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View Diary: I am a fundamentalist (278 comments)

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  •  eh.... (0+ / 0-)

    I hate to disagree with the estimable Teacher Ken, but the problem you are concerned about is not really with the Fourth Amendment.  There are hundreds of millions of people in this country who do not get their Fourth Amendment rights violated...because government concedes that they belong to sets of people who are due full Fourth Amendment rights.

    The problem in our time is always about the Fourteenth Amendment- whether the people in question are due full rights, i.e. whether the long and dodgy sentence in Section One defines them as in or as out of coverage by the Bill of Rights and its extensions.

    I'm annoyingly 'fundamentalist' about Section One of the Fourteenth.  I believe it means what it says and applies to all human beings involved with American government.  The major reason I reject the Republican Party is because they insist fervently that either 14/1 does not actually exist or apply to anyone (this is the intent behind judicial "originalism") or that it means what we like to pretend it says (aka judicial "strict constructionism") in that we defer its meaning to state level political establishments and popular opinion.  In other words, in the worldview they embrace people have rights to the degree they are popular.  The Constitution is in their view merely the document that organizes the country's government to a certain level of coherence.

    (As I've learned, one does not look to the political right for positive answers to any collective problems.  They have none and never will.  Though their negative answers have a certain utility at times.)

    Fourteenth Amendment
    Section 1. 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 fair amount to be said about the other four sections of the Fourteenth; they in essence add particulars to the idea that as a country we can only survive if we maintain certain kinds of integrity.  And we can only maintain that minimal integrity by pursuing social progress and increasing justice.

    In short, the Fourteenth says that as a society we  must confront, in some fashion overcome, and are necessitated to push forward- perhaps flee forward- from the evils of the Past to be a society worth living in.  As an ongoing process.  Much as we would rather not, incapable of it as we might seem, and painful and laborious and horribly slow and costly in lives and treasure as it proves to be.

    As a country we ratified the 14th Amendment in 1868 and then chose to ignore it entirely for a generation because in practice its consequences proved beyond what the population was willing to bear.  Starting in the 1890s it became increasingly used, but against its spirit, essentially to extend the rights of the powerful without extending the rights of the weak.  E.g. Plessy v. Ferguson, Santa Clara v. Pacific Railroad.  Around 1950 things began to change and the previously highly politically radioactive 14th found its first application of properly extending the rights/protections of the weaker party in Brown v. Board, 1954.   The Warren Court employed it increasingly and made for the judicial revolution of the 1960s.  Then came the backlash, which leads to the Republican Party as it formed under Nixon and the conservative Supreme Courts since that have sought to minimize and diffuse the meanings of the guarantees of due process and equal protection by government.  

    But even these Supreme Courts realize that there is only so much they can get away with in cheating on the 14th: the collapse of public support upon the Bush v Gore "verdict" shocked the right wing Justices badly into realization that the American public had changed and its standard of justice in public life had risen.  The majority on the Court is now very hesitant to take or pass further travesties in political rights or social rights cases; while it no longer adds to them, it remains conservative in refusing to rectify injustices in those areas that remain.  Under Roberts its focus has turned: it's hard at work in the relative blind spot of the public eye, shamelessly extending the rights of the powerful in economic realm due process and equal protection rights cases and diminishing those of the weaker sides.

    So we beat on, boats against the current, bourn back ceaselessly into the knowledge that better shall eventually be.

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