental rights (life, liberty, and property) not other political rights.  It was very limited in its focus, which is why another amendment was required to recognize the black man’s right to vote.

Many blacks were not satisfied because the 14th Amendment still allowed segregation and discrimination, and blacks who were represented by the NAACP wanted the Court to rule against all school segregation.  The Court obliged the NAACP in the Brown decision, which from our perspective was a wonderful decision in terms of its concordance with the Declaration of Independence.  Thomas Jefferson had nicely encapsulated the American principle―that all men are created equal, but that was only in theory.  It took a dreadfully long time for the American principle to be realized in fact.

Nevertheless, the Declaration of Independence is not the law of the land.  Despite the Court’s high-mindedness and good intentions, its decision was based upon specious reasoning about the 14th Amendment, bogus psychological studies, and worst of all, a lack of any Constitutional authority.  Under the Constitution, Supreme Court judges cannot set domestic policy for States, for such would be a violation of the 10th Amendment.  I’m not saying Judges don’t do it (to their shame) but they still don’t have the right to do it whatever they might say or do otherwise.  I can certainly rule anyway I like, but that’s because Judges are respectable folk in the community, and I do not have a reputation of that kind to worry about.

Unfortunately, the Judges decided to settle the controversial issue in much the same way Justice Taney had settled the slavery issue in Dred Scott, getting the result that was wanted no matter if it was based on flimsy grounds, and a rewriting of American history.  Still, the Brown decision is with us and even if the Court were to overturn the decision in the future, there is simply no way that schools or society would ever go back to segregation.

I would have preferred that race relations could have improved voluntarily and peacefully over the years, but the Judges blocked off the peaceful route and imposed their will on a society that was not ready for it.  The results were catastrophic.  The Court was allowed to get away with an un-Constitutional usurpation of power, and as a result race relations went downhill, black educational quality and achievement in schools reached bottom, and white flight from urban areas guaranteed that inner-city schools would be all black, a return to segregation with lower standards than before.

The Brown decision did not just worry those who saw raw “judicial activism” in the Court’s behavior.  It also lit a fire under Carleton Putnam, a Yankee businessman, who felt the need to defend the South against what he saw as Northern aggression.  In Putnam we have the segregationist mindset in full blossom, and it was mixed with a poisonous racialism that helped to discredit legitimate opposition to the concept of rule by judicial decree.

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Comments
  1. David says:

    I found it impossible to get beyond the fifth paragraph of this. Why? Becuase that’s the paragraph wherein one finds this:

    “The fact is, the 14th Amendment only protected a black man’s fundamental rights (life, liberty, and property) not other political rights.”

    Where shall I begin? Life, liberty and property aren’t political rights at all. Political rights are voting and running for office. So to be correct you’d have to say the amendment didn’t address political rights at all.

    But there’s more. The amendment didn’t just require the States follow the same due-process rules as the US government; it stated that all persons under a state’s jurisdiction had to get the same protection of its laws. Reread your own piece:

    “if a State was going to have a white only law school, it would have to provide a law school of equal caliber for blacks. If a State chose not to set up a segregated institution, and blacks were allowed to attend a white institution, there could be no discrimination against blacks who attended such a school.”

    Now, I’m not going to disagree that the Brown case was decided on faulty reasoning. But you can’t argue in favor of the constitutionality of ‘seperate but equal’ and ignore the actual inequality of the historical practice. And neither could the Court.

    • Vern Crisler says:

      Wow, of all the things to disagree with in my essay. I’d recommend you read my other essay entitled “Incorporation” under the Politics & History category on this blog. It discusses the 14th amendment and its original interpretation. Or even better read Raoul Berger’s “Government By Judiciary.”

      http://www.amazon.com/Government-Judiciary-Raoul-Berger/dp/0865971447/ref=sr_1_sc_1?ie=UTF8&qid=1350605050&sr=8-1-spell&keywords=government+by+judiary

      The Declaration is clear that life and liberty were AMONG the basic rights, not the only ones. They are just more basic than other political rights, and without which none of the other political rights would have any meaning. In any case, I think you are getting hung up on terminology.

      After the 14th Amendment was ratified, the government still had segregated schools and blacks still couldn’t vote, so it was very limited in its focus, despite some of the rhetoric that was used to sell it during ratification.

      • David says:

        Well, yes, I am getting hung up on terminology. In both law and philosophy precision in terminology means a great deal. The phrase “political rights” refers to refers to acts associated with participation in governance. More general rights like life and property do not belong to the category.

        I do not dispute that the judiciary has for a long time refused to be bound by the original meaning of constitutional provisions. As such it is unsurprising that the 14th amendment is often misapplied. My objection turns on this statement:

        “The fact is, the 14th Amendment only protected a black man’s fundamental rights (life, liberty, and property) not other political rights.”

        I disagree in two ways:

        First, the amendment doesn’t protect life, liberty, and property per se. It simply demands that proper due process be granted before these are denied. While we all know what it means to deny someone his life, liberty and property are nowhere defined in the Constitution. They are simply what a man is generally allowed to do or own within the State; No philosophical sense of these rights as fundamental (as opposed to other non-fundamental rights) is given.

        This may seem like nit-picking. The amendment does what you imply: it grants non-whites the same legal protection for their lives, liberties and properties as whites. However, it cannot guarantee that society and the state will respect human life, human liberty, and the right to property as it morally should.

        Second, the amendment contains an equal protection clause; Your essay largely ignores this. And this is the really important point. The State’s were using their option to have seperate facilities to keep blacks in inferior position, which is not granting the same protection of the laws.

        • Vern Crisler says:

          I agree that no law can guarantee that society or state will obey the law, but that is a different issue from what the law actually means. Also, the States were keeping separate facilities because they knew that the equal protection clause only had reference to fundamental rights, not to other political or social rights. If the 14th Amendment had meant the equal protection clause to apply to ALL rights, there would have been no need for the 15th Amendment. In addition, the Reconstruction Congress that passed the 14th Amendment approved of segregated schools even after passing the 14th Amendment. So it’s obvious the Reconstruction Congress was still largely segregationist in its outlook, which would make no sense under your interpretation of the Amendment.

          Of course, getting hung up on terminology is also known as being pedantic. I’d recommend you read Raoul Berger’s “Government By Judiciary” who discusses the terminology pretty thoroughly. The fundamental rights are also known as “Blackstone” rights and it’s pretty commonplace in 18th century discussions of rights.

