From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: Constitution
Organization: University of Colorado, Boulder
Distribution: co
Date: Tue, 10 Nov 1992 23:31:35 GMT

In article <1992Nov10.171503.412@ncar.ucar.edu> holcomb@sylvester.cgd.ucar.edu (Katherine Holcomb) writes:
>Amendment XIV, Section I:
>All persons born or naturalized in the United States, and subject to the
>jurisdiction thereof, are citizens of the United States and of the state
>wherein they reside.  No state shall make or enforce any law which shall
>abridge the privileges or immunities of citizens of the United States; nor
>shall any state deprive any person of life, liberty, or property, without
>due process of law; nor deny to any person within its jurisdiction the equal
>protection of the laws.

>from those with power.  An example might be seen in the gradual evolution
>over the past 124 years (the 14th Amendment was ratified in 1868) of the
>definition of the word "person."  The 14 and 15th Amendments were intended
>to protect blacks, yet for quite a while after their ratification, "person" 
>still meant, to the courts, "white male," or, at best, sometimes "male." It 

Actually, the Fourteenth Amendment doesn't refer to "person"s: It refers
to "citizens" and very clearly defines who "citizens" are. The Court
was playing games with the meaning of "privilages or immunities" or
"due process of law" or "equal protection of the law." In fact, they
still do that today (the liberal Warren and Burger Courts were the
worst offenders in this regard, although they invented "creative"
meanings for the sake of, or against, different groups.)

>required a specific amendment to the US Constitution to guarantee women the 
>vote, even though a strict reading of the 14th and 15th Amendments should 
>automatically grant women the vote.  (The 15th Amendment guarantees the vote to 
>"citizens.")

No, you are confusing sufferage and citizenship. If all citizens could
vote, this would let 5-year olds cast ballots. The Fifteenth Amendment
simply said citizens could not be barred from voting on the basis of
race. A later Amendment said this couldn't be done on the basis of sex
either.

>The only non-political argument that the sponsors of 2 can make in defense
>against the 14th Amendment is that their amendment really only prohibits
>any unit of government from making laws which protect homosexuals, it does
>not really legalize discrimination against homosexuals.  However, this seems
>to me a tortuous argument.  It is still legal to make laws to protect, say,
>religious fundamentalists.  Denial of any chance of protection seems to me
>to be the same as legalization of discrimination.

I think a court would see it differently: They are not denied any
chance of legal protection. Amendment 2 can be legally repealed so
_some_ chance does exist (The Supreme Court consistantly avoids
questions of easy such things might be, calling them "political
questions" beyond the scope of the Court's jurisdiction.) The
Court usually considers what laws _exist_ not which laws _might_
exist. They can't really say for sure what might happen, so they
don't like to base judgements on this. Also, there is a well
established doctorine that a government doesn't have to solve _all_
discrimination problems at once: Anti-discrimination laws against
racial discrimination don't deny equal protection to women (which 
could be argued since the law protects one group but not another.)

                                           Frank Crary
                                           CU Boulder

Newsgroups: co.general,co.politics,co.politics.amend2.discuss