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Some Are More Equal than Others

No special privileges for government officials. I like the assertion that this amounts to Titles of Nobility, forbidden by the Constitution.

Surely the creation of two classes of citizens, one more equal than the others, isn’t the sort of thing the Framers intended. Why didn’t they put something in the Constitution to prevent it?

Well, actually, they did. Article I, Section 9 of the Constitution prohibits the federal government from granting “titles of nobility,” and Article I, Section 10 extends this prohibition to the states — one of the few provisions in the original Constitution to impose limits directly on states. Surely the Framers must have considered this prohibition pretty important.

Read the whole thing, as they say. Now all we need is to find federal judges who’d be willing to go for this idea. Of course, many of them probably like their special privileges.

9 Responses to “Some Are More Equal than Others”

  1. Robb Allen says:

    The term ‘privilege’ means ‘private law’.

    Thought that was interesting.

  2. MattW says:

    His proposal is interesting: strict scrutiny for matters of discrimination based on public employee status. I suspect many of the privileges he cites, including qualified immunity, would survive strict scrutiny in many cases, but I like the idea.

    • Jack says:

      It’s a start. There would at least have to be a framework for why some get special privilages over others.

      But justification and accountability is anethama to the ruling class.

    • Archer says:

      I agree, qualified immunity might survive because it can be described as having a “compelling government interest,” although most of us would agree that takes some mental straining.

      However, is there a compelling government interest in allowing city workers/commissioners to park their cars wherever they want without getting parking tickets? Or speeding or running through red lights and/or crosswalks to get where they’re going? One could argue there’s a compelling interest in public servants not being exempt from those laws, even if it’s “as a courtesy.”

      Or how about “may issue” areas (read: California) where city and county employees can get concealed-carry permits but no private citizen can prove a substantial-enough need? Because it’s a fundamental, enumerated right, that is far less likely to survive strict scrutiny.

      My big worry is this: If the legislature passes a law requiring judges to use strict scrutiny, will some less-than-scrupulous justice declare that it’s unconstitutional because it violates separation of powers? Will the precedent be that the legislative branch of any level of government has no authority to tell the judicial branch how to do its job, thereby extending the “absolute immunity” that judges enjoy?

      • MattW says:

        My understanding is that Congress and the Executive branch cannot instruct the Supreme Court (who sets the rules for the lower courts) how to perform their judicial review. But I am by no means an expert.

        I think the most likely attack vector would be to go after it under the Equal Protection clause. I think there is some precedence that this clause is not restricted to race, sex, or other similar attributes. For cases like the California license plates, it could be argued that an entire class of the citizenry does not have equal protection under the law. And I think strict scrutiny is required for challenges under the Equal Protection clause.

        • aerodawg says:

          I tend to agree that equal protection is the best avenue of attack.

          It’s fairly easy to make a legal case as to why current law enforcement can possess and carry weapons in situations where the general public can not (not that I agree with that case mind you).

          It’s a lot more difficult to make the case for non-law enforcement including retired LEOs. If you have retired as a police officer, then you are once again a member of the general public….

          • Ian Argent says:

            That one was answered in LEOSA – former LEOs have an enhanced danger from disgruntled criminals. (This was litigated by several states who didn’t want to allow retired non-local cops to carry).

            • aerodawg says:

              from what angle did they argue the case. also my response is so what, especially with some places routinely denying permits to people in imminent provable danger

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