Reversing Equal Protection Under the Law

Few Americans have any really understanding of the provisions of the U.S. Constitution, as evidenced by the number of citizens who constantly cite that document to support rights that they really do not have. As pointed out in a recent blog, for example, there is no constitutional right to be free of reasonable governmental vaccine and mask mandates during a major medical emergency. In fact, in interpreting the Constitution, the U.S. Supreme Court – the arbiter of the meaning the Constitution – found to the contrary (Jacobson vs Massachusetts – 1905). Many have smatterings of constitutional wisdom – the Fifth Amendment right to avoid self-incrimination, the First Amendment right of free speech and religion and perhaps the Thirteenth Amendment against slavery – but even a lot of lawyers are not fully familiar with the subtleties and nuances of major constitutional provisions and the rulings that have interpreted them.

After the Thirteenth Amendment officially banned slavery in 1865, Congress was acutely aware of an additional and necessary additional amendment to implement the new post-Civil War order. Thus, the constitutional amendatory process was once again invoked, producing the most amazing Fourteenth Amendment in 1868. Cornell University Law School’s Legal Information Institute summarizes that Constitutional provision:

“The Fourteenth Amendment contains a number of important concepts, most famously state action, privileges & immunities, citizenship, due process, and equal protection—all of which are contained in Section One. However, the Fourteenth Amendment contains four other sections. Section Two deals with the apportionment of representatives to Congress. Section Three forbids anyone who participates in ‘insurrection or rebellion’ against the United States from holding federal office. Section Four addresses federal debt and repudiates debts accrued by the Confederacy. Section Five expressly authorizes Congress to enforce the Fourteenth Amendment ‘by appropriate legislation.’” 

The further Fifteenth Amendment, effective in 1870, dramatically and unequivocally stated that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” and provided Congress with the right to pass enforcing statutes. Those three “Reconstruction Amendments” notions of equal protection, due process and equal voting rights became the backbone of every single piece of civil rights legislation and court ruling ever since. 

But racism did not end with these amendments or the many cases and statutes promulgated based on them. For every three steps forward, racial equality and minority rights took two steps (sometime four!) back. The Jim Crow era, the limitations imposed specifically to deny Blacks access to the ballot box all occurred after these amendments were well-entrenched in American law. The Ku Klux Klan resurrected into a major political force in the second decade of the 20th century, the 1896 Supreme Court Ruling in Plessy vs Fergusson supported segregation. Racial discrimination was on fire. “Before the election of President Woodrow Wilson, Black Americans worked at all levels of the federal government. But when Wilson assumed office in 1913, he mandated that the federal workforce be segregated by race—leading to the reduction of Black civil service workers’ income, increasing the significant income gap between Black and white workers, and eroding some of the gains Black people had made following Reconstruction.” Berkeley/Hass Newsroom, October 27, 2020. 

The civil rights cases that began in the 1950s (notably with Brown vs Board of Education in 1954) and implementing civil rights statutes failed to erase racial injustice and inherent prejudices, which obviously continued, often ignited by blue-on-black violence culminating in the greatest civil rights marches and protests in American history: the Black Lives Matter movement that marched nationwide in the middle of the 2020 pandemic. Visions of Charlotteville Nazis (described as “fine people” by the President of the United States) and the right-wing reaction to the BLM movement fueled a rise in white supremacy as a legitimate American “patriotic” response. Stifling voting rights under a clearly false premise of protecting against rampant (but non-existent) voter fraud gave right to a powerful red state effort to disenfranchise minority voters likely to support Democratic issues and candidates. 

Most of the “equal rights” cases and statutes that pushed back at this systematic racism were focused on government actions that created constitutional anomalies. At the beginning of September the U.S. Supreme Court, in Whole Woman’s Health vs Jackson, rebuffed a stay against the highly limiting and newly passed anti-abortion “heartbeat” Texas law, prior to any formal trial or presentation of any facts. They seemed to hang their decision on a very odd provision of the Texas statute: that enforcement would not be by any governmental official or agency but by private citizens empowered by a bounty reward system to sue what they perceived as individuals or entities aiding or abetting abortions, with a minimum statutory award of $10,000.

The obviously flawed reasoning, seemed to allow governments to shirk constitutional sanctions by shifting otherwise unlawful actions to citizens who were not within any government control. As red states stumbled to adopt the language of the Texas statute that the Court left standing to define their own evangelical anti-abortion statutes, one state found particularly joy in applying that same logic in allowing citizens to sue to stop individuals and entities from assisting federal officers implementing any federal law in gun-related crimes.

The very red Missouri legislature believed that state governments had power under the Second Amendment to override federal efforts to limit guns, a challenge to very notion of “federal supremacy” that has been at the heart of constitutional law since it was first enacted. This did not stop the Missouri state Republican legislature from “ramming through a bill to punish local departments for collaborating with federal authorities on gun cases deemed [by Missourians] to be in violation of Second Amendment rights… [Passed in May,] the Second Amendment Preservation Act represents a challenge to federal authority that Biden administration officials and other critics see as a clear-cut violation of the Constitution’s supremacy clause, which prohibits states from passing laws that nullify federal statutes…

“[T]he law features a provision, the first of its kind in the nation, that allows Missourians to sue local law departments that give ‘material aid and support’ to federal agents — defined as data sharing, joint operations, even social media posts — in violation of citizens’ perceived Second Amendment rights.

“The law’s sponsors say that mechanism is protective and proactive, intended to counter Democratic gun-control efforts, especially President Biden’s attempts to ban semiautomatic weapons and high-capacity magazines. As one of its co-authors, State Senator Eric Burlison, put it, the bill was intended to tell Democrats considering new restrictions to ‘pound sand.’” New York Times, September 9th. The hook? Private citizens, not a government entity, were the enforcers.

Just think if the Supreme Court finds the slightest support for governments’ creating such major constitution-defying statutes to avoid judicial reversal, simply by enabling bounty hunters of ordinary citizens to do their dirty work, what the American legal system, the traffic jam in courts, the chaos, would look like. The Missouri law is already wreaking havoc with criminal investigations and prosecutions in that state.

I’m Peter Dekom, and for a party that claims to be the bastion of law and order, the new Trumpian GOP appears to be a party of scofflaws and anarchists.