June 26, 2005

Fourteenth Amendment Cause of Court Discord

U.S. senators, hassling each other over President Bush’s appellate court nominees, tiptoe around the real issue – the Fourteenth Amendment to the U.S. Constitution.

No wonder. The amendment ratified in 1868 supposedly guaranteed “equal rights” for freed slaves. Just a few years later it was twisted into “equal but separate” Jim Crow laws and to shield corporations from regulation.

Since then, the U.S. Supreme Court has found support in Fourteenth for a host of “rights.”

Among them are personal privacy, abortion, gays, pornography, flag desecration, immediate citizenship privileges for babies of illegal immigrants and for political correctness of every permissive conduct known to mankind.

There are persuasive arguments for both sides of abortion and gay rights. However, these are cultural issues that evolve over time -- spontaneously by a citizenry.

People change basic behavior values through freely chosen institutions -- churches, service clubs, professional associations, fraternities and special- interest groups beyond categorizing or counting.

Hard-shell liberals and conservatives can’t – won’t – wait. Thus, they go militant toward politicians who can make things happen, but not change anything basic.

Laws merely formalize what society has already decided. Nonetheless, for activists, it is better to try than wait.

Nothing wrong with that. They feel better and perhaps speed up the cultural evolution process of choosing and rejecting.

The Fourteenth Amendment was well intentioned but loosely worded. This opened the door to political interpretation by politicians appointed by politicians.

This is classic Catch 22, but the buck has to stop somewhere. That place is the Supreme Court – via the Appellate Courts, the blessing of a national president and confirmation by a cadre of U.S. senators each of whom believe he/she will be the next President.

* * *

Here is the pesky Fourteenth – the most abused amendment of the Constitution:

“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.”

* * *

The Fourteenth was turned on its head by a Supreme Court majority regarding “separate but equal” public facilities for Blacks in 1896.

Thereafter, publicly owned corporations legally designated as a “person” filed cases contending they were taxed differently -- in violation of the “equal protection” clause of Fourteenth.

Other businesses claimed they alone had the right to set product prices and wage rates. The Supreme Court substituted its judgment by invoking “ due process” of the Fourteenth.

Early attempts by corporations for unfettered advantages were turned aside by a court philosophy expressed by Justice Field in a dissent following the “separate but equal ” fiasco.

He wrote: “The Fourteenth Amendment is broad enough to protect all of U.S. society from the deprivation of fundamental, natural-law rights, and the Supreme Court has a duty to fashion decisions protecting those rights.”

When liberal Supremes gained a majority, after the segregation fiasco, they hewed to judicial activism. The citizenry was nudged to cultural changes personally sought by the justices.

Conservative majorities have tended to hew to law until law is changed officially.

Thus we come to the famous senatorial “Gang of 14” compromisers. They allowed a confirming simple-majority vote for three of President Bush’s five appellate court nominees.

Two, conservative appellate court nominees bypassed by the Gang of 14 are left twisting in the wind. That was a line in the sand challenging Bush not to nominate a conservative for a Supreme Court vacancy.

In the real world, representative democracy needs a nudge to wake up sloths. The Fourteenth Amendment has provided some benefits for corporations and for cultural activists.

Yet, the clause has been mauled excessively to find excuses for cultural activisms not therein delineated.

A better solution would be to repeal Fourteenth and shift responsibility for cultural changes to the Congress elected by citizens – or to new Constitutional amendments -- in contrast to special interest pressures.

Lindsey Williams is a Sun columnist who can be contacted at linwms@lindseywilliams.org

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