I came across "Equal Under Law" by Jacobus tenBroek (a Berkeley law prof), published in 1951, in a used books store. Not being a lawyer, but having interest in the notion of Equal Protection, I decided to read it.
Equal Protection as to liberty:
The book reviews Abolitionist Movement arguments and the debates on the 14th Amendment in the decades preceding the Civil War. Most of the book consists of appendices - reprints from pre Civil War publications.
There were several lines of entirely divergent arguments, but the most interesting one was based on the Magna Carta, as the "bedrock" of the US Constitution, and the Fifth Amendment:
- No person shall be... deprived of life, liberty, or property, without due process of law.
a) "Person", as used in the language of the Constitution, included slaves.
b) "Due Process of Law" in the Magna Carta, and also during the time of writing the 5th Amendment referred to trial by jury.
c) Slavery is deprivation of liberty, and in the years that passed since the Revolutionary War, none of the slave holding states had established any due process of law to deprive persons of liberty and enter them into slavery.
d) Therefore, any slave that would file a habeas corpus against his master in a US court, is entitled to be freed.
The centrality of this line of argument is evident in what eventually was prescribed in the 13th Amendment:
- Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
- Section 1. ... 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.
Equal Protection as to property:
Inherent to the condition of slavery was also the deprivation of right to own real estate, with no due process of law.
That right too, goes back straight to the Magna Carta, and the restoration of that right, too, was central to the 14th Amendment.
The relevance of that debate is manifest today in the foreclosure crisis.
In recent years, some 3 million homes were foreclosed, and experts estimate that before the crisis is over, the number would reach 6 millions. If the average number of persons living in a house is guessed at 4, that means that by the crisis end, some 24 millions will have been deprived of their homes.
Many, or most of these foreclosures were knowingly conducted in blatant violation of due process of law.
The way the US government and US courts have handled the situation is by reaching "settlements" with the large financial institutions, who routinely conduct the fraud on homeowners in the courts. Most of these "settlements" amount to a Federal "Fraud Tax" on the perpetrators. Needless to say, I do not believe that such "Settlements" have any lawful validity.
Therefore, I also believe that conditions now prevailing in the United States amount to repeal of the 5th and the 14th Amendment, and rights that were fundamental to the Magna Carta.
The lesson from the decades preceding the Civil War and Dred Scott, is that the US courts were not ready, willing, able to remedy the situation.
Other remedies would have to be sought for the restoration of fundamental rights. Otherwise, the current Foreclosure Crisis is far beyond an economic crisis, it is a fundamental change in the legal framework of the United States, sending it not one hundred years back to the Robber Baron Era, and not two hundred years to the Revolutionary War, but almost 800 years back...