major paper regarding equality
TRANSCRIPT
The American ConstitutionThe case of Equality
Jose Cantu
March 15, 2011
ABSTRACT
There are often cases dealing with equality. The Constitution is often questioned regarding whether or not equality is found within its pages. Abe Lincoln argued it was but Thomas Jefferson was undecided about equality. This essay looks at the Constitution and equality thorough the notion of these two political figures plus the court case of Engel v Vitale (1962), dealing with prayer in schools. Also, this research argues debates equality through the eyes of proposition and whether gay marriage is constitutional.
I. Introduction
The United States constitution is one of the main documents Americans live by. It is a
document provided by the establishers of a more perfect Union. After the Convention of
1787 called for the revisions to the Articles of Confederation did history come into
perspective in the form of this document. It was to be established for the people, by the
people. The constitution is often referred to as a solid structured framework for which a
Union can be formed to bring together a Nation of individuals and providing equality
among them.
"We the People of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defence, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this Constitution for the United States of America." (O’Brien, 1) The
preamble of the Constitution lays the structure for what is entailed in the constitution. It is
said to establish justice and secure the blessings to ourselves and our posterity. At the
same time, the constitution is set to be an injustice document against the people and their
rights. Yet, it does not do much to meet the disapproval of individuals.
The Constitution is set out to meet the Preamble standards for the development of a
stable union becoming more than what the "Framers" intended to become. Over the years,
it has been ratified and amended to meet with the times of a contemporary world.
Through these processes, the constitution is becoming a document abusing the power of a
national government robbing people of its liberties and most importantly, equality if it is
listed in the constitution.
II. Background
A. Abraham Lincoln and Constitutionalism
It is no wonder with the discussions of liberties one mentions an "honest" president.
Abraham Lincoln was a civil senator and a firm believer of the Constitution. He would
often seek contentment in the Constitution to deliberate addresses to the nation of the
yesteryear. He often would cite it and state the "Framers" did not leave everything to
interpretation. "The "Framers" intended the Constitution as a permanent instrument of
government for the American people." (Belz, 170). Lincoln decided the Constitution is a
solid structured document and should not, under any circumstances, be altered in any
way. Such an "Honest" president, Lincoln often sought the Constitution was teaching the
people everything the "Framers" wanted us to learn.
Lincoln even believed the Constitution vowed the freedom and equality of slaves. He
would oppose the courts and their interpretation. "I believe that the Supreme Court and
the advocates of that decision [regarding slave ownership] may search in vain for place in
the right of property in a slave is distinctly and expressly affirmed," Lincoln declared.
(Belz, 174) Through Lincoln, a revolution started contrary to how he believed the
constitution was a concrete document for equality. The more one begins to adhere to the
Constitution as a justifiable document for achieving equality still begs the question of
who benefits.
Lincoln stated the people still benefit from the Constitution. He stated the people are
more than welcome to change the document should they chose so but not with amending
or ratifying the Constitution. "We have a means provided for the expression of our
belief...-it is through the ballot box-the peaceful method provided by the Constitution."
(Belz, 177) Although Lincoln firmly believed in democracy, which in his mind was what
the Constitution and the "Framers" intended, it cannot be helped how it would ultimately
become a system full of corruption and greed.
"If, by the mere force of numbers, a majority should deprive a minority of any clearly
written constitutional right," Lincoln reasoned, "it might, in a moral point of view, justify
revolution." (Belz, 172) Lincoln was aware of the greed or corruption our great nation
would become. He opposed the radical revolution unless he deemed it necessary. This
was to be proven later when Lincoln addressed the Union to follow the Constitution of
creating militias to bare arms as stated in the Preamble against the Confederates during
the Civil War.
Lincoln views the Constitution as an agreeable document to bring about equality to the
people because he thought it was the second document after the Declaration of
Independence which brought liberties to the people. "The Declaration created the Union,
making liberty, equality, and consent the fundamental principles of the republican
government. The Constitution in turn was written in order to make a more perfect Union
that would preserve those principles." (Belz, 181)
Confirming Lincoln as a man valuing true democracy and equality to the people does
seem the Constitution illustrated what it was intended to do. What about today's
definition of equality? Through the establishment of Lincoln's firm belief in the
Constitution providing the people with liberties and creating a perfect Union, why do
people continue to argue for rights utilizing the 1st and 14th Amendment upon the courts
saying they have been violated in one way or another?
