Reply To: 14th ammendment


And if it helps, an even shorter article is in Berger’s “Selected Writings on the Constitution” book.

My personal favorite argument that he makes doesn’t involve going deep into the original interpretation as far as interpreting individual clauses, syntax, language/word studies etc. The argument is:

(1) The 14th amendment amendment did not prevent States from enacting discrimination laws that prohibited blacks from voting. The evidence that this claim is true is that the 15th amendment was needed to give blacks the right to vote.

(2)Therefore, if the 14th amendment did not prohibit discrimination in the case of suffrage, it follows that it did not prohibit discrimination in the case of education.

Anyone who wishes to deny #2 will have to explain how the original intent of the 14th amendment prohibited discrimination in public schools yet did not prohibit discrimination in the case of suffrage. That is an impossible task when anyone considers the historical record.

The only other escape from the argument is to argue that despite the fact that the 14th amendment prohibited suffrage discrimination, the 15th amendment was passed to make the point extra clear (or some other reason). However, it is certainly a minority view to argue that any of the amendments post Bill of Rights are superfluous. It is a rigorous process to amend the constitution, and it is quite a stretch to think legislators would bother going through the headache if it wasn’t needed. Moreover, if it was the case that they knew the 14th amendment prohibited suffrage discrimination, yet they wanted to bring about the 15th just to be emphatic (or some other reason), the historical record should show evidence of this position. I have not done extensive research into the framing of the 15th amendment, but I don’t think it is likely that evidence supporting this odd view would be found.

*Another quick Berger nugget is that the “privileges and immunities” referred to in the act parallel those enumerated in the Civil Rights act of 1866. They were not meant to be some broad cloud category of privileges.

Berger cites the framers and ratifiers of the amendment exhaustively to make all of his points, which is great.

Also, your paper will likely need to include a section defending “original meaning/intent” as the proper method of constitutional interpretation. Berger has a nice article on that here: