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CHRISTOPHER TAYLOR'S BOOKS

Wednesday, December 18, 2013

OF EQUALITY

"The proper outcome of this issue has weighed heavily on the court for many months."

When the 14th amendment was proposed, it was meant to be a partner to the 13th amendment, banning slavery.  Lawmakers thought that it wasn't enough for the constitution to declare all men equal and say all are the same under law.  They wanted to make sure through a constitutional amendment that it was clear.
Further, they wanted to make sure people who had been part of the confederate rebellion were not going to be influential or have power to harm the US again. So they came up with this amendment:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article
You'll note that the amendment is mostly a broad response to the Civil War, and most of it is pretty well ignored these days.  But that first section is the one that gets a lot of work.  Its considered the "due process" section, and you'll note that it specifically and only applies to the states.
This is a strange approach, since the US Constitution already protects due process in the 5th amendment, but there was some debate whether that applied to state as well as federal law.  So we get this clause, which was primary meant to protect minorities.
However, there's a real problem with this amendment that we're only beginning to get a peek at.  People, particularly those who wrote the amendment and voted for it, never seem to think through what it says and means.  I'm guessing that they figured common sense and logic would apply but that's not going to work when people are paid to find creative and lucrative ways for a law to be interpreted.
Look it over again:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
What this says is that EVERYONE who is a US citizen gets equal protection of law.  See that last line?  Now, one would reasonably think this means "you have to enforce the law equally to protect all citizens, you can't ignore them for some people."  So you can't have a law protecting people from theft, then not enforce the law when, say, left-handed people are robbed.   And that's what the writers meant.  But that's not how its being used.
The 14th amendment is being interpreted to mean "you cannot treat anyone differently under law."  That is significantly different than "everyone gets equal protection" because it means not just that everyone gets the same legal guardian by the government, but that everyone must be treated the same by all laws.
This interpretation is the basis for some good; Loving vs Virginia was the Supreme Court decision that, based on this interpretation of the 14th amendment, decided that states could not ban marriages between blacks and whites.  Note, the ban had nothing to do with protection of the laws, only equal treatment under law.
And this interpretation is the basis for courts requiring homosexual "marriages" be legalized in states.  Because they are insisting that everyone be treated the same under law; if you can marry a girl, you should be able to marry a boy too, or its not equal.  Now as Anthony Scalia pointed out in his dissenting ruling on a different case, the argument opens up not just a can but an ocean liner full of worms.
I've been sitting on this idea for a while now, waiting for a nice current example to pop up, knowing that it would happen.  And here we go, Judge Clark Waddoups of United States District Court in Utah ruling on a polygamy law that since we have to allow homosexual marriage, well we can't stop polygamous relationships.
This is not so much the "slippery slope" that some are suggesting or stating outright.  Its a natural, inevitable consequence of a much earlier decision to treat the 14th amendment differently than it is written or intended.  Once that equality of law idea had been decided, the entire system begins to fall apart.
How can you tell a child they cannot do anything under law, if the 14th amendment requires states to treat everyone the same under law?  How can you tell a man he cannot go into the women's dressing room if everyone must be treated identically under law?  How can you tell anyone they cannot do anything differently from someone else?  The president gets to ride Air Force One, not you - 14th amendment!
And you cannot argue that existing law can separate people out; this interpretation has been used to negate existing laws.  Because people were deemed to have been treated differently, the law was deleted by the constitution.  Saying "due process makes it okay for some to be treated differently" doesn't work; due process and existing law is what made homosexual marriage and mixed race marriage bans the law.
This extends far further than people seem to be considering, in ways they would most certainly consider awful.
But once you've opened up that ocean liner of worms, you can't stuff them back in.  Each new precedent builds on the previous one; each court case is the descendant of the previous.  The same argument
that says the 14th amendment requires states to recognize homosexual "marriage" is the one that requires states to allow 4 year olds to drive.  And you can take it further.
This interpretation could be taken to argue that someone who breaks all sorts of law should not be so treated.  After all, what is a compelling state interest or in the best interest of the community is subjective, it changes from culture to culture.  It was obviously in the best interest of the community to have marriage be a structure to raise children in 20 years ago, today its a horrific act of bigotry.
And if you insist that, even if existing law prohibits it, all people should be treated equally under law, and further argue that laws must be changed to represent this, then where's that line drawn?  What possible basis do you have to say "thus and no further?"
You have none - by design - because modern legal theory is not based on absolutes or limits, but on current cultural whims.  What is unacceptable today becomes mandatory tomorrow, and vice versa.  So laws against all manner of activity can, even must be jettisoned, based on the constitution the way this is being handled.  
Sex with minors?  How can you treat children differently under law than adults?  Sex with animals?  Theft?  Murder?  Rape? Where's the line drawn?  Where society decides it is, that day.  And it all comes down to a well-meaning but superfluous law after a catastrophe of a war drawn up by a congress and government which had no realistic opposition and did not think straight what they were doing.
So don't be surprised when things show up in the law like a judge arguing that you have to allow polygamy.  And don't be surprised when the next thing comes along, either.

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