In 1854, Lincoln caught Chief Justice Douglas on a misquotation of the Constitution.
Chief Douglas had said the Constitution required the suppression of foreign slave trade
but not the prohibition of slavery in territories. (Belz, 173) Thus, as Lincoln persists
about the Constitution being a solid document which should not be open to interpretation
then why did he overwrite the Judge's opinion? It seems Lincoln was not about to let the
interpretation of a Chief Justice abolish or expunge the rights of the individual based on
color, race, nationality, etc.
"Nevertheless, slavery was mentioned in 'covert language,' in words that Lincoln said
were 'ambiguous, roundabout, and mystical,' and thus was arguably approved in the
Constitution." (Belz, 182) However, it is at this strong opinion, we see Lincoln in a new
light. Although he is trying to be democratic, the power behind his "oath to office" might
be affecting him from providing democracy. He denounced the interpretation of a Chief
Justice, tried to educate the public to make changes through the ballot box and not amend
the constitution, yet also provided evidence slavery was in written in the Constitution.
Thus, is Lincoln trying to exhibit the power of all three branches of government within
one branch? Where is the equality in this or the equality of the people?
B. Thomas Jefferson and Equality
"It seems paradoxical that Thomas Jefferson, one of the enduring heroes of American
democracy, should have been the owner of more than 180 slaves at the very time when he
was proclaiming that all men were created equal..." (Cohen, 1) Thomas Jefferson was a
creator of the Declaration of Independence Lincoln vowed was intended to provide "all
men with the pursuit of happiness, etc." Yet Jefferson had slaves contradicting the
document the founding fathers, including himself, vowing to provide equality. This
contradicts Lincoln in stating the "Framers" of the Declaration or the Constitution wanted
equality for all men.
"Born into a slave system, they [Jeffersonian scholars] argue, he could not in good
conscience abandon his black charges; he made the best of a bad situation by behaving as
a benevolent and indulgent master." (Cohen, 1) The dissonance reputes the meaning of
the Declaration allowing equality to become no more than a moral concept. If slaves were
free, then what was to be the result of such an action? The Declaration became a
document expressing liberties and equality but it is was not until the Emancipation
Proclamation executed by Abraham Lincoln in 1863 did a form of equality flourish. Why
then did Jefferson grow a conscious about the manner in which he treated a “piece of
property?” This would be a significant introduction to derail from the unfair treatment of
human beings by their skin color.
"For if the Negroes were innately inferior, then Jefferson must have 'suspected that the
Creator might have in fact created men unequal; and he could not say this without giving
his assertion exactly the same logical force as his famous statement to the contrary'."
(Cohen, 3) Thus, Jefferson believed in equality but only because it was stated within
another document overpowering everything during those times; the Bible. This assertion,
in itself, shows the true reason why Jefferson did not speak about the freeing of his
charges. It would be unwise to have his peers hear of abolition of "property". John Locke
referenced owning of slaves as property increasing your capital and status.
This baffles the mind because the purpose in creating the Declaration and the
Constitution, according to Lincoln, was to create a more perfect Union where there was
to be equality and liberty among men. Jefferson did express his interest in equality to an
extent. He also ordained some laws against slaves for fear of being a heretic. “The bill did
contain a strengthened version of a law which prohibited the slave trade…included
provisions barring Negores from testifying against whites and forbidding slaves to
possess arms or to leave the property of their masters without passes.” (Cohen, 6)
If Jefferson did wish to establish the freeing of slaves then why subject them to harsher
punishment? This is the foundation of equality by the Founding Fathers and the Framers
wishing to express a degree of freedom within our union. It would take time but there
would be rights individuals could express within the Bill of Rights.
III. Policy Prescription
A. Engel v Vitale
It seems equality is becoming harder to locate within any document. Is equality not part
of the constitution or is it only visible under “covert language” as Lincoln pointed out.
