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The wild world of 14th amendment jurisprudence

Apropos of Paul's point that unborn children, once recognized as persons, qualify for the 14th amendment's provision of the equal protection of the laws, I decided to revisit a post of mine from the very beginning of this blog. I'll probably quote some of it and add some.

Here's the strange thing: Even if you are undeniably a person, the 14th amendment under present jurisprudence doesn't really give you the equal protection of the laws. Which is a bit of a problem, to put it mildly, because that's certainly what it sounds like it grants. Here is my mildly snarky summary from 2007 of the way that constitutional reasoning has gone:

The 14th Amendment says that states may not deny to any person the equal protection of the laws. This seems to mean that the states can't treat people unequally by law. But how can we possibly apply that, since all laws involve treating people unequally? A law against theft treats thieves differently from non-thieves. So what are we going to do? Hey, I know. Let's create three stages of scrutiny that the federal courts will apply to state laws, based on whether or not the state laws treat people unequally on the basis of "suspect categories." The most glaringly suspect category will be race or national origin, because the 14th Amendment was originally passed for the purpose of protecting former slaves. But gender is now also a suspect or semi-suspect category, and being disabled is becoming a suspect category as well. If your state law treats people unequally on the basis of something that hasn't been designated a suspect category, your state is in luck. That law only has to pass minimal scrutiny or the "rational basis test" by the federal courts if challenged as unconstitutional. But if your law treats people unequally on the basis of something designated a suspect category, then it has to pass strict scrutiny, which means it's prima facie unconstitutional, and you'd better have an overwhelmingly important state interest that it serves or it's going to be struck down. Intermediate scrutiny is somewhere in the middle.

Because I think this is so weird, I'm not going to resist the temptation to make up a new example to illustrate how weird it is. Suppose that the legislature of some state were to pass a law saying that women would henceforth not be hired to be state troopers. Because gender has become a "suspect class" for purposes of 14th amendment jurisprudence, such a law would be taken to be unconstitutional on its face. But suppose that the legislature of the same state were to pass an amendment to their state homicide and first-degree murder law stating, in so many words, that people eighty-five years of age and above will no longer be "covered" by the state's homicide and murder laws, that any private killing of a person of those ages will, so long as it is carried out humanely, not be subject to prosecution. (If not carried out humanely, it might be subject to prosecution under applicable state laws against torture or grievous bodily harm.)

This latter law would be subject to a much lower degree of constitutional scrutiny. Since 2007 we have all seen that the phrase "rational basis" can be wielded to mean a very strict degree of scrutiny indeed, when directed by judges against laws recognizing marriage only between a man and a woman. But for a long time before that, and presumably in other areas of jurisprudence, the "rational basis" test was supposed to be very easy to fulfill. It just meant that the government entity had to have some reason or other, even some practical reason, that made it expedient to have that law. That is presumably why rather silly laws against painting your house chartreuse or leaving your garbage bin more than x feet from your house are not regarded as unconstitutional. In this case, the state could claim that the rational basis for removing the protection of murder laws from the elderly was simply the cost of their maintenance, which was becoming unsustainable for the state's medical care system.

And, as I pointed out in the 2007 post, whatever the probable outcome of such a legal attempt, it's just bizarre anyway that deliberately not protecting some people against murder, and enshrining this in law, should be subject to lesser constitutional scrutiny than not hiring women for state jobs.

Our very interesting thread discussion (really, very high quality discussion) quickly went to a somewhat separate question--namely, whether the 14th amendment was meant to protect and should protect against systematic and selective non-enforcement of laws. If the police stand by while a black man is lynched, for example, even if such non-enforcement is nowhere enshrined in law, would this be a violation of "equal protection of the laws" as intended by the 14th amendment? (I choose a black man here, because race is acknowledged by all parties to be a "suspect class.") But I admit that that matter--the federal government's monitoring the states' application of their own laws--is very messy indeed and becomes micromanaging and a denial of federalism extremely fast.

