The Road to Sophistry: The Recent Transformation of the Legal Precept of Equality In American Jurisprudence

• Main Authors: Elma Ming-li Ju, 汝明麗
• Other Authors: Anthony G. Trimarchi
• Format: Others
• Language: en_US
• Published: 2007
• Online Access: http://ndltd.ncl.edu.tw/handle/j3ju9b

博士 === 淡江大學 === 美國研究所博士班 === 95 === The rhetoric of equality was formally incorporated into the United States Constitution following the end of the Civil War (1861-1865), specifically manifested in the equal protection clause of the Fourteenth Amendment. The judiciary has since then taken up the responsibility of interpreting the concept of equality as a legal precept. This dissertation has chosen to examine the American judiciary’s performance in this regard through a libertarian lens. The inquiry focuses on whether the American courts have protected individual rights guaranteed by law, and ensured that such equality for individuals remain free from undue interferences from other individuals, groups, or government. The dissertation has found American courts’ performance to be marked by inconsistency and sophistry. For example, by insisting on the distinction between political/civil, and social equality, the Federal Supreme Court turned a blind eye to violations of black Americans’ rights to life, liberty and property during the late 19th century and the first half of the 20th century. The doctrine of separate but equal, set forth in Plessy v. Ferguson (1896), stood effective until Brown v. Board of Education (1954) ruled that racial segregation was a denial of the equal protection of the laws. The desegregation decision put the American judiciary back to the right track of promoting the aforesaid libertarian conception of equality, but before long the Supreme Court deviated again to exercises of sophistry when dealing with affirmative action cases. In the name of equality, the judiciary endorsed racial classifications, believing that the noble end justified the suspect means. However, the transformation of the legal precept of equality was not completely consummated until some of the American courts began to accept the invocation of cultural defense in the 1980s. Cultural defense claims that a person’s behavior is dictated by his or her cultural background to such an extent that those brought up in a foreign culture should not be held fully accountable for their actions which are found to violate American laws. Such group membership is seen as a critical factor that must be taken into consideration if the principles of equality and individualized justice are to be honored. This dissertation, through reviews and analyses of equal protection jurisprudence and cultural defense cases, has demonstrated that the transformation, subtle as it is, has indeed been taking place, and has already brought about adverse, far-reaching impact on both American character and American unity.