          • David says:

            I am either failing to communicate properly or failing to be heard…

            I shall do my best to rectify the situation either way. This is my second attempt to reply; I was a good way into my first when I accidentally hit something on the keyboard and closed the window. (God… Computers can be such a pain.) I mention this only so you will know my determination to be understood.

            I did not argue that a law cannot guarantee its being obeyed. (This should be an obvious point anyway.) I was essentially stating why “the Declaration of Independence is not the law of the land.” No such general statement of human rights would ever be fit to be a law. Put another way: If the Declaration’s statements on rights were encoded into a law, we would have a law that was essentially meaningless. There would be no definition therein as to what are and aren’t proper forms of liberty and property. We have a myriad of actual laws that attempt to do just that.

            What the 5th and 4th amendment’s protect is due process. They do not protect life, liberty, or property as more basic or fundamental over and above other types of rights. (Whatever other right “types” one might imagine. Indeed, the three categories are meant to be exhaustive of all the ways a person might be punished.)

            “If the 14th Amendment had meant the equal protection clause to apply to ALL rights, there would have been no need for the 15th Amendment.”

            Here you are comparing apples to stone pineapples (if I may be so colorful). Genuine political rights like voting are always understood as a special class. Children have no political rights, yet they are not exempt from the amendment’s equal protection requirement.

            This all brings us to what appears to be the heart of the disagreement:

            “the States were keeping separate facilities because they knew that the equal protection clause only had reference to fundamental rights, not to other political or social rights.”

            This is wrong entirely. The equal protection clause makes no reference to rights of any kind. It is a demand that the States not make arbitrary distinctions between people in the making and applying of all their laws. Whether the legal distinctions concern rights, duties, punishments, or any other matter, they all fall under the clause.

            Now you can bring this up against me:

            “the Reconstruction Congress that passed the 14th Amendment approved of segregated schools even after passing the 14th Amendment. So it’s obvious the Reconstruction Congress was still largely segregationist in its outlook, which would make no sense under your interpretation of the Amendment.”

            However, this is nonsense. Look at your own reply: “that is a different issue from what the law actually means.” Indeed so. But here the different issue isn’t about whether or not a law can ensure its own enforcement; it is the attitudes of Congress’ members to segregation per se versus the meaning of the amendment they sent to the States. Each is wholly irrelevant to the other. In short, what Congress meant to say doesn’t matter. What matters is what they actually said.

            Now that I’ve said all this I need to be even more precise. I largely agree with you here:

            “Despite the Court’s high-mindedness and good intentions, its decision was based upon specious reasoning about the 14th Amendment, bogus psychological studies, and worst of all, a lack of any Constitutional authority.”

            Where I disagree is that the 3rd point is worse than the 1st. Actually, specious reasoning by a court will lead to actions lacking proper judicial authority. Anyhow … I don’t disagree here either:

            “The Court was allowed to get away with an un-Constitutional usurpation of power, and as a result race relations went downhill, black educational quality and achievement in schools reached bottom, and white flight from urban areas guaranteed that inner-city schools would be all black, a return to segregation with lower standards than before.”

            Where I disagree is the implication that the Court’s stupidity means the Jim Crow segregation regime was constitutional. You have either missed or chosen to ignore that this was my point all along. Reread my first comment:

            “Reread your own piece:
            “’if a State was going to have a white only law school, it would have to provide a law school of equal caliber for blacks. If a State chose not to set up a segregated institution, and blacks were allowed to attend a white institution, there could be no discrimination against blacks who attended such a school.’
            “Now, I’m not going to disagree that the Brown case was decided on faulty reasoning. But you can’t argue in favor of the constitutionality of ‘seperate but equal’ and ignore the actual inequality of the historical practice. And neither could the Court.”
            And my second:

            “The State’s were using their option to have seperate facilities to keep blacks in inferior position, which is not granting the same protection of the laws.”

            You cannot argue that segregation was okay as long as facilities were equal and then ignore this point. Up to the 1950’s the federal judiciary (and Congress) did ignore it. That they acted improperly once they started paying attention doesn’t alter the unconstitutional nature of what the Jim Crow States were doing.

            • Vern Crisler says:

              David, I don’t mean to be rude, but I believe you are seriously lacking in a knowledge of the history of the 14th Amendment. Again, Berger’s book goes into the history in exhaustive detail. (After all, he was a law professor.) Berger was a liberal Democrat and a favorite of liberals during the 70s because of his book on impeachment.

              I’d also point out that I’m not discussing the morality of Jim Crow or segregation. All Christians must regard such practices as immoral. However, what is moral is not always what is Constitutional. The Constitution, like it or not, was a compromise between northern and southern States, and therefore only imperfectly expressed the morality of the Declaration. The same goes for the 14th Amendment. It did great things, but it didn’t do everything, and that’s why we had segregation for many years after its passage.

              • David says:

                I don’t find you rude, but I must disagree all the same.

                The history of the 14th amendment is probably better known than that of any other. But it is beside the point. I don’t care about its history; I care about it, which is to say its text.

                Every legal provision ever passed has a history. That history does not alter the plain meaning of the provision’s text, however. We can look to the history whenever the meaning is unclear, but a law says what it says regardless of the intents of any of its authors.

                Turning back to the 14th amendment: If we look at the first section we find a repitition of the 5th amendment’s due process requirement, and an equal protection of the laws clause. It is this latter that caused you to write:

                “if a State was going to have a white only law school, it would have to provide a law school of equal caliber for blacks.” [1]

                Which is all well and good. In theory there is nothing wrong with such seperate facilities. The problem arises with the practice. Hence I wrote:

                “The State’s were using their option to have seperate facilities to keep blacks in inferior position…” [2]

                My point is you either have to deny your original assertion about the seperate but equal regime, [1], or dispute my assertion [2] in order to argue that Jim Crow segregation was constitutional. I don’t know why you’d want to change direction and deny the first, which was the actual theory behind the amendment’s application. But likewise, you can’t realistically dispute the second, which was the actual legal-historical situation in the Jim Crow South.

                Having recognized this disparity between theory and practice doesn’t mean that the Court’s decision in Brown was correct. Your piece, however, seems to be saying the Court should have done what it had done previously: ignore the disparity. (I am not saying that would be your actual preference, just that the piece gives that impression.) Hence my objection. I hope I have finally succeeded in making myself plain.

