State Rights And The Constitution


Every May 1, we celebrate Law Day. We are a nation of laws with equal branches of government. We in the lower courts take an oath to uphold, protect and defend the Constitution not merely as it was at first enacted but with the Bill of Rights and all the Amendments which came thereafter. The written document itself has evolved with the Congress recognizing that what Alexander Hamilton had at first envisioned in 1787 could no longer apply. Let us remember too that from 1800 for the next 24 years, three Virginia slaveholders, Jefferson, Madison and Monroe, profited from the Constitution’s least democratic features including the legality of slavery which allowed southern states to count slaves as three-fifths of a person for the purpose of calculating electoral votes. Donald Trump was, of course, elected by the “red states,” the former slave states and by the electoral vote not the popular vote.

This year the subject for our Law Day program will be: The 14th Amendment: Transforming American Democracy. We will have our usual panoply of distinguished speakers. As always the community is invited to attend the event at 7 p.m. at Westbury Village Hall, 235 Lincoln Place. But what will be so special about this year’s program?
The 14th Amendment was enacted in 1868. It applied the Bill of Rights to the states. The Congressional Debates from that era support the intent of the Congress following the end of the Civil War; the Emancipation Proclamation and Lincoln’s assassination but it was meant to curtain the South’s efforts to roll back the Constitution to its racist origins by states enacting a variety of Jim Crow laws that would allow for segregation and restrict the freedom given to the slaves in the 13th Amendment. That predominate fabric of racism in the South prevails even today as typified by the current Congress, the election of Donald Trump and the unjustified attacks on President Obama.

In our Village Court we are attempting to uphold the Constitution while protecting individual rights. Those rights would include, for example, the freedom of the press which Mr. Trump has decried. It would include protection from illegal searches and seizures; the right to counsel and that no person shall be deprived of life, liberty or property without due process of law and that each person coming before the Court shall be entitled to the equal protection of the laws.

Some years ago, [my wife] Wendy and I had the privilege of meeting Dr. Kenneth Clark, the famous psychologist from the City University of New York who assisted Thurgood Marshall, Constance Baker Motley, Robert Carter and Jack Greenberg in the drafting of what was referred to as a Brandeis brief debunking the separate but equal holding of Plessy v. Ferguson. The 14th Amendment has allowed us to evolve. We should not be turning back the clock or our laws to meet the southern mentality of a bygone era.

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