First, the equal protection clause of the 14th Amendment:
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.
And now, the silly question:
Tangentially, if we apply the equal protection clause as it's written, doesn't it eliminate any limits on marriage or age or ability? Polygamy should certainly be allowed for every reason same-sex marriage is, but not only that, what about all the age discrimination?I should have said, "... as it's written and the courts have interpreted it" given that the courts have interpreted it to preclude state bans on same-sex marriage.
Wouldn't any drinking age above 18 be unconstitutional under this clause? Clearly, we are depriving citizens of a privilege w/o due process of law. Could we even have a legal age of majority at all? Are 2-year-olds not citizens?
Just thinking out loud. Anyone know?
Yeah, I fully expect to get slapped, but hopefully it will be an educational slap.
Ten years ago, when we first started hearing people talk seriously about 'gay marriage,' some right-wing authors floated the idea that such a thing would be a slippery slope to polygamy. Not so, said I: polygamy is a lot less radical an alteration of the institution, since (a) it preserves its natural-law function and (b) it's been tried before, so we have substantial experience from which to judge.
ReplyDeleteI think that's right in theory, but in practice it's probably the case that those authors were correct. We are building the slippery slope from the more radical to the less radical, but if we are willing to accept 'gay marriage' as a society, we will certainly have polygamy soon.
It'll start with the radical Mormon factions winning a few lawsuits, and spread from there. And really, why shouldn't they have their way? They've been doing this for more than a hundred years out there, even if they've had to do it underground, and it's not hurt Utah. Bringing it into the open would allow sunlight that would be cleansing where there are bad practices.
So yeah: polygamy, at least, is certain to follow.
As for a national drinking age, you'd have to show that drinking alcohol was a 'privilege of citizenship,' which it clearly isn't. We'll sell alcohol to non-citizens just as readily as citizens.
Frankly I think the 21 drinking age is morally indefensible. How can one be responsible enough to vote for public office (run for others), operate a motor vehicle, defend one's country, potentially be in charge of nuclear weapons, and NOT be responsible enough to be trusted with alcohol? If they wanted to raise the age of all of those to 21, I'd be fine with it (and I was saying the same when I was 18). If they want to lower all those to age 18, I'd be fine with it. If they wanted to set them all at 20, I'd be fine with it. It's the inconsistency that annoys me.
ReplyDeleteOh, and polygamy is all but a done deal at this point. I don't see on what basis you could prevent it given the recent rulings.
Well, it could easily start with Muslim immigrants may start the push for polygamy as well. Some family comes over from Saudi Arabia with a husband and two wives. The equal protection clause applies to non-citizens as well as citizens, so they sue for official recognition.
ReplyDeleteOn the drinking age, is that how that works? What exactly is a "privilege of citizenship" (as opposed to a right, I suppose)?
And what about the equal protection bit? If Virginia's anti-miscegenation laws applied equally to blacks and whites, and yet were struck down because they failed to provide equal protection of the law, what's the difference between a person who is 18 and one who is 21? Seems like similar situation to me.
MikeD, I mostly agree. That's how it works in Japan. 20 is the age -- you become an adult, can drink, smoke, vote, have sex, etc.
ReplyDeleteObviously, some folks get an earlier start on some of that, but at least the law is consistent.
..."privilege of citizenship" (as opposed to a right)...
ReplyDeleteArguably, there aren't any. That's been the general trend of SCOTUS rulings until 2010: that either they were only those rights explicitly mentioned in the Bill of Rights, or that it didn't apply to anything specific at all.
Clarence Thomas issued an opinion in 2010 that cited the clause and was not rebutted in another opinion, but he's the first justice to do so -- not just in living memory but, as I understand it, at all.
If you asked me instead of SCOTUS, I would say that voting is a privilege of citizenship. It is not (as we often describe it) a right, because citizens often lose it -- felons, for example.
Wait, so why again is marriage covered under this clause? It also isn't restricted to citizens; how is it different than drinking? (I mean, legally, of course.)
ReplyDeleteFrankly I think the 21 drinking age is morally indefensible. How can one be responsible enough to vote for public office (run for others), operate a motor vehicle, defend one's country, potentially be in charge of nuclear weapons, and NOT be responsible enough to be trusted with alcohol?
ReplyDeleteThey don't start out "responsible enough" for many of those things. We train folks with some measure of stringency on driving, defense, handling nuclear weapons. I don't have any answer for the vote (when I was in the 18-20 age group I was against the limit being lowered to 18) or running for office. At the Federal level, though, we do have Constitutionally mandated age limits that start rather higher.
How would I train for drinking? Driver's ed, for one, with the type of movies we got in those '60s high school classes. Today, I'd also rather have a general performance threshold than a hard age, too. Something along the lines of college graduate plus two solid years of paid employment, or no degree plus five solid years of paid employment.
Eric Hines
I don't think it is, Tom. I think their argument is based on the equal protection clause, not the privileges and immunities clause. The concept is that if you're going to let a man and a woman marry, it's unfair not to let a man and a man 'marry.' The fact that it's impossible and a contradiction in terms is easy to solve: this is the law, which unlike nature can mean whatever the court says it does.
ReplyDeleteThat's the same reason that the 14th Amendment went out of its way to protect a whole category of "privileges" that the courts have simply denied exist.