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Grandfather Clauses in the United States

 
 
gollum
 
Reply Tue 5 Dec, 2017 12:36 pm
The 14th Amendment to the U.S. Constitution states that all persons born or naturalized in the U.S. are entitled to equal protection of its laws.

That notwithstanding, various governmental entities in the U.S. have enacted laws (i.e., grandfather clauses) granting the right to continue to engage in an activity while denying all other persons the right to engage in the same activity.

These grandfather clauses have not been struck down as unconstitutional.

Why not?
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jespah
 
  2  
Reply Tue 5 Dec, 2017 05:05 pm
@gollum,
Usually it's a public interest issue.

I'm admitted to practice law in NY. I presume you are not. It protects the public best if a person who is educated in this area (and licensed) undertakes the representation of others, versus someone who is not. I'm not talking about representing yourself. What I mean is if your neighbor got a DWI or whatever.

Same with an RN or a driver's license (although keep in mind there are some forms of licensure that really don't measure competence or education and instead are a revenue-generating activity for a state or local government).

People have individual exclusives all the time, and those don't violate Equal Protection. My husband and I are the only owners of our home. It's not a 14th Amendment violation if we are the only ones who can sell it, and you cannot.
layman
 
  1  
Reply Tue 5 Dec, 2017 10:27 pm
@gollum,
gollum wrote:


These grandfather clauses have not been struck down as unconstitutional.

Why not?


This is merely honoring the constitutional prohibition against ex post facto laws.

You can't retroactively make something illegal that was legal when done. You can, for example, require present and future homeowners to use a certain type of refrigerant gas in their air conditionung system, but you can't make every homeowner buy a new one and replace the one they've already paid for just because you don't like the type of gas it uses.

More generally, as already noted by jespah, "equal protection" does NOT mean that all people must be treated identically, so your premise is wrong.
gollum
 
  1  
Reply Wed 6 Dec, 2017 05:32 am
@layman,
layman-

Thank you.

I think that can make good policy sense in some cases but not others.
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gollum
 
  1  
Reply Wed 6 Dec, 2017 05:37 am
@jespah,
jespah-

Thank you.

You are right that I am not admitted to practice law in NY.

That a person holding a particular license and a person owning a certain house have particular rights not held by others is true. However, I don't think it is the same issue as the grandfather clause.
jespah
 
  2  
Reply Wed 6 Dec, 2017 08:00 am
@gollum,
I know. The main thing with grandfathering is that it fulfills expectations. If the drinking age is 18 this year (2017) and is raised to 21 next year, then there are people between the ages of 18 and 20 1/2 who anticipated being able to indulge (or substitute any other privilege you like). Grandfathering isn't necessary (they didn't do it when the drinking age was raised in Mass. in the 1980s, for example), but if the people affected are of voting age and a proposed law is in danger of not passing, I can see lawmakers adding in grandfathering as a means of sweetening the pot.

I'm not saying that's the sole idea behind such things, but wheeling and dealing is a fact of life for legislators.
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