Perhaps equality is only a moral concept, embedded deep within our subconscious, to
provide us with the capacity for how to treat others.
In Engel v Vitale (1962), the Supreme Court claimed judicial supremacy over equality
within the bourndaries of the law. This court case depicts how equality is to be distributed
but at the extent of sacrificing someone’s amendment privileges. The case involves the
Board of Education of Union Free School District No. 9 whom was empowered by their
state legislature to spread prayer to school districts. The purpose of this was to provide
“Moral and Spiritual Training in Schools.” The parents of 10 students argued the 1st
Amendment was violated the first part of the 1st Amendment of the Federal Constitution
which was made applicanle to the States by the 14th Amendment. (US 421)
This, in itself, depicts how the court case regarding the separation of prayer from
Federal buildings is at the whim of the Supreme Court. Though the states have the usage
of the 10th Amendment, it does not define what the reserved powers of the state are. It
more so, elaborates the national government’s power to protect the rights of the people
but conflicting the notion of the constitution. In this case, we see the power of the states
challenged by the power of the national government. The courts presided the people have
the right to separate the prayer in school because it is what this nation was founded on.
“By the time of the adoption of the Constitution, our history shows that there was a
widespread awareness among many Americans of the dangers of a union of Church and
State.” (US 421)
If the Framers knew the separation of Church and State was to be then stopping prayer
in school is justifiable. Is there not usage of religion in the motto of the US when it is on
our currency, “In God We Trust?” “The Constitution was intended to acert a part of
this…by leaving the government of this country in the hands of the people rather than in
the hands of any monarch.” (US 421) This was a start of the Supreme Court knowing
where democracy was to reign supreme. The courts did not realize they became a new
type of monarch.
We have basically kept the same form of structure as the British. The only thing we
have done is limit the rights and privileges of the people along with the states. “The
Establishment Clause thus stands as an expression of principle on the part of the
Founders of our Constitution that religion is too personal, too sacred, too holy, to permit
its ‘unhallowed perversion’ by a civil magistrate.” (US 421)
The development of the Establishment Clause is to limit the use of a supreme national
religion. Yet, how does this pertain to the state’s establishment of the regent prayer it
provides in its own school? One can see how the prohibition of state’s power along with
the Bill of Rights, neither state nor national government can affect the people’s rights to a
certain degree. The violation of the rights of individuals continues to be violated even
after the Supreme Court has ruled the violation of the 1st Amendment has been infringed
by the use of prayer in school. However, the Supreme Court also ruled how prayer should
not be taken out of schools either.
“These men, [the Framers], knew that the First Amendment, which tried to put an end
to governmental control of religion and of prayer, was not written to destroy either.” (US
421) Thus, the Framers knew there was a long history regarding the founding of this
Union with religion which could not and should not be broken. Overall, the Supreme
Court then ruled Prayer should stay but become optional. This, then, puts a fringement on
the rights of the people. True, it does not mandate people to believe or pray in a supreme
being but it does let them know the option is available if they wish. So, can one assume
this would be a power left up to a state?
B. Equality in the Constitution
If equality is listed in the constitution then where does one begin to look? In Engel v
Vitale (1962), the defendents looked at the 1st Amendment and the 14th Amendments but
is it clearly explained within those two Amendments? “For years, it was distrusted as a
threat to privilege and property, next permitted or endured as an exercise of legislative
sovereignty, and only finally actively promoted by the Supreme Court.” (Wilkinson III,
945) Thus, it was not until it was ruled by the Supreme Court, equality was more than a
constitutional value. It became a universal right.
“The general notion of constitutional equality subdivides into three categories: (1)
political equality, (2) equality of opportunity, and (3) economic equality.” (Wiliknson III,
946) With the first category, the Supreme Court won’t cover cases dealing with political
issues because they prefer to have judcial supremacy. The second and the third category
is what the court usually deals with because they know the outcome would fall either to
the government in some form or another (i.e., the case dealing with the separation of
church and state). The court thought it best to leave some jurisdiction to the states
regarding prayer in schools but gave the people peace of mind by letting know the
amendments protecting them from supreme national control.
