Next Monday is Martin Luther King, Jr. Day and a little history lesson is probably in order on why this is an important federal holiday.
When the Constitution was passed, more than half the population didn’t have the right to vote. Former male slaves weren’t given the right to vote until the enactment of the 15th Amendment on Feb. 3, 1870. Women weren’t guaranteed the right to vote until Aug. 18, 1920, with the passage of the 19th Amendment.
All I have to do is think about those dates and the rights my wife and four daughters have to vote and participate in society, and I cringe at the people that say we need to follow our founding father’s original intent as if it were something holy and sacrosanct.
When the Constitution was passed, slaves were counted as 3/5ths a person to determine the number of citizens for calculating representatives in Congress. And before you get down on just the South, the 3/5ths number came from the Northern states.
If all the slaves had been counted, the South would have had more seats in the House of Representatives. It was a hot point of contention at the Constitutional Convention. Slaves and women couldn’t vote, but the men in power sure fought over how to count them.
The law is about drawing lines: This is legal. This is not. This is allowed. This is not. This you must do. This you must not.
Usually we don’t notice the law because we are moving about and pursuing happiness within a society that is created in large part by the legal fence surrounding our life and liberty.
The nearly ubiquitous example of when we bump up against the line is every morning when we get into our cars. Driving is such a dangerous activity that we have chosen to greatly limit the freedom to exercise the pursuit of happiness from behind the wheel.
Wear your seatbelt. Don’t text and drive. Don’t drink and drive. You can’t drive until you are a certain age. Don’t go too fast. Don’t go too slow on the Interstate. Stop at a red light. We do this because pursuing happiness doesn’t do you much good if you are killed in a car accident.
The thing that makes traffic laws work so well is that they apply equally to everyone driving. The jerk who is tailgating or speeding or text-swerving is pretty obvious. Yet, clarity is something that we humans have to work at in the law.
After the Civil War, the United States was forced to add to the Constitution via the Fourteenth Amendment. The ideas added seem from our patriotic history lessons an inherent part of being American, but it was not always so. Section 1 reads in part:
“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.”
Note the last line — no State shall deny any person the equal protection of the law. As is often the case with the law, simple and elegant often get abused.
The Supreme Court destroyed the equal protection clause of the Fourteenth Amendment in 1896 when, in Plessy v. Ferguson, it allowed laws to be imposed that are “separate, but equal.” Justice John Marshall Harlan, the lone dissenting vote in that decision, wrote the following words, which didn’t come to fruition until the time of Martin Luther King, Jr. and the Civil Rights Movement we celebrate on Monday:
“I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved.”
When it comes to the law, separate can never be equal. In order for us all to be comfortably inside the confines and protection of the law, the law must apply to us all equally.
But equality only comes through effort and work, our history shows, and it is that effort and work we celebrate on Monday — effort and work that is ongoing to realize the simple and elegant words of the Declaration of Independence that all of us are created equal.
E. Kent Winward is an Ogden attorney. He can be reached at firstname.lastname@example.org or 801-392-8200.