                “I’d also point out that I’m not discussing the morality of Jim Crow or segregation.”

                Yes. Of that I was aware. Nor was I discussing their morality; only their constitutionality.

  2. David says:

    Let me also comment on this:

    “Of course, getting hung up on terminology is also known as being pedantic. I’d recommend you read Raoul Berger’s “Government By Judiciary” who discusses the terminology pretty thoroughly. The fundamental rights are also known as “Blackstone” rights and it’s pretty commonplace in 18th century discussions of rights.”

    Yes, I was being pedantic – on purpose. I explained why.

    I can read Beger’s book, but I doubt I need to. I am already well aware of how much power the judiciary has taken for itself.

    As for “fundamental” or “Blackstone” rights – however common such terms were in eighteenth century discussions of rights, they aren’t all that germaine to the sort of legal discussion here. The Constitution, for instance, protects certain rights – free speech and due process for instance – but doesn’t label any rights more fundamental than others.

    • Vern Crisler says:

      Again, Berger discusses this at length. This distinction may not mean anything today, but it meant a lot at the time of the Constitution and also at the time of the 14th amendment.

      • David says:

        I may sometime read Beger’s study. However, I think we have a misunderstanding.

        Legal distinctions that were of decisive importance at the time of a law’s adoption should remain so decisive as law as said law remains in effect. My point is that those fundamental rights given in the Declaration are not — and cannot — be directly protected by any single legal provision, constitutional or otherwise. They are too broad and vague. We have numerous legal provisions, both constitutional and statutory, dealing with the protection of liberty and property. We don’t have them just because legislators enjoy mulitplying laws (although I’ve no doubt that they do).

        • Vern Crisler says:

          “The history of the 14th amendment is probably better known than that of any other. But it is beside the point. I don’t care about its history; I care about it, which is to say its text.”

          “but a law says what it says regardless of the intents of any of its authors.”

          And that’s where I have to disagree. I don’t agree with “textualism” — the idea that you can understand the meaning of the Constitution apart from its historical context, or the intent of its authors. As Madison said, you understand the meaning of the law by understanding what it meant to the ratifiers, then the Congress, and then the authors.

          I disagree with you that the main intent of the States with respect to schools was trying to keep blacks in inferior positions. On the contrary, what they were trying to do was keep them SEPARATED from whites. In some cases, so desirous were they of keeping segregation that the quality of the black schools was superior to that of the white schools.

          I don’t get all this talk about a contradiction in my thought on the subject. The basic point I made is that the 14th Amendment only protected the black man’s most fundamental rights, not other political rights, and that is what the earliest Court interpretations said, and that’s why segregation continued on almost a hundred years after the 14th Amendment. The 14th Amendment reflects Lincoln’s political philosophy, to be sure, but even Lincoln did not accept the idea of an integrated society. After all, these guys were not 1960s liberals.

          The Supreme Court of the 1950s ignored history and struck down the separate-but-equal interpretation of the 14th. In fact, they had no Constitutional authority to do that, any more than Judge Roberts had the right to rewrite Obamacare to make it conform to the Constitution. The separation of powers doctrine, which is the presupposition of the Constitution, does not allow the Supreme Court to make the laws of this country. That’s the business of the people acting through their respresentatives.

          Who knows what the history of race relations might have been like if the Court had butted out and allowed the people to gradually become more enlightened over time? It might have taken a little while longer, but I suspect things would be a lot better today for both blacks and whites if free people had decided on their own to live up to the morality of the Declaration. That choice was taken away from them, however, by the well-intentioned but impatient little dictators of the Supreme Court.

          • David says:

            “I don’t get all this talk about a contradiction in my thought on the subject.”

            Yes, I can easily believe that. And therein lies most of the problem. But first things first.

            I did not say, nor did I mean to imply, that a law can be understood when abstracted from its historical context. I did, after all, say that “we can look to the history whenever the meaning is unclear.” But the historical context of a law and the intent of its many authors are not the same things.

            Take this example: A legislature decides to make a law determining on which side of the roads people should drive their cars. This is itself the historical context. Now looking at the expressed words of the legislators themselves we discern their intent is for people to drive on the right. However the text of the law they end up passing says people should drive on the left. What then is the law? The legislator’s expressed intent, or the act’s text?

            This is what I’m getting at. Of course in the real world the situation will usually be worse than in this hypothetical as no single intent can necessarily be discerned from the actions of the many members of a legislature.

            As for the segregation of the schools, I also didn’t say that was solely for keeping blacks in an inferior position. I said that the entire Jim Crow regime that the US Government finally began to attack in the 1950’s and 1960’s served that purpose. (But still, even the case you mention: “In some cases, so desirous were they of keeping segregation that the quality of the black schools was superior to that of the white schools,” would be unconstitutional.) When confronted with the truth that seperate but equal was really seperate and unequal it isn’t surprising that the Court decided a change in directions was called for. The correctness of such a decision does not in itself assure the correctness of what the Court actually did, however. It only means the Court needed to stop ignoring the inequalities that Jim Crow presented.

            “The basic point I made is that the 14th Amendment only protected the black man’s most fundamental rights, not other political rights, and that is what the earliest Court interpretations said, and that’s why segregation continued on almost a hundred years after the 14th Amendment.”

            What SPECIFIC rights the amendment protects or does not is irrelevent to the equal protection clause. This is quite clear from the amendment itself, all judicial interpretation notwithstanding.

            Now back to your not getting my implication of contradiction on your part. You asserted: ““if a State was going to have a white only law school, it would have to provide a law school of equal caliber for blacks.” Whether this falls under “the black man’s most fundamental rights” or not is beyond the point for me. Yet the indisputable fact remains that the Jim Crow states did not provide the equal protection of the laws to their black residents. The federal judiciary (and the rest of the US government) had ignored this for decades. Your piece implied this was the case and yet also that it should have continued to be the case!

            That segregated facilites do not per se violate the amendment does not mean that they can never violate the amendment. For segregation to be in concord with the amendment, it must be equal at all times and in all cases. You steadfastly ignore that this simply wasn’t so, even as you have to admit it wasn’t so (see your above quote). Which brings us to this:

            “The Supreme Court of the 1950s ignored history and struck down the separate-but-equal interpretation of the 14th. In fact, they had no Constitutional authority to do that”

            The separate but equal doctrine is nowhere to be found in the 14th amendment. It is the invention of the judiciary itself. Part of its job is to promulgate neutral rules for the application of legal provisions such as the 14th amendment. (Which is what the separate but equal doctrine was meant to be.) However, what the judiciary creates it can destroy. If the Court decided this rule was mistaken to begin with, or was no longer feasible, it was within its authority to unmake it.

