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Separate But Not Equal
The separate but equal doctrine arose out of the Supreme Court case of Plessy v. Ferguson. The Plessy case upheld the practice of segregation in private businesses stating that if separate services were provided to white and blacks, it was legal so long as the services were "equal." The decision condoned segregation practices that developed in the South after the Civil War and was used as precedent to legitimize segregation practices throughout the South for generations. Not until 1954 in Brown v. Board of Education did the Plessy case get overturned, despite the objections of then law clerk and future Supreme Court Chief Justice William Rehnquist .
The Brown case should have ended matters about the legitimacy of segregation. The Brown case should have ended the practice of different rights for different peoples based on specific traits. However, like the South, the practice of segregation has risen again. If left to social conservatives, homosexuals and Mexicans would have to live under the separate but equal doctrine. The scariest problem is, the social conservatives believe they are being charitable is limiting the rights of the specific groups.
California - Proposition 8
Last week, a Federal Court Judge overturned the controversial law banning gay marriage in California. Prop 8, known as the California Marriage Protection Act, was a ballot initiative that added a provision to the California Constitution that "only marriage between a man and a woman is valid or recognized in California." The measure passed overwhelmingly in the November 2008 elections.
In overturning the law, the Federal Court Judge, held that Proposition 8 violated the equal protection clause of the 14th amendment. However, as could be predicted, the proponents of proposition 8 are screaming bloody murder at the Judge's order. They are claiming it is judicial activism run amok. They are claiming that the will of the people has been undermined. To some extent, they are right, but not for the right reasons. Sometimes the majority doesn't get what it wants.
James Madison argued in Federalist Paper No. 10 that one of the biggest dangers to the new Republic of America was the development of factions. Madison argued that the problem that comes from majority factions is the principle of popular sovereignty should prevent minority factions from gaining power. Madison believed that the danger of majority faction could be checked by the Federal Power as a "small democracy" cannot escape the dangers of a majority faction. Madison's meaning was that sometimes the federal government has to check the power of the states to create laws. Sometimes the majority has to lose because what they are doing is a danger to liberty.
This, however, is not good enough for the proponents of proposition 8. They claim that the will of the people should win, always. Further, they claim that homosexuals already have the same rights as married people in civil unions and domestic partnerships, so why the big deal about marriage. The answer is simple. Separate is not equal. Creating a separate right for a group to keep them away from the actual right is segregation all over again. The will of the people cannot be allowed to condone segregation. Separate is not equal and the role of the Courts, according to Madison, is to check the power of a majority faction when they go too far.
Everyone knows that the State of Arizona passed a controversial law that is applauded as a tough anti-immigration law. It is also been rightfully criticized as a law aimed solely at Mexicans, American or not. The Courts will decide the validity of the Arizona law in due course, but this is not good enough for many Social Conservatives. There is a movement, led by some Republican politicians and Glenn Beck, to amend the 14th amendment to the Constitution. Specifically these "leaders" want to change the citizenship requirement that to be a US citizen you have to be born in the United States. The reason: too many Mexicans are having babies in the United States to gain citizenship for their children. To support their argument, Beck gives a "historical" background of the 14th amendment claiming "The "birthright citizenship clause" was originally meant to ensure that children of freed slaves would be American citizens." To Beck, today's meaning is : "All persons who successfully sneak into the country will be allowed to stay indefinitely. All crimes committed by those lawbreakers (i.e., identity theft, fraud, and tax evasion) will be ignored. These non-American Americans will be afforded free health care at emergency rooms, free education,, and special in-state tuition deals at colleges, not afforded legal citizens. All children born of these lawbreakers shall immediately become citizens of the United States. Any person attempting to thwart this revision of Section I will be labeled racists, hatemongers, xenophobes, and all-around bad people."
Beck claims that the 14th Amendment was a short gap fix to a problem and should have been disregarded shortly after passage. He argues that it should no longer apply. Beck is simply wrong.
Putting aside Beck's historical record of defending the Constitution as a sacred document that should be read literally. Putting aside his defense of the 2nd amendment claiming it is simple to read and what is all the fighting about. Now he wants to change the 14th amendment because when the authors wrote born in the United States they didn't mean it. What Beck is really arguing for is the separate but equal doctrine being applied to anyone who may be of Mexican descent. Never mind whether they are actually Mexican or not. Beck's proposal is specific to one group of people as illegal Russians and Canadians will not be subject to any scrutiny because of the color of their skin. Mexicans and anyone who is brown will be scrutinized because the color of their skin. Different laws for different people, this is separate but equal all over again.
What's Going On?
The President isn't an American, God Hates Americans, Racial Profiling, Proposition 8: These are just a few examples of the work of social conservatives in the last few years. What is causing this anti-immigration anti-homosexual stance not seen since the Ku Klux Klan? Is it that many white Americans are scared that a black man is in the White House but know that can't say that is the reason for their anger?
For many, their reasons are genuine. Many proposition 8 supporters are simply defending their religious beliefs. Nothing wrong with that. Many anti-immigration supporters truly believe they are defending their nation. Nothing wrong with that. It is their method that is the problem. They are doing it in long strokes that manage to shatter the very rights they believe they are defending. And laws designed to hinder the rights of specific groups where condoned by Plessy, and held unconstitutional by Brown.
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