Friday, December 16, 2011

Equal Justice and Protection Under the Law.

Equal protection under the law does not mean having an equal defense, it is related to equal justice; "Equal justice under law" is a phrase engraved on the front of the United States Supreme Court building in Washington D.C. This does not mean that everyone is entitled to the best defense money can buy; or that every victim will get the best prosecutor. Having equal justice under the law, means no one is above the law. In other countries at the time of the writing of the US Constitution, a person could rape, kill or steal and if the perpetrator was a person of wealth and/or position and the victim was poor, the perpetrator could have immunity from the law. You notice I did not say immunity from prosecution, but immunity from the law, as the law simply did not apply equally to the rich and powerful. This was not the result of a high priced attorney or a payoff to the judge, it was the result of a criminal justice system that did not protect the poor from the rich and powerful; this is what the rule of law , equal justice and the of concept equal protection, was to eliminate.

The so called equal protection clause did not exist in the US Constitution until the ratification of the 14th Amendment in 1868; the 14th amendment was “reconstruction amendment” designed to address issues the borne out of the civil war. The wording was as follows;

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.

In essence the equal protection clause in the 14th Amendment gave teeth to the 13th Amendment that freed the slaves. At the end of the end of the civil war, the southern states continued to use states rights to continue Jim Crow laws the oppressed blacks. Contrary to popular understandings, the Constitutional rights and protections were meant only to constrain the federal government; the states were empowered to make up any type of government they wanted, using what ever laws they wanted, as long as they acquiesced to the federal government the enumerated powers in the Constitution. The 14th Amendment changed that, saying that the states were also bound to the Constitutional rights and protections. In other words, the equal protection clause guaranteed that no matter which state one was in, they would have the same (or equal) civil rights guaranteed by the Constitution. Chief Justice Melville Fuller commented on the 14th Amendment said, By the Fourteenth Amendment the powers of the States in dealing with crime within their borders are not limited, but no State can deprive particular persons or classes of persons of equal and impartial justice under the law.

The consequences of the 14th Amendment extended much further than protecting the civil rights of slaves. Many have commented on the convoluted wording of the Bill of Rights. As i said before, the Constitutional rights and protections were meant only to constrain the federal government; it was the states that had the rights and protections not individuals. . Our founders believed that the states were free to have any government they desired as long as they aquisteted to the federal government it's enumerated powers (a list of enumerated powers are found in Article I, section 8 of the US Constitution). Our founding fathers further believed that if any of these governments became too tyrannical, the citizens could simply move to another state. In actuality, many of the states simply adopted most the rights and protections from the Federal Constitution to their State Constitutions, however with the State Courts having jurisdiction. However, the Federal Court started to incrementally incorporate the Bill of Rights into the states. As an example, prior to the 14th Amendment, the states were free to adopt gun control of any kind, including banning them altogether; the reason for the wording of the Second Amendment was to prohibit the Federal Government from disarming state militias. When the Federal Court turned their attention to the second Amendment they determined, the states had to adhere to the rights to bear arms to their citizenry originally written to protect the rights of the states. Where the states had been permitted to strict gun control, the Federal Court is now slowly stripping away this authority. Whether this will continue is unknown as the court was heavily divided on the issue and a change of courts makeup could easily lead to a reverse decision.

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