Original Intent

At least that's what four of the Supremes, Thomas, Scalia, Roberts & Alito seem to blather on & on about WRT to the criteria they claim to base their decisions on. Funny, though, when you pick and chooose exactly which founder's words to use & when and even funnier, when the words you pick seem to support the decision you wanted to make all along, it seems as if Original Intent is just another code word. Stare decis indeed.

Obviously I read way too much, couple that with too much free time and you've got me wandering through all sorts of treasure troves finding all sorts of things.

Today I stumbled on a fascinating paper by Nathan Newman & J.J. Gass entitled A NEW BIRTH OF FREEDOM: THE FORGOTTEN HISTORY OF THE 13TH, 14TH, AND 15TH AMENDMENTS (pdf). It's relevant today as the Rehnquist court cited many of the decisions used to restore white supremacy in the 1870's south when his court overturned many civil rights laws starting in the 1990's. Rather than excerpt the paper, here's the introduction & if you're a student of history and interested in history that's been disappeared, you'll follow the link. (are you amazed I found republicans I have good things to say about? But they're not today's version)

"THE FORGOTTEN HISTORY OF THE 13TH, 14TH, AND 15TH AMENDMENTS

The Supreme Court’s recent turn away from civil rights and toward states’ rights claims legitimacy from a familiar – but false – history: the Constitution of 1787 carefully preserved the states’ sovereignty; Congress operated for 150 years within narrow constraints on its enumerated powers; the courts zealously policed the boundaries of proper federal action; and the half-century starting with the New Deal, when the Supreme Court allowed the federal government to do more or less what it wanted, was an anomaly.
None of this is true. If there is an anomalous period in the relationship between the Court and Congress, it began shortly after the Civil War and ended with the “switch in time” of 1937. The Court commenced its first sustained campaign to cut back on congressional power by striking down civil rights statutes passed during Reconstruction. These decisions betrayed Lincoln, who had promised a “new birth of freedom” at Gettysburg, and the people who enacted the constitutional amendments and legislation to make that promise a reality – not to mention the thousands of blacks slaughtered while defending their rights and the millions condemned to live under Jim Crow in the wake of the Court’s rulings.
Whatever else might be said of “originalist” constructions of constitutional provisions adopted in 1787, the Rehnquist Court’s decisions on the New Birth Amendments are utterly indefensible as a matter of history. Like the reactionary Court of the 1870s – whose infamous precedents it unabashedly cites – the states’-rights bloc on today’s Court has struck down federal civil rights legislation enacted pursuant to the New Birth Amendments without regard for the widely understood meaning and purpose of those amendments at the time they were ratified. This paper aims to revive the memory of the New Birth Framers and their work and to debunk the claim that the Court’s anti-equality agenda has any support in the history of the 13th, 14th, and 15th Amendments."