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  •  Nice piece, Ken (1+ / 0-)
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    hnichols

    One quibble. We have tended to read "equal protection" as a simple equality requirement, and since the EPC only applies to the states, Warren's use of due process is seen as creative.

    But the words 'protection of law' denotes something more.  It requires states to affirmative act to protect (through law) people equally.  Generally this meant against private predations (think the Klan, or just a white man who did not fear law enforcement in his dealings with a African American).

    In early cases about the 14th Amendment, the Court wasn't always clear about where the equality it was (or was not) enforcing was found. And at times the focus was more on due process, under the idea that (some) racial classifications were arbitrary and therefore unconstitutional.  This is exactly what Warren says in Bolling.

    But over time, the idea of 'protection' got drained out of the EPC, so that it came to be simply a bar to government discrimination rather than an affirmative duty to act, which made it appear as a the main equality provision in the 14th A, making the DPC appear to be about something else.  This was obviously well under way by the 1950s, but the Court hadn't really defined much positive content for the EPC yet, so this issue which seems so obvious to us was less of an issue then.

    Point being that Bolling was on solid ground, and what the ECP requires is something more than just not intentionally discriminating (despite what the current Court thinks).

    Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity. Notes on a Theory

    by David Kaib on Fri May 17, 2013 at 08:12:20 AM PDT

    •  i view it as differently (3+ / 0-)
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      David Kaib, hnichols, sturunner

      and I could with a bit of research cite a number of prominent legal scholars who think similarly, although I will not have time to do the research.

      Remember that the parallel due process clauses were used to selectively incorporate the protections of the Bill of Rights against federal action to be against state action as well  (although Clarence Thomas still foolishly insists the no establishment clause has not been incorporated, thereby ignoring such cases as Engel v Vitale which is explicitly base on that clause),  What Warren accomplished was effectively a reverse incorporation of the Equal Protection clause against the Federal government, on the grounds that it was inconceivable that the states would be held to a higher standard than the Federal government, given the original construction of the Bill of Rights, which held the Federal government to a higher standard.  

      I don't disagree with the notion of an affirmative responsibility, nor that the current majority on the Court seems willing to abandon that in several areas.

      Although it will be interesting to see how they handle that on matters of sexual orientation, not currently a protected class, given the previous jurisprudence of Anthony Kennedy.  Add to that Scalia's previous dissent (I think in Lawrence) that this decision meant there was no logical reason to prohibit gay marriage, and the clear concern of Roberts about the court's  - and his - standing in history and it is possible to conceive of some 6-3 or even 72- decisions in that arena.  We have only about a month left in this term and perhaps we will find out.

      "We didn't set out to save the world; we set out to wonder how other people are doing and to reflect on how our actions affect other people's hearts." - Pema Chodron

      by teacherken on Fri May 17, 2013 at 08:22:14 AM PDT

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      •  This is a good point (1+ / 0-)
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        teacherken

        I should have said - my view is more heterodox.  And Warren was very clear on the idea that "it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government." Still Warren cited several cases that had held that "discrimination may be so unjustifiable as to be violative of due process." I've always found it interesting that the Court seems to take that idea for granted in Korematsu.

        I'm not willing to guess about what the SC will do on marriage equality, but I think the quick pace (relatively speaking) with which states and politicians are getting on board are making a positive ruling more likely. Hopefully there is more to come.

        Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity. Notes on a Theory

        by David Kaib on Fri May 17, 2013 at 08:32:09 AM PDT

        [ Parent ]

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