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Heather Cox Richardson: The Originalist Supreme Court and the 14th Amendment
https://heathercoxrichardson.substack.com/p/july-9-2021-a52(title paraphrasing a bit of HCR's excellent Letter from an American)
So much good history in this letter ending with:
Those same principles took on profound national significance in the post–World War II era, when the Supreme Court began to use the equal protection clause and the due process clause of the Fourteenth Amendment aggressively to apply the protections in the Bill of Rights to the states. The civil rights decisions of the 1950s, 1960s, and 1970s, including the Brown v. Board of Education decision outlawing segregation in public schools, and the Loving v Virginia decision permitting interracial marriage, come from this doctrine. Under it, the federal government took up the mantle of protecting the rights of individual Americans in the states from the whims of state legislatures.
Opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. These opponents began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level. Famously, in 1987, President Ronald Reagan nominated Robert Bork, an originalist who had called for the rollback of the Supreme Court’s civil rights decisions, for a seat on that court.
Reacting to that nomination, Senator Ted Kennedy (D-MA) recognized the importance of the Fourteenth Amendment to equality: “Robert Bork's America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”
It’s a funny thing to write about the Fourteenth Amendment in the twenty-first century. I am a scholar of Reconstruction, and for me the Fourteenth Amendment conjures up images of late-1860s Washington, D.C., a place still plagued by malaria carried on mosquitoes from the Washington City Canal, where generals and congressmen worried about how to protect the Black men who had died in extraordinary numbers to defend the government while an accidental president pardoned Confederate generals and plotted to destroy the national system Abraham Lincoln had created.
It should feel very distant. And yet, while a bipartisan group of senators rejected Bork’s nomination in 1987, in 2021 the Supreme Court is dominated by originalists, and the principles of the Fourteenth Amendment seem terribly current.
Opponents of these new civil rights protections quickly began to object that such decisions were “legislating from the bench,” rather than permitting state legislatures to make their own laws. These opponents began to call for “originalism,” the idea that the Constitution should be interpreted only as the Framers had intended when they wrote it, an argument that focused on the creation of law at the state level. Famously, in 1987, President Ronald Reagan nominated Robert Bork, an originalist who had called for the rollback of the Supreme Court’s civil rights decisions, for a seat on that court.
Reacting to that nomination, Senator Ted Kennedy (D-MA) recognized the importance of the Fourteenth Amendment to equality: “Robert Bork's America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy….”
It’s a funny thing to write about the Fourteenth Amendment in the twenty-first century. I am a scholar of Reconstruction, and for me the Fourteenth Amendment conjures up images of late-1860s Washington, D.C., a place still plagued by malaria carried on mosquitoes from the Washington City Canal, where generals and congressmen worried about how to protect the Black men who had died in extraordinary numbers to defend the government while an accidental president pardoned Confederate generals and plotted to destroy the national system Abraham Lincoln had created.
It should feel very distant. And yet, while a bipartisan group of senators rejected Bork’s nomination in 1987, in 2021 the Supreme Court is dominated by originalists, and the principles of the Fourteenth Amendment seem terribly current.
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