            I wish to be very clear here: I am no fan of the judiciary usurping legislative authority. (Which, unfortunately, it does frequently — and with near impunity.) However, making and revising — or replacing — rules for constitutional or statutory application is well within judicial authority. Overruling separate but equal falls into this category.

            “Who knows what the history of race relations might have been like if the Court had butted out and allowed the people to gradually become more enlightened over time?”

            This statement assumes a great deal. It assumes that Americans would have become more enlightened — and in a peaceful manner — in spite of decades of stubbornly resisting doing so. It also assumes that the Court could have done nothing other than issue the ruling it did or simply stick with its previous behavior — a thesis I reject.

  3. Vern Crisler says:

    David: I did not say, nor did I mean to imply, that a law can be understood when abstracted from its historical context. I did, after all, say that “we can look to the history whenever the meaning is unclear.” But the historical context of a law and the intent of its many authors are not the same things.

    Vern: But you said very clearly that: “The history of the 14th amendment is probably better known than that of any other. But it is beside the point. I don’t care about its history; I care about it, which is to say its text.” Also, “We can look to the history whenever the meaning is unclear, but a law says what it says regardless of the intents of any of its authors.”

    Vern (continued): I cannot make sense of your idea of looking to history if the meaning of a law is unclear, but then not taking the intent of its authors into account. You yourself say — “I don’t care about its history” — so why care about looking into history to search for meaning? Your juridical philosophy is a bit opaque to me.

    David: Take this example: A legislature decides to make a law determining on which side of the roads people should drive their cars. This is itself the historical context. Now looking at the expressed words of the legislators themselves we discern their intent is for people to drive on the right. However the text of the law they end up passing says people should drive on the left. What then is the law? The legislator’s expressed intent, or the act’s text?

    Vern: This is a far-fetched example. A law that did not express the will of the Congress could easily be amended through a technical corrections act. But there is no secret as to whose meaning is deferred in such cases. The authoritative meaning is the meaning as understood by the ratifiers of the provision. James Madison said:

    “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founder, will I believe appear to all unbiased enquirers into the history of its origin and adoption.” (James Madison, letter to Henry Lee, 1824; emphasis added.)

    Vern (continued): As can be seen, any intepretation of the meaning of a Constitutional provision that is not in accord with how it was understood by its ratifiers is not a legitimate interpretation. This is why your version of textualism (or any version of textualism for that matter) is untrue to the founders’ view of Constitutional construction.

    David: This is what I’m getting at. Of course in the real world the situation will usually be worse than in this hypothetical as no single intent can necessarily be discerned from the actions of the many members of a legislature.

    Vern: This is simply not true. There were plenty of debates both in the Congress and in the State ratifying conventions regarding the meaning of Constitutional provisions. Plus, we have the Federalist Papers we can go to for guidance as well, and also the anti-Federalist writings to see how opponents of the Constitution interpreted its words.

    David: When confronted with the truth that seperate but equal was really seperate and unequal it isn’t surprising that the Court decided a change in directions was called for. The correctness of such a decision does not in itself assure the correctness of what the Court actually did, however. It only means the Court needed to stop ignoring the inequalities that Jim Crow presented.

    Vern: As I said, the separation of powers doctrine in this country means that the Court has no business deciding for a “change in directions.” That is the prerogative of the people through their elected representatives, not of the Court.

    David: What SPECIFIC rights the amendment protects or does not is irrelevent to the equal protection clause. This is quite clear from the amendment itself, all judicial interpretation notwithstanding.

    Vern: This is wrong. The 14th Amendment has a limited, specific number of rights in view, viz. the Blackstone rights. In recent years, however, the Court has “developed” what’s called “substantive due process” in which it has usurped powers beyond anything originally intended in the 14th Amendment. See, http://www.stanford.edu/group/psylawseminar/Substantive%20Due%20Process.htm

    David: Yet the indisputable fact remains that the Jim Crow states did not provide the equal protection of the laws to their black residents. The federal judiciary (and the rest of the US government) had ignored this for decades. Your piece implied this was the case and yet also that it should have continued to be the case!

    Vern: To the extent that Jim Crow laws violated a black man’s fundamental rights, they were unconstitutional. However, segregation did not in itself violate those fundamental rights. Remember, the same Congress that passed the 14th also passed laws segregating schools in the District of Columbia, their own ballpark so to speak. This little fact does not seem to make any impression on your argument. It did for Justice Brown, in the Plessy case. He understood the 14th Amendment in the same way that the Reconstruction Congress understood it:

    “The object of the amendment was undoubtedly to enforce the absolute equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguish d from political, equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation, in places where they are liable to be brought into contact, do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power. The most common instance of this is connected with the establishment of separate schools for white and colored children, which have been held to be a valid exercise of the legislative power even by courts of states where the political rights of the colored race have been longest and most earnestly enforced.” (Plessy v. Ferguson, 1896.)

    David: That segregated facilites do not per se violate the amendment does not mean that they can never violate the amendment. For segregation to be in concord with the amendment, it must be equal at all times and in all cases. You steadfastly ignore that this simply wasn’t so, even as you have to admit it wasn’t so (see your above quote). Which brings us to this:

    Vern: I don’t understand this.

    David: The separate but equal doctrine is nowhere to be found in the 14th amendment. It is the invention of the judiciary itself. Part of its job is to promulgate neutral rules for the application of legal provisions such as the 14th amendment. (Which is what the separate but equal doctrine was meant to be.) However, what the judiciary creates it can destroy. If the Court decided this rule was mistaken to begin with, or was no longer feasible, it was within its authority to unmake it.

    Vern: On the contrary, the court did not invent the separate but equal doctrine. The separate but equal doctrine was presupposed by both the Reconstruction Congress who passed the 14th Amendment, and the ratifiers who ratified it. The separate but equal decision in Plessy merely stated explicitly what was already implicit in the Amendment. I once again point to the little fact that the same Congress who passed the 14th also passed laws segregating schools in the District of Columbia. (All other schools in the U.S. were under State jurisdiction and were already segregated. The District of Columbia was a federal property and was thus subject to federal oversight). I just don’t see how you can continue to ignore this.

