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Unequal Protection Under the Law by Jeff Jackson 07/02/03
The Land of the Free - A Conservative Politics Web Site

Under Section 1 of the 14th Amendment to the Constitution it is stated that "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." To follow that our society later passed the Civil Rights Act of 1964 which laid down the standard that race was not an allowable standard to be used in discriminating for or against persons. And the message is clear; ALL people are equal under the rule of law of the United States within their granted rights. Recently however the Supreme Court in a 5-4 decision on the allowability of racial preferences as standards for "acceptance" stated that this is certainly not the case.

The 5-4 decision that stated while some benefits given based upon the skin tone of an American citizen where unacceptable such as hard defined point bonuses for race (in a second case heard with this one which was shot down), that still others were in the name of "diversity" if they essentially weren't too overt such as the case by case application of race as a factor among other factors. The court basically upheld certain aspects of the University of Michigan's enrollment acceptance process which made allowances for the color of one's skin despite the 1964 Act. I must be confused. Wasn't this the kind of discrimination that we fought so hard in recent decades to obliterate? Wasn't it the hard to put our finger on, back door discrimination that was such a threat to our way of life that we needed to pass the Civil Rights Act of 1964?

The 14th Amendment is clear. No State can enforce or even make a law that does not treat all persons (protecting them) equally before it. And the 1964 Civil Rights Act is even more clear in that it defines that actions should be taken independent of race. Even if we are able to distance ourselves from the 1964 act we still can not get around the 14th Amendment rights.

A law is a "rule", a "standard", a "decree" or a "regulation". And the 14th Amendment states that not a single State (and reasonably inferred not a single arm or agency there of) shall make or enforce any such thing if it abridges one's rights or fails to provide equal protection. Note that the 14th Amendment does not say anything about the source of such a standard. Nor does the wording say that individual persons may not discriminate at all. Nor does the 1964 act. The 14th Amendment does not make a distinction between a state law, a federal law or any other sort of law. It simply says that the State shall not make or enforce such things where their jurisdiction falls and where such laws deprive any person of privileges or immunities to which they have an inherent right.

An example of our privileges are our enumerated rights to life, liberty and the pursuit of happiness. An example of our immunities are when we are guaranteed due process of law and guarded from unwarranted searches and seizures. Note that the 14th Amendment nor the 1964 Act does not prohibit all discrimination. In fact i they did they would be a sorry sections of text not at all in line with the principle of freedom. We discriminate every day.. But still not all forms of discrimination are outlawed.

An example of my legal discrimination is when I walk into the grocery store. Do I buy corn or beans? And if I buy corn because I like corn more have I done a bad thing? No.

But there is a difference here. My choice of corn over beans did not deprive anyone of their privileges or immunities granted to citizens of the United States. Sure, if enough people choose the same way then there would be an eventual decline in the demand for beans which might very well put bean farmers and the bean processing companies and the bean stores out of business. But still no one has been deprived of their rights or immunities. These actions may cause a hardship for some but deprives no one of life, liberty, the pursuit of happiness, etc.

I have the right to my liberty, or my right to choose to eat corn over beans. The farmer has the right to grow what ever he wants including beans even if everyone eats corn. But no one has the right to force me to eat beans simply to support the farmer that has exercised his liberty that is contrary to mine. To do so clearly would infringe upon my rights.

Now we turn the attention back to the case of a university admissions policy. Even they have the right to discriminate. If they didn't then they would have to allow everyone that applied in to the university regardless of qualifications. But as it stands people with sub par academic accomplishments are regularly turned away or discriminated against while those that have better grades and a "legacy" of attendance at the school may be discriminated towards. And that is legal with no argument from me, the 14th Amendment or the 1964 act that it is not. Its legal for several reasons. It is legal because everyone has an equal chance of getting in based upon how they perform in their previous school work. If they slacked off and were a sub par student that is not the role of government to fix. It is legal because no where in the enumerated rights of life, liberty or the pursuit of happiness, etc. are there provisions to allow those that are not satisfactory workers to be promoted or otherwise admitted to areas they are not qualified. And even further there is not such right to education in a university. And beside the point such a thing deprives no one of an education. It may deprive someone of a certain type of education but that is about it. It is legal because the 1964 act does not prohibit choices based on academic achievements.

A sub par student is not denied a right to life by not being admitted. His or her education may affect the quality of life in the future or it may not. But a certain quality of life is not a right.

A right to liberty is not denied here either. His or her ability to go else where still exists and he or she is free to pursue education elsewhere and on one's own if needed as an ultimate goal.

What about a right to pursue happiness? Nope. He or she is still free to pursue happiness. He or she may not ever be happy but once again being happy is not a right.

