Wednesday, January 18, 2012

Are Conservatives coming around about equal protection?

As you may have noticed, it's a trend of the conservatives particularly on the Supreme Court to trumpet their fidelity to the "original intent" of the writers of the Constitution. This allowed the gob-smacking conclusion that women weren't covered by the Equal Protection of the 14th Amendment--because they weren't equal, back then.

But apparently, they are coming around to realize the Equal Protection applies to everyone, after all.  And this is relevant, because the main challenge against DOMA right now is on equal protection grounds.... and the main challenge to Prop8 is also on those grounds.

From Slate:
[A] significant reassessment of the meaning of the Equal Protection Clause ... is transforming the debate over the Constitution. This debate, which is happening in conservative legal and academic circles, could have a dramatic impact on the outcome of critical cases—including Perry v. Brown, the challenge to California’s Proposition 8 and the denial of marriage equality to gay men and lesbians. ... 
What conservatives such as Olson and Calabresi have slowly been recognizing is that it is inappropriate to look to the intentions of the Framers of the 14th Amendment to trump the actual text they wrote, the cardinal sin in constitutional interpretation if ever there were one. It is the text that guides and binds judges, and the text of Section 1 of the 14th Amendment broadly supports protection of fundamental rights and equality under the law for all persons, not just former slaves. In ratifying the 14th Amendment, the American people redeemed the Constitution from the sin of slavery by adding to our foundational charter a universal guarantee of equality, covering every person in the United States. As Calabresi emphasizes, under the original meaning of that text, all systems of caste and subordination violate the 14th Amendment. 
... Calabresi’s (and Ginsburg’s) central argument is that the 14th Amendment prohibits states from enacting legislation treating any persons as a subordinate caste. That’s precisely the argument Ted Olson has advanced and the district court accepted in Perry: States violate the Equal Protection Clause when they treat gay men and lesbians as second-class persons, unworthy of having their loving relationships recognized by the law. Calabresi’s account, unwittingly perhaps, make a powerful case for marriage equality as a matter of fundamental constitutional principle. 
Second, the emerging consensus and embrace of originalism by Justice Ginsburg reflects just how rapidly the debate over constitutional interpretation is shifting. Her willingness to acknowledge that fidelity to constitutional text leads to greater equality is a signal that originalism isn’t the sole province of conservatives anymore. The inevitable result: One by one, the shibboleths of the right about the “original” meaning of the Constitution are being discredited, while progressives increasingly embrace the Constitution’s text and history. This methodological meeting of the minds is what allows liberal/conservative partnerships possible, such as the pairing of Ted Olson with the far more liberal David Boies on the Perry litigation team.

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