My former student Eric Soskin (of the Ex Parte blog) makes two points, apropos the “guy who first used the Constitution to codify bigotry” argument:
But I see a larger question here. Should President Bush (and other elected leaders) prioritize the question of how they “want to be remembered” when making policy decisions? Just four years ago, Democrats and Republicans alike criticized President Clinton for doing exactly that. It’s one thing to argue against privileging today’s image over future consequences (see, e.g.Medicare prescription-drug benefit); it’s quite another to ignore present consequences in favor of one’s future image!
Also, “for the first time”? Hardly. Does anyone remember Article I, Section 2, in the pre-14th Amendment days? Think “Three Fifths Clause.” And Article II, Section 1; excluding all naturalized citizens from the presidency. Or even the 14th Amendment, Section 3[,] excluding Southerners who had previously taken an oath to the Constitution from holding office in the United States (without the leave of 2/3 of Congress). I’m sure this isn’t a comprehensive list — with our modern taste for age discrimination, for example, the minimum-age requirements probably constitute “language of intolerance and exclusion” as well.
The latter point is a detail, and doesn’t really undermine the core of the Slate argument that much, in my view; still, it’s an interesting set of factoids. One might also throw in another part of the Fourteenth Amendment itself, which introduced an explicit sex classification in the Constitution by making the basis of representation turn on whether a state had disenfranchised males, thus officially endorsing (though, to be fair, certainly not mandating) sex discrimination.
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