On Wed, 20 Jun 2001, John D. Giorgis wrote:
> At 01:14 AM 6/20/01 -0400 Gautam Mukunda wrote:
<snipping me on the 14th Amendment>
> Just to be clear, I also think that this interpretation by the Supreme
> Court of the 14th Amendment is unjustifiable as well. The 14th Amendment
> reads:
> "Section 1. All persons born or naturalized in the United States, and
> subject to the jurisdiction thereof, are citizens of the United States and
> of the state wherein they reside. No state shall make or enforce any law
> which shall abridge the privileges or immunities of citizens of the United
> States; nor shall any state deprive any person of life, liberty, or
> property, without due process of law; nor deny to any person within its
> jurisdiction the equal protection of the laws."
>
> How the above language justifies extending a proscription on the powers of
> Congress to a proscription on City Councils is beyond me.
>
> JDG
Ooh, what fun - Constitutional interpretation debates :-) First, let me
apologize - I did not intend to attribute to John any views that he did
not hold, and I did in fact think that he thought what he says he thinks
above :-)
OK, the first thing is the City Councils bit. While the United States has
a Federal system of government, each of the individual states are unitary.
Thus City Councils are, in fact, nothing more than the delegated agents of
the state governments and thus have no powers that are not granted to the
states.
I do think that the language of the 14th Amendment supports the
interpretation that it restricts the powers of the state governments. I'm
actually dubious that the authors of the Amendment meant it to do so, but
I lean towards the plain meaning of the text in Constitutional
interpretation, and it seems to me that the language does imply that.
Most specifically, "no state shall make or enforce any law which abridges
the privileges or immunities of citizens of the United States . . . nor
deny to any person within its jurisdiction the equal protection of the
laws." The second part of that quote has been interpreted, of course, as
eliminating legal racial distinctions in the United States, and I believe
that it was probably in fact meant to do that - we forget that the 14th
Amendment was passed by Republican Radicals during the aftermath of the
Civil War, and many of those Radicals were genuinely racial egalitarians.
This part of the Amendment was clearly aimed at Southern state governments
and meant to prevent them from oppressing the freed slaves. It was not,
sadly, entirely successful, although it was in fact remarkably so for
almost a generation. This part of the Amendment is clearly and
unquestionably meant as a restriction upon the powers of state
governments. I don't actually see any other plausible interpretation of
it. Given that fact, the earlier clause, it seems to me, can also
reasonably read as meant to enforce restrictions upon the powers of state
governments as well - most specifically, restrictions on their ability to
control speech, religion, and so on. The extension of 1st Amendment
protections against the federal government to the states as well thus
seems to me an entirely reasonable interpretation of the text of the 14th
Amendment.
Gautam Mukunda
