Tuesday, October 24, 2006

Where we start from

We've been getting a lot of comments about the immigration issue, which the ACLU responds to generally as it does to most issues - in terms of the law, the Constitution, and individual rights. Equal rights for all people. We start from taking for granted the inherent equality of people, even though we see from our daily experience that not everyone is treated equally.

Stepping outside of my ACLU shoes and into a my postmodern galoshes, I want to ask a question that starts somewhere else. Rather than ask, "How do we make people equal under the law?", we might ask, "How do we make people?" -- that is, how do we think about what a person is in a legal framework?

When the concept of a social contract started to emerge, it took as a premise the equality of people. But at that time (1650-1800), who "counted" as a person? Enslaved Africans certainly weren't. Women didn't have the vote and had limited roles in public life. Not to mention Native Americans, who had been killed or run off their land when Europeans arrived to settle on the continent.

Over time, our society has been more or less promoting various groups of people to the status of "persons" under the law - after a lot of hard-fought battles by people claiming that recognition. And the legal realm is still a very important site for these battles and for gaining recognition.

But there are limits to mere recognition, and our current political system has its roots in a time when whiteness, middle class status, male gender, heterosexuality, and able-bodiedness shaped the definition of personhood - and the legal and political norms of society. Our laws - and the way they are interpreted and enacted - still contain the legacy of their history.

So while we try at the ACLU to make the law live up to its promise of equality, I - as a citizen of this country - struggle to understand the ways the law is limited. Is it possible to define ourselves by difference (immigrant, LGBT, African American, female), but still have equality? Hidden behind our "differences" is an assumed norm. What defines the norm, and why is it the norm?

These are questions we can ask that might push us to consider how the law limits our understanding of difference, at the same time that it offers opportunity to achieve a better quality of life for all people. And when the sticky issues of immigration rear their heads, it might be a good time to question the unspoken norms we all live with and that we each help to either protect or disrupt.


Jess in Philly
with thanks to Charles W. Mills (1998)

3 Comments:

Anonymous Alan said...

This is a very interesting and very fundamental question. And it is worth thinking about what is meant by "Equal Rights".

What came to mind for me is the history of the Fourteenth Amendment . According to a book that I read, when this amendment was adopted several proposals simply prohibited laws that discriminated based on race. However, the phrase "equal protection under the laws" was deliberately used without mention of race in order to allow legal discrimination in those cases where fundamental differences between classes of people were perceived. For instance, the equal protection clause does not prohibit legal discrimination between children and adults. Since they are "fundamentally different types" of people, different laws may apply. Based on a common belief that women and men are fundamentally different types of people, the equal protection clause would allow legal discrimination between the sexes. If, however, we come to believe that there is no fundamental difference, then the discrimination becomes unconstitutional. In other words, the 14th deliberately allowed for Unequal Rights and (deliberate or not) for an eventual progression towards greater equality.

So our collective beliefs about the nature and categories of different peoples drive the very notion of Equal Rights.

10:48 PM  
Anonymous B Logger said...

Linear thinking and moral relativism pervade your perception of equality.

I submit to you that only the law can be equal, but no law everyone equal.

The axum that "all men are created equal" is not true in the slightest. All people are not equal, nor will they ever be equal.

Men are biologically different then women. Science has proven that men and women think differently, have different habits, perform actions differently, and have drastically different biology.

Different cultures and religions have divergent values and beliefs. Muslims, Pagans, Christians, and Hindus all have different belief strucutres.

Even racial genetic characteristics make us all unequal. Whites are more likely to get skin cancer, in blacks its sickle cell, and in asains its prostate cancer.

So, perhaps we need to recognize that everyone is inherently different and unique (which makes them inherently unequal) and stop this silly crusade to make everyone equal. The law can never be used to make equality.

10:10 AM  
Anonymous Alan said...

RE "stop this silly crusade to make everyone equal"

I think "b logger" missed the point. The goal is not to make everyone equal, but to treat everyone fairly. One way of expressing fair treatment for all is the phrase "Equal Rights".

There is another aspect to differences - Do we use differences to classify each other into opposing camps: Religious Sectarians, Male Chauvinism, Racial Hatred, Class Warfare, etc. Or do our differences define us as INDIVIDUALS who are equal before the law.

The goal of individualism, toleration for others, and equality before the law does not seem silly to me. It not only is a worthy goal, it is one that the human race has been successfully progressing towards for sometime, and which seems to make our lives better.

12:32 PM  

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