What I Say

My Favorite Words

By Frank Gruber

"...nor shall any State... deny to any person within its jurisdiction the equal protection of the laws." Section 1, Fourteenth Amendment to the Constitution of the United States.

There it is, the Equal Protection Clause.

The culprit or, rather, the excuse. Too bad, but while a hammer in the carpenter's hand will build your house, a hammer in the criminal's will break your head.

Last week's tease by the Supreme Court's conservatives -- applying the Equal Protection Clause, then proscribing a remedy -- reminded me of the elderly Classics professor who was teaching "Antigone." Some smart aleck in the class was going on about how the title character of the play was in fact no heroine but rather a moralizing prig. The professor, indignant, cut the whippersnapper short with, "You are speaking of the woman I love."

When I read the Supreme Court's opinion in Bush v. Gore, I thought, equally indignant, "You are speaking of the words I love."

I hate to betray my legal education, but my favorite words are not a poem, or a prayer, or a lyric from a song, but rather the Equal Protection Clause.

For this, my post-decision and pre-holiday column, I will not rehash all you have read elsewhere about how the conservatives' decision ran counter to their prior holdings or about how Rehnquist and O'Connor are now free to retire. Nor will I speculate that canny justices Souter and Breyer joined part of the decision to give them ammunition for future applications of the Equal Protection Clause.

Nor will I reflect on holidays past.

No, this column is about how a few radical words, just a fragment of a sentence, are at the heart of America's greatness.

Those words, quoted above, gave political effect to the most revolutionary idea, that all are equal.

Originally "equality" as a political idea developed as the answer of the economically-empowered but politically-challenged 17th and 18th century bourgeoisie to aristocratic political systems justified by the divine right of kings.

The narrow purpose of our Declaration of Independence was to sever the colonies from just such a political system, but the Declaration, by its sweeping self-evident truth that all men are created equal, let "equality" out of the box.

The Constitution put it back in. As originally written, the Constitution does not contain the word "equality," and it accommodated slavery. The Bill of Rights, wonderful as it is, describes rights of an individual against government, but does nothing to create a just society as a whole.

The French Revolution's "Declaration of the Rights of Man" did contain a clause akin to equal protection, but between the guillotine and Napoleon, it never had much practical effect.

It took the horrible sacrifices of the Civil War to turn the idea of equality into political reality. A U.S. Representative from Ohio, John A. Bingham, an abolitionist, wrote the first section of the Fourteenth Amendment, which includes the Equal Protection Clause. Someone should build Bingham a monument, or put him on a stamp.

But that is unlikely. Most of the credit, at least lately and no doubt rightly, for the Equal Protection Clause goes to Abraham Lincoln. Garry Wills in his 1992 book Lincoln at Gettysburg made the argument that Lincoln in the Gettysburg Address "remade America" by explaining that the purpose of the Civil War was to create a "new birth of freedom." Freedom that harkened back to the Declaration of Independence -- promulgated "four score and seven years" previous.

The beauty of the Equal Protection Clause resides, however, not only in the general concept, but also in the details.

First, it applies to any "person." Use of this expansive word to describe the protected set was not random. Consider the other Civil War amendments. The Thirteenth specifically prohibits slavery. The Fifteenth protects the right to vote only with regard to "race, color, or previous condition of servitude." Even the privileges and immunities clause of Section 1 of the Fourteenth Amendment applies only to "citizens."

Only the Equal Protection Clause, and the Due Process Clause contained in the same sentence, apply so broadly to "any person."

Second, the words "equal protection of the laws" were revolutionary themselves. They bespeak the idea that law, that government, exists for a positive good. The law is not merely a series of prohibitions. Justice is not only the right to be free from governmental excess, but also to have equal access to the benefits that come from living in a civil society.

We are a nation of immigrants. We are a nation of strongly held beliefs. We are a nation of people striving for advantage. Yet we are a nation.

Around the world people kill over cultural and ethnic differences that we embrace. In Denmark and Germany and other enlightened countries they squabble about citizenship. In Italy and the Czech Republic they persecute gypsies. Et cetera, et cetera.

The battle for mutual respect is ongoing and the field of tolerance has no boundary. The list of martyrs, from Lincoln himself, to the multitude of the lynched, to the four girls in Birmingham, to Martin Luther King, Jr., to Matthew Shepard, is long.

Yet "these honored dead" have not "died in vain." That America's strength derives from its diversity has never been more apparent.

Let's hope that someday America's greatest cultural export -- greater than Coca Cola or McDonalds or Hollywood movies -- will be the Equal Protection Clause.

Happy holidays.