The Fourteenth Amendment is part of the post Civil War trilogy. There's a three-pack that with the Thirteenth frees the slaves, elevating the Emancipation Proclamation from executive order of a President to basic law of the land. The Fourteenth corrects the terrible Dred Scot decision and affirms that the now freed slaves are citizens with all the rights and privileges of that status. The third component, the Fifteenth Amendment, gives the former slaves, now citizens, the right to vote.
The Fourteenth also added an interesting phrase: "equal protection under the law." That essentially says that a citizen has the same basic rights and privileges wherever they are in the nation. It provides for "incorporation" or the extension of the protections of the Bill of Rights. After that phrase there could no longer be a separate standard for the national government and the state governments. "Congress shall make no law..." meant state legislatures as well.
Unfortunately not all of the provisions of the Bill of Rights are fully incorporated. Why this should be, particularly in light of the related "full faith and credit" clause in the basic document, is a conundrum.
In the last third of the Twentieth Century the civil rights movement brought us a new interpretation of equality. Well-meaning legislators and courts determined that there was an obligation to aggressively move to correct past discrimination.
There was no denying that despite the statements regarding equality there was vestigial discrimination throughout society. Colleges remained largely white. Executive positions were filled with good ol' boys. Doctors, lawyers, bank presidents, cops, firemen, military officers and most positions of prestige and authority remained in the hands of the majority white population. Correction would require more than simple barrier removal. Enter Affirmative Action.
Preferences were established and applied. Quotas imposed. Set-asides granted. The inevitable problems eventually surfaced.
If quantities are limited and a different standard is set to achieve a social goal then someone is eventually going to be discriminated against. The landmark decision came in Bakke v Univ. of California. The Supreme Court acknowledged reverse discrimination and found it unlawful. Programs would have to be modified, rewritten, or eliminated. It wasn't that simple.
A body of law has arisen which nuances the entire process. A clientele for favoritism has arisen and affirmative action has become a holy grail for some. Few in the majority like it. Few in the minority want it eliminated. Justice is not about majority rules, however, it is about law.
Michigan fought back and voted to eliminate AA. The outcome of the election was challenged in federal court. Now an appeals court has struck down the first court ruling and over-ruled the people of the state.
What is chilling about the ruling is the language used to justify the decision. Take a look:
Manipulating the Channels of Change on Issues of Importance to Racial Minorities
An "issue of importance" to minorities should have no more standing in court under the law than an "issue of importance" to any citizen. The fact that an ethnic minority is concerned doesn't enter the vision of a blind Justice.
2 comments:
"Justice... is about law"
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Often interesting how things become "law". Consider the under-ratified 14th Amendment.
The alleged 14th Amendment was enacted on July 20, 1868.
However, only 21 States legally ratified it --so it failed the Constitutional amendment requirements of Article V.
(of the 37 states in the U.S. then... 28 were necessary for ratification)
In 1865 the legally reconstituted Southern state governments were busy ratifying 13A, but the Republican-dominated U.S. Congress refused to seat Southern Representatives and Senators. This let the 'remaining' Congress formally propose 14A with a 'nominal' 2/3 majority. That this clearly violated the Constitution... in that "no State, without its Consent, shall be deprived of its equal suffrage in the Senate" was ignored.
Though the Northern states ratified 14A, it was decisively rejected by the Southern & border states. The radical Republicans responded with the "Reconstruction Act of 1867", which virtually expelled the Southern states from the Union and placed them under martial law. To end this military rule, the Southern states were required to ratify 14A.
President Andrew Johnson saw the 'Reconstruction Act' as "absolute despotism," a "bill of attainder against 9,000,000 people." But his veto was over-ridden by Congress. That Congress also enacted statutes reducing SCOTUS appellate jurisdiction and the Court itself... to keep that branch in check.
Under this duress, the South "ratified" the 14th.
But not before New Jersey & Ohio, shocked at Republican tyranny, rescinded their previous ratifications of 14A(which were still needed for formal enactment). Congress just ignored these rescissions ... and by mere 'joint resolution' declared the 14A valid.
The Oregon Legislature rescinded its 14A ratification in October 1868...stating that the "Fourteenth Amendment" had not been ratified by three fourths of the States and that the "ratifications" in the Southern States were "usurpations, unconstitutional, revolutionary and void" and that, "until such ratification is completed, any State has a right to withdraw its assent to any proposed amendment."
SCOTUS has since consistently refused to address the illegal activities involved in 14A "ratification." It said simply that they were acts of the "political departments of the Government."
Thus, we have the 14th Amendment in year 2011... and ponder its "lawful" requirements.
Equal treatment under the law only applys to non-white persons....at least in our districts...it might be different in other parts of the country.
Anonymous, thanks for the History Lesson, that is one story I was not aware of....and seriously worth looking at. I do not promote the idea that any racial group or person should be denied their rights as defined in the Bill of rights but things must be done in a lawful manner.
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