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.<\/p>\n
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.<\/p>\n
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. <\/p>\n
Now, Mark Trapp, at the American Spectator<\/em>,<\/a> 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. <\/span><\/p>\n Trapp seems to think that judicial overturning of a legislative decision is an Federal imposition on a state's sovereignty, and ultimately, individual sovereignty:<\/span><\/p>\n 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.<\/span> <\/span><\/p>\n<\/blockquote>\n My question is how can one be in this case a person committed to States' Rights and<\/em> 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. <\/span><\/p>\n 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." ? <\/em>How is the fact that it is here<\/em> a morally relevant category?<\/p>\n The payoff for informal logic is that I think that some tu quoque<\/em> 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…<\/p>\n","protected":false},"excerpt":{"rendered":" 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. … Continue reading Why aren’t conservatives for equal protection?<\/span> \n