In view of Justice Harlan’s dissent in Plessy, saying “the Constitution neither knows nor tolerates classes among citizens,” what is the status of “protected class” at law?
If the Equal Protection clause of the Fourteenth Amendment is today being implemented as protected class, should the stigmatized disabled, the CPs (Cerebral Palsy and Cleft Palate) for example, be in a protected class, in view of the pervasive social prejudice against them?
We seem to have two things going on. Protected Class as a term of art under a Constitution, not of classes, but of “all men,” according to the ringing phrase in the Declaration. And an obvious population at need, the demeaned, degraded, and marginalized disabled, rendered second class citizens and denied Equal Protection, because the public believes them not to have been included in that dodgy workaround, “Protected Class.”
Justice is universal, after all. No need to question where equal protection applies. No need to name who gets it and who doesn’t. No need to specify maligned disabled people so they won’t be left out. That’s the beauty of universalism. Martin Luther King recognized the inherent universalism of justice when he proclaimed one of what Milton called, “the known rules of ancient liberty”: “Injustice anywhere is a threat to justice everywhere.”
But protected class is particularist. It is crosswise to true justice. It is Whac A Mole. It leaves as many out as it includes.
That’s one of the reasons there’s no Brown v Board, no Obergefell, no landmark civil rights case, for us. Nor the small routine defenses granted minorities: “There's case law out there regarding people commenting and gesturing against race and religion. But ... there's nothing out there regarding disabilities.”
No wonder the public attacks at will. Creates an uproar at parties, the subtext of which is, What’s a misfit doing at a party? Springs subtly crafted, socially deniable, public humiliations. Feels free to be openly scornful of us in our university classrooms, and in community housing. All of this imposing what Goffman called a “spoiled identity” without the countervailing influence of civil rights law.
Canellos begins The Great Dissenter, “The narrative turned … ruthlessly extinguished … a slow, menacing starvation. The ingredients for success … gradually withdrawn. … There was no recognition of their struggles, their accomplishments, or the tragedy of their lost hopes. There was only silence.”
He was talking about the the people the Civil War was fought to liberate, as a reactionary social movement determinedly dismantled the postwar Constitutional amendments.
Another deeply entrenched social attitude treats us as having a spoiled social identity and makes it impossible for many of us to live normal lives.
One of the recourses for those whom society will not accept is just law. But we were left out of the civil rights revolution. There is only silence.
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