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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment
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Wednesday, November 16, 2011
Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment
David Gans
There are few areas of the law as deeply polarizing and emotionally heated as the application of the Constitution’s guarantee to all persons of the equal protection of the laws. What is lost – all too often – in this heated and polarized discussion is the text and history of the Constitution’s Equal Protection Clause itself, along with the full sweep of our constitutional history: the principle of equality first stated in the Declaration of Independence, perfected in the Equal Protection Clause of the Fourteenth Amendment, and further illuminated in the Nineteenth Amendment and other Amendments.
Comments:
One can argue that the law doesn’t give “equal protection” to a gay person because it doesn’t allow him or her to marry someone of the same sex. One can argue that it does give equal protection to a gay person because it allows him or her the same freedom to marry someone of the opposite sex as a straight person. Or one could argue that any legal recognition of marriage violates equal protection by treating married and unmarried people differently.
The text of the equal protection clause doesn’t provide a basis for choosing among these competing theories. The only way to distinguish them is in the context of a normative framework. Either we are going to use the normative framework of the framers and ratifiers of the 14th amendment, or we are going to use someone else’s. Disparaging the framers of the 14th amendment as (partial) villains is a clever way of driving the conclusion that it should be someone else who, I am guessing, will turn out to be you. You are all hero and no villain?
Jack Balkin argues the "normative framework" of the framers will provide a means to equal production results such as abortion rights.
In this respect, the framers are not "villains," but individuals who put in place a means to provide changing specific understanding of the terms of the 14a that went beyond their immediate understanding of homosexuality, gender and so forth. I'd note one need not be "gay" to marry a person of the same sex in NY, MA, NH, IA, DC or CT or be "straight" to marry a person of the opposite sex. The "hero" in the writer's discussion is not himself particularly, but the people themselves. It is they who ultimately determine what is the proper framework. The people over the years deemed it to include sex equality in various forms and now sexual orientation. Jack Balkin also has written how this is reflected by changing membership of the courts, membership in place by elected officials nominating and confirming judges. I'm unsure therefore why the matter needs to be so personal, as if the writer is just self-aggrandizing here.
One can argue that the law doesn’t give “equal protection” to a gay person because it doesn’t allow him or her to marry someone of the same sex. One can argue that it does give equal protection to a gay person because it allows him or her the same freedom to marry someone of the opposite sex as a straight person. Or one could argue that any legal recognition of marriage violates equal protection by treating married and unmarried people differently.
In addition to what Joe said, your 3 examples are not of equal (heh) merit. The middle one is, in fact, frivolous. Looks to me as if a normative framework has been applied out of order, not to choose among the alternatives, but to define them. No theory of interpretation allows for that.
This post is also cross-posted on the ACSBlog (American Constitution Society), which has just finished a set of online brief "classes" patterned on a book expressing the basic concept, "Keeping Faith with the Constitution." The original book also can be downloaded, a chapter on free speech added in an updated edition.
http://www.acslaw.org/constitution-curriculum Other material at the website of this liberal answer to the Federalist Society, including issue briefs and videos on various topics, might be of interest.
Mark- the second option is certainly not frivolous based on the text of the equal protection clause. It may be frivolous based on your normative perspective, under which what is most important is that a person be able to marry whomever he or she chooses (subject to certain limitations that seem reasonable to you, such as age, number, mental capacity, whatever). Your perspective is certainly not that of the framers, who would have found the notion of same-sex marriage to be frivolous.
Joe's suggestion that these decisions be made by the people is, I am pretty sure, the legal regime that would exist if we leave the equal protection clause out of the issue entirely.
the second option is certainly not frivolous based on the text of the equal protection clause.
Then you haven't thought it through. It may be frivolous based on your normative perspective Projection is rarely convincing as an argument, though it seems very popular on the Right these days.
Sorry for the deletions.
"Joe's suggestion that these decisions be made by the people is, I am pretty sure, the legal regime that would exist if we leave the equal protection clause out of the issue entirely." I'm not "suggesting" a possible route here. That is should "be." I'm arguing what is happening, or in particular, what the argument being made entails. Also, I'm arguing that the people are the ones giving specific meaning to the text. "The decisions" is what the text means. So, how can we just leave it out of the equation? Of course, the people don't directly get to govern or interpret the law most of the time. They do so through agents. Still, the agents are chosen by them directly or indirectly and this plus the fact that the people who decide are guided by current understandings (even originalists) underline the power of popular constitutionalism.
The only way you can apply the EPC to compel state recognition of same sex marriage is to discard the traditional requirement of similar situation. In that case, marriage loses any meaning apart from being a contractual relationship for government benefits equally available to any parties in any combination.
With an EPC of that breadth, the progressive income tax system and all means testing limitations on access to government benefits should be likewise unconstitutional. And so on, and so on.
Is our yodeler's:
Post a Comment
"With an EPC of that breadth, the progressive income tax system and all means testing limitations on access to government benefits should be likewise unconstitutional. And so on, and so on." directed at the federal level or solely at the states under the 14th Amendment? And perhaps his mere echoing "And so on, and so on" can be detailed.
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Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? 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Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. 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Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |