The Secret Feminist Purpose of Section Two of the Fourteenth Amendment
[Guest post by Aaron Worthing; send your tips here.]
This adapted from is an old post from my blog, that I consider an “oldie but goodie” to give you guys a little content while I handle some personal matters. I hope you enjoy it.
Section 2 of the Fourteenth Amendment deals with apportionment. It says, in full:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
This provision has long been denounced by feminists because it was the first time the word “male” was inserted into the constitution. However, there is good reason to believe that Section Two of the 14th Amendment was designed to advance a feminist purpose.
It’s given away when you look at how it might have functioned. In truth, Section 2 never went into effect. They literally never applied it, in large part because the Fifteenth Amendment mooted it two years later. But if you think about how it operates, you start to see something very curious: it creates an incentive for racist white men to allow white women to vote.
Background on Section 2
Now, for background, let me explain the purpose of Section 2. In the original constitution, slaves were counted as 3/5 of a person for representational purposes. Back at the original founding, the South had wanted to count slaves as full persons, because they felt that having a larger population to worry about, the voters of the South should have been given greater representation. The North, on the other hand, insisted that the slaves shouldn’t count at all, because after all, they couldn’t vote, and thus counting the slaves would only serve to increase the political power of those who were oppressing them. It was noxious. This was eventually settled with the 3/5 compromise resulting in the language of the 3/5 clause.
At the end of the Civil War, then, the North had a problem. By abolishing slavery, this meant that the black people in the south would be counted as full persons. But, they still wouldn’t have the right to vote. So they needed to ratify a constitutional amendment to correct this.
Thaddeus Stevens had a very simple proposal which said basically that apportionment would be by the number of voters. This was rejected for a scheme that was slightly more complicated but according to its proponents was still supposed to have a very similar effect. So the main goal they had in passing this was to force the South to choose either to give African Americans the right to vote, or face a commensurate reduction in representation.
But when you look at how the rules operate, you realize that by the way it is written, it allowed for 1) explicitly racial voting laws that 2) dramatically change the racial demographics of the voting class, without any penalty in apportionment.
How Section 2 Works
Let’s start with the first line of the amendment. It says:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
Now this clearly meant that apportionment, that is the distribution of representatives, would be according to the full population of the state, whether they are male or female, black, white, or whatever.
Then it says that under certain circumstance that a state is punished by having its apportionment reduced. It says:
But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
So to break it down into easier steps, you would first ask whether anyone had been excluded from the franchise who was 1) male, 2) an inhabitant of the state and 3) citizen of the United States, 4) over 21 years of age, and who is not a 5) former Confederate or 6) criminal.
Then if any such persons were excluded, then you reduce the apportionment of representation by a complicated formula, that frankly you don’t have to worry about for the purposes of my argument.
The key thing to get is that while the whole population is counted when figuring out the initial “baseline” of apportionment, the penalty is only triggered if men (who are citizens, etc.) are excluded.
So the effect is to say that you can do whatever you want to the voting rights of women, and apportionment is not affected. And that creates a loophole that bigots can easily exploit.
How the Loophole Works
As stated, by inserting the word “male” into Section 2, this allowed for 1) explicitly racial voting laws that 2) dramatically change the racial demographics of the voting class, 3) without any penalty in apportionment.
But let’s make this concrete to show how this loophole worked. So let’s imagine a scenario where two thirds of the population is black, and one third of the population is white. Don’t scoff, this was exactly the case in South Carolina during Reconstruction. Let’s further imagine that the population is divided evenly between men and women. And just to keep our math simple, let’s imagine that there are 300,000 people in the state broken down to 100,000 black men, 100,000 black women, 50,000 white men and 50,000 white women.
Now imagine three different legal regimes:
First, universal male suffrage without regard to race. That would be result in 100,000 black men, to 50,000 white men, a 2/3 majority in favor of African Americans in the voting class.
Second, universal suffrage, without regard to race or gender. That would result in 200,000 black people voting, and 100,000 white people, still a 2/3 majority in favor of African Americans in the voting class.
Third, universal suffrage for men, but suffrage for white women only. That would result in 100,000 black men, and 100,000 white people (50,000 men, 50,000 women), and now you would have a50/50 split along the races in the voting class.
But in all of those scenarios, the apportionment would be the same. In the initial apportionment, all women are counted whether they have the vote or not, but the penalty only kicks in when men (who are citizens, etc.) are excluded.
So once again, you could have 1) explicitly racial voting laws that 2) dramatically change the racial demographics of the voting class, 3) without any penalty in apportionment.
And that is the loophole.
Let’s try the same thing in only in a scenario where half the voters in a state are white, and half are black. That was how it was in Mississippi. So let’s now imagine 200,000 African Americans (being 100,000 men, and 100,000 women), and the exact same number of white people with the same gender breakdown. Now let’s rerun two of the scenarios from the South Carolina example:
First scenario: universal male suffrage without regard to race. That would be result in 100,000 black men, to 100,000 white men,an even 50/50 split in the voting class.
Third scenario, universal suffrage for men, but suffrage for white women only. That would result in 100,000 black men, and 200,000 white people (100,000 men, 100,000 women), and now you would have a 2/3 majority in favor of whites in the voting class.
And once again the apportionment in each scenario is exactly the same. And once again, racial bigots would be able to game the system to increase the proportion of white voters without suffering any penalty in apportionment.
Implications
Now the next question would be, “okay, but would the founders of the Fourteenth Amendment understand that?” In other words, would this have been an oversight, or their design? Is this a bug or a feature?
I will say frankly that I have read a lot on the founders of the Civil War Amendments, and I have never seen a single breath of this as a plan.
On the other hand, this is apportionment we are talking about, something they pay very close attention to in Congress. So I would have a hard time believing they didn’t realize what this would do.
So that leads to the question of what the founders were trying to accomplish. In other words, were the founders planning to screw black people in order to help white women?
Well, that depends on what the founders expected those white women to do.
Certainly the Southern racist would assume that those women would have voted by color. But the Republicans in the North had seen an alliance grow up between the feminist movement and the abolitionist movement. So it was reasonable to think that if white women were given the vote, that enough of them would be willing to make common cause with African American voters in order to do something really radical, like extending the vote to all African Americans, regardless of sex, creating an even greater majority than before in favor of equality of opportunity.
And I have studied the Republicans of that era enough to know that they very often used racism against itself in order to advance racial equality. The most obvious example was Thaddeus Stevens demanding that the Union begin to use black troops because he was sick of only white people dying. Everyone who knew him, knew he was full of it when he said that. He wanted black troops in the war, because he wanted black people to be seen participating in their own liberation, to increase their standing when the war was won. But he had no qualms about using racism as a tool to accomplish that goal.
So putting in a loophole in order to encourage the bigots to give white women the vote, on the hope that then they would expand the franchise to all men and all women? Yeah, that is exactly their M.O.
But that is a theory based on a supposition based on an almost mathematical proof of how a law operated in a fashion that no one at the time mentioned, and decades of constitutional scholars apparently failed to notice. In other words, I could be wrong. But I think it is fair to say that this is an intriguing theory.
And as a final note, I would like to point out one other thing. Although in reality, the Fifteenth Amendment came in about 2 years later to prevent anyone from exploiting this loophole, obviously when they were writing and ratifying the Fourteenth Amendment, they expected it to be the last word on the subject for a long time. I am not sure what happened to accelerate that timetable, but it was not part of the original plan to pass the Fifteenth Amendment so quickly after the Fourteenth. So when they put in this rule in Section 2, they expected it to remain the law of the land for a while.
Update: Slight correction made. Thanks AD.
[Posted and authored by Aaron Worthing.]
“… So let’s imagine a scenario where two thirds of the population is black, and two thirds of the population is white…”
And the other 2/3’rds were Queens of the May.
AW…I think you need to revise this?
AD-RtR/OS! (1dbed6) — 10/23/2010 @ 6:14 pmI find it much more likely that the drafters of the amendment didn’t think of female suffrage as something that would ever happen.
Remember, that while the female suffrage movement was in existence, female suffrage did not come to pass until several decades later. In the 1860s, in the UK and much, if not all, of the US, a married woman did not own property–either it was held in trust for her by others or it was under the legal control of the husband. (“In law the husband and wife are one person, and that person is the husband”).
kishnevi (225b9d) — 10/23/2010 @ 8:37 pmI’m going to hijack this thread at random, because P.J. O’Rourke has finally put the whole problem with Democrats in one concise post at the Weekly Standard.
He pretty much encapsulates in one small essay what I’ve been trying to say for years.
http://www.weeklystandard.com/print/articles/they-hate-our-guts_511739.html
Ag80 (743fd1) — 10/23/2010 @ 8:42 pmAlso, it seems to me, that not a single Democrat, or liberal, or any fellow traveler could refute any point he makes.
O’Rourke is a funny guy and his business is drawing extremes. Nonetheless he has drawn an extremely clear line about the thoughtful elite.
Ag80 (743fd1) — 10/23/2010 @ 9:13 pmBlacks, 12% of the population, 75% of the Local Broadcasting News Teams.
Torquemada (a8a9b2) — 10/23/2010 @ 9:35 pmPJ O’Rourke FTW!
i lurve that guy, and have for years.
redc1c4 (fb8750) — 10/23/2010 @ 11:54 pmThe key thing to get is that while the whole population is counted when figuring out the initial “baseline” of apportionment, the penalty is only triggered if men (who are citizens, etc.) are excluded.
Which is precisely why no honest person can say that the Fourteenth Amendment guarantees equality for women. It doesn’t matter if you read the Constitution in the light of the Framers’ intentions or in the light of the contemporary meaning of the words in the Constitution or under some other theory. Whatever theory is used to interpret the Equal Protection Clause, Section 2 of the Fourteenth Amendment makes it crystal-clear that whatever “equal protection” does mean, it sure as hell doesn’t mean “equal treatment.” The case law regarding gender classifications, while no doubt consistent with modern public opinion about when and whether gender classifications are desirable policy, is fundamentally inconsistent with any honest reading of the Amendment.
Alan (7130c5) — 10/24/2010 @ 2:31 amColonel think this not
ColonelHaiku (beb613) — 10/24/2010 @ 9:33 amelection on 2nd, is
restraining order
If white women were given the vote but black women were not, wouldn’t that have been considered a violation of equal protection?
cimics (ac879a) — 10/24/2010 @ 9:40 amOf course not. The Fourteenth Amendment itself didn’t give blacks the right to vote, and it was enacted for them.
Alan (7130c5) — 10/24/2010 @ 9:43 amActually in the earlier colonial era, he colonies followed the laws of Britain on women’s property. However, by the middle of the 19th century, most states had passed laws, which stated that even a married woman’s property remained her own and could be willed away irresepective of her husbands wishes. And of course women gained the vote in 1869 in Wyoming, so women’s suffrage wasn’t some pipe dream in that era.
Mike Giles (afe37e) — 10/24/2010 @ 9:56 amI find it much more likely that the drafters of the amendment didn’t think of female suffrage as something that would ever happen.
It already had happened, and it had happened well before the Fourteenth Amendment was ever written. At the time of the Founding, New Jersey allowed women to vote.
Alan (7130c5) — 10/24/2010 @ 10:07 am[i]Of course not. The Fourteenth Amendment itself didn’t give blacks the right to vote, and it was enacted for them.[/i]
I don’t see how that solves the equal protection problem. If you give black males the right to vote and white females the right to vote, then black females are denied equal protection either on the basis of race or gender, right?
cimics (ac879a) — 10/24/2010 @ 10:41 amOr actually, such a situation would discriminate against black females on the basis of a combination of race and gender — and the question would be how that could possibly be justified under equal protection.
cimics (ac879a) — 10/24/2010 @ 10:53 amOt, does anyone believe the LA Times poll on Brown v. Whitman, I know I’m being rhetorical
ian cormac (6709ab) — 10/24/2010 @ 11:05 amhttp://www.greenbergresearch.com/index.php?ID=2536
ian cormac (6709ab) — 10/24/2010 @ 11:20 amIf you give black males the right to vote and white females the right to vote, then black females are denied equal protection either on the basis of race or gender, right?
Of course not. “Equal protection” doesn’t mean “equal treatment.” It means “equal protection.”
The Fourteenth Amendment did not give blacks the right to vote. Therefore, denying blacks the right to vote on the basis of race is not a denial of equal protection.
The Fourteenth Amendment also did not give women the right to vote, which should be plain enough from Section 2 of the Amendment. Therefore, denying women the right to vote on the basis of gender is not a denial of equal protection.
And so, denying black women the right to vote on the basis of race and gender is not a denial of equal protection.
It was for the benefit of blacks that the Fourteenth Amendment was adopted. If the Equal Protection Clause didn’t give them the right to vote, then it obviously didn’t give anyone the right to vote.
Alan (7130c5) — 10/24/2010 @ 12:35 pmWhy isn’t DRJ posting here anymore? What happened? Anyone?
The Emperor (dfb794) — 10/24/2010 @ 2:45 pmIt was for the benefit of blacks that the Fourteenth Amendment was adopted. If the Equal Protection Clause didn’t give them the right to vote, then it obviously didn’t give anyone the right to vote.
You are correct that the Equal Protection Clause did not confer the right to vote. A.W. is postulating that that right is conferred elsewhere on males and white females. So, in the scenario males and white females are protected by the right to vote laws, and black females are being denied the same protection. How is that not a violation of equal protection?
cimics (ac879a) — 10/24/2010 @ 3:18 pmI believe your figures in scenario 3 are incorrect from your assumptions.
Assumption: And just to keep our math simple, let’s imagine that there are 300,000 people in the state broken down to 100,000 black men, 100,000 black women, 50,000 white men and 50,000 white women.
Scenario 3: That would result in 100,000 black men, and 200,000 white people (100,000 men, 100,000 women), and now you would have a 2/3 majority in favor of whites in the voting class.
I believe the correct result would be: 100,000 black men and 100,000 white people (50,000 men and 50,000 women), giving a 1-1 equal result.
TennLion (f66002) — 10/24/2010 @ 3:21 pmP.S. Of course, no one expects lawyers to do math. 🙂
TennLion (f66002) — 10/24/2010 @ 3:21 pmThe Fourteenth Amendment did not give blacks the right to vote. Therefore, denying blacks the right to vote on the basis of race is not a denial of equal protection.
The Fourteenth Amendment also did not give women the right to vote, which should be plain enough from Section 2 of the Amendment. Therefore, denying women the right to vote on the basis of gender is not a denial of equal protection.
And so, denying black women the right to vote on the basis of race and gender is not a denial of equal protection.
Here’s the crux of what I’m saying. A.W. postulates that bigots will try to avoid section 2 by giving males and white females the right to vote, but denying that right to black females. Thus, in this scenario, the right has already been extended (by some law other than the 14th amendment) to some black persons and already extended to some females. On what valid basis is the distinction to deny votes to black females made?
cimics (ac879a) — 10/24/2010 @ 3:26 pmP.S. Of course, no one expects lawyers to do math.
Except when computing their fees, which seem to contain very large “inflation” factors (Heh!).
AD-RtR/OS! (9f37bb) — 10/24/2010 @ 3:49 pmComment by The Emperor — 10/24/2010 @ 2:45 pm
She is “on hiatus”, again!
AD-RtR/OS! (9f37bb) — 10/24/2010 @ 3:50 pmRe Comments 11 and 12–I stand corrected. Being a staunch male chauvinist pig, I was unaware that New Jersey had flirted with danger so early on, and I thought that Wyoming had not given in to harridan pressure until about thirty years later. But (in seriousness)I still think the drafters of the amendment were not thinking about women’s suffrage and the implications thereof.
Mostly off topic: for those interested, CNN will be broadcasting the final Florida gubernatorial debate tomorrow night (Monday 10/25). Feminist angle: the Democratic candidate (Alex Sink) is a female. And even better, PBS’ Great Performances is broadcasting Boulez conducting the Chicago Symphony in Mahler’s Seventh this week. Feminist angle: Alma.
And for those of us who need our DRJ fix–she still comments. (Waves)
kishnevi (827a72) — 10/24/2010 @ 5:29 pmShe is “on hiatus”, again!
Comment by AD-RtR/OS! — 10/24/2010 @ 3:50 pm
Hope she resumes soon.
The Emperor (dfb794) — 10/24/2010 @ 6:20 pmI’m commenting much more. And waving at kishnevi.
DRJ (d43dcd) — 10/24/2010 @ 7:17 pmDRJ comments all the time. As evidenced by above. I hope she continues.
I don’t mean to hijack the 14th Amendment thread again, but since I did post a link to P.J., and after looking at various blogs, I can see something coming that I didn’t expect.
I dismissed the blog war between Patterico and Jeff Goldstein. Because, you know, it’s just a couple of bloggers blowing off steam.
But now I see a war a’comin no matter the November election results. I should have seen it sooner.
How those elected react, rather than the electorate, will be interesting to watch.
Ag80 (743fd1) — 10/24/2010 @ 7:58 pmAg80,
What are you seeing? Your reference to the Patterico-Goldstein history suggests to me you see conflict between moderates and conservatives, but I’m not sure that’s what you mean. It could also be a reference to reports I’ve seen that some big GOP donors are reluctant to support Tea Party candidates.
DRJ (d43dcd) — 10/24/2010 @ 8:38 pm#19, #22–I’ve already explained this fully. But I’ll give it one more go.
A.W. is postulating that that right is conferred elsewhere on males and white females. So, in the scenario males and white females are protected by the right to vote laws, and black females are being denied the same protection. How is that not a violation of equal protection?
I am postulating that the right is conferred on white males but not on black males. So, in the scenario white males are “protected” by the right-to-vote laws, and black males are being denied the same “protection.” I am also postulating (indeed, Section 2 itself postulates by its very terms) that the right is conferred on males but not on females. So, in the scenario males are “protected” by the right-to-vote laws, and females are being denied the same “protection.” (By the way, your use of the words “protected” and “protection” is ridiculous. It’s a denial of equal TREATMENT, not a denial of equal PROTECTION. A denial of equal protection would be a law—and there used to be such laws—providing that if you murder a white person you get the death penalty but if you murder a black person you just get incarceration.) That’s not a violation of equal protection, because the Fourteenth Amendment doesn’t give blacks or women the right to vote. Section 2 of the Amendment gives states an incentive to give blacks the right to vote, as the main post here explains. But it doesn’t create a requirement that a state allow blacks to vote. It’s assumed that white people will have the right to vote, and whether or not black people will be similarly “protected” is up to the states to decide. And the repeated use of the word “male” in Section 2 of the Amendment shows unmistakably clearly that the Amendment thinks there’s no problem with a situation where men, but not women, have the right to vote. It is therefore impossible to believe that the Equal Protection Clause forbids the very same situation that Section 2 shows the Amendment doesn’t have a problem with.
Thus, in this scenario, the right has already been extended (by some law other than the 14th amendment) to some black persons and already extended to some females.
Section 2 of the Fourteenth Amendment gives us the (actual) scenario in which the right already was extended (by some law other than the Fourteenth Amendment) to some persons (some men) and not to others (women). How is that not a violation of equal protection? Because the Equal Protection Clause doesn’t forbid denying the right to vote on the basis of sex. How do we know this? Because, for the umpteenth time, Section 2 takes it as a given that the right to vote will be denied on the basis of sex. And Section 2 also takes it as a given that states may choose not to give blacks the right to vote at all, since it merely gives them an incentive—not a directive—to confer that right on blacks. So it’s obviously not a denial of equal protection for a state to choose to do two things that the Amendment, in Section 2, assumes the states have the right to do: deny the elective franchise on the basis of race, and deny the elective franchise on the basis of sex. The fact that in A.W.’s hypothetical the government is doing both of these things at once is entirely beside the point, because both of the classifications—racial and sexual—are clearly permissible, given the inescapable inferences (already explained) from Section 2.
After this, if you want to continue playing dumb, I’m giving up. I previously explained all of this, and did it clearly enough that I think you’re just repeating the question for the sake of being disagreeable. I can’t imagine that you honestly can’t see such an obvious point.
Alan (7130c5) — 10/24/2010 @ 8:49 pmExplain?
Myron (eb1dfe) — 10/24/2010 @ 8:54 pmOops, left over from the sockpuppet thread. Damn cookies.
Ag80 – Explain?
JD (eb1dfe) — 10/24/2010 @ 8:57 pm#3
http://rightwingnuthouse.com/archives/2010/09/22/the-decidedly-unconservative-nature-of-the-tea-party-establishment/
IMO is a more thoughtful analysis than what O’Rourke put forth.
VOR2 (8e6b90) — 10/25/2010 @ 4:14 amNo, it’s not, Moran, has a bug in his bonnet about the Tea Party
ian cormac (6709ab) — 10/25/2010 @ 5:56 amAfter this, if you want to continue playing dumb, I’m giving up. I previously explained all of this, and did it clearly enough that I think you’re just repeating the question for the sake of being disagreeable. I can’t imagine that you honestly can’t see such an obvious point.
Let’s start with this comment of yours: I don’t think you’ve ever characterized what I have been saying accurately or fairly. Perhaps you just did not understand what I am saying, despite my attempts to make it abundantly clear. So, I have done a point by point, to try to clarify where I think you’ve gone of course. But if you want to smugly declare victory without seriously considering what I have to say, that’s your choice.
I am postulating that the right is conferred on white males but not on black males.
I was never commenting on that postulation. I was responding to A.W’s postulation that bigots would give black males and white females the right to vote but deny the vote to black females, in order to maintain white dominance in voting. If that was unclear at the beginning (and it shouldn’t have been because that was the whole point of A.W.’s post), I made it clear in the subsequent posts.
So, in the scenario white males are “protected” by the right-to-vote laws, and black males are being denied the same “protection.”
Again, that was never the scenario I was addressing. My point was that the Equal Protection Clause might conceivably close any loophole left open by Section 2.
I am also postulating (indeed, Section 2 itself postulates by its very terms) that the right is conferred on males but not on females.
I agree.
So, in the scenario males are “protected” by the right-to-vote laws, and females are being denied the same “protection.”
Again, that was never the scenario I was addressing. I was addressing the “loophole” scenario, in which black males and white females are given the right to vote but not black females.
(By the way, your use of the words “protected” and “protection” is ridiculous.
The Supreme Court agree with me: Nixon v. Herndon
If you want to say the Supreme Court is wrong, have at it. But the position is hardly ridiculous.
It’s a denial of equal TREATMENT, not a denial of equal PROTECTION. A denial of equal protection would be a law—and there used to be such laws—providing that if you murder a white person you get the death penalty but if you murder a black person you just get incarceration.)
I think you’re seriously reaching here. So people are “protected” by laws that create crimes, but they are not protected by laws that create a right to vote? And obviously, that’s not how the Supreme Court has viewed it. The critical question is the basis for discrimination.
That’s not a violation of equal protection, because the Fourteenth Amendment doesn’t give blacks or women the right to vote.
The 14th Amendment does not confer the right to vote on anyone. But other laws do. Those laws must must satisfy equal protection. In A.W.’s scenario, there are laws that confer the right to vote on males (black and white) and on white females.
Section 2 of the Amendment gives states an incentive to give blacks the right to vote, as the main post here explains. But it doesn’t create a requirement that a state allow blacks to vote.
Arguably, the Equal Protection Clause does create that right and section 2 provides a sanction for violating the right. See Nixon v. Herndon above. But even if it did not, which I agree seems to be an underlying assumption of A.W.’s post, the question would remain — once it is postulated that some black people get the vote and some women get the vote, what legitimate basis (heck, what “rational basis”) is there for excluding black females.
And the repeated use of the word “male” in Section 2 of the Amendment shows unmistakably clearly that the Amendment thinks there’s no problem with a situation where men, but not women, have the right to vote.
I agree. The scenario I was addressing, though, revolves around the extension of vote to some women, namely white women, and the consequences under equal protection for black women (when black males also get the vote).
Because the Equal Protection Clause doesn’t forbid denying the right to vote on the basis of sex.
Again, I agree, but in A.W.’s scenario some women are being given the right to vote and the question is whether denying the right to other women can occur under Equal Protection.
cimics (ac879a) — 10/25/2010 @ 7:14 amThere was nothing thoughtful or analytical about Moran’s rant.
JD (250613) — 10/25/2010 @ 7:27 am“tea party establishment“? The Tea Party doesn’t have an establishment, and that’s by design.
LarryD (f22286) — 10/25/2010 @ 7:42 amI was responding to A.W’s postulation that bigots would give black males and white females the right to vote but deny the vote to black females, in order to maintain white dominance in voting.
Oh, I understood that, as I made clear by repeatedly explaining the following: denying the right to vote on the basis of sex or race is not a violation of equal protection, and therefore denying the right to vote on the basis of sex and race is not a violation of equal protection.
If you want to say the Supreme Court is wrong, have at it. But the position is hardly ridiculous.
Would this be the same Supreme Court that relied extensively on substantive due process, a contradiction in terms so obvious that it makes one question the literacy of any who subscribe to it? How impressive an authority on simple English can the Court be when it goes so far as to hold acts of government unconstitutional on the basis of constitutional “interpretation” that any idiot can see is wrong?
It is indeed perfectly ridiculous to say that a denial of the right to vote is a denial of equal protection as opposed to equal treatment. Under the Fourteenth Amendment, men and women are guaranteed the right to equal protection, but obviously women are not guaranteed the right to vote even if other laws grant men the right to vote; and whites and blacks are guaranteed the right to equal protection, but obviously blacks were not yet guaranteed the right to vote even if other laws granted whites the right to vote (though you bizarrely dispute this, thereby demonstrating at the very least that you will never have any credibility if you ever purport to care about original intention, since we all know what the original intention here was). Since everyone is guaranteed the right to equal protection, but obviously not everyone was guaranteed the right not to be discriminated against in acces to the electoral franchise, it’s blindingly obvious that equal protection did not mean equal treatment. A law that treats men and women, or blacks and whites, diffrently as regards access to the electoral franchise would be completely consistent with the Fourteenth Amendment–which means that equal protection does not include the right to vote, and therefore people aren’t “protected” by the right to vote, since, if they were, they’d be entitled to an equal right to vote–which of course the Fourteenth Amendment does not guarantee, as explained umpteen times by now.
The 14th Amendment does not confer the right to vote on anyone. But other laws do. Those laws must must satisfy equal protection.
No they need not. Equal protection does not require equal access to the franchise. If it did, then the Fourteenth Amendment would require giving women the right to vote on the same terms as men (which is risible, because Section 2 of the Amendment makes it too plain for argument that the Fourteenth Amendment assumes only men will have the right to vote).
Arguably, the Equal Protection Clause does create that right and section 2 provides a sanction for violating the right.
No, that is not arguable. (Although, thank you for now saying what you earlier kept pretending you weren’t saying.) First, if the Equal Protection Clause created that right, then the Fifteenth Amendment would be at least partly (if not entirely) redundant–and yet the Fifteenth Amendment doesn’t copy the “remedy” in Section 2 of the Fourteenth Amendment. Second, if the Equal Protection Clause created that right, then the right to vote is the only right whose violation contains a remedy/penalty clause anywhere in the Constitution. That makes absolutely no sense. Why would the Constitution specify the remedy/penalty for that kind of violation alone, while not specifying any remedy/penalty for any other kind of violation–not even far more serious violations like bringing back slavery or denying blacks any and all police protection while giving such protection to whites? That’s completely unreasonable. Since racial discrimination in respect of access to the right to vote is nowhere near as serious as all sorts of other constitutional violations, it makes no sense that that kind of government action would be the only one that gets a constitutionally-specified remedy. The only reasonable interpretation is the the Equal Protection Clause does not forbid discrimination in voting rights, and that Section 2 gives states the right to choose whether to extend voting rights to blacks.
Again, I agree, but in A.W.’s scenario some women are being given the right to vote and the question is whether denying the right to other women can occur under Equal Protection.
And the answer is obviously yes, because, for reasons that really ought to be clear by now, when it comes to access to the right to vote, the Equal Protecton Clause doesn’t forbid discrimination on the basis of race or sex. So it couldn’t possibly forbid such discrimination on the basis of race and sex.
Continuing to ignore the constitutional text, you keep asking what the rational basis for such discrimination is. The rational-basis requirement is nowhere in the Constitution. The Fourteenth Amendment doesn’t authorize the Court to act as a lunacy commission. If a state discriminates against citizes in respect of access to the electoral franchise, that is not something the Fourteenth Amendment cares about. Blacks and women have the right to equal protection (since EPC applies to “any person”), and yet the Fourteenth Amendment did not prohibit denying them the right to vote on account of race or sex.
Alan (7130c5) — 10/25/2010 @ 5:59 pmComment by LarryD — 10/25/2010 @ 7:42 am
First they create a strawman, before they torch it.
AD-RtR/OS! (61e7e4) — 10/25/2010 @ 6:32 pmIt is, what they do – along with answering the voices in their head.
Sorry for the slow response. Other obligations, et al.
There are a whole lot of people on the right looking for a conservative purity test in regards to Republicans.
I don’t know where I will wind up in the mix.
However, when I see Dan Riehl, and by extension, Mark Levin and Rush Limbaugh, starting to paw the ground against the established right, including P.J., Powerline and NRO, fireworks will ensue.
Going off topic now, though, this kind of argument will certainly drive the left crazy since they have no real sense of conservative thought other than it is bad.
Ag80 (743fd1) — 10/25/2010 @ 8:22 pmOh, I understood that, as I made clear by repeatedly explaining the following: denying the right to vote on the basis of sex or race is not a violation of equal protection, and therefore denying the right to vote on the basis of sex and race is not a violation of equal protection.
Your attempted syllogism, which essentially says:
A does not imply C
B does not imply C
Therefore A + B does not imply C
is invalid. The conclusion does not follow from its premises.
To say that one can discriminate on the basis of race or sex does not necessarily mean that one can discriminate on the basis of a combination of both.
Indeed, the whole reason for discriminating on the basis of race or sex vanishes if the right to vote is extended to some members of the discriminated race or sex. Then, to justify discrimination, there must be a valid basis for discriminating against someone with the combination of traits. It would be like saying the State could deprive 17 year olds the right to vote and women the right to vote, but then the State chooses to extend the right to vote to 17 year old males (and 18+ females) but not to 17 year old females. Whatever merit there is to depriving 17 year olds the right to vote vanishes when some members of that class are given the right to vote.
It is indeed perfectly ridiculous to say that a denial of the right to vote is a denial of equal protection as opposed to equal treatment.
As far as I can tell, your distinction between equal protection and equal treatment is just a word game. Perhaps you can explain better. “Protection” would seem to entail that the law “protects” — a right of some sort — which the right to vote would be one of our most cherished.
(though you bizarrely dispute this, thereby demonstrating at the very least that you will never have any credibility if you ever purport to care about original intention, since we all know what the original intention here was).
And you know for a fact that the equal protection clause’s purpose was not in part to guarantee equal voting rights? How do you know this? The text of section 2 is not itself determinative, as we’ll see below. Is that all you are hanging your hat on, or is there another reason?
Since everyone is guaranteed the right to equal protection, but obviously not everyone was guaranteed the right not to be discriminated against in acces to the electoral franchise, it’s blindingly obvious that equal protection did not mean equal treatment.
No, what’s blindingly obvious is that equal protection does not mean treating people equally regardless of the circumstances. Children are entitled to equal protection, also, but there are a whole bunch of ways they are treated differently under the law. By your reasoning, it would be ok to treat blacks and women like children under the law without violating Equal Protection.
The 14th Amendment does not confer the right to vote on anyone. But other laws do. Those laws must must satisfy equal protection.
No they need not. Equal protection does not require equal access to the franchise. If it did, then the Fourteenth Amendment would require giving women the right to vote on the same terms as men (which is risible, because Section 2 of the Amendment makes it too plain for argument that the Fourteenth Amendment assumes only men will have the right to vote).
Section 2 doesn’t penalize denying the vote to women, and I agree the founders didn’t believe that equal protection would require female suffrage. But allowing some women to vote but not others is a different story altogether and section 2 does not in any way speak to it. The language “equal protection of the laws” certainly seems to on its face.
First, if the Equal Protection Clause created that right, then the Fifteenth Amendment would be at least partly (if not entirely) redundant–and yet the Fifteenth Amendment doesn’t copy the “remedy” in Section 2 of the Fourteenth Amendment.
Equal protection is only violated if similarly situated groups are treated differently. The explicit terms of the Fifteenth Amendment prevented any argument that different racial groups were differently situated based on race alone. It also prevented an end run based on former condition of servitude. It was enacted later, so perhaps it was decided that the equal protection guarantee was not explicit enough. Section 2 of the 14th amendment may also have been seen as necessary to answer creative ways to deny blacks the right to vote. Indeed section 2 could have had interesting applications to poll tax and educational tests for voting, which the Equal Protection Clause and the Fifteenth Amendment do not by its terms prohibit. And there would be no need for the Fifteenth Amendment to copy this remedy clause, since it already exists. And incidentally, section 2 is not by its terms limited to disenfranchising persons on account of race. If citizen males 21 years or older were disenfranchised for a reason other than rebellion or crime (e.g. religion), the sanction could take place — even today.
Second, if the Equal Protection Clause created that right, then the right to vote is the only right whose violation contains a remedy/penalty clause anywhere in the Constitution. That makes absolutely no sense. Why would the Constitution specify the remedy/penalty for that kind of violation alone, while not specifying any remedy/penalty for any other kind of violation–not even far more serious violations like bringing back slavery or denying blacks any and all police protection while giving such protection to whites?
Those wouldn’t be right-to-vote violations, and section 2 is a right-to-vote remedy. Congress was given broad power in the 14th (as well as 15th) amendment to enact enforcing legislation, however.
That’s completely unreasonable. Since racial discrimination in respect of access to the right to vote is nowhere near as serious as all sorts of other constitutional violations,
That’s purely a value judgment on your part, and I doubt that it is one shared by the founders.
Continuing to ignore the constitutional text, you keep asking what the rational basis for such discrimination is. The rational-basis requirement is nowhere in the Constitution. The Fourteenth Amendment doesn’t authorize the Court to act as a lunacy commission.
You are confusing substantive due process with equal protection. You may have a valid criticism of substantive due process, but the ACTUAL TEXT of the 14th guarantees “equal protection of the laws.” If there is no rational basis for denying a legal protection to one group that is enjoyed by a different group, then text of the 14th amendment most assuredly prohibits such a denial.
If a state discriminates against citizens in respect of access to the electoral franchise, that is not something the Fourteenth Amendment cares about. Blacks and women have the right to equal protection (since EPC applies to “any person”), and yet the Fourteenth Amendment did not prohibit denying them the right to vote on account of race or sex.
Women were considered like children back then, so they would have been considered differently situated. You can deny 17 year olds the right to vote altogether, but if you give some 17 year olds the right to vote, then equal protection would require some basis for denying the vote to other 17 year olds. The same reasoning could be applied to blacks, though it is not at all obvious from a reading of the language of the 14th that voting rights for blacks are not covered by equal protection (because Section 2 would address practices that would at least facially pass equal protection). Nevertheless, it should be a no brainer that, even if blacks could be considered differently situated under equal protection, extending the right to vote to some blacks but not others would require some basis.
cimics (ac879a) — 10/25/2010 @ 8:57 pmFunny that the actual leftists are overtly calling for a purging of the blue dogs.
I have never bought these purity arguments. Different factions have different views as to how they approach elections and governance.
JD (c8c1d2) — 10/25/2010 @ 9:10 pmTrue, JD, just an observation on wars and battles.
I prefer to win wars.
Ag80 (743fd1) — 10/25/2010 @ 9:27 pmTo say that one can discriminate on the basis of race or sex does not necessarily mean that one can discriminate on the basis of a combination of both.
Discriminating on the basis of race—permissible, insofar as the Fourteenth Amendment is concerned (but not the Fifteenth, which didn’t exist at the time under discussion). Discriminating on the basis of sex—also permissible, insofar as the Fourteenth Amendment is concerned (but not the Nineteenth, which didn’t exist at the time). Discriminating on the basis of race and sex—impermissible? How the heck is that? What is there about discriminating on the basis of both that magically transforms permissible discrimination into impermissible discrimination when the two are done together?
You say because it’s not rational. Whereas denying blacks or women the right to vote (which clearly is NOT unconstitutional) is rational?
Women were considered like children back then, so they would have been considered differently situated. You can deny 17 year olds the right to vote altogether, but if you give some 17 year olds the right to vote, then equal protection would require some basis for denying the vote to other 17 year olds. The same reasoning could be applied to blacks, though it is not at all obvious from a reading of the language of the 14th that voting rights for blacks are not covered by equal protection (because Section 2 would address practices that would at least facially pass equal protection). Nevertheless, it should be a no brainer that, even if blacks could be considered differently situated under equal protection, extending the right to vote to some blacks but not others would require some basis.
On your own logic, black women could’ve been excluded from voting on the ground that they were believed by that racist and sexist society to be doubly childlike. If a society thinks women are intellectually inferior to men, and blacks intellectually inferior to whites, then could you please explain to me why wouldn’t that society also think of black women were intellectually inferior to white women (which of course was in fact believed by many in those days)? It just isn’t consistent. If one believes blacks to be inferior to whites, and women inferior to men, then one would also believe black women inferior to white women—and that’s how the law would’ve been justified. On your own logic.
And, no, the Fourteenth Amendment does not require that state discrimination be rational. You pretend that I’m talking about the Due Process Clause. Show me the rational-basis text in the Equal Protection Clause. Where is it? It’s not there. It doesn’t exist. There is no requirement that a state classification be rational, and you’re clearly just dodging the point when you throw out howlers like that line about how I must be talking about substantive due process.
As far as I can tell, your distinction between equal protection and equal treatment is just a word game. Perhaps you can explain better. “Protection” would seem to entail that the law “protects” — a right of some sort — which the right to vote would be one of our most cherished.
I’ve explained it well enough already. If a state metes out different punishments in criminal law depending on the race of the crime victim, that’s a denial of equal protection because it means one race is being protected less than another race. In that example, you can actually give an answer to the question “But what are they not being PROTECTED FROM?” Protection implies immunity from affirmative harm, not the denial of a privilege (and the right to vote is, so far as the Constitution was concerned, a privilege, not a right, because the Constitution did not guarantee to anyone the right to vote at that time). You say that the right to vote is one of our most cherished rights. (But not so cherished in 1866, when the Fourteenth Amendment was first submitted by Congress to the states, that most of the adult population was actually given that right. But never mind that triviality.) Again, it’s not a right in the constitutional. And so what if it’s cherished? That has nothing to do with whether the denial of that privilege is a denial of equal protection. It’s a denial of equal treatment, to be sure, but equal treatment is not what the Fourteenth Amendment requires. If it did require equal treatment, then any state that allowed white men to vote would be violating the Fourteenth Amendment if women and blacks were not also given the right to vote—which is a pretty strange outcome, given what Section 2 says. “Protection” does not mean “treatment,” however, and therefore “equal protection” does not mean “equal treatment.” To take an obvious example, if a state passes a law preferring one race over another in admissions to a prestigious school, there’s no violation of equal protection, because the students who are victims of discrimination haven’t been unequally protected from anything; the inequality is in treatment, not protection.
Equal protection is only violated if similarly situated groups are treated differently. The explicit terms of the Fifteenth Amendment prevented any argument that different racial groups were differently situated based on race alone. It also prevented an end run based on former condition of servitude. It was enacted later, so perhaps it was decided that the equal protection guarantee was not explicit enough.
You’re speculating here (“perhaps”), and your speculation is wrong. The Fourteenth Amendment was simply not intended to give blacks, or anyone else, a constitutional right not to be denied the right to vote on the basis of race. Section 2 was, as the main post says, intended to give states an incentive for allow blacks to vote, without forcing them to enfranchise blacks, and many of them then did not want to do. (Indeed, an amendment to the 1866 Civil Rights Act—passed the same year as Congress submitted the Fourteenth Amendment to the states—was made after a northern senator objected to the language that he thought might be misconstrued as giving blacks the right to vote, a right they didn’t then enjoy in his state.)
Children are entitled to equal protection, also, but there are a whole bunch of ways they are treated differently under the law. By your reasoning, it would be ok to treat blacks and women like children under the law without violating Equal Protection.
Not “ok,” but constitutional, depending on what is meant by treating them (or treating men or whites, for that matter) like children. Indeed, to some extent the Fourteenth Amendment clearly does allow this, as you yourself conceded when you agreed that forbidding women to vote would not per se violate the Equal Protection Clause. So it’s a bit much to hear you now act as if treating an entire class of adults as children is suddenly impermissible.
Those wouldn’t be right-to-vote violations, and section 2 is a right-to-vote remedy. Congress was given broad power in the 14th (as well as 15th) amendment to enact enforcing legislation, however.
Yes, I understand that Section 2 applies when the right to vote is denied. That’s my whole point. Why single out *that* for a constitutionally-prescribed “remedy”? Why put that in the Constitution, when that situation would be far less grievous than, say, restoring slavery or withdrawing all police protection from blacks?
That’s purely a value judgment on your part, and I doubt that it is one shared by the founders.
You’re accusing the Founders of being idiots. Anyone who doesn’t agree that outlawing black people, or restoring slavery and thus denying blacks the right to any liberty at all, is worse than not letting blacks vote, is an idiot. What evidence do you have that the Founders thought the right to vote was more important than the right not to be enslaved?
You are confusing substantive due process with equal protection. You may have a valid criticism of substantive due process, but the ACTUAL TEXT of the 14th guarantees “equal protection of the laws.” If there is no rational basis for denying a legal protection to one group that is enjoyed by a different group, then text of the 14th amendment most assuredly prohibits such a denial.
In other words, you’re saying that “equal protection” inherently contains a rational-basis requirement. Wrong. Even if you were correct that equal protection means equal treatment (and you’re not–you’re just projecting that onto the Constitution because it’s unacceptable to you that the Constitution wouldn’t contain an expansive prohibition of odious classifications, even though this clause came from a Congress that clearly was none too liberal about doling out rights, as seen in the fact that this Congress funded segregated schools and expected women would remain disenfranchised), it’s really obvious that “equal treatment” does not mean “equal treatment, unless you have a good reason not to.” The requirement of rationality in drawing lines between groups is something you’re just reading into the Constitution because the way it’s written isn’t good enough.
Alan (7130c5) — 10/26/2010 @ 4:39 amWhereas denying blacks or women the right to vote (which clearly is NOT unconstitutional) is rational?
Correction–clearly is not unconstitutional so far as the Fourteenth Amendment is concerned.
I know you dispute that; I’ve given my answers.
Alan (7130c5) — 10/26/2010 @ 4:58 amDiscriminating on the basis of race—permissible, insofar as the Fourteenth Amendment is concerned (but not the Fifteenth, which didn’t exist at the time under discussion).
Actually, I disagree that it’s permissible. I have an argument for why, even if it were permissible, it would still be impermissible to discriminate.
Discriminating on the basis of race and sex—impermissible? How the heck is that? What is there about discriminating on the basis of both that magically transforms permissible discrimination into impermissible discrimination when the two are done together?
Because, when you confer the right in question on members of both classes, the reason for discriminating against the classes disappears. I’ll address your “doubly childlike” argument below.
You say because it’s not rational. Whereas denying blacks or women the right to vote (which clearly is NOT unconstitutional) is rational?
You are correct to imply that it is not rational. The Equal Protection Clause, if adopted in isolation today, would be interpreted to extend the right to both, and logically that would be the correct interpretation. Indeed, if the fifteenth and nineteenth amendments had never been passed, I think 14th alone would have prompted the Supreme Court to extend suffrage to both blacks and women, even despite section 2.
On your own logic, black women could’ve been excluded from voting on the ground that they were believed by that racist and sexist society to be doubly childlike. If a society thinks women are intellectually inferior to men, and blacks intellectually inferior to whites, then could you please explain to me why wouldn’t that society also think of black women were intellectually inferior to white women (which of course was in fact believed by many in those days)? It just isn’t consistent. If one believes blacks to be inferior to whites, and women inferior to men, then one would also believe black women inferior to white women—and that’s how the law would’ve been justified. On your own logic .
