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

In the face of this common understanding of the vagueness of much of the constitutional text, Berger bears the burden of proving that the equal protection clause was intended to enumerate specific, narrow protections against racial discrimination. This Article examines several contemporary sources to determine whether he has accomplished that task. It proceeds in six parts. Part I analyzes the text of the fourteenth amendment and contemporaneous congressional views on judicial review. Contrary to Berger’s construction, the equal protection clause is not limited by its terms to the privileges or immunities clause or to the specific rights enumerated in the 1866 Civil Rights Act. Similarly, the Reconstruction Congress repeatedly acted to confirm and to expand the judiciary’s power to review state conduct for compliance with the Civil War amendments and their enforcement acts. Part II examines the wide range of racial evils and official neglect that provided the backdrop for action by the framers shortly before and after passage of the fourteenth amendment. Part III then demonstrates that the language used by John Bingham in the key clauses of section 1 was not intended to invoke the narrow code meanings traced by Berger; rather, it referred to broader, albeit not specifically defined, antidiscrimination principles. Part IV shows that the limited debate in Congress on Bingham’s final proposal supports rather than rebuts this open-ended interpretation of the equal protection clause. These materials, taken together, suggest that Berger’s narrow reading denies the fourteenth amendment’s actual role as a general protection against official caste discrimination.

This interpretation is supported by the way that the Reconstruction Congress dealt with one intractable aspect of racial discrimination – segregation in the schools. Part V demonstrates that the framers left this issue open for decision under the fourteenth amendment, and Part VI concludes the Article by comparing Plessy v. Ferguson and Brown/em> on interpretivist grounds. Although Berger would argue that Plessy is the strict construction and Brown the result of judicial overreaching, in fact the evidence suggests that Brown’s result was within the scope that the framers envisioned for the fourteenth amendment.