Tag Archives: 14th amendment

Why aren’t conservatives for equal protection?

There is a old but reliable theme in political discussion: the gulf between the rights of individuals and the objectives of the state.  Liberal democracies are posited on the premise that the objectives of the state must be in the service of individuals and are constrained by their antecedent rights.  That's why constitutions bind modern democracies.  They are ground rules (among other things) for ensuring individual liberties are protected.

The equal protection clause of the 14th Amendment is an extension of the moral rule of equity; namely, that one must judge all morally similar cases similarly.  The motivating conditions for the 14th Amendment was racial discrimination.  And so, the race of an accuser or the accused is a morally insignificant fact. Consequently, accusations and and cases must be adjudged independently of the race of the people in question.  The basic thought is that we have a right for the rule of equity to govern our legal standing, too.  Laws must equally apply, and the protections from interference by the state must follow these rules.

The thought with equal protection, then, is that (regardless of the fact that the Amendment was occasioned by race) we should follow the rule of respecting individual rights.  Any government must meet a very high standard of scrutiny if it is to interfere with one group's rights, but not another's.  Prohibitions against gay marriage don't meet that standard. Neither did anti-miscegenation laws.  (Same 14th Amendment equal protection clause invoked in both rulings.) California's Proposition 8 is a case of a state interfering with individuals on the basis of a morally irrelevant difference. 

Now, Mark Trapp, at the American Spectator, says that the recent decision to overturn to Proposition 8 is a case of federal  judges "imposing their personal policy preferences, the will of the people notwithstanding."   This is a pretty serious charge, one implies that the decision (and perhaps all judical review) is undemocratic. But if the people willed to take all the rich people's money and cars, that'd be rightly stopped.  If the people voted to prevent all left-handed people from driving, then that'd be rightly stopped, too.  That might be "imposing" a policy preference, but it'd be one guaranteed by the 14th Amendment. 

Trapp seems to think that judicial overturning of a legislative decision is an Federal imposition on a state's sovereignty, and ultimately, individual sovereignty:

Rather than determine for themselves such fundamental issues as abortion and same-sex marriage, many seem resigned or even content to having such momentous public policy decisions made by judges — for whom they do not vote and against whom they have no recourse. 

My question is how can one be in this case a person committed to States' Rights and the organizing value of the Constitution's protection of individual rights on this issue?  If it turns out that California's Proposition 8 runs afoul of the 14th Amendment, then California does not have the right (regardless of the vote count, 52% to 98%) to discriminate. 

You know, one of the few things I find appealing about conservativism is the individualism at its core.  That seems right to me.  But how does States' Right fit in that equation?  Why does a Federal decision over a State's decision matter to someone who cares about individual rights?  If the state is in the wrong and has run afoul of equal protection, isn't it a good thing to have a Federal Government to protect those rights?  I mean, what kind of individualist rationalizes oppression by saying "it's morally irrelevant unequal treatment, but it's the way we do it here." ?  How is the fact that it is here a morally relevant category?

The payoff for informal logic is that I think that some tu quoque arguments can reveal cases of bias and double standards.  Trapp's argument is that protecting the individual liberties of homosexuals with the 14th Amendment contravenes the individual liberties of those in the majority who want to discriminate against homosexuals.  And that's undemocratic and unjust.  You see, Trapp loves liberty so much…

Now, that’s a strawman!

Jonah Goldberg has a piece defending Lindsey Graham's recent proposal for a Constitutional Amendment (one that would revise the 14th Amendment's citizenship clause so that children born of illegal aliens are not citizens).  More importantly, Goldberg is out to defend our responsibility to revise and interpret the Constitution as the cases demand.  Now, this should come as a surprise to all the conservatives who take themselves to be strict "Constitutionists" — this sounds all too much like the old 'living document' take on the Constitution conservatives hate so much.  Goldberg anticipates this:

...this "living document" argument is a straw man. Of course justices must read the document in the context of an ever-changing world. What else could they do? Ask plaintiffs to wear period garb, talk in 18th-century lingo and only bring cases involving paper money and runaway slaves?

Goldberg's a little confused about straw men, as straw-manning depends on how you portray your opposition, not how obvious your views are.  But his point is reasonable enough — if the options are, on the one hand, seeing the world and the Constitution's relevance through the lenses of 18th Century Yankees and, on the other hand, looking at the world with the judgment of 21st Century Yankees, we should take the 21st Century perspective… given that we're out to deal with 21st Century problems.  So Jonah Goldberg has made a nice point and also has highlighted a straw man argument.  Oh, but then he steps right back into the straw man mode, himself:

When discussing the Constitution on college campuses, students and even professors will object that without a "living constitution," blacks would still be slaves and women wouldn't be allowed to vote. Nonsense. Those indispensable changes to the Constitution came not from judges reading new rights into the document but from Americans lawfully amending it.

Even professors?  Really?  Even professors?  Goldberg owes us at least one name for this charge.  But he provides no documentation, no names, no nothing, just vague allegations of intellectual incompetence.  Nobody said that living document interpretation of the Constitution was the solution to those things — we had Constitutional Amendments to solve those problems.  Only utter morons would say those were cases of living document work.  But how about, say, Brown v. Board, or pretty much every privacy rights case?  Or, maybe Gregg v. Georgia, with the notion of an evolving standards of decency in punishment?  Those are all cases of reading the document of the Constitution in a way that keeps its core commitments but also extends them to the cases that the framers did not anticipate.  Ignoring these cases (and actual discussions of them on academic campuses) not only distorts what the "living document" interpretation is, but it makes it impossible to make sense of what Goldberg's own views on the Constitution are.  For someone out to prevent straw manning about Constitutional interpretation, Jonah Goldberg is an expert at constructing and knocking the stuffing out of them.

Fight for your right to party

Here's a fun assignment.  Think of all of things you can do with yourself, then ask, do I have a constitutional right to do this? If it's not explicitly mentioned in the Constitution in unambiguous language, like the second amendment's unequivocal guarantee of your individual and unrestricted right to pack heat, then no, you don't have a right to it.  The second part was kind of a joke.  The first part not–you'll find that you have no explicit constitutional right to do most of the things you do.  So the fact that something you do or can do is not explicitly mentioned in the constitution does not ipso facto mean it's not a guaranteed right.  Or so I would think.  Not so much George Will.

In Roe, the court said that the 14th Amendment guarantee of "due process" implies a general right of privacy, within which lurks a hitherto unnoticed abortion right that, although it is "fundamental," the Framers never mentioned. And this right somehow contains the trimester scheme of abortion regulations.

Since 1973 the court has been entangled in the legislative function of adumbrating an abortion code the details of which are, Wilkinson says, "not even remotely suggested by the text or history of the 14th Amendment." Parental consent? Spousal consent? Spousal notification? Parental notification? Waiting periods? Lack of funding for nontherapeutic abortions? Partial-birth abortion procedures? Zoning ordinances that exclude abortion facilities? The court has tried to tickle answers for these and other policy questions from the Constitution.

Last thing first.  According to the Constitution, it's the judiciary's job to interpret the law.  The Supreme Court interprets all laws in virtue of their consistency with the U.S. Constitution.  That's its job.  Second,  did you think of any of the things  you do which aren't explicitly mentioned as rights?