Back to the Future: Original Intent as a Means for Vitalizing the Fourteenth Amendment in the Context of Race

Authors

Raneta J. Lawson, Creighton University School of Law

First Page

245

Document Type

Article

Abstract

Donald E. Lively's book The Constitution and Race exposes in a methodological way the historical origin of the conflict between symbolism and substance in the context of race. Lively chronicles two centuries of constitutional jurisprudence pertaining to race from the initial deferral of race-based issues at the nation's founding to the modem day catering to majoritarian interests that continues to subordinate racial concerns. Throughout this jurisprudential retrospective, Lively demonstrates how race-based considerations have permeated nearly every aspect of society and yet such considerations remain significantly unattended because of national policies that ultimately indulge competing priorities. Lively argues that a recognition of the ties between the nation's doctrinal past as it pertains to race and present racial conditions is not only essential for contextual purposes, but is a prerequisite for reckoning with the unfinished business of the constitutional convention. In addition to identifying the incongruity between constitutional ideals and racial truth, Lively offers a bold alternative for completing the business of racial justice. As a basis for this alternative, Lively outlines two competing views of the original purpose of the Fourteenth Amendment. The "liberal view," according to Lively, reflects the belief that the Fourteenth Amendment incorporates the Bill of Rights, fundamental liberties and guarantees and is a vehicle for equality in the broadest sense. At the other end of the spectrum, however, the restrictive or "minimalist" view of original purpose is reflective of the "core concerns" of the Fourteenth Amendment that encompass narrow ideals such as basic opportunity for material self-development and equal standing before the law.9 Lively theorizes that an emphasis on the restrictive or "minimalist" view affords more potential for pressing the concerns of racial justice. This theory is premised upon Lively's belief that the expansiveness of the liberal view has historically attracted extensive criticism and engendered too much debate given its non-democratic underpinnings. Thus, a focus on the minimalist view or the "core concerns" of the Fourteenth Amendment is more likely to quell majoritarian concerns about judicial overreaching and consequently offers a more effective alternative for remediating intransigent racial concerns. As a means of exploring the practicality and feasibility of Lively's proposal, Parts H and I of this article will trace the development of his alternative; Part IV will examine the potential impact of the alternative; and Part V will offer a critical analysis of Lively's theory.

Recommended Citation

Raneta J. Lawson, Back to the Future: Original Intent as a Means for Vitalizing the Fourteenth Amendment in the Context of Race, 5 St. Thomas L. Rev. 245 (1992).
Available at: https://scholarship.stu.edu/stlr/vol5/iss1/14