Omar Bennett
The question of whether the Constitution protects against discrimination is a difficult one for those committed to following the original understanding of the document. While the Constitution does not require discrimination on the basis of sex, it is unclear whether it prohibits it. Supreme Court Justice Antonin Scalia has stated that the Constitution does not prohibit sex discrimination against women and gays, and that this is a matter for legislatures. However, the Supreme Court has also recognised that discrimination against gays fails to have any rational basis, and the ban on gender discrimination has become so ingrained in the law and culture that it is impossible to imagine a return to the old days.
| Characteristics | Values |
|---|---|
| Sex | No |
| Race | Yes |
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What You'll Learn
Sex discrimination
The question of whether the Constitution protects against sex discrimination is a difficult one for those committed to following the original understanding of the Constitution. The Constitution does not require discrimination on the basis of sex, but the issue is whether it prohibits it.
In an interview with the *California Lawyer*, Supreme Court Justice Antonin Scalia said that the Constitution does not prohibit sex discrimination against women and gays. He argued that the 14th Amendment, proposed in 1868, was not intended to protect against sex discrimination. However, Scalia acknowledged that if current society has come to different views, it is up to legislatures to enact laws that reflect those changes.
Some argue that you don't need the Constitution to reflect the wishes of current society. If society wants to outlaw discrimination by sex, legislatures can pass laws to do so. This is the democratic process.
The ban on gender discrimination, created by the Court in the late 1960s and early 1970s, has become so ingrained in the law and culture that it is hard to imagine returning to the old days. Even the Supreme Court has recognised that discrimination against gays fails the rational basis test applied to all laws, although women do not have the same formal protections as racial minorities.
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Gay discrimination
The Constitution does not explicitly protect against discrimination. The question of whether it protects against sex discrimination is a difficult one for those committed to following the original understanding of the Constitution.
The Supreme Court has recognised that the Constitution does not afford the same protections to women and gays as it does to racial minorities. Justice Scalia has stated that the framers of the Fourteenth Amendment did not intend for its protections to extend to women or gays. He argues that it is up to legislatures to prohibit discrimination, and that the current society can change its views and pass laws to that effect.
Despite this, the ban on gender discrimination, created by the Court in the late 1960s and early 1970s, has become so ingrained in the law and culture that it is impossible to imagine a return to the old days. This suggests that, while the Constitution may not explicitly protect against gay discrimination, the Supreme Court has played a role in establishing and upholding this protection.
In conclusion, while the Constitution itself may not explicitly protect against gay discrimination, the Supreme Court and legislatures have taken steps to prohibit it. This highlights the dynamic nature of legal interpretation and the potential for change over time.
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Abortion rights
The Constitution does not explicitly protect against sex discrimination. However, the Supreme Court has recognised that discrimination against gays fails to have any rational basis, and it does not afford women the same formal protections as racial minorities. The ban on gender discrimination, created by the Court in the late 1960s and early 1970s, has become an integral part of the law and culture, despite having no textual basis in the Constitution.
The question of whether the Constitution protects against sex discrimination is a difficult one for those committed to following the original understanding of the document. While the Constitution does not explicitly prohibit sex discrimination, it also does not require it. The issue is whether it prohibits such discrimination.
If society wishes to outlaw discrimination by sex, it can do so through legislatures and laws. This is the essence of democracy, where citizens can persuade their fellow citizens and pass laws that reflect their values and beliefs. The same applies to abortion rights; if citizens want to protect or prohibit abortion, they can advocate for it and pass laws accordingly.
In summary, while the Constitution does not explicitly address abortion rights or prohibit sex discrimination, it also does not require such discrimination. The power to shape these rights and protections lies with the people, who can advocate for change and pass laws through legislatures to reflect their current values and beliefs.
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Death penalty
The Constitution does not require discrimination on the basis of sex, but it also does not prohibit it. The question of whether the Constitution protects against sex discrimination is a difficult one for those committed to following the original understanding of the Constitution.
The death penalty is a highly controversial issue in the United States. The Eighth Amendment to the Constitution states that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". This has been interpreted by the Supreme Court to mean that the death penalty is not, in itself, unconstitutional. However, the methods of execution and other aspects of the death penalty system are often questioned.
In the 1970s, the Supreme Court found the application of the death penalty unconstitutional, but executions resumed four years later under revised laws. The Court is often faced with questions on the constitutionality of particular aspects of the death penalty system, such as the methods of execution, the competency of defence counsel, the selection of juries, and the behaviour of the prosecution.
Justices Marshall and Brennan dissented from every death sentence and execution from 1976, when the Court reinstated the death penalty, until their retirement. Justice Marshall, in particular, believed that the death penalty was cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.
In 2008, Justice Stevens also stated that he believed the death penalty to be unconstitutional, but he would continue to uphold it out of respect for precedent. More recently, Justice Stephen Breyer wrote a lengthy dissent in Glossip v. Gross, a lethal injection case in 2015, arguing that the Court should grant a global challenge to consider the constitutionality of the death penalty.
The death penalty has also been challenged on the grounds of racial discrimination, but these challenges have been rejected by the Supreme Court. In McCleskey v. Kemp, the Court rejected a constitutional challenge to the death penalty on these grounds, even though the study documenting racial discrimination was not ruled on.
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Race discrimination
The Constitution protects against race discrimination. The Equal Protection Clause was originally intended to protect black people from discrimination, but the broad wording has led the Supreme Court to hold that all racial discrimination is constitutionally suspect. This includes discrimination against whites, Hispanics, Asians, and Native Americans. The Supreme Court has also used the Equal Protection Clause to prohibit discrimination on other bases besides race.
The right to freedom from racial discrimination is guaranteed by the Constitution, as well as by congressional acts. This right has been strengthened by a series of national laws passed since the 1950s. One example is the case of Brown v. Board of Education (1954), which declared the segregation of races to be inherently unequal.
The Constitution also prevents the government from subjecting individuals to worse treatment because of their race, ethnicity, or national origin. This includes setting requirements for hiring that are not actually required to do the work and which exclude people based on these factors. If an individual believes they have been discriminated against, they can show this by pointing to people of a different race, ethnicity, or national origin who received better treatment, or by pointing to actions by the employer, company, or prospective employer that do not make sense in the absence of discrimination.
Even if a law is expressed in completely neutral terms and its language is not discriminatory, it will be judged unconstitutional if it results in discrimination. This principle, known as disparate impact, was established in the case of Yick Wo v. Hopkins (1886) and has become a central part of modern civil rights law.
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Frequently asked questions
No, it does not. The Constitution does not require discrimination on the basis of sex, but it also does not prohibit it.
No, it does not. The framers of the Fourteenth Amendment did not intend for its protections to require rights for women or gays.
The Supreme Court recognises that the rights of women and the LGBTQ+ community are not explicitly stated in the Constitution. However, the Court has created a ban on gender discrimination, which has become a part of the law and culture.
Yes, the Constitution can be changed to reflect the wishes of current society. This can be done through legislatures and laws, which are enacted through a democratic process.
