Although nearly a decade old, "Litigating Whiteness," (available in JSTOR) by Ariela Gross offers up some intriguing observations about the all-important question of race before the southern courts during the antebellum era. How was race constructed? Gross argues that antebellum southerners, with no scientific means of figuring out what constituted "black" or "white," relied on evidence of the "performance" of whiteness to distill biological essentialism.
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My question is: Is Paul Finkelman basing his argument about the 14th amendment in the constitution on the notion that, the framers were not racist and they wanted freedom for blacks? If so why in is article does he only provide evidence from the people in the State not following the laws that would prevent blacks from coming to the North and gaining some rights and provisions? It seems like his argument does not provide evidence of the framers not being racist, it only provides evidence of people not enforcing the law. If Raoul Berger's argument was correct that the intentions of the 14th amendment was not the gradual move towards equality but the framers were actually racist, wouldn't this allow us to critically look at the framers and see the mistakes that they made in the past and correct those mistakes instead of ignoring them and turning their intentions into something it might not have been?
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