    David: I wish to be very clear here: I am no fan of the judiciary usurping legislative authority. (Which, unfortunately, it does frequently — and with near impunity.) However, making and revising — or replacing — rules for constitutional or statutory application is well within judicial authority. Overruling separate but equal falls into this category.

    Vern: I disagree, and most historians who are honest about the history of the 14th Amendment will also disagree. The Court’s overruling of Plessy was a lot more than just replacing a rule for constitutional or statutory application. It was an act of brazen judicial usurpation, one that ignored both the original historical context of the Amendment and also how the earliest Courts interpreted it.

    Vern had said: “Who knows what the history of race relations might have been like if the Court had butted out and allowed the people to gradually become more enlightened over time?”

    David: This statement assumes a great deal. It assumes that Americans would have become more enlightened — and in a peaceful manner — in spite of decades of stubbornly resisting doing so. It also assumes that the Court could have done nothing other than issue the ruling it did or simply stick with its previous behavior — a thesis I reject.

    Vern: Nevertheless, the Court usurped a right that belongs only to the people, so now we will never know how things would have turned out. As Justice Brown said regarding the power of law to produce a change of heart: “The argument also assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.” (Plessy v. Ferguson.)

    In our system of government at least as it was originally set up, pragmatic necessity does not overrule constitutional principle. The Court does not have the authority to indulge in social engineering, for in that way lies tyranny.

    • David says:

      “But you said very clearly that …” Hmmm…

      Well, here I must take the blame as I am the one trying to communicate. When I wrote about not caring about the amendment’s history I didn’t mean its legal context — the what and wherefore of its being written — at all. (I repeat again that I did say “we can look to the history whenever the meaning is unclear.”) I was dismissing your linking application of the amendment to the social attitudes of its authors. (Its authors being a large group of men with a wide variety of social attitudes anyway.)

      “Your juridical philosophy is a bit opaque to me.”

      I will continue to take the blame for being a poor communicator.

      My philosophy is that their is a difference between the meaning of a text and the intent of its author(s). If the text is clear and concise and the author knows what he’s doing they ought to be the same. But there’s no guarantee. When the text is unclear we can make recourse to the author’s reasons for writing it, other things he’s written on the topic, etc. Bringing out the meaning (interpreting) a law is no different in principle than interpreting any other text.

      Further, with laws the original meaning — what the text meant given the legal language of the time of its adoption — remains its meaning in perpetuity. Laws do not evolve like living things. (I know some jurists claim they do, but these jurists are loopy.)

      Is that clear enough?

      ***

      “This is a far-fetched example.”

      It was meant to be. The hypothetical was given as a ridiculously clear example of why Oliver Wendell Holmes Jr. said “We do not inquire what the legislature meant; we ask only what the statutes mean.” I grant the example has a certain weakness: the fact that the historical context of the law gives no help in interpreting it is obscurred by the simplicity of the hypothetical law itself. Ah, well. Nevertheless the point is made: a text can objectively mean something different than what its authors intended to say.

      As for your quote from Madison, I agree with it completely. As for this statement of yours:

      “any intepretation of the meaning of a Constitutional provision that is not in accord with how it was understood by its ratifiers is not a legitimate interpretation”

      I would modify it so that the understanding is not merely that of its ratifiers, but that of anyone who understood the legal parlance of the time and place. So what then are we arguing about? Oh yes: The MEANING of a text — which you have called “the understanding” and Madison called its “sense” is not identical to any purpoted INTENT of the legislators who made it. This is the sole bone of contention between us.

      “This is simply not true. There were plenty of debates both in the Congress and in the State ratifying conventions regarding the meaning of Constitutional provisions.”

      Hmmm…. Again we have apples to oranges. Discussion of the MEANING of legal provisions is not any sure guide for inferring a single coherent — or even a single large plurality — of INTENT with regard to said provisions. Indeed, legislators who agree on the meaning of a law can state drastically different intents with regard to it, even if the all vote for it.

      Now I really don’t see as how this matter is worth any further discussion on our parts. If you don’t by this time understand what I mean by the difference between legal meaning and legislative intent there’s nothing more I can do.

      ***

      “As I said, the separation of powers doctrine in this country means that the Court has no business deciding for a “change in directions.” ”

      Now is where I must risk being rude, Vern, for you havn’t the foggiest notion what you’re talking about. Part of the judiciary’s job is to apply the laws to the cases that come before it, and to do so it must interpret (bring out the meaning) of those laws vis-a-vis those particular cases. Judge’s have the duty to create NEUTRAL principles (and the neurtality of those principles is paramount) for the application of legal provisions. Some of those principles concern all the laws; some concern only one or a few. However, since judges are not infallible, they must continually re-examine their principles and revise or replace those that were created in error or are no longer workable.

      For example, federal courts must apply the 1st amendment’s freedom of speech clause to its cases. Now suppose the Supreme Court had promulgated the principle in one of its free speech cases that people cannot be punished for the content of their speech but can be punished for the timing of it. A later Court perceives this principle as faulty and creates a replacement for subsequent application of the free speech clause. This is how the judiciary works.

      A change of direction with regrad to “separate but equal” jurisprudence is no different in principle than the above example. You have treated the “separate but equal” principle as if it were part of the 14th amendment. It is not. It was a judicial rule for applying said amendment.

      Now I will admit that unlike in my hypothetical first amendment case above, the ‘separate but equal’ rule was not in itself contrary to the legal provision it was meant to interpret. This, however, does not guarantee that such a rule will in time become unworkable.

      Oh dear, we know come to this bit of confusion:

      David: That segregated facilites do not per se violate the amendment does not mean that they can never violate the amendment. For segregation to be in concord with the amendment, it must be equal at all times and in all cases. You steadfastly ignore that this simply wasn’t so, even as you have to admit it wasn’t so (see your above quote). Which brings us to this:

      Vern: I don’t understand this.

      Did you not, Vern, state this in your piece:

      “if a State was going to have a white only law school, it would have to provide a law school of equal caliber for blacks.”

      That is, you stated that the doctrine in question requires the segregated facilities to be actually equal. (1) Yet you replied to me with this:

      “In some cases, so desirous were they of keeping segregation that the quality of the black schools was superior to that of the white schools,”

      That is you admitted that the segregated facilities were sometimes not equa (2)l — and therefore in violation of the doctrine in question (and of the equal protection clause in any event).