So let's stick with the official legal removal of protection against grievous harm such as murder. Can we agree that something has gone drastically wrong in our interpretation of the 14th amendment when that is not facially unconstitutional, while the withholding of some government benefit from a "suspect class" is?

Because let's face it: If that is not cleared up, then unborn children can be declared in law to be persons every day of the week, and they will not therefore be protected by the 14th amendment. The reason is that you and I are not (unless members of a "suspect class") protected by the 14th amendment, as long as the state can dream up some fairly minimal and so-called "rational" basis for not protecting us.

I want to suggest here, as I did in 2007, that the problem arose originally with the focus on "equal" rather than on "protection." Everyone then got all tangled up in not making the outcome of "equal treatment" too ridiculous (since by definition laws treat groups of people differently), rather than focusing on "protection." Here is an addendum to my 2007 rad idea. Instead of defining a class of "suspect groups" whose treatment in every law, serious or trivial, must be overseen with intent solicitude by the federal judiciary, let's instead define a group of types of protection which neither the federal government nor the states may officially withhold from any innocent person while granting that protection to others. This would include protection against murder (of all grades), torture, rape, kidnapping, enslavement, physical assault, and maybe a handful of other truly serious harms. As I pointed out in the early post, this would not mean that the states were required to have such protections. If some state wants to delete all its laws against murder and create a state of anarchy, there is no prima facie conflict with the 14th amendment. But if the state has a law against murder, it cannot, at least officially, protect some people against it but not others.

Congress, to whom the concrete application of the 14th amendment is granted (surprise! not the courts), could find a way to write this up so as to create a cause of action for any person if the state denied to that person, officially in law, the equal protection of their laws against these serious harms.

Such Congressional action would give teeth to a relatively simple human life amendment. The simple human life amendment would not have to get into the nitty-gritty of what legislation must be on abortion but could simply state that human beings of all ages, including the unborn, are "persons" for purposes of the interpretation and application of the 14th amendment. Right now, if we were to pass such an amendment (fat chance, but "if"), it is quite unclear what its practical effect would be, because of the weirdness of 14th amendment jurisprudence I have just discussed.

Details remain, and I don't claim to have an ideal legal situation worked out. The most salient of these details (other than the fact that none of this is going to happen, but setting that aside), are these: 1) Precisely which state laws would become open to nullification as unconstitutional under such a combination of human life amendment and Congressional application of the 14th amendment to protection? Since the 14th amendment doesn't apply directly to private action, what would have to be struck down would be any state laws that recognize abortion as a legal activity. That, on the grounds that so recognizing it is failing to provide to the unborn the equal protection of the laws. But what laws are those? In many cases they may be laws requiring medical regulation of abortion clinics, for example. In some cases they may be laws limiting the abortion license, where such limitations have themselves been fought for by pro-lifers. Would it accomplish something good to strike down such state laws en toto because they treat abortion as legal in that state at all? Would the prosecutors then simply exercise prosecutorial discretion to allow abortions to continue unchecked? Perhaps a good target would be a state such as California, which allows even nurse practitioners to perform abortions. Presumably any state law could become a target if it expressly permits abortions to be performed, even by doctors, since such express permission amounts to declaring open season on unborn persons. 2) Who would have standing, even if Congress created a cause of action? This is particularly important since, in the case of the unborn, the unprotected class consists entirely of persons without a voice of their own. How could Congress give teeth to equal protection legislation for classes that are too young or otherwise mentally or legally incompetent to bring litigation on their own behalf? 3) How likely is it that later Congresses would repeal the interpretive legislation? 4) How can it be made clear that the legislation placing the emphasis on "protection" does not mean that states must abandon permissible self-defense? (Allowing a person to shoot an attacker is giving the attacker "unequal protection" from being shot.) How could this be addressed in the legislation without opening up the possibility that abortion would be similarly permitted under the guise of the woman's "defending" herself from the unborn child's "attack" on her bodily autonomy, or some such nonsense?

