Berkeslaw

It is a simple fact of American public life that both sides of the political aisle seek to use the Supreme Court of the United States (“SCOTUS”) to push and/or protect political agendas. To suggest otherwise requires one or some combination of naivete, terminal partisanship or simple ignorance. Both sides accuse the other of wanting a Court which is more “activist,” meaning more legislative than deliberative. I think both sides are in fact correct; they just justify it differently.

Generally, when the GOP (and some “Libertarians”) want the SCOTUS to uphold this or strike down that, they use certain code phrases like “states rights,” or “original intent,” and/or “interpreting the Constitution rather making laws.”  In other words, such view holds, we need only discern the “framer’s intent,” and apply it to a controversy being heard more than 230 years later, i.e., when the quill has been replaced by the texting iPhone.

Democrats (and some “Progressives”), on the other hand, tend to view the Constitution as an organic and evolving set of bedrock principles. The “militias” of yore, for example, are not the AK-47 in the garages of today.  The SCOTUS is supposed to interpret the Constitution, all right, but in a way that permits and even requires consideration of changing times and morays. And, unlike an emphasis on “states rights,” the more (big “D”) Democratic view of things tends to be more trusting of the Federal Government to protect citizens from capricious differences between one state or another.

Applied in history, one not be more imaginative than to think of slavery. Those who favored the “peculiar institution” — i.e., the enslavement and ownership of one human being by another — then also favored the theory of “states rights,” including the right of a state to decide that slavery was just peachy keen, thanks for asking.  A federalist (pardon the expression) view of the same question held that in matters central to the notion of national governance, federal law was necessary to restrain the lesser instincts of some of the constituent parts. As you no doubt recall, some 620,000 American soldier boys died in an attempt to resolve that conflict. Politics is a nasty business.

Fast forward, and now we have cases like the currently raging SCOTUS battle over the future of the Affordable Health Care for America Act (“ACA” or “Obamacare”). The GOP will tell you, “leave it up to the States” (yeah, like Massachusetts), which is code for “dump the whole thing, leave 30 million Americans uninsured, and 10′s of millions more at risk of either being under or completely uninsured the moment the insurance companies are unshackled.”  So long as we have ours, right?  The Democrats, on the other hand, reply with “are you kidding, we cannot stand alone among civilized nations in denying universal health care, and there is no way we can have such coverage in one place, and not in another.”  They say potato, you say potatto. They say “framer’s intent,” you say “14th Amendment.” And you win.

Yup, I just gave you the knockout punch, your snappy retort next time confronted by that terrible phrase, “framer’s intent.” And here’s why (and it’s just one reason among many): The 14th Amendment (Amendment XIV) to the United States Constitution — the so-called “Equal Protection Clause — was not even adopted until July 9, 1868, as one of the Reconstruction Amendments. That’s right, the 14th came into being a full 81 years after the Constitution was signed, and I can guarantee you that by that time, every “Framer” was long already pushing up daisies, tobacco plants, or what have you.  In other words, it’s hard for the GOP to argue that they are merely “interpreting the framers’ intent,” when nary a “framer” was around to draft and/or ratify your raison d’être for the Federal Government’s right AND responsibility to craft laws needed for the national good.  And how’s this for context?  Far from being a “founding document,” the 14th was a Constitutional Amendment enacted to give “full force and effect” to the Reconstruction efforts being resisted by the defeated South, tooth and nail.  Go ahead, try to say that in the same sentence as an “original intent.”

So fere’s a look at my beloved 14th:

AMENDMENT XIV

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.

“The equal protection of the laws.” How much more elegant and simple can you get?  ”No state shall make or enforce any law which shall abridge . . . [or] deprive. . ..” Yet, on health care in particular, every GOP presidential candidate has demanded the opposite. The childish one-upmanship displayed by those 8 debating automatons as to who was going to do greater violence to Obamacare in less time surely has to rank as one of the most embarrassing spectacles in U.S. political history, but it was more than that: It was a preview of the grand farce that awaits this nation if we lose the debate on national health insurance.  American lives are literally at stake. The Equal Protection Clause is at stake.

The point is that we, as a nation, cannot stand divided. We cannot have universal health care offered in one place, and not another. For that matter, we cannot — at least not under the 14th Amendment — grant reproductive rights in one state, and not another, or equal access to marriage, or unmolested access to the ballot box, or leave unprotected any other matter of universal, national significance to the caprice of the individual states.  We did that with slavery, and look how that turned out. We cannot grant unto one that which we deny another, or this country’s future has indeed passed. There are times when the Nation must prevail over those who would act out of naked self-interest, yet cloak such interests in the dark guise of “states rights.”  Fight!  Organize! Vote!  LONG LIVE THE 14TH!