In an early grade I learned about the 1964 civil rights bill.  I thought it was the first bill of its kind.  I was wrong.  In a higher grade I found out the first civil rights legislation was enacted after the Civil War, but it was vetoed by the president then Congress overturned the veto.  I was taught this was a good example of “checks and balances” because one branch prevented the other from delaying social progress.

But there was a third branch of government.

In 1875 another civil rights act was passed.  This time the president and Congress were in agreement, but the US Supreme Court declared this civil rights act unconstitutional.

I was confused.  How could civil rights violate the constitution?

The Supreme Court said discrimination was prohibited by state and local governments, but the federal government does not have the power to prohibit discrimination by private individuals and organizations.

But the 1964 civil rights bill outlawed specific forms of discrimination practiced by the private sector and there was no challenge to the constitutionality of the bill.

I was still confused.  What made civil rights constitutional 89 years later?

Then I discovered two concepts.

Now, the unconstitutionality of the 1875 Civil Rights Act was groundwork for the 1896 Plessy v. Ferguson decision which legalized segregation.  But in 1954, the Brown v. Board decision declared “Plessy” (separate but equal/Jim Crow) unconstitutional because it was proved that segregated schools (which weren’t equal) produced an inferiority complex inside of students deprived of equality.

There was also a capital punishment case in 1958.

The US Supreme Court reexamined whether the death penalty constituted cruel and unusual punishment which is prohibited by the 8th amendment.  The court stated the meaning of cruel and unusual punishment must coincide with the “evolving standards of decency that mark the progress of a maturing society” and not from its original meaning.

In other words, legislation can be declared unconstitutional when that legislation inflicts unintended damages on the citizenry and when social values and attitudes change public opinion over time.

Recently, Pennsylvania’s State House voted to restore mandatory minimum sentences for drug offenses, but the state Supreme Court declared them unconstitutional in 2015.  (Based on a 2013 US Supreme Court decision)

Now I am confused again.

We all know the history of mandatory minimum sentencing.  It was reactive legislation created decades ago to combat the violence associated with a drug lawmakers thought could be resisted with a stern no.

But over time it was discovered these sentences inflicted unintended damages on non-violent offenders, taxpayers, and judicial discretion.   And as society continued to mature drug addiction was no longer seen as a moral deficiency.  It became a mental health issue with many advocating for tax dollars to be invested in treatment and not incarceration.

The government makes mistakes, but it also learns from its mistakes.  The data of the damage to the citizenry and the change in social attitudes proved that mandatory minimum sentencing was a primitive overreaction to a problem that was more advanced than the lawmaker’s problem solving methods, and that’s why the constitutionality of their methods was challenged after two decades of damage.

But Pennsylvania’s state house voted to restore something that was declared unconstitutional after only two years.

Did anyone ask the state representatives in favor of restoring mandatory minimums, what damage was inflicted on the citizenry due to the absence of these requirements during the past two years and what social attitudes changed over the course of these two years that normally took two generations to influence public opinion?

If there are no answers to these questions, then mandatory minimum sentencing should remain unconstitutional in Pennsylvania to prevent another primitive overreaction.

(J. Pharoah Doss is a contributor to the New Pittsburgh Courier. He blogs at jpharoahdoss@blogspot.com)


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