One thing that does come to mind: Any actual application of equal protection to the unborn would, or legally should, strike down all public funding for abortion, state or federal, at a blow.

I admit that all of this is con-law geekery of a mostly pointless sort. The one point it does have is a sober one: Pro-lifers didn't pass a human life amendment in the glory days of the 1980's in part because we weren't sure what amendment we wanted, so we didn't unite around a single one. Given the long-standing state of 14th amendment jurisprudence, a simple "unborn babies are persons" amendment, even if passed, wouldn't do the job by itself. So what more, legally, is needed? It is at least worth asking ourselves these questions.

Comments (17)

the police stand by while a black man is lynched, for example, even if such non-enforcement is nowhere enshrined in law, would this be a violation of "equal protection of the laws" as intended by the 14th amendment?

Unfortunately, it would not since the SCOTUS has ruled that there is no constitutional right to police protection.

On the other hand, if there was proof that they actually permitted the murder when stopping it would require no herculean effort or extreme likelihood of death (ex 2 cops against 30 armed klansmen pre-1960s), it would likely give the family a basis to sue under 42USC1983

I understand the intricacies of trying to force enforcement, so that was my reason for sticking to something formal. Because it seems indubitable that abortion is _formally_ allowed in state laws, which means that _if_ we put the emphasis on equal protection of all persons (from a grievous harm such as murder) and _if_ the unborn were legally recognized as persons, it would seem that all state laws formally permitting abortion should be deemed unconstitutional.

I tend to think the hodge-podge of 14th amendment jurisprudence indicates that it is a failed enactment (de facto, that is) and should be re-written from the ground up. That's not politically feasible without a near-revolution, or maybe a constitutional convention, so there's not a lot of point about arguing it. The courts had all the latitude they needed to interpret the 14th to apply to the unborn, and they didn't use it because they don't like that result, not because it is contrary to federalism or whatnot. What we have in effect is a judiciary that in VERY large majority believes in legal positivism, doesn't believe in natural law, and doesn't believe that the original meaning of the constitution constitutes ANY sort of foundational test for its application, (even if not a deciding one). While there are judges who restrain themselves from imposing their preferences onto the law, many of them employ their admittedly strong cleverness in getting the interpretation they want out of the law even when that is not a principled reading of it. Roe is a classic example, as is Justice Roberts' Obamacare decision. Silly-clevers indeed.

On the other hand, I think our separation of powers regime happens to undermine successful law-justice results to some degree. Here is what I mean: if the law is meant to achieve A, and in fact it usually achieves A but arguably in some cases seems to also result in B which is not very desirable or just or justifiable from common good perspective, a principled judge may say "well, I have to impose B here because that is the apparent meaning of the law, even though I don't think Congress REALLY intended that. If Congress doesn't want B, it can revise the law to exclude that." That's judicial restraint. Good. Except that often enough, Congress only barely achieved a majority on the law to begin with, and they simply don't want to be burdened with taking up the matter again to correct for B, even though they would have put in a "but not B" clause had they thought of it: politically, getting Congress to consider B is not viable. Especially if the law only had a short-lived coalition to form its majority. So the judge is right that it is Congress's job to correct the law, but there is no practical expectation for real redress of the inequity. I see this also from agency regulations made to implement the law. Both the courts and the agencies would benefit by a kind of a back-door access to Congress, maybe even just the majority that passed the law to begin with, to ask "is it OK with you if we interpret the law to exclude B, because we don't think you intended that but it looks like that's what we will have to impose otherwise." That is to say, maybe it should be less burdensome to correct an inequity accidentally embedded in an (insufficiently considered) law than it is to pass a law to begin with.

I've always thought having courts send interpretation questions to Congress might be a good tweak of our system. It won't work for Constitutional amendments 150 years later, though.