That’s the best answer to my original question you have given so far. If you are correct, it would be for this reason. But I still see that explanation as lacking. To be “doubly childlike,” each of the two qualities – race and sex – would have to carry with it to be singly childlike, but there is no rational basis for believing that single childlikeness survives the fact that persons with each characteristic are treated fully as adults for voting purposes. It would have to be postulated that blackness or femaleness, individually, makes someone “half-childlike” for voting purposes – adult enough to vote, but childlike enough to require denying the vote to someone who possesses both qualities. I don’t think this “half-childlike” notion makes any sense, but even if it did, there is still no basis for believing that half-childlike status can be attributed to a characteristic that is consistent with full voting rights. And we cannot measure rationalness by the sensibilities of those who would deny voting rights to all blacks or all women if given the chance. The sensibilities we would look to, if any at all, would be someone who would quite cheerfully give the right to vote to black males and white females but just as cheerfully deny the vote to black females. That may well have beem an empty set, but I think, at best, it would have been an extremely small number of individuals.
And, no, the Fourteenth Amendment does not require that state discrimination be rational. You pretend that I’m talking about the Due Process Clause. Show me the rational-basis text in the Equal Protection Clause….you’re clearly just dodging the point when you throw out howlers like that line about how I must be talking about substantive due process
I was responding to your comment that the 14th does not proscribe legislative lunacy. Perhaps not, so long as the lunacy is applied equally 🙂
Where is it? It’s not there. It doesn’t exist. There is no requirement that a state classification be rational,
Rationality is inherent because, without it, you cannot even determine whether someone is being denied equal protection. You have to know that similarly situated persons are being treated differently to begin with. Even in your own example: we only know that different punishments are being meted out on the basis of race because we have determined that the crime being punished is essentially the same.
I’ve explained it well enough already. If a state metes out different punishments in criminal law depending on the race of the crime victim, that’s a denial of equal protection because it means one race is being protected less than another race.
It is not good enough to say one “race” is protected less than another “race.” The equal protection clause says “any person.”
In that example, you can actually give an answer to the question “But what are they not being PROTECTED FROM?”
Let’s examine that. In your example, what person are we talking about needing protection, and what is he being protected from? You are surely not talking about the criminal defendant since his race is not the one that is at issue in your example. So, you must be talking about the victim being the one who is protected. But the victim has already been injured. Whatever punishment is meted out has nothing to do with protecting him. At least not directly. And if you’re going to rely upon indirect protection, then you have no business challenging my view of protection.
Protection implies immunity from affirmative harm, not the denial of a privilege (and the right to vote is, so far as the Constitution was concerned, a privilege, not a right, because the Constitution did not guarantee to anyone the right to vote at that time)
But the right to vote was guaranteed to some people, by statute, and in A.W.’s hypothetical, it was guaranteed to black males and white women (along with white males). As for how the right to vote protects someone, you have heard of “No taxation without representation,” right? The right to vote is a very real protection, and was certainly viewed that way. And the Supreme Court was holding as early as 1880, in Strauder v. West Virginia, that the 14th Amendment prohibited racial discrimination with respect to permitting jury service, a “privilege” analogous to voting.
If it did require equal treatment, then any state that allowed white men to vote would be violating the Fourteenth Amendment if women and blacks were not also given the right to vote—which is a pretty strange outcome, given what Section 2 says.
Section 2 is not inconsistent with the EPC protecting blacks right to vote. Section 2 could simply be the backup plan if States are able to creatively write around EPC (education tests, etc)
The Fourteenth Amendment was simply not intended to give blacks, or anyone else, a constitutional right not to be denied the right to vote on the basis of race. Section 2 was, as the main post says, intended to give states an incentive for allow blacks to vote, without forcing them to enfranchise blacks, and many of them then did not want to do. (Indeed, an amendment to the 1866 Civil Rights Act—passed the same year as Congress submitted the Fourteenth Amendment to the states—was made after a northern senator objected to the language that he thought might be misconstrued as giving blacks the right to vote, a right they didn’t then enjoy in his state.)
So, are you saying this northern senator voted for the 14th even though it would mean penalizing his state? That doesn’t seem to make sense, or perhaps he just didn’t think it all the way through.
Indeed, to some extent the Fourteenth Amendment clearly does allow this, as you yourself conceded when you agreed that forbidding women to vote would not per se violate the Equal Protection Clause. So it’s a bit much to hear you now act as if treating an entire class of adults as children is suddenly impermissible.
Women were indeed treated like children in many respects besides voting. But, I don’t think you’ve thought through the implications of this. Do you really think the 14th founders would countenance blacks being deprived the right to enter contracts, for example?
Yes, I understand that Section 2 applies when the right to vote is denied. That’s my whole point. Why single out *that* for a constitutionally-prescribed “remedy”?
Because it’s amenable to one. What should the constitutionally proscribed remedy for denying police protection be – mandate sending in the troops? There is a constitutionally proscribed remedy with far more flexibility (that would be needed) – Congress gets to pass laws.
You’re accusing the Founders of being idiots. Anyone who doesn’t agree that outlawing black people, or restoring slavery and thus denying blacks the right to any liberty at all, is worse than not letting blacks vote, is an idiot. What evidence do you have that the Founders thought the right to vote was more important than the right not to be enslaved?
Then I guess the original founders (you know, 1776) were idiots. At any rate, I didn’t say “more” important. I suspect the founders thought all of these rights were important without trying to prioritize. But perhaps banning slavery was #1. That already occurred with the 13th amendment. The 14th Amendment was not needed to ban slavery.
In other words, you’re saying that “equal protection” inherently contains a rational-basis requirement. Wrong. Even if you were correct that equal protection means equal treatment (and you’re not–you’re just projecting that onto the Constitution because it’s unacceptable to you that the Constitution wouldn’t contain an expansive prohibition of odious classifications, even though this clause came from a Congress that clearly was none too liberal about doling out rights, as seen in the fact that this Congress funded segregated schools and expected women would remain disenfranchised),
Apparently the Supreme Court shared my delusion as early as 1880. Oh that’s right. They’re idiots. They were also a lot closer in time to the events than we are today, so my position isn’t just 21st century hindsight.
cimics (ac879a) — 10/26/2010 @ 8:43 pm