      Your entire argument reads like focus on (1) and ignore the mand behind the curtain — I mean (2).

      ***

      “The separate but equal decision in Plessy merely stated explicitly what was already implicit in the Amendment. I once again point to the little fact that the same Congress who passed the 14th also passed laws segregating schools in the District of Columbia.”

      Uh, no.

      That a social attitude was common, or even universal, at the time of a legal provision’s adoption does not make that attitude implicit in the law. For something to be implicit in the law it must be directly implied by the text itself. Nothing in the 14th amendment explicitly mentions separate facilities for different races, nor are they directly implied by anything in the amendment. Therefore separate facilities — equal or not — are not a constitutional principle. If you don’t understand this you dont know your anus from a hole in the ground as far as constitutional law is concerned.

      You are getting dangerously close, Vern — indeed extremely, perilously close to the militant feminist logic that a failure to forbid abortions at the time of the founding makes legal abortion an implicit assumption of the constitution. We need no knowledge of the legal history of abortion to know the entire argument is fallacious.

      “It was an act of brazen judicial usurpation, one that ignored both the original historical context of the Amendment and also how the earliest Courts interpreted it.”

      That the judiciary reveresed the earliest of precedents tells us nothing about the constitutionality of either the old precedent or the new one. As for the historical context of the amendment, you can’t read the cultural prejudices of the time of a law into its meaning and call that the “historical context.” That would make it just as fair to say that cultural prejudices of the 18th century US wouldn’t have recognized Buddhism as a religion and therefore Buddhism isn’t protected by the free exercise of religion clause. We have here a fundamental disagreement between us; a gulf, it seems, as vast as that between committed theists and committed atheists. I know not what to do about it.

      “In our system of government at least as it was originally set up, pragmatic necessity does not overrule constitutional principle. The Court does not have the authority to indulge in social engineering, for in that way lies tyranny.”

      I will not deny the tyrannical nature of attempts at social engineering by the judiciary. (I don’t look to kindly at attempts at social engineering by legislatures, either, for that matter.) However, your outlook seems to doing just what you claim to reject: putting pragmatic necessity — the need of whites and blacks to learn to live together — above constitutional principle — the need for consitent principles for assuring the equal protection of the laws.

      • Vern Crisler says:

        David: Well, here I must take the blame as I am the one trying to communicate. When I wrote about not caring about the amendment’s history I didn’t mean its legal context — the what and wherefore of its being written — at all. (I repeat again that I did say “we can look to the history whenever the meaning is unclear.”) I was dismissing your linking application of the amendment to the social attitudes of its authors. (Its authors being a large group of men with a wide variety of social attitudes anyway.)

        Vern: We must do more than link the text of the 14th Amendment to the “social attitudes” of its authors. We also have to link the text of the 14th Amendment to the “intent” of its authors. The two are not the same but they supplement one another. Intent has reference to what a person meant when he wrote a piece of legislation or a constitutional provision. It is therefore much more specific than a social attitude, and because it is specific it is also more discoverable. However, social attitudes can also help in understanding an author’s intent.

        David: My philosophy is that their is a difference between the meaning of a text and the intent of its author(s). If the text is clear and concise and the author knows what he’s doing they ought to be the same. But there’s no guarantee. When the text is unclear we can make recourse to the author’s reasons for writing it, other things he’s written on the topic, etc. Bringing out the meaning (interpreting) a law is no different in principle than interpreting any other text.

        Vern: I grant the difference between text and intent, and it is a distinction philosophers have made between intended meaning (illocution) and resulting meaning (perlocution). That’s why it is so important to study the Constitution and the 14th Amendment in their historical context rather than just reading the text. To truly understand what was written and whether resulting meaning conforms to intended meaning, you would need to read the writings of those who authored and authorized a text.

        You, however, came up with a distinction between the “attitudes of [members of] Congress to segregation per se” as over against the “meaning of the amendment they sent to the States.” You said the attitude (intent?) of Congressmen was “wholly irrelevant” to the meaning of the 14th and 15th Amendments. You summed up by saying, “In short, what Congress meant to say doesn’t matter. What matters is what they actually said.” You went on to claim that “history does not alter the plain meaning of the provision’s text, however. We can look to the history whenever the meaning is unclear, but a law says what it says regardless of the intents of any of its authors.”

        I have to confess I cannot find my way through these contradictions. On the one hand you say that when the text is unclear we can make recourse to the author’s reasons for writing it, but then you say that what Congress meant to say doesn’t matter but only what they actually said, and that history does not alter the plain meaning of a text, and that a law says what it says regardless of its author’s intent. Not satisfied with that, you say that what the text meant given the legal language of the time of its adoption remains its meaning in perpetuity, and that laws do not evolve like living things.

        I must confess again that I have no way of untangling this incoherent judicial philosophy.

        David: It was meant to be. The hypothetical was given as a ridiculously clear example of why Oliver Wendell Holmes Jr. said “We do not inquire what the legislature meant; we ask only what the statutes mean.” I grant the example has a certain weakness: the fact that the historical context of the law gives no help in interpreting it is obscurred by the simplicity of the hypothetical law itself. Ah, well. Nevertheless the point is made: a text can objectively mean something different than what its authors intended to say.

        Vern: I certainly don’t look to OWH for a consistent judicial philosophy. Remember, this is the same Judge who ruled in favor of sterilization laws in the United States. (See the case of Carrie Buck.) Also, the fact that what one says and what one meant to say can be different requires us to have “recourse to the author’s reasons for writing it” as you said. And as Madison said,

        “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for a consistent and stable, more than for a faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founder, will I believe appear to all unbiased enquirers into the history of its origin and adoption.” (James Madison, letter to Henry Lee, 1824; emphasis added.)

        David: As for your quote from Madison, I agree with it completely.

        Vern: If so, then that means your quotation from Holmes was pointless. Holmes was absolutely wrong when he said: “We do not inquire what the legislature meant; we ask only what the statutes mean.” That is the exact opposite of what Madison said.

        David: So what then are we arguing about? Oh yes: The MEANING of a text — which you have called “the understanding” and Madison called its “sense” is not identical to any purpoted INTENT of the legislators who made it. This is the sole bone of contention between us.

        Vern: Vern begins to tear out what remains of his hair.

