Connecticut Law Review
IN 1946 JUSTICE HUGO BLACK DECLARED that one of the objects of the fourteenth amendment was to apply the Bill of Rights to the States. He was confident that an analysis of the intent of the framers of the amendment would support his assertion. A few years later the Supreme Court requested such an investigation, but when the analysis was made and the results presented to it, the Supreme Court concluded that the framers' intent could not be determined. The uncertainty surrounding the intent of the framers of the fourteenth amendment has had profound implications on the application of that amendment to civil rights issues. It has probably led the Supreme Court to take a moderate position on the authority over civil rights which the amendment confers upon the national government, thereby largely limiting the application of the amendment to state action. Even that authority has been usually limited to positive forms of state action, such as unequal laws and discriminatory policies of public officials; it has not been extended to negative forms of state inaction such as the failure of public agencies and officials to protect civil rights from violations by private sources. Consequently, infringements of civil rights by private parties have not been proscribed by the fourteenth amendment. The absence of a conclusive and persuasive assessment of the intent of the framers of the fourteenth amendment has thus had a profound impact upon the law and civil rights. This study will show that the uncertainty surrounding the intent of the framers of the fourteenth amendment is due less to any special difficulties inherent in the amendment and the circumstances surrounding its adoption, than to the inadequacies and errors of the studies that have been made on the subject. Hopefully, this study will also demonstrate that inquiries into the intent of the framers of any laws or constitutional amendments are an historical rather than a judicial or legal function.
Robert J. Kaczorowski,
Searching for the Intent of the Framers of Fourteenth Amendment , 5 Conn. L. Rev. 368 (1972-1973)
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/225