equal protection clause is the primary clause of the 14th amendment to extend civil rights.
equal protection clause is the primary clause of the 14th amendment to extend civil rights.
primary clause of the 14th amendment to extend civil rights?
equal protection clause
originalists such as r. carter pittman, alfred avins, and raoul berger (in his book "government by judiciary") argued that the authors of the 14th amendment did not intend to nullify anti-miscegenation laws. some judges and several u.s. supreme court justices in the 1992 "planned parenthood v. casey" case have used "loving" as an argument against originalism. meanwhile, david upham argues that the original understanding of the 14th amendment among many people in 1868 and the years right after 1868 was that it indeed nullified anti-miscegenation laws (albeit through the privileges or immunities clause rather than through the due process and equal protection clauses of the 14th amendment) and that the 14th amendment was wrongly interpreted in regards to this for almost a century before "loving". upham argues that before the u.s. supreme court made its ruling in the slaughterhouse cases in 1873, virtually every republican official and judge who was confronted with this issue concluded that the 14th amendment nullified anti-miscegenation laws, and that it was the "slaughter-house cases" that gutted the 14th amendment's privileges or immunities clause and thus made it much harder to argue that anti-miscegenation laws are unconstitutional. upham also argues that, in 1873, anti-miscegenation laws were not in force throughout most of the united states either due to their repeal, due to their lack of enforcement (due to a belief by some us state officials that these laws have been nullified by the 14th amendment), or due to these laws being judicially nullified (such as by the 1872 alabama supreme court ruling in the case "burns v. state"). however, upham does acknowledge that these views were not unanimous even among republicans and that republican us senators lyman trumbull and waitman willey (in 1866), the republican justices on the ohio supreme court (in 1872), and some republican legislators in both ohio and oregon (in 1868) implied that the 14th amendment was not going to affect the constitutionality of anti-miscegenation laws. none of those mentioneed ever had to directly rule on this issue, such as the justices on the alabama supreme court had to in 1872.
loving v. virginia
some constitutional originalists, notably raoul berger in his influential 1977 book "government by judiciary," make the case that "brown" cannot be defended by reference to the original understanding of the 14th amendment. they support this reading of the 14th amendment by noting that the civil rights act of 1875 did not ban segregated schools and that the same congress that passed the 14th amendment also voted to segregate schools in the district of columbia. other originalists, including michael w. mcconnell, a federal judge on the united states court of appeals for the tenth circuit, in his article "originalism and the desegregation decisions," argue that the radical reconstructionists who spearheaded the 14th amendment were in favor of desegregated southern schools. evidence supporting this interpretation of the 14th amendment has come from archived congressional records showing that proposals for federal legislation which would enforce school integration were debated in congress a few years following the amendment's ratification. in response to michael mcconnell's research, raoul berger argued that the congressmen and senators who were advocating in favor of school desegregation in the 1870s were trying to rewrite the 14th amendment (in order to make the 14th amendment fit their political agenda) and that the actual understanding of the 14th amendment from 1866 to 1868 (which is when the 14th amendment was actually passed and ratified) does, in fact, permit u.s. states to have segregated schools.
brown v. board of education