An altogether peculiar yet pervasive caste system of unequal protection now threatens our body politic. Two millennia ago, the Apostle Paul warned of the disruption to the spiritual body whenever one member, whether eye or ear, hand or foot, claimed for itself something special apart from the common good. His conclusion remains true and cogent: “If one member suffers, all suffer together with it; if one member is honored, all rejoice together with it.”
Though written more than six score years ago, Justice Harlan’s eloquent dissent in Plessy v. Ferguson (1896) still resounds. In attacking the illusion of “separate but equal,” he rebuffed the classification of race for use of public conveyances: “Our Constitution . . . neither knows nor tolerates classes among citizens.” His opinion was emphatic: “There is no caste here.”
The unintended irony of this creeping inequality and unconstitutionality is that it was elaborated as an extension of the equal protection vouchsafed by the 14th Amendment and doubly secured by its coupling to due process in the 5th Amendment.
Legislators and jurists alike sought to restrain federal and state governments from discriminating against individuals based on their identification by race or sex. Despite their laudable purpose, they ignored the logic of classing citizens. Governmental action that seeks to prevent discrimination against one class risks becoming action that classifies citizens into castes. Then, the effect is to promote the protected class and to demote the non-protected. Those in protected categories become first-class citizens while all others become second-class or, more accurately, declassed citizens. In this process, one woeful result is the wholesale abandonment of Justice Matthews’s dictum, in Yick Wo v. Hopkins (1886), that “the equal protection of the laws is a pledge of the protection of equal laws.”
Unhappily, this irony is not weak or isolated. In fact, it has fathered the folly of countless stiffer penalties (euphemistically termed “enhanced penalties”) for the same crime if the victim is designated a member of a specially protected class and if the perpetrator’s motive was directed against that class. Allowing the psychological dimension of motive to affect the punishment erodes law’s claim to render equal justice for all. Only adherence to the objective basis of actual injury permits the law to avoid the subjectivity that undermines the citizenry’s respect and which is used by classes that clamor for special treatment.
Really, why should the murder of a declassed citizen enjoy a less severe punishment than that of a classed citizen? Will upping the punishment from 30 years to life imprisonment really deter the murderer? Does this increased severity stem from (a) bold and harsh punishment or (b) more bitterly yet deviously, from the branding of today’s murderer as some sacrificial buck? If so, the sacrifice is upon the current perpetrator for the failure of prior (now dead) generations to assure equal protection for all citizens.
The momentous effects of such unequal protection include the perpetuation of prejudice and the denigration of each individual’s citizenship. Americans are citizens of the United States and of each state. We are not citizens by race, sex, ability or disability, civilian or military occupation, moral rectitude or moral turpitude.
If my act of blind anger against my declassed neighbor will be punished less severely than the same act against the specially classed neighbor, then this “hate crime” law invites me to attack one victim in the other’s place. This, indeed, is raw and ruthless discrimination! Special classes of protection accompany each “hate crime” law. And, at their core, special classes corrode the civic relationship of individuals to society and manufacture a spurious relationship of groups to society.
Over the last 75 years, the introduction of differing levels of scrutiny has confused, rather than clarified, the true civic relationship of the individual citizen to society. Initially, a little more or less scrutiny seemed the answer to one discrete set of facts. But the ever increasing number of levels of scrutiny and the ever-burgeoning number of classes already have produced an untenable, explosive direction.
Consider that males today are a minority of our population. Within two or so more generations, Caucasians too will be a minority. Then, will white males be offered a special class status? Would not this minority seek the “enhanced” protection that moves its members from declassed to first class?
Resort to special classes is a clear admission that American society has abandoned the equal protection of the laws for all citizens. Special classes protect their insiders at cost to the outsiders. Such classes are patently unconstitutional. Rather than curing and eliminating prejudice, they inflame and perpetuate it.
Castes are insidious, and the use of special classes in defining hate crimes buttresses castes. Castes are undemocratic and their frequently indelible markings deny the individual’s aspirations and stunt initiative. Like all castes, special classes subordinate individuality to group identity. They define civic interaction by group association rather than individual achievement. Their consequence is the destruction of the common good of all American citizens because the caste credo of identity places that special class association above citizenship.
Simple but profound are certain truths:
- Justice for one must be justice for all;
- Injustice is at the root of all enhancements by class;
- Until every citizen has equal protection, our forbears’ efforts are incomplete. Only when every citizen is honored equally can all citizens rejoice equally and together.