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In Fairness to the Founders

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:

“When the Fifth Amendment says that “No person shall… be deprived of life, liberty or property without due process of law,” the whole point is equality under the law. There seldom has been a society in which all persons were deprived of liberties without just cause.

Frequently, some persons, even most persons, were – the poor, powerless, politically or religiously disfavored, etc. But not all. So all of the Bill of Rights provisions make sense only because the founders were claiming to guarantee basic protections and freedoms to everyone, or at least more broadly, rather than only to the privileged few who enjoyed them even under tyrants.

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.

By prohibiting Bills of Attainder, the Constitution said that Congress couldn’t pass special laws to persecute specific people. Another provision to achieve equal protection under law.

Anyhow, these are the senses in which I mean the founders were into equality. But I get the feeling that, perhaps without knowing it, we mean two different things by equality.”

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.

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Comments (9)

  1. Submitted by Paul Brandon on 04/22/2009 - 11:26 am.

    I’d agree with you, Eric.
    The Framers were great men, but like all people they were products of their time (how could it be otherwise).
    It would demean them to demand perfection by current standards, which in turn will also change.

  2. Submitted by Tim Walker on 04/22/2009 - 11:29 am.

    Mr. Black wrote: “But the beneficiaries of the rights delineated by the Bill of Rights were adult, white, male Protestants like themselves…”

    I grant 3 out of these 4.

    Adult: Only adults can vote (still true).

    White: Slaves can’t vote (at that time).

    Male: Females can’t vote (at that time).

    Protestants: Huh? Did the Constitution benfit Protestants more than non-Protestants? I think the establishment clause says that’s a no-no.

  3. Submitted by Jack Craypo on 04/22/2009 - 11:39 am.

    It is certainly true that we do not as a society spend enough time discussing the theoretical underpinnings of our political system. The result is that many people do not understand why, for example, verdicts are sometimes set aside on “technicalities.” For this reason, I think any public discussion of the history of the Constitution is a good thing.

    What I don’t see is how this discussion has anything to do with Norm Coleman. It is as if someone was assaulted with a rolling pin, and we decided that in order understand the crime we needed to investigate the history of baking.

    Now that Norm has asked for still further delays in the appeal, it must be obvious even to the most sympathetic observer that there simply are no real constitutional issues here. Norm is fighting a cynical rear-guard action with no other thought than to deny Minnesota voters representation as long as humanly possible.

    Discussions about Constitutional history are always a good thing for their own sake. What is not good, however, is when these discussions are used to offer implicit legitimacy to a manifestly cynical obstruction of the democratic process.

  4. Submitted by Dwight baker on 04/22/2009 - 11:42 am.

    Mr. Douglas did not find the Constitution to be much of a means for him to get along. So he put down his ideas long ago worth reading today to see how far we have strayed.



    America is false to the past, false to the present, and solemnly binds herself to be false to the future.

    At a time like this, a scorching iron, not convincing argument, is needed.

    Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong, which will be imposed on them.

    I prefer to be true to myself, even at the hazard of incurring the ridicule of others, rather than to be false, and to incur my own abhorrence.

    If there is no struggle, there is no progress.

    It is easier to build strong children than to repair broken men.

    It is not light that we need, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake.

    No man can put a chain about the ankle of his fellow man without at last finding the other end fastened about his own neck.

    Power concedes nothing without a demand. It never did and it never will.

    The life of a nation is secure only while the nation is honest, truthful, and virtuous.

    The limits of tyrants are prescribed by the endurance of those whom they oppose.

    The thing worse than rebellion is the thing that causes rebellion.

    To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.

    Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.

    Dwight Baker
    Co-founder Bondservants of Christ Jesus Ministries
    Chairman for Grass Roots Actions for
    PO BOX 7065 Eagle Pass, TX 78853
    Tel/fax 1-830-773-1077

  5. Submitted by Jack Craypo on 04/22/2009 - 12:55 pm.

    Tim Walker is partly right. The Constitution does protect non-Protestants from disenfranchisement, but this only is partly a consequence of the establishment clause. More to the point is the prohibition against religious tests in the original Constitution: article I, section 2 of the 1792 Constitution, “No religious test shall be required as a qualification to any office, or public trust, under this State.”

    But this still left lots of ways for Protestant elites to keep non-Protestants out of the polling booth, like property tests and poll taxes. As freed slaves would find out later, constitutional guarantees of voting rights are not always worth more than the paper they are written on.

  6. Submitted by Eric Black on 04/22/2009 - 01:30 pm.

    Yeah, I probably should have left “protestant” off the list of groups who had the benefit of the framers’ equality impulses. And Jack’s reference to the no religious test language is a good point. There was plenty of discrimination against Catholics, Jews and adherents of other religions, but I was wrong to attach it to anything the Framers wrote or didn’t write or had in mind.

  7. Submitted by Paul Landskroener on 04/22/2009 - 02:23 pm.

    Your friend is correct, but misses the point. The reason for the 5th Amendment was not to protect the weak from the strong, but the few from the many. The few they had in mind were the few with property, and the many was the rabble who did not.

    Much — perhaps most — of the constitution was written to protect the status quo from being upset by the majority, at least without sufficient deliberation. The founders believed that the due process guarantees of the 5th Amendment were necessary to protect themselves and their positions, much as the Magna Carta protected not the common people but the wealthy barons from arbitrary royal rule.

    You were right in part I of your essay that the idea of equal protection meaning the extension of the Constitution’s guarantees to the many is largely a post 14th Amendment and 20th Century phenomenon.

  8. Submitted by Jill Trescott on 04/22/2009 - 04:09 pm.

    Off the topic of Coleman v. Franken, but on the topic of the Constitution, would you comment on Marty Seifert’s proposed writ of attainder against Omar Jamal? Thanks.

  9. Submitted by Dan Mondor on 04/22/2009 - 04:42 pm.

    This is a technicality, your research is obviously well done.
    But when you mention the reason why the B or R is in the amendments and not in the original document. I’m sure you are aware that that is exactly what Madison wanted to do. He had wanted to see the appropriate articles of the original constitution modified as necessary. But he was opposed by several in the first house of representatives on this and eventually accepted the point. There was a fair amount of debate on this topic in that first congress. Perhaps most telling is the number of state legislatures that saw no need for a bill of rights. Many thoughts it would do far more harm than good.
    A good essay question for students would be to ask if that worry has proven itself out since then…

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