If the 14th Amendment can't kill Prop 8, Prop 8 killed the 14th Amendment

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Wednesday November 05, 2008 · 6:15 PM PST

2008/11/05 · 18:15

Lawyers are welcome to hit me over the head for this and take it to bits; I'm just a lowly history person. But I'm more concerned with what the 14th plainly says than with the various often criminally dishonest interpretations it's been given. If that were all we cared about we'd still have Plessy v. Ferguson. Will the success of Prop 8 once more make the 14th Amendment a cruel joke?

Section 1. 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.

... (Sections 2 and 3 on apportionment and rebellion) ...

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In the context of 1866-88, this was about undoing state-level race discrimination laws, and, in section 5, giving the Congress the authority to pass national civil rights legislation without the then-conservative Supreme Court turning around and declaring it unconstitutional on the grounds that Congress wasn't empowered to act other than as specifically allowed in article 1 of the US Constitution.

If enough people have guts, and if the 14th Amendment means what it says and not just what the Rehnquist court took it to mean in recent years then prop 8 can be fought the same way as any other state action which denies the equal protection of the law to citizens of the United States - this is its reason for existing.

Big if. The marriage/civil union distinction is in any context other than conservative political rhetoric - but will a national party unwilling to even publically embrace gay marriage say so? Pass a national law banning discrimination, backed up by section 5? I don't know if that's the ditch this Congress wants to die in.

But if they're going to have the state constitution of 36 million Americans formally spit in the 14th Amendment's eye, they might as well hoist the Confederate flag out west and whistle Dixie.

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