How about 1st Amendment rights like free speech, etc.? Don't see it. Anyone want to try and make the argument?

Second Amendment? Only the insane would even try to make that argument.

13th Amendment? Doubtful.

1964 Act? Heck no.

However now we look at the same argument based on racial preferences or detractions. Does allowing a student admittance or denial based on race violate rights granted? In this case the answer is quiet different from the above example. In this new case the answer is yes. And the answer is yes because in the same document that grants us inalienable rights of life, liberty and pursuit of happiness there is also another key right granted to us; the right of equal creation. The 14th Amendment provides that using race is unconstitutional simply knowing that the right of equal creation is granted to us and we don't even need to go to the wording of the 1964 act although the 1964 act lends even more burden again such choices.

And this is why there is a difference for race because it is determined upon our creation. Our race is not affected by our choices or our interactions. Our race is immutable. And because it is endowed upon us at our creation by our creator all races are inherently equal and to allow race to affect how standards are applied by our government and it's entities (included public universities) is indeed a violation of such rights.

Even if another student is not denied admission because the University decides to simply admit a member of a certain race as an additional student to what it normally would allow it has still denied all other student applicants not of that race equal protection under enumerated rights. To admit one student who is black based upon the consideration of his race and not an asian or a white student based upon this fails the test of the right of equal creation. And since it has denied equal protection the state, or in this case, its institution is in violation of the 14th Amendment and more dramatically the 1964 act.

It doesn't matter how Justice O'Connor (President Regan's saddest failure) or the other members of the Supreme Court justify upholding "affirmative action" type programs even in the name of diversity. It is still a bastardization of the meaning of the wording of the 14th Amendment and even the 1964 act which provides for actions to be taken independent of race no matter how obscure and hazy the standard may be. This discussion is dangerous because the Supreme Court has rewritten the wording of the 1964 act by allowing legally race as a factor for such determinations. This legislation from the bench is completely out of the bounds of their power.

And it is all done under the great calling of promoting diversity. But "diversity" is not a legal concept. Justice based on equality is however a legal concept.

If diversity is the worthy goal that the justices proclaim then we are back to the argument that allowing only students that meet certain academic standards slaps in the face of this "diversity". It's not very diverse to allow only admittance to bright and high achieving students. In the name of "diversity" we should include students that are sub par and don't learn well. After all they have opinions too. Why are they less valid? Some of the brightest people I have ever met have been people that never went to college either because they couldn't get in due to grades or they simply decided not to go. The point of education is to learn. And if learning comes from a diversity of ideas then we must consider this option.

But this is not what the promoters of "diversity" desire or mean when they speak the word. What they desire is pandering to political subgroups and the ultimate advancement of one not based upon achievement like Justice Thomas, but rather through the color of one's skin which has nothing to do with ability. Wasn't that what got the New York Times in trouble? What was his name again?

The 14th Amendment is a powerful statement. But what is the limits of it's powers? As previously noted people discriminate. We all do it. In fact being discriminatory in our personal dealings is often seen as a sign of principle and taste; much like my corn and beans example. However I freely admit that sometimes people discriminate for totally irrational reasons as well such as race. That is why the 1964 act exists which is to promote the equal protection of the 14th Amendment. The 1964 act can not contradict the 14th Amendment. The 14th Amendment is the higher authority which the Civil Rights Act of 1964 must follow because the Amendment is part of the Constitution. And ultimately the Constitution trumps all other laws.

I hate the concept that anyone would ever discriminate against someone else in their private dealings based upon race. But I am also not so blind to believe that such things do not happen. I say to the University of Michigan and the Supreme Court of the United States that diversity is a noble goal. However believing that diversity comes from having people of varying skin color or that the color of one's skin affects how they think is probably the most racist idea that could be proposed. Diversity in a free country comes not from such things. It comes from diversity of ideas. And the color of one's skin has little to do with the ideas they hold. Ideas are formed from the whole of one's life long learning and experiences.

And there is a deeper problem here too. By the Supreme Court allowing for racial preferences in college admissions they have also opened the door for racial preferences in all other forms of choices including police using racial profiling when making stops and inquiries. It is the same argument; race can be a factor as long as there is not a written rule. In the future, those that pressed hard for these racial preferences have opened a door to allow something that the vast majority of them detest. But I am sure that they and these people and the courts will attempt to find some quirk to only make racial preferences only apply in favorable situations. Which is deplorable and at it's root racist.

It is time that we stop allowing not only our courts but our elected officials to play games with the Constitution and our founding documents. We are granted rights and they are not unlimited. We are granted equal protection under the law. But in order for that to be enforced by the law, the law must first have the jurisdiction to go there and take up the case and finally enforce the 14th Amendment.

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