Haven’t had a chance to finish another installment of my “equal protection” series, but an email from a friend convinced me that I had to go back and propose an amendment (subject to your ratification) to yesterday’s first installment.
My friend, who shares my interest in constitutional history but not my habit of disrespecting my betters, suggests that in describing the framers of the Constitution as “not into equality, not even a little,” I was unfair to Washington, Madison, Hamilton and the boys. I’m trying hard to be fair to Norm Coleman’s equal protection argument (without engaging in journalistic phony balance). But, notwithstanding the usual worshipful treatment afforded to the Framers, I didn’t mean to be unnecessarily (or ahistorically) harsh.
My friend, who declines to be named on grounds that he was not authorized to defend the framers, says that the system the Framers created, and especially the due process concepts built into the Bill of Rights, has an important element of “equal protection” built into it. Writes my friend:
Looked at another way, due process traditionally meant equality under law. It meant that a person couldn’t be coerced unless there was a law – a general rule – which was shown to apply to his situation or conduct through a fair inquiry. Due process of law didn’t just mean that the what the king said was law, so if he said off with your head you lost your head, without your having broken any pre-existing rule.
I agree with all of that, including the last sentence. The Framers helped move the democratic impulse from a system in which no one other than the King had any real power.
But the beneficiaries of the rights delineated by the Bill of Rights were adult, white, male Protestants like themselves (and, not to be too big a jerk, the Framers — if we mean the 40 who signed the proposed Constitution at the end of the Philadelphia convention) rejected the idea of the Bill of Rights and later agreed to it only at the insistence of others and as a condition of getting the Constitution ratified, which is why the B of R’s is contained in amendments, not the original charter).
It would be ahistorical and too damn smug of me to judge the Framers too harshly for being men of their time. And I respect my friend’s point enough to ask you to take it into account.
But the breakthrough represented by the equal protection clause of the 14th Amendment was the granting of those due process guarantees to a group outside the original club. Which, with apologies to the Framers, loops us back to where we left off yesterday and where I”ll pick up soon.