        David: Hmmm…. Again we have apples to oranges. Discussion of the MEANING of legal provisions is not any sure guide for inferring a single coherent — or even a single large plurality — of INTENT with regard to said provisions. Indeed, legislators who agree on the meaning of a law can state drastically different intents with regard to it, even if the all vote for it.

        Vern: You have a strange definition of the term “intent.” I take it to mean the mental correlate of the written term but you appear to define it in terms of wider social views. Remember, Madison said that we have to refer to the meaning of a term as it was understood at the time it was used, else we are caught up meanings that have changed over time. Madison regarded anything other than original meaning as illegitimate. What else do you think Madison was talking about?

        David: Now I really don’t see as how this matter is worth any further discussion on our parts. If you don’t by this time understand what I mean by the difference between legal meaning and legislative intent there’s nothing more I can do.

        Vern: I know you want to make a distinction between these two but separating the “legal meaning” of a constitutional provision from the “legislative intent” of its authors is precisely what is wrong with modern day judicial activism. And it runs afoul of Madison’s warning. You cannot claim Madison while at the same time deny what he says. For Madison, the only true “legal meaning” of a constitutional provision is precisely the “legislative intent” of its authors. That’s what he was talking about when he spoke of “resorting to the sense in which the Constitution was accepted and ratified.”

        David: Now is where I must risk being rude, Vern, for you havn’t the foggiest notion what you’re talking about. Part of the judiciary’s job is to apply the laws to the cases that come before it, and to do so it must interpret (bring out the meaning) of those laws vis-a-vis those particular cases. Judge’s have the duty to create NEUTRAL principles (and the neurtality of those principles is paramount) for the application of legal provisions. Some of those principles concern all the laws; some concern only one or a few. However, since judges are not infallible, they must continually re-examine their principles and revise or replace those that were created in error or are no longer workable.

        Vern: Nevertheless, the separation of powers doctrine means that the Court’s job is purely interpretive. It is not to set new directions in social policy. That is the job of the legislature.

        David: For example, federal courts must apply the 1st amendment’s freedom of speech clause to its cases. Now suppose the Supreme Court had promulgated the principle in one of its free speech cases that people cannot be punished for the content of their speech but can be punished for the timing of it. A later Court perceives this principle as faulty and creates a replacement for subsequent application of the free speech clause. This is how the judiciary works.

        Vern: And how would the judiciary solve this issue? Do they just make up a decision out of thin air? Or do they go back to the writings of those who wrote and ratified the free speech clause?

        David: A change of direction with regrad to “separate but equal” jurisprudence is no different in principle than the above example. You have treated the “separate but equal” principle as if it were part of the 14th amendment. It is not. It was a judicial rule for applying said amendment.

        Vern: This is preposterous. The separate but equal principle was not just a ‘rule” for applying the 14th Amendment. I don’t know what to say to you here. Your comment is so off-the-wall that there is not much I can say other than to deny it.

        David: That is you admitted that the segregated facilities were sometimes not equa (2)l — and therefore in violation of the doctrine in question (and of the equal protection clause in any event).

        Vern: The reason I brought this up was to deny your claim that the States were using the separate but equal doctrine to put blacks in an inferior position. I was simply pointing out that the States were primarily interested in segregation, not in making blacks inferior with respect to schooling. I said that in some cases blacks were in a superior position (with better schools). Granted blacks could be put in inferior positions in other ways, but not with respect to schools. That was the whole point of the Plessy decision, separate but equal. I grant your point that if a black school was superior to a white school, this would be a violation of the 14th Amendment. However, I was not addressing that issue.

        David: That a social attitude was common, or even universal, at the time of a legal provision’s adoption does not make that attitude implicit in the law. For something to be implicit in the law it must be directly implied by the text itself. Nothing in the 14th amendment explicitly mentions separate facilities for different races, nor are they directly implied by anything in the amendment. Therefore separate facilities — equal or not — are not a constitutional principle. If you don’t understand this you dont know your anus from a hole in the ground as far as constitutional law is concerned.

        Vern: Again, you confuse “social attitudes” with Congressional intent. And despite your denials, you really are a textualist. For you the text is everything. Even though you’ve admitted that one should look to the reasoning behind a text, and that you agree with Madison, you still offer up textualism as a proper juridical philosophy. However, it just ain’t. You cannot leave out the historical context or legislative intent in understanding the text of a Constitutional provision. As Madison said, you have to resort to the sense of those who wrote it; anything else is illegitimate.

        David: You are getting dangerously close, Vern — indeed extremely, perilously close to the militant feminist logic that a failure to forbid abortions at the time of the founding makes legal abortion an implicit assumption of the constitution. We need no knowledge of the legal history of abortion to know the entire argument is fallacious.

        Vern: This is absurd. At the time of the Constitution, abortion was a matter of State law, not federal law, but even so, the due process clause protecting LIFE is implicitly anti-abortion. In any case, the rights in the Constitution are enumerated rights and everything else is reserved to the States. This reservation Amendment (the 10th) rules out any “implicit” powers of the federal government, other than those necessary and proper to the carrying out of its prescribed functions (the protection of life being one of those prescribed functions).

        David: That the judiciary reveresed the earliest of precedents tells us nothing about the constitutionality of either the old precedent or the new one. As for the historical context of the amendment, you can’t read the cultural prejudices of the time of a law into its meaning and call that the “historical context.” That would make it just as fair to say that cultural prejudices of the 18th century US wouldn’t have recognized Buddhism as a religion and therefore Buddhism isn’t protected by the free exercise of religion clause. We have here a fundamental disagreement between us; a gulf, it seems, as vast as that between committed theists and committed atheists. I know not what to do about it.

        Vern: You need to read Madison again. Cultural prejudices are just as relevant to the interpretation of a text as are any other cultural attitudes. As Madison said, resort to the sense as understood by its authors. And yes, even if those authors had prejudiced views. Your Buddhism example is another far-fetched example. The authors of the Constitution did not define what a religion was, so the religious freedom recognized is pretty broad. However, this freedom was only with respect to belief and liturgy, not necessarily practices (a distinction Jefferson made in his Danbury Baptist speech). Jihad would certainly not be an allowable practice no matter how much its practitioners appealed to freedom of religion.

        David: I will not deny the tyrannical nature of attempts at social engineering by the judiciary. (I don’t look to kindly at attempts at social engineering by legislatures, either, for that matter.) However, your outlook seems to doing just what you claim to reject: putting pragmatic necessity — the need of whites and blacks to learn to live together — above constitutional principle — the need for consitent principles for assuring the equal protection of the laws.

