The Pace opinion shows that while the Court acknowledged the better-known interpretation of the EPC from the point of view of law abiding citizens, the Court nonetheless properly ignored that aspect of the EPC since the states had never amended the Constitution to establish limits on the 10th Amendment-protected power of the states to regulate marriage.
But the Pace justices also borrowed language from a 14A-based federal Civil Rights Law to clarify the lesser-know criminal aspect of the EPC, indicating that it also protected criminals by providing the right to equal punishment for a given crime.
The counsel is undoubtedly correct in his view of the purpose of the clause of the amendment in question -- that it was to prevent hostile and discriminating state legislation against any person or class of persons. Equality of protection under the laws implies not only accessibility by each one, whatever his race, on the same terms with others to the courts of the country for the security of his person and property, but that in the administration of criminal justice, he shall not be subjected for the same offense to any greater or different punishment [emphasis added]. Such was the view of Congress in the reenactment of the Civil Rights Act of May 31, 1870, c. 114, after the adoption of the amendment. That act, after providing that all persons within the jurisdiction of the United States shall have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, declares, in sec. 16, that they shall be subject”to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.”— Pace v. Alabama, 1883 .
But regardless that the Court decided Pace in the state’s favor, a later generation of justices essentially overturned Pace for questionable reasons imo, reasons which will be addressed shortly.
At this point, readers should beware that activist justices had infiltrated the Supreme Court by the late 19th century imo, the Court really going into a tailspin with anti-state sovereignty interpretations of the Constitution after socialist FDR had “nuked” the Court with activist justices by the early 1940s.
Getting back to the Court overturning Pace when it decided McLaughlin v. Florida (McLaughlin) against the state in 1964 (OUCH), the McLaughlin opinion shows that justices had decided that the Pace Court had interpreted the EPC too “narrowly” with respect to interracial marriage, and I agree in principle.
However, it turns out that the federal civil rights law that the Pace Court had borrowed the “narrow” language from to clarify the criminal aspect of the EPC was actually authored by John Bingham who also happened to be the main author of Section 1 of 14A where the EPC is found. So by saying that the language in Pace concerning the EPC was too narrow, McLaughlin justices were arguably wrongly ignoring the intentions of constitutional lawmakers, particularly since state power to regulate marriage has never been constitutionally limited as previously mentioned.
In fact, Bingham had clarified in the congressional record on several occasions that 14A did not take away state rights.
“The adoption of the proposed amendment will take from the States no rights (emphasis added) that belong to the States.” —John Bingham, Appendix to the Congressional Globe. (See bottom half of first column)
“No right (emphasis added) reserved by the Constitution to the States should be impaired…” —John Bingham, Appendix to the Congressional Globe. (See top half of 1st column)
“Do gentlemen say that by so legislating we would strike down the rights of the State? God forbid. I believe our dual system of government essential to our national existance.” —John Bingham, Appendix to the Congressional Globe. (See bottom half of third column)
Again, and noting that I am a product of the last half 20th century, I agree with the McLaughlin argument that EPC was interpreted too narrowly in Pace with respect to interracial marriage by today’s standards. But given that the language in Pace was actually borrowed from the pen of Bingham, the Court wrongly “fixed” what it perceived to be a constitutional problem by ignoring state sovereignty and politically amending the Constitution from the bench when it overturned the Pace decision imo.
As I’ve ranted elsewhere, the states are free to make 10th Amendment-protected laws which discriminate on the basis of issues which the states have never amended the Constitution to expressly protect. But we cannot allow institutionally indoctrinated activist justices to fix questionable laws which discriminate against constitutionally unchecked “rights” outside the framework of the Constitution.
Enjoyed reading your comments.