A Radical Intent

Authors

Michael A. Simons, St. John's University School of LawFollow

Document Type

Book Review

Publication Title

Harvard Law Review

Publication Date

1988

Volume

101

First Page

869

Abstract

(Excerpt)

Much of the recent debate regarding constitutional interpretation has focused on the relevance of the Framers' intent. Attorney General Edwin Meese III has urged judges to "resurrect the original meaning of constitutional provisions." In contrast, Justice William Brennan has argued that courts should adapt the Constitution to "cope with current problems and current needs." A key disagreement involves whether the Bill of Rights protects citizens against state as well as federal government abuses. Some scholars have called for a rollback of Supreme Court decisions that incorporate provisions of the Bill of Rights in the fourteenth amendment, arguing that these rulings go beyond the intent of the amendment's Framers. Many supporters of the incorporation doctrine, however, maintain that the Framers' intent is neither discernible nor dispositive.

In No State Shall Abridge, Michael Kent Curtis meets Meese on his own ground, embracing the jurisprudence of original intent. He concludes, through an analysis of the historical context of the four­teenth amendment, that Congress intended to apply the Bill of Rights to the states through the now neglected privileges or immunities clause. Curtis begins by examining how the fight over slavery trans­formed the Republican party's attitude toward states' rights. Although the party vigorously contested slavery in the territories before the war, most Republicans believed that slavery in the states was beyond fed­eral control. The Civil War, however, eliminated much of the Re­publican deference to states' rights. It also strengthened Republican opposition to civil rights abuses in the South. Before the war, many southern states had restricted abolitionists' first amendment rights (p. 30), and after the war, they suppressed blacks' rights (p. 35). By 1866, "radical abolitionism had become Republican orthodoxy" (p. 34) and the Republicans, aligned with abolitionists and fearing for the safety of unionists in the South, were more willing to use federal power to control Southern civil rights abuses (p. 35).

Comments

Review of No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights by Michael Kent Curtis.