        Vern: Huh? I think it’s about time to wind down this discussion, as I have other matters to concentrate on. As I said in an earlier post, David, I believe you are seriously lacking in a competent knowledge of the history of the 14th Amendment. You also appear to lack a consistent judicial philosophy as well as an understanding of proper constitutional interpretation. Berger’s *Government by Judiciary* can help clear up the confusions in your thought on this subject.

        • David says:

          “I have to confess I cannot find my way through these contradictions.”

          You can’t find your way through the contradictions because there are no contradictions. Here there is no chance of the fault being mine, Vern. You are being willfully obtuse.

          Refer back to my my driving law example. The CONTEXT of the act is precisely that the legislature is dealing with laws governing the rules of the road. Unfortunately, that fact would not help any judicial or executive authority in applying the law if the question of what side of the road to drive on comes up. If the text of the law clearly doesn’t say drive on the left, all the evidence in the world that legislators wanted to say the opposite is irrevelant.

          There could be a case where the text itself was unclear but its context made its meaning plain. Given our example here we can imagine a line in the law that could be fairly read to be about either automobiles or about airplanes. But since the historical context is that the act is about the rules of the road, we know its about cars and not planes. Get it?

          My point here is that the assumption by legislators that schools and many other facilities would be racially segregated, and their thoughts on how long such segregation would last, are not part of the amendment unless the amendment says so. The 14th amendment does not say so. That is all I’m saying. Nothing explicitely stated, nor anything directly implied by its text, deals with the matter as such at all. Your assertion that the 14th amendment contains seperate but equal as an implicit assumption that cannot be altered is therefore false.

          “Vern begins to tear out what remains of his hair.”

          Yes… And David can say that Vern has so frustated him that the image of Vern tearing out his hair is a pleasing one.

          You haven’t gotten for a minute what we’ve been arguing about, Vern.

          “You have a strange definition of the term “intent.” I take it to mean the mental correlate of the written term but you appear to define it in terms of wider social views.”

          That you think this demonstrates why I haven’t been able to communicate with you even though what I’ve written has been quite clear and concise.

          In the creation of the text we have two things: the author (a living subject) and the text (an object of the subject’s attention). The “mental correlate of the written term” is the MEANING, and is both objective and subjective as it belongs in the realm of knowledge. The INTENT of the author is purely subjective. It is a matter of the thoughts and feelings of the author.

          Similarly, historical context is not the same as authorial intent. We know the historical context of Kan’ts Critique of Pure Reason; this doesn’t give us Kant’s intent behind every single sentence in it. And if the meaning of a sentence therein is obscure there may be no way to resovle the problem.

          Nonetheless, if we are dealing with a text written by a single author, the author’s intent can often be inferred. But laws are not acts of a single author, and to quote Ayn Rand, there’s no such thing as a collective brain. Being more specific, one legislator could have voted for the 14th amendment thinking ‘segregation forever,’ while another could have voted for it thinking ‘to hell with segregation.’ We have no way of favoring one over the other because the amendment doesn’t mention segregation.

          But let’s cut to the chase, shall we? I NEVER argued that court’s should set social policies. I never argued that courts should have ruled out racially segregated facilities as such. I argue that the courts can come up with neutral principles for applying the amendment that require any policy that makes racial distinctions between persons be based on actual differences between races. (To be a neutral principle the courts would need reason to see the principle as necessary for universal application of the equal protection clause, not just for those instances where they dislike the racial distinctions being drawn.)

        • David says:

          “I certainly don’t look to OWH for a consistent judicial philosophy.”

          I never said we should look to the man for such a philosophy. I simply quoted him to support the use of my hypothetical about legal meaning being different than purported legislative intent. It is an example of arguing in bad faith on your part to suggest otherwise.

          “And despite your denials, you really are a textualist. For you the text is everything. Even though you’ve admitted that one should look to the reasoning behind a text, and that you agree with Madison, you still offer up textualism as a proper juridical philosophy. However, it just ain’t. You cannot leave out the historical context or legislative intent in understanding the text of a Constitutional provision.”

          I don’t recall denying being a textualist. I certainly do believe legal application should be tied to a law’s text. However, I do not see a text’s meaning as existing outside its context. What I do see is a difference between a law’s context and the thoughts and feelings of the particular law makers who created it. I’ve hit this them over and over and over again. It isn’t my fault if you can’t get that I don’t equate historical context with legislative intent. Perhaps you just don’t have a mind for fine distinctions, Vern.

          “Cultural prejudices are just as relevant to the interpretation of a text as are any other cultural attitudes.”

          Again, I never said they weren’t. But just what cultural prejudices are stated or directly implied by the 14th amendment?

          “However, this freedom was only with respect to belief and liturgy, not necessarily practices”

          Does this mean the Obamacare contraception mandate on Catholic employers is okay?

          “This is absurd. At the time of the Constitution, abortion was a matter of State law, not federal law, but even so, the due process clause protecting LIFE is implicitly anti-abortion. In any case, the rights in the Constitution are enumerated rights and everything else is reserved to the States. This reservation Amendment (the 10th) rules out any “implicit” powers of the federal government, other than those necessary and proper to the carrying out of its prescribed functions (the protection of life being one of those prescribed functions).”

          No, no, no! You argued that the cultural assumption of seperate facilities for blacks and whites was implicit in the amendment — as long as said facilities were “equal.” I countered that this was close to arguments that long ago cultural assumptions of abortion’s legality (dubious though that claim is) were implicit in the 5th amendment, and so now in the 14th. You can’t fairly counter me by now arguing (correctly) that no fair reading of the Constitution can support the militant feminist’s claims. My whole argument hinged on that truth.

          “I believe you are seriously lacking in a competent knowledge of the history of the 14th Amendment. You also appear to lack a consistent judicial philosophy as well as an understanding of proper constitutional interpretation.”

          Actually, Vern, I think those faults are yours, not mine. I know and understand the history of th amendment quite well. Your problem with me is that I won’t hold up racial segregation as something the 14th amendment implicitly assumes.

          As for me, I am also happy to let this conversation end, as it is obviously pointless. (Perhaps I should have known better than to attempt dialogue with a creationist.)

  4. James Bradshaw says:

    So rights are not “given by God”, they’re bestowed upon minorities by the majority when “they’re ready for it”.

    That’s fascinating.

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