Tuesday, July 20, 2010

Freeze-Dried Constitution?--The Intent of Equal Protection (Q's from the Kagan Hearings, Part 5)

Black children attending the same schools as white children. No.
Blacks riding in the same train cars as whites, or in the same section of the bus. No.
Blacks staying in the same hotels and motels or eating at the same restaurants as whites. No.

Blacks being treated the same as whites in criminal law. No.
Blacks marrying whites. No.

Equal rights for women. No.
Women voting. No
Women entering the professions. No.
Women able to attend the same colleges and universities as men. No.

Equal rights for Asian-Americans. No.
Equal rights for foreign born legal residents. No.

Equal rights for children born to non-married couples. No.
Equal rights for fathers in adoption and custody. No.

Equal rights for gays and lesbians. No.

Equal rights for whites. No.

No. None of that was intended by Equal Protection in the Constitution.

Our Founding document, the Declaration of Independence, did declare that "all men are created equal." But when the Constitution was adopted 11 years later, the Framers had not included any provision reflecting Thomas Jefferson's "self-evident truth." The Bill of Rights, ratified 5 years after that, included no such provision either.

It was the 14th Amendment that introduced equal rights to the Constitution. Ratified following the Civil War in 1868--nearly 100 years after the Founding--it prohibits the States from "deny[ing] to any person within its jurisdiction the equal protection of the laws."

Now let's just be candid about the language. As already discussed on New York Court Watcher, the 14th Amendment's unqualified language (like the unqualified language of the 1st Amendment and other Constitutional guarantees) cannot sensibly--even sanely--be applied strictly "as written." For example, try it on a known terrorist. Must he really be treated the same as any other person? What about a prison inmate? A sex offender? A dangerous psychopath?

Point taken? OK, we can move on.

[For more discussion about applying constitutional provisions as written, see Kagan Nomination--More Questions, Pt. 3 (Judicial Interpretation: "law as written," "the intent," "precedent," "legislative & people's wishes," etc.), July 12, 2010.]

We can move on to the retort that invariably follows:
"But that's not what was meant. That's not what was intended by the 14th Amendment's Equal Protection. It was not intended to treat everyone the same regardless of the circumstances."

Indeed, there is this widespread insistence on "the intent"--not only by Senators at the nomination hearings and elsewhere, but by some commentators and even some Justices. The insistence is that the Constitution's guarantees should be strictly interpreted and applied as they were intended. That is, the intention of those who originally drafted and adopted the provisions. The originally intended meaning of the provisions.

THAT, and that alone, according to "the-intent"-versus-"judicial-activism" crowd, is what the Supreme Court and its Justices should be applying. So, regarding the Constitution's guarantee of Equal Protection, it should be applied strictly in accord with what it was intended to mean when the 14th Amendment was ratified. Nothing more. Nothing else.

So, that's the reason for the big "No" for every specific sort of equality mentioned at the outset of this post. None of that was the intent of Equal Protection.

In fact--except for the protection of white persons--the 14th Amendment would never have been ratified if it contained those specifics of equal treatment. Allowing black men to marry white women? Not even close. Giving women the same rights as men? Not even close. Requiring equal treatment for gays and lesbians? Not even close. Indeed, virtually everything we take for granted today as equal rights would have killed the 14th Amendment's chances of ratification.

The 14th Amendment's Equal Protection was not adopted with those specifics in mind. In fact, although equal rights for white persons would have been looked upon favorably, even that was certainly not the intent behind the 14th Amendment.

The intent was to insure narrowly contemplated legal rights for the newly freed Black slaves. The background in short is this: "Black Codes" were passed by many States following the Civil War. They prohibited Blacks from holding property, making contracts and having access to the courts. They also made certain conduct criminal for Blacks but not white persons. The Civil Rights Act of 1866 specifically sought to undo such laws.The 14th Amendment's Equal Protection guarantee, in turn, specifically sought to constitutionalize the protections of that Act which was being challenged at the time.

That narrowly contemplated purpose of Equal Protection included precious little of what we assume equal rights means today. You simply can't get to the American notion of equality that we cherish today from a strict application of what was originally intended by the 14th Amendment.

So, when someone insists on Constitutional provisions being applied by the Court and the Justices as originally intended, it's fair to wonder if the person really means that. And if so, it's fair to wonder how that person could actually think that today.

The Supreme Court at first DID apply Equal Protection in accord with its narrow intent. Again, it's fair to wonder if "the intent" and "strict interpretation" crowd actually understand or prefer what they are advocating. Here are some early Supreme Court decisions, just to get a flavor:

Harsher punishment for interracial fornication. Fine. Equal Protection was not intended to stop that. (Pace v. Alabama, 1882.)

Separate (i.e., segregated) but "equal" treatment of the races. Fine. EP not intended to stop that. (Plessy v. Ferguson, 1896.)
Racially segregated train cars. Fine. EP not intended to stop. (McCabe v. Atchison, Topeka & Santa Fe, 1914.)
Racially segregated schools--and Chinese-American children being required to attend the Black schools. Fine. EP not intended to stop. (Gong Lum v. Rice, 1927.)

No women lawyers allowed. Fine. EP not intended to stop. (Bradwell v. Ill., 1873.)
No women voting allowed. Fine. EP not intended to stop. (Minor v. Happersett, 1875.)
No women tending bar or other unfit work. Fine. EP not intended to stop. (Goesart v. Cleary, 1948.)

Etc., etc., etc. 'Nough said?

Well, what to make of all this? Of the originally intended very narrow purpose of the Constitutional guarantee of Equal Protection?

There is, naturally, much more to consider. And we will consider some of it when we continue in the next post.