The Clauses – Part II

In the last post I wrote about the General Welfare and Commerce clauses.  This post I will cover Equal Protection clause and Due Process.  I am guessing that will take us many places.  Again these clauses are used to force national laws onto the states, increasing federal jurisdiction, reducing the division of power and creating one size fits all laws with very limited ability to change them, thus reducing liberty.

The Equal Protection clause is found in in Section 1 of the 14th amendment.  Do not forget that our constitution is a document of negative rights, it takes rights away from us, we hold all the rights, and grants them as enumerated powers to the federal government.

The second paragraph of the Declaration of Independence:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

Section 1 of the 14th amendment reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

There is a lot in those words to digest.   First declaring all persons born or naturalized in the United States, Citizens.   Then protecting the privileges and immunities clause first stated in Article 4 Section 2 of the constitution:
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

James Madison wrote in Federalist 42:
“those who come under the denomination of free inhabitants of a State, although not citizens of such State, are entitled, in every other State, to all the privileges of free citizens of the latter; that is, to greater privileges than they may be entitled to in their own State….”

While this clause is vague, a few things to remember.  We own our basic rights, they are not granted to us by our government.  The constitution originally did not apply to the states.  It defined the federal government.  With the 13th, 14th and 15th amendments and in the 1920’s “Incorporation Doctrine” the courts have found the bill of rights can apply to the states as well.  That being said, “privileges and immunities” has never been applied to laws between a state and its own citizens, how a state treats its own citizens.  Furthermore, it does not mean laws of one state apply to/in other states.  Again, this could be abused to create a one size fits all law in one state and make it a national law.  But that has not been done, yet.

The clause means that the rights of a free citizen in a state apply to all who become under the jurisdiction of that state even if not a resident.  It also means that something against the law in your state, but not the visiting state, does not apply to you when you are in the jurisdiction of that state (as Madison said in Federalist 42.)

It has been called the right to interstate travel, it allows a citizen of one state to be a citizen of another state.  It prevents discrimination against people from out of state.  But only with regard to basic rights.  Remember, liberty, freedom and our fundamental rights are what is in question.  This also has the effect of unifying all citizens in the different states into a single nation.  You do not need your papers to cross the border into another state.

Finally we get to due process and equal protection.  Equal protection isn’t about equal rights.  It is about due process with regard to basic rights.  Life, liberty and property.  The application of punishment or protection of a state’s laws must be applied equally to all people within jurisdiction of that state (born or naturalized in that state).

The 5th amendment also states:
No person shall be … nor be deprived of life, liberty, or property, without due process of law

The 14th amendment, applying to the states, no state shall…

I ran across this paragraph in my research.  (from a law school none-the-less)
Generally, the question of whether the equal protection clause has been violated arises when a state grants a particular class of individuals the right to engage in an activity yet denies other individuals the same right. There is no clear rule for deciding when a classification is unconstitutional.

There are some good points here, an interesting clarification on the topic, but one glaring point that I wanted to mention.  “When a state grants a particular class of individuals the right to engage…”  Our government does not grants us rights.  It protects the rights we have.  It can deny a right to certain individuals by following due process and equal protection of the law.  But it does not grant.  That really bothers me.

To the “particular class of individual” or “deciding when a classification is unconstitutional.”  Things get interesting quickly.  None of these concepts are mentioned in the constitution, so this really is not a constitutional question.  We must be very careful not to put words into the constitution.  It starts granting power where none was given, it sets a precedence if you will.  If we want to grant power we must follow the amendment process, due process.

The government can provide benefits or deny benefits to citizens, again based on equal protection of the law and due process.  The law is by nature discriminatory, people under the age of 18 are not allowed to vote.  18 is an arbitrary but equally applied classification.  But if we allow the federal government to start defining classifications, especially based on constitutionality, then we are arbitrarily in the opposite direction determining how laws are applied, arbitrary being the key word.  A different kind of discrimination.  Maybe one we like and are ok with, for now…

So we must allow our states to make the laws we feel are appropriate, we are willing to live by.  Our leaders, especially at the federal level can use their “bully pulpit” and position of leadership to guide us in our judgment to better laws, help us to see the errors in our ways and correct bad laws.  They can suggest changing bad laws.  To me a real statesmen guides us with wisdom.  Does not dictate with the pen and pages upon pages of legislation.

Our politicians, representatives should provide leadership on right and wrong, but should they be able to control right and wrong?

I was challenged writing this particular post.  There is nothing in the constitution that allowed the federal government to put an end to the separate but equal laws of the south.  There is just no language to give them that power.  The law/due process was being applied equally, no one was being denied their basic rights.  But that does not make the laws good or right.  They were in fact in my opinion, misguided and bad.  Segregating people was providing no value in moving our country forward.  It was not in the spirit of all men being created equal.  It was an veiled attempt to try to deny equality, ironically it was a way to classify and control people.  But it still passed constitutional tests.  So what is the remedy?  The remedy is for us to control our destiny, change our laws, be active in our government, chose wise leaders who will speak out against injustice but let us create our laws, in our states.  In a free society we must let people make mistakes so we can learn from them and chose better paths for our future.  We cannot assume to be all knowing.  We cannot expect to get it right.  Right now we are making mistakes we do not see that future generations will wonder “what were they thinking.”  It is the natural course of things.

We will grow, mature our thinking and fix our mistakes.  We must let the states be laboratories of democracy.  We must be proactive citizens and work with our state governments and national leaders to ensure we are making wise laws and growing as a nation.  We must speak out against injustice.  We must educate ourselves and our neighbors.  We cannot sit back and let others do it for us.  We must be active and participate.  If we sit back and let others decide for us, we cannot be surprised by results we do not like.

As president Andrew Shepard (Michael Douglas) said in American President (I know, a movie quote)
America isn’t easy. America is advanced citizenship. You’ve gotta want it bad, ’cause it’s gonna put up a fight. It’s gonna say, ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.’ You want to claim this land as the land of the free? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then, you can stand up and sing about the land of the free.

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