[mariviw]

I have a 10 page research paper to write for AP Lang. I want to write in on how the Brown v. Board of Education decision was not based in actual Constitutional principles and the 14th amendment was misapplied. Do you have any good books or places I can do good concreate research on this subject.

For example I am looking for a place where I can read the original intent of the framers of that amendment. And quotes from the framers at like the debates or something.

Anyway if this is to much to ask I’ll take anything that leads me in the right path.

[gutzmank]

Two ideas: 1) Raoul Berger’s GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENTS; and 2) Woods and Gutzman, WHO KILLED THE CONSTITUTION? The former is the best book on the meaning of the 14th Amendment, while the latter has a chapter on Brown v. Board of Education.

[woods]

If it helps, a shorter version of Berger’s argument on the Fourteenth Amendment can be found in his book The Fourteenth Amendment and the Bill of Rights.

[derosa8]

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: http://lawreview.byu.edu/archives/1991/3/ber.pdf

[klsim12]

The 14th amendment, section 1 has been used to “incorporate” the Bill of Rights onto the States?

Whereas I always assumed that the Bill of Rights pertained to the states, the statement that the 10th Amendment makes is that all powers not vested into the federal government are maintained by the States. Therefore, they can do anything they want (other than things expressly prohibited by the states in the constitution)? Luckily most States’ constitutions codified the right to bear arms, even Illinois, to my surprise. However, the recent 7th Circuit Court of Appeals ruling invalidated Illinois gun-carry laws (and in a previous Supreme Court case, McDonald vs. Chicago where they incorporated the 2nd amendment explicitly by using the Due Process clause of the 14th) saying the state violates the 2nd amendment, and therefore, Illinois has to come up with a carry-law. You can imagine the fighting going in our legislation! Even so, it seems that Illinois has already gone against its own Constitution by being the ONLY non-carry state of the union.

I thought this was a great victory (pending what Illinois comes up with that is), however, the Tenth Amendment Center posted an article (http://tenthamendmentcenter.com/2012/12/30/privileges-and-immunities-an-overview-of-the-14th/) saying that we can’t have our cake and eat it too, in that, if we are fighting against unconstitutional federal laws claiming supremacy over State laws, then incorporating the Bill of Rights onto the States falls under the same argument and we should not cheer this as a victory.

I’m having trouble with this thesis. Did the Founding Fathers assume that States wouldn’t trample on people’s freedoms? Can the states squash Free Speech? Dis-arm the populace? Suspend Due Process?? Does the 14th amendment really say that the Bill of Rights pertains to all the States?

I would be most interested in Kevin’s, Brion’s, and Tom’s views on this.

[Brion McClanahan]

Kathy:

One of the primary arguments against a Bill of Rights from 1788-1791 focused on the understanding that every State already had a bill of rights and therefore another enumeration would be unnecessary. The Bill of Rights, as ratified in 1791 and as clearly stated in the Preamble to the BOR, applied only to the general government, not the States. They were restrictive clauses on the central authority. States would and could have a State church for example (three did) and could abridge freedom of speech (a common argument made in 1798 when Congress passed the Sedition Act), but the general govt could not. Remember, the 1st Amendment states, “Congress shall make no law….” Madison also attempted to insert an incorporation amendment into the BOR but that failed in Congress.

As for the 14th, it was not intended to incorporate the BOR into the State constitutions when it was ratified. That is clear from the record. Incorporation was only done by SCOTUS later, so the TAC is taking the correct position–as usual–on the issue. It may not always be popular, but it is correct.

Hope that helps. I am sure Kevin will have more to say.

[derosa8]

Kathy,

Professor McClanahan is surely correct that the framers of the 14th amendment in no way intended to incorporate the Bill of Rights into the States.

The great trucks that have been driven through the “priveleges or immunities”, “due process” and “equal protection” clauses are shown to be contrary to the original meaning of the amendment in the books people have suggested previously in this thread.

I too did struggle with the same question you asked when I first learned about this: You said, “Did the Founding Fathers assume that States wouldn’t trample on people’s freedoms?”

I think it would be consistent to say that Jeffersonians were suspicious of ALL governments and their attempts to trample on freedom. But, that is precisely why they insisted on a federal government rather than a national government. A republic in which states retain sovereignty and can be different than other states is ultimately best for the people. States essentially “compete” for citizens, so if some state has outlawed free speech or denied due process to some, it is likely that people will try to free themselves from those areas.

Dr. Woods also has a lecture on the 14th amendment here where he mentions
the difficulty of the issue: http://www.youtube.com/watch?v=P56ZeBotFeA

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