Yes, Gray admitted it straight up in his 1898, WKA opinion.
Gray ignored the meaning and intent from the authors who wrote the 14th Amendment that it didn't mean a thing to him or to his flawed ruling.
What do we call that these days? Right, it is called 'judicial activism' and writing laws from the court bench. A BIG no no.
Gray ignored the meaning and intent from the authors who wrote the 14th Amendment that it didn't mean a thing to him or to his flawed ruling.
What do we call that these days? Right, it is called 'judicial activism' and writing laws from the court bench. A BIG no no.
Absolutely. My current theory regarding the Gray court is that they were Republicans in the Ascendency, and "waving the bloody shirt" was a common practice in those days. Gray wanted to ram the Democrat's racism back down their throats, and when given the opportunity, he couldn't resist himself and he just went a little too far. (depending on how you interpret the Wong Kim Ark decision.)
I will point out that Justice Black, in Duncan v Louisiana explicitly says to use the opposite approach of Justice Gray.
I have read and studied this article extensively, including the historical references, but am compelled to add that, in my view, it has completely failed to refute the inferences and arguments that I suggested in my Adamson dissent . Professor Fairman's "history" relies very heavily on what was not said in the state legislatures that passed on the Fourteenth Amendment. Instead of relying on this kind of negative pregnant, my legislative experience has convinced me that it is far wiser to rely on what was said, and, most importantly, said by the men who actually sponsored the Amendment in the Congress. I know from my years in the United States Senate that it is to men like Congressman Bingham, who steered the Amendment through the House, and Senator Howard, who introduced it in the Senate, that members of Congress look when they seek the real meaning of what is being offered. And they vote for or against a bill based on what the sponsors of that bill and those who oppose it tell them it means.
Original intent? Whodda thunk? :)