Thursday, July 22, 2010

Freeze-Dried Constitution?--The Intent of Equal Protection (continued--Q's from the Kagan Hearings, Part 6)

I'll go out on a limb. America is a far better place because the Supreme Court and its Justices eventually went beyond the original narrow purpose of Equal Protection. The Nation was well served when the Supreme Court and its Justices moved beyond a strict application of "the intent" of the 14th Amendment's Equal Protection and, instead, applied the grand American principle and ideal of equal treatment embodied in that provision.

I'll go further out on that limb. Most of those who insist on the Court and its Justices applying "the intent," or "strict interpretation," or "original meaning," or however they label it, actually approve the decisions that eventually applied the grander principle and ideal. They will reject the earlier, narrower, stricter, intent-based decisions. At the least, they will say that they do.

Remember what we're talking about. As discussed in the last post, Equal Protection was introduced into the Constitution following the Civil War, with the ratification of the 14th Amendment in 1868. It was only intended to insure narrowly contemplated legal rights for the newly freed Black slaves. E.g., the right to make contracts, to own property. to sue and testify in court, and the like.

Equal Protection at the time was NOT intended as the ideal that Americans cherish today and view as a birthright. It was NOT intended to end racial segregation. It was NOT intended to allow Blacks to marry Whites. It was NOT intended to give women equal rights. NOT even to own property or enter the manly professions. It was NOT intended to insure the fair treatment of the elderly or the disabled or the foreign-born, etc., etc., etc.

For a long time, the Supreme Court largely adhered to the narrow, originally intended purpose of Equal Protection. Equality in America was a very cramped concept. Not a grand ideal.

[See the discussion, including of some early--and not so early--Supreme Court decisions in Freeze-Dried Constitution?--The Intent of Equal Protection (Q's from the Kagan Hearings, Part 5), July 20, 2010.]

Eventually--and I do mean eventually as in at long last--the Supreme Court's view of Equal Protection changed. It took nearly a century. It is still a work very much in progress.

Let's consider just a few of those decisions where the Court and its Justices moved beyond a strict application of "the intent" of Equal Protection to the grander American principle and ideal. And while we're at it, ask this: Which of these decisions were wrong? Which of these "judicially activist" decisions should the Court and its Justices have decided the other way? Which of these should have been decided strictly in accord with Equal Protection's originally intended narrow purpose and meaning?

Racially segregated schools no longer allowed. (Brown v. Bd. of Ed., 1954.)

Not even in D.C. (even though EP by its very terms and intent applies only to the States, not to the Federal government). (Bolling v. Sharpe, 1954.)

Separate (i.e., segregated) but "equal" parks, buses, golf courses, etc., no longer allowed. (E.g., Holmes v. Atlanta, 1955; Gayle v. Browder, 1956; New Orleans v. Detiege, 1958.)

Interracial marriages must be allowed. (Loving v. Va., 1967.)

No invidious discrimination against non-marital children. (Levy v. La., 1968.)
Or against the mentally challenged. (Cleburne v. Cleburne Living Center, 1985.)

Equal rights for women. (E.g., Reed v. Reed, 1971; Frontiero v. Richardson, 1973.)
[Yes, not until 1971 did the Supreme Court get out of the cave on women's rights.]

No invidious discrimination against fathers in custody or adoption.
(Caban v. Mohammed, 1979.)

No invidious discrimination against gays and lesbians. (Roemer v. Evans, 1996, and Lawrence v. Texas, 2003.)
[Yes, it took the Supreme Court until 1996 even to start emerging from the cave on gay & lesbian rights. In the Roemer decision, it invalidated a law that prohibited equal protection for gays & lesbians. In the Lawrence decision, it invalidated laws that made gay & lesbian intimacy a crime.
Yes, the ultimate guardian of our rights and liberties took until 2003 to step out of the cave and decide that consensual, adult, private intimacy by gay or lesbian couples could not be punished as criminal conduct.
And the "intent-versus-judicial-activism" crowd is still extremely upset about these decisions--but not upset, they insist, about the decisions ending racial segregation or extending equal rights to women. Well, NOW they're not upset. And, of course, NONE of those decisions was originally intended by Equal Protection. So "intent" really has little to do with the actual objections.]
No racial discrimination against white persons. (E.g., Adarand v. Pena, 1995; Gratz v. Bollinger, 2003.)
[Well sure. But that's hardly the originally intended purpose of Equal Protection. Unless, of course, we're talking about the grander, underlying principle and ideal of equality. EXACTLY.]

Those are just a few of the Court's "reinterpretations" of Equal Protection. Far, far removed from a strict application of "the intent" when the 14th Amendment was ratified in 1868. But well within the grand American principle and ideal for which Equal Protection stands.

Soooooooo. Which should it be? Strict application of "the intent"? Or application of the grander principle and ideal?

For those who insist on "the intent," on "strict interpretation," on "original meaning," or however they label it--Senators and others--the question is obvious. Did the Supreme Court, in moving beyond "the intent," get all these decisions wrong? Are these decisions, which the Court based on the grand American principle and ideal of equal treatment, contrary to the Constitution or somehow dangerous to our democracy? Some of them, but not all?

Oh. So it's really not a matter of strict application of "the intent" versus application of the grander principle and ideal? It's just that you don't like--I mean, the Court got wrong--some of those decisions?

I'll go out on a limb one more time. Ending racially segregated schools was, "of course," the right decision. No problem with that. [Even though clearly contrary to the intent of the 14th Amendment's Equal Protection.]

Providing equal rights for women. "Of course," that was right too. [Again, not the intent of EP.]

Equal rights for white persons. "Absolutely of course." [Again, not exactly the intent of EP.]

Allowing interracial marriages. Well, OK, that's a stretch, but maybe even that was right. [Even though the EP would not have stood the slightest chance of ratification if that was part of its intent.]

Equal rights for gays and lesbians. Well, that's another story. That's certainly not "the intent" of EP. They never intended that. [No, they certainly did not!]

Ah! So "the intent" and "strict interpretation" and "original purpose" etc., etc., are really just arguments to be used against disliked decisions. They're really just proxies for the actual reasons (maybe embarrassing or unspeakable reasons) that a decision is disliked.

Hmm. Interesting. Not surprising, but always interesting.

And finally, what's not surprising and always interesting is seriously considering the implications of "the intent," etc. versus the grander principle and ideal for just about any Constitutional guarantee.

Who seriously believes that Constitutional provisions should be applied in strict accordance with their original purpose and meaning? That's back in 1787 for the body of the Constitution. 1792 for the Bill of Rights. 1868 for Equal Protection.

Who seriously believes that the Court and its Justices are wrong, instead, to apply the Constitution in a way that promotes--and is truer to--the grander American principles and ideals to which we as a Nation and our Constitution are ultimately committed?

Those are the questions. Those are the real issues. Not the nonsense--sometimes maddeningly idiotic--that consumes much of the hearings.

It would be good to get answers from the Supreme Court nominees, and from the Senators who question them.