Details

Autor(en) / Beteiligte

• Dimond, Paul R.

Titel

Strict Construction and Judicial Review of Racial Discrimination under the Equal Protection Clause: Meeting Raoul Berger on Interpretivist Grounds

Ist Teil von

• Michigan law review, 1982-01, Vol.80 (3), p.462-511

Ort / Verlag

Ann Arbor, Mich: University of Michigan Law School

Erscheinungsjahr

1982

Quelle

Alma/SFX Local Collection

Beschreibungen/Notizen

• Raoul Berger's argument that the equal protection clause should be interpreted very narrowly to accord with the constitutional framer's intent, has been attacked on a number of grounds; however, it is possible to meet Berger's argument on his own interpretivist turf. Berger believes that all 3 phrases of the Amendment should be interpreted with reference to the narrow range of fundamental values in the privileges and immunities clause, but strict construction requires realization that the Amendment imposes additional duties on the states. Further, immediately after adoption of the language, Congress acted with the understanding that it covered a broad range of behavior, and the interpretation of John Bingham, the actual author, is consonant with this behavior. The debates prior to adoption are subject to conflicting interpretations, but are certainly amenable to the ''broad reading'' interpretation. Berger specifically argues that the Amendment was not intended to cover school desegregation. It is significant that debates concerning schooling-oriented amendments to the Civil Rights Act referred to the protection already provided by the Amendments. In act, Brown v. Board of Education is a more ''strict'' construction than is Plessy v. Ferguson. Judicial definition of the Fourteenth Amendment is clearly authorized and no immutable reading is implicated.