Copyright by Barnabas D. Johnson
Equality is, of course, central to everything on this website. See, for example, my essay on Equal Justice, or Isonomia. Yet I am composing this essay to address aspects not addressed elsewhere.
As context, I note that one crucial aspect has to do with the fact that, in the U.S. Constitution, the Fourteenth Amendment’s key Section 1 guarantees have been distorted, maimed, arguably gutted. That section’s guarantee of “equal protection of the laws” appears third, after the second clause forbidding any State to “deprive any person of life, liberty, or property, without due process of law”; but the first and most general guarantee of Section 1 provides crucial context for both: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This crucial first clause was essentially cut out of the Constitution in 1873.
In terms of basic “natural rights” theory, so central to this country’s founding, that first guarantee should “inform” or contextualize the second, as the second “informs” the third; the three must be read together, interpreted together, and enforced together, else — as has happened since 1873 — the second and third, bereft of the first, must carry too heavy a jurisprudential burden.
The historically-twinned terms “privileges” and “immunities” were gutted in 1873 in the infamous Slaugherhouse Cases, where the U.S. Supreme Court essentially ruled that these terms were meaningless. Yet they obviously had meaning when the Fourteenth Amendment was adopted in 1868 and when those same privileges and immunities were guaranteed in the original 1787 Constitution, the 1777 Articles of Confederation, and prior constitutive documents on this continent, starting with the 1606 Charter of Virginia.
It is beyond dispute that lawyers during the colonial era and the first century of U.S. history saw “privileges and immunities” as referring to fundamental rights, “substantive liberties” and their procedural and institutional safeguards. Historically, the concept “due process of law” was the most important of those safeguards, although its origins as “the law of the land” — imposed on King John in the 1215 Magna Charta — invest this sublime phrase with important substantive content as well (see Due Process of Law). For example, the presumption of innocence (not mentioned in the U.S. Constitution) is a substantive constitutional right; it is imported into U.S. jurisprudence by the Due Process Clauses of the Fifth and Fourteenth Amendment, as well as by historical implication in the guarantee of jury trials.
Although predating “privileges and immunities” by several centuries, the concept “due process of law” is best seen, understood, interpreted, and enforced within the context of its coevolution with “privileges” and/or “immunities” — that is, with evolving liberty — imbedded in Anglo-American jurisprudence. Likewise, the Equal Protection Clause of the Fourteenth Amendment has substantive and procedural aspects, but these too are best seen, understood, interpreted, and enforced within the context of the Due Process Clause and the Privileges and Immunities Clause.
Yet since 1873 these three interdependent clauses have been unable to illuminate and reinforce each other. Reliance on only the second and third as bedeviled U.S. constitutional jurisprudence during the past century and a quarter.
A two-legged chair is far less stable than a three-legged chair.
As ancient Greek theory asserted, if we are equal in our liberties, we must be equal in the restrictions on our liberties and hence equal under the law. The law is both sword and shield, depending on context and the perspective of each party in a legal dispute. In all such disputes, the government is “just another party”: indeed, in many circumstances it must carry the burden of proof, and in criminal cases the standard of proof must be “beyond a reasonable doubt.” That, too, is not mentioned in the U.S. Constitution, yet it is no less a constitutional right for being unenumerated. Many of the most precious rights guaranteed by the Constitution “go without saying”; all are “privileges” and/or “immunities”; that is, all triangulate liberty, justice, democracy.
In short, as equal liberty implies equal justice, isonomia, so freedom and justice require — in experience if not in formal logic — that free people in a just state must go one step further: constitutional democracy, demokratia … child of isonomia.
There is far too much talk about “democracy” without sufficient attention to “constitutional democracy”: government under law in which majority and coalition rule is balanced by minority and individual rights. Democracy without isonomia is doomed to fail.
Finally, rights are pointless without remedies. The constitutional right not to be arrested and deprived of liberty without charge, trial, and opportunity to defend, etc., thereby forcing the government to prove guilt beyond a reasonable doubt, is not a meaningful constitutional right unless an independent Judicial Branch can remedy abuses … ultimately by declaring a law adopted by the Legislative Branch or an action taken under color of law by the Executive Branch to be unconstitutional, that is, an abuse of liberty, justice, and hence democracy.
See my essay, Ordered Liberty.
To be continued.
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