'Why Amy Coney Barrett, Supreme Ct Nominee Believes All Civil Rights Legislation Is 'Illegitimate'
'Why Trump's expected Supreme Court nominee believes all Civil Rights legislation is 'illegitimate.' By Mark Sumner, Daily Kos, Sept. 26, 2020.
Amy Coney Barrett regards herself as an “originalist,” that is, someone who believes that all legal decisions must be based on the “original understanding” of the Constitution. This is often put forward as a straightforward, consistent lens through which law can be viewed, rather than trying to put into context little things like shifting views on race and gender equality. However, originalism is further complicated by a split between groups focused on “intent” and those focused on “meaning.” And if you think those are the same things … well, you’re just wrong. Intentionalists believe the law is determined by what the original authors of the Constitution intended when they took quill to parchment. Those focused on meaning insist that they support the “public meaning” of the words at the time they were written. People who, like Barrett, belong to the later group, insist that their interpretation is more consistent.
In fact, both approaches require jurists to peer into the minds of 18th-century Americans, interpreting words, attitudes, and relationships that have shifted enormously over two and a half centuries. In short, any claim that the nation can be properly governed by divining the inner monologue of wig-wearing slaveholders not only makes about as much sense as using the plans for a Conestoga wagon as the repair manual on the Space Shuttle, it’s also just plain bullshit. But there’s something even more odd about how conservatives like Barrett apply originalism. Because they seem to believe that the “original meaning” of every word and phrase just happens to be a conservative meaning. And where they can’t find the meaning that they want, these dedicated preservationists have a second approach … throw it out. Throw it all out. Like the entire 14th Amendment.
The 13th Amendment may have abolished slavery when it was ratified in 1865, but it took the14th and 15th Amendments to define what the end of slavery really meant in terms of law. After all, slavery is more than just forced labor. If slavery “ended” but some people still were denied equal protection, equal rights, and equal representation, was slavery really over? It took until 1868 for the 14th Amendment, upholding citizenship rights and equal protection, to be ratified. It wasn’t until 1870 that the 15th Amendment extended this to voting rights.
As far as the 14th Amendment goes, it includes what are now referred to as the Citizenship Clause, the Privileges Clause, the Due Process Clause, and the Equal Protection Clause. In short, it says that everyone born in the United States is a full citizen, with the full rights due to a citizen, and can’t be deprived of those rights unless they’re given due process of law. All of this makes the 14th Amendment integral to questions of citizenship, and foundational for Civil Rights legislation. It’s such an important amendment, that legal scholars have called it “the second Constitution” for its attempts to tear out the elements of slavery built into the original document. Among other things, the Supreme Court has made it clear that the Civil Rights Act of 1964 rests entirely on the authority granted to Congress by the 14th Amendment.
For clarity, here’s Section 1 of the 14th Amendment...
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