I would say, Tony, that whether the majority of our judges believe in legal positivism depends a lot on what one means by that much-abused phrase. Some consider originalism to _be_ a form of legal positivism, in which case of course the majority of our judges are emphatically _not_ "legal positivists" in that sense. The phrase, however, can also mean something that I would call truly postmodern, something like, "The meaning of the law is a mere prediction about what will actually be done by the legal system and the enforcers in any concrete situation." In that sense, which is of course pretty much the opposite of originalism, probably a lot of our judges are "legal positivists." And Congress encourages it by deliberately passing vague laws and leaving the rest up to the court--a sort of unconstitutional congressional abdication of responsibility.

I tend to think the hodge-podge of 14th amendment jurisprudence indicates that it is a failed enactment (de facto, that is) and should be re-written from the ground up.

Indeed. It's a terribly written amendment. It was enacted mainly to punish ex-Confederates and protect black 2nd amendment rights. Instead, it gave us "incorporation" which ironically did not include the 2nd amendment until a few years ago. It is a tale of epic fail in constitutional revision if there ever was this side of Egypt or Italy.

I am inclined to think that the 14th Amendment was the single worst legislative enactment in the history of these United States, partially for the reasons Tony identifies. But for present purposes that is neither here nor there.

A few thoughts:

1) Congress isn't given power to interpret the 14th amendment, it's given power to enforce it. Oregon v. Mitchell generally stands for the proposition that Congress can't enact by statute broader rights than the Court thinks the 14th amendment provides. So the idea of a equal-protection statute prohibiting abortion isn't going to get off the ground, since the unborn aren't "persons" under the 14th Amendment and thus are not entitled to any of its protections under the Court's interpretation.

2) But if we assume it did, and if we assume that the right not to be outlawed---in the old sense of being excepted from the protection of the laws---is one of the rights of the citizens of the United States protected by the P&I clause, how would such a statute (or even a statute directed towards categorical outlawing of some other group) be enforced? My impression is that such a scenario would entail a deep constitutional crisis; I suppose the Court would have to declare the act repealing the criminal law (as applied to the plaintiffs) void.

The remedy against the state officials who didn't enforce the unrepealed law---and this would be tricky---would be 28 U.S.C. § 1983, I suppose.

3) You're entirely right that the whole problem with P&I jurisprudence is that it wrongly focuses on the "equal" and not at all on the "protection." What does "protection of the laws" mean? That seems like it should only apply to the rights to be protected by the criminal law, to have access to the civil justice system for the redress of grievances, and perhaps to do some things like serve on juries.

Well, I wasn't envisaging Congress as single-handedly (if one can use that term for Congress) applying the 14th to the unborn but rather envisaging Congress as applying the 14th to _protection_ and then a simplified Constitutional amendment applying it to the unborn. These two enactments were intended to work, then, in concert to apply the 14th to the unborn in the sense that a state's law which recognizes abortion *as legal* and expressly *permits* would be nullified on the grounds that such a recognition and permission amounts to removing from the unborn the equal protection of the laws (against murder, homicide, etc.).

That seems like it should only apply to the rights to be protected by the criminal law,

So, right there: If the unborn are (by an amendment) declared to be persons for purposes of future applications of the 14th, and if the 14th is understood to be about protection, then abortion should not be able to be recognized in state or federal law as a legally permissible (much less state funded) medical act, since thus designating it is expressly removing the protection of criminal laws that otherwise prima facie obtain. E.g., normally if you tear another living human being to pieces with forceps you are liable to be charged with murder.

For example, suppose some state law says something like "Abortions in this state may be performed only by licensed physicians."

That law, though limiting the abortion license, tacitly implies that abortions _may_ be performed by licensed physicians. It therefore gives legal permission for the destruction of one living human being by another, so long as its protocols are followed. That would be the type of law that would be prima facie null if the 14th applied to the unborn.

Just as null as a law would be declared that said, "The killing of black humans may be performed in this state only humanely and by licensed physicians at clinics designated for that purpose," or something like that.

