Wednesday, May 22, 2013

PBS "Constitution USA" looks at the 14th Amendment: particular attention to California Proposition 8

On May 21, Peter Sagal presented a major installment in his “Constitution USA” series: “Equality and the Fourteenth Amendment: A New Constitution”. 
Sagal starts by recalling some of the history in the Spielberg movie “Lincoln”: the political fight over passing the Thirteenth Amendment to abolish slavery.  This follows on the Dred Scott decision by the Supreme Court in 1857. 
But the freed slaves did not have any “rights” as people until the Constitution set them up.  In a sense, the Fourteenth Amendment – “the right to life, liberty and property”  being protected by due process.  In a sense, the 14h Amendment becomes part of the Bill of Rights.  It also, in many situations, led to the “incorporation doctrine” – the limitation of the police powers of the states in some areas in a manner comparable to limits on federal government power – and the exemption of fundamental individual rights from these powers.
The episode did present the Loving case in Virginia in 1967, overturning laws against miscegenation, and the Griswold case in Connecticut in 1962, where the state tried to prohibit contraception.  At first, the Supreme Court was willing to protect “fundamental rights” of intimacy within marriage.  The right to privacy and intimate consensual adult association was not at first presumed.  The Georgia sodomy law was upheld in Bowers v. Hardwick in 1986, but the Texas anti-homosexual sodomy laws was overturned in Lawrence v. Texas in 2003, in which case the swing votes on the Court were more willing to see adult intimacy and “the right to be left alone” as fundamental.
The episode also developed the idea of “equality”, and presented both sides of the gay marriage debate, particularly Proposition 8 in California, and presented a lesbian couple (raising children) who were plaintiffs in the case.   

The episode showed that the Supreme Court has found the "right to property" as more explicit than "privacy". It gave a case in Louisiana where a monastery fought a lawsuit from a state funeral directors association in order to protect its right to sell caskets. 

The link for the episode is here.

My 1998 booklet, “Our Fundamental Rights” enumerated a few that I made up: “Self-Ownership, Life, Freedom from Involuntary Servitude, Being Left Alone, Free Speech, Property, Faith (or its absence), Parenting and reproduction, Voting.

There is in an inherent existential conflict in that society demands that everyone learn to become a “social animal”, which provides tension against self-ownershio, personal autonomy, or individual sovereignty. 

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