Can someone explain to me why it is that a state can define marriage to allow it between two males, and then perform a "marriage" ceremony for 2 males neither of whom are residents of the state, but a state CANNOT define "person" for its own purposes? And by "define" person, I mean "expand the definition to include individuals not previously included", which takes nobody's personhood status away.

Oh, a state could presumably do that. But that would only be within that state. And if that state had the will to do that, then that state could just ban abortion within its own borders to begin with, without defining "person."

One of the big ideas of the 14th amendment is making states act differently from the way that they spontaneously are inclined to act.

Let me amend my last comment: A state could do that if it were not for Roe v. Wade et. al. But since we all know that Roe v. Wade and its companions are, insofar as they declare abortion a "constitutional right," lying farces, I assumed your "can" question meant "can, within the actual meaning of the Constitution."

Well, what I mean is "why does the SC seem to think a state cannot effectively define "person" to include the unborn, and then apply the 14th to them? Didn't we have a state try this and get shot down? What was the rationale claimed, presumably something other than "the clear meaning of the 14th cannot be allowed to trump the penumbra right to abortion, regardless of how irrational we have to twist things to get there."

Has anyone been following this story? http://www.foxnews.com/us/2014/03/14/california-sisters-fighting-back-after-professor-steals-graphic-pro-life-sign/ and the assault by a professor of "black cultural studies and pornography"?

My guess is that nothing will happen to the prof.

Tony, there is no rhyme nor reason to Roe v. Wade, but the court's commitment to it seems absolute. So, yes, in what passes for the minds of rabid ideologue Supreme Court Justices, the phantom right to an abortion trumps the far more reasonable interpretation that a state is merely giving all persons the equal protections of the law by outlawing abortion.

In fact, Wesley J. Smith has recently raised the fear that the court might "strike down Roe in the other direction." That is to say, that the court might decide that the abortion license in Roe and following decisions (especially Casey) is insufficiently broad and that the states may not have 24-hour waiting laws, parental consent laws, requirements for hospital access for doctors, etc., etc.

"Tony, there is no rhyme nor reason to Roe v. Wade, but the court's commitment to it seems absolute."

The law clerk picked up the phone. The voice on the other end was pleasant.

"Hello, this is Sanity calling. May I speak to your boss?"

The law clerk pondered for a moment.

"I'm sorry. He can't take your call. Sanity is not defined in the Constitution and, certainly is not a State's right case. Sanity has no standing before this Court. Have a nice day."

The Chicken

Scott, I guess that if the sisters pursue it they will win damages of $100 to $200 or something like that (plus legal fees). If they want to, they can pursue charges for assault - presumably there were witnesses - but they cannot force the police to charge or DA to prosecute. The professor hasn't a leg to stand on: even if the sisters were violating some community standard on decency, it would be up to the police and the justice system to enforce the law, not the professor. She could have complained to the police and asked them to enforce the law, she could have sought an injunction preventing the sisters from exhibiting their material. She had no authority to be the one to enforce her version of "what's right".

That's on the possibility that what they were showing might have been unlawful to show. Even given this is CA, there is very little chance that the professor would be able to withstand the free speech component of the sisters' rights, given that movies and advertising on public TV, including at malls and other public places, display FAR more violence than the pictures. There simply isn't a well-defined community standard against showing the _aftermath_ of violence, like there is against obscenity. Otherwise, the pictures of heaps of Holocaust victims would be publicly forbidden. Or the nightly news of scenes in Syria's civil war. To the extent that there is a vague and unformed community standard against showing violence publicly, the aftermath of violence is peripheral to that standard, and there is very little likelihood a federal court would trump first amendment rights on such a flimsy basis. So there is very little likelihood the prof would have been ultimately successful in getting an injunction against the imagery being used.

Also, the college campus has a so-called "free speech zone," and their display was within it. So they were abiding by the college protocols.

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