The presedence of the case regarding power to the states is to suppose states are the
ones presiding over who protects equality. “…state constitutionalism has the ability to
protect rights where the Court says that none exist, but no ability to overcome decisions
that restrict what governments can do.” (Chemerinsky, 1699) If this is the case, then the
courts must follow the ruling of states with regards to marriage. If equality is protected by
the courts, it is awkward the ruling regarding equality of opportunity is presided in courts
even when states constitute it.
The appearance of the courts’ rulings regarding equality is like a pendulum. There are
some protection one can turn to within the Equal Protection clause of the 14th
amendement but not sufficient to harbor the rights of minority groups to an extent. “The
burger Court, with the new Nixon appointees writing and joinning many of the opinions,
has extended the equal protection clase to protect from discrimination the rights of
women (though perhaps not of men), and of resident aliens to a greater extent than
hetofore.” (Wilikinson III, 949)
C. Gay marriage
As one tries to point to specific statements regarding equality, people still fight for
similar rights. For instance, Gay marriage has been a struggling battle for equality in the
contemporary world. Thus, in the case of Gay marriages, why should they be any
different if most, or all, their rights are similar to the standard United States Citizen?
“Gay and lesbian couples are living together as married people do, even though they are
leagally barred from getting married.” (Mohr, 218)
Thus, how far does marriage have to go to get the okay and why is this issue not clearly
defined by the Supreme Court? The Supreme Court define equality in a certain form of
definition in Engel v Vitale (1962) stating prayer should be separate from institutions but
not completely barred. In the later section, the Supreme Court covers cases dealing with
equal protection of opportunities yet cannot preside over gay marriage?
The best known of these ruling is the 1974 case Singer v Hara, which upheld
Washington’s refusal to grant a marriage license to two males The case dfined
marriage as “the legal union of one man and one woman” as husband and
wife…First the qualification “as husband and wife” is simply circular. Since
“husband” and “wife” mean people who are in a marriage with each other, the
definition, as fas as who are in a marriage with each other, the definition, as
far as these terms go, presupposes the very thing to be defined. (Mohr, 220)
Thus, the courts assumed marriage is between a man and a woman would be
understood clearly by the public. The courts, however, are known to change their
interpretation of what is defined in the statement quickly. More so, the courts
failed to take into account the definition of husband and wife would change with
the times. Per se, sociology defined how the term gender is distinct from sex.
Gender is a sociatal construct where sex is a biological term. Both define the roles
and identity of who we are to be.
Nevertheless, this does not clearly protect the rights of the public but the
interests of the political. Something the courts overlooked when constituting the
definition of marriage. Even in our contemporary world, Proposition 8 (involving
the turning on the ban on gay marriage in California) is being overturned. “The
fact that marriage has traditionally been between opposite-sex couples doesn’t
reveal anything about the characteristics of marriage and why those characteristics
have to be limited to opposite-sex couples.” (Chemerinsky, 1706)
The truth is the contemporary times are redefining how marriage is looked at. In
Britain, civil unions between homosexual couples are acknowledged and
withstands in their traditional form of government. How can a nation with which
our Founders have separated from be first to establish this but our Union is less
advanced in the particular? “…marriage is entirely a creature of the law-or as
Hawaii’s Supreme Court recently put it: ‘Marriage is a state-conferred legal
partnership status.’” (Mohr, 225)
If marriage is “a state-conferred legal partnership” then it leaves the state in
charge of deciding equality. What is left for the courts to preside upon if states
rule over the outcome of equality? “…relying on state constitutions never will
provide more than partial success in advancing liberties and equality because the
chance of succeeding in all states, or even most states, is small.” (Chemerinsky,
1699) The main reason for the Constitution was to limit states’ ability to provide
more power to the national government with limitations. This provides support to
the equality of the people only if the national government is allowing the states’ to
have jurisdiction over marriage.
“Discrimination against gays, they hold, is not an illegitimate discrimination in
marriage, indeed it is necessary to the very institution: No one would be married
if gays were, for then marriage wouldn’t be marriage.” (Mohr, 221) If this is the
case of gay marriage, then the courts’ themselves have violated the 14th
Amendment of the people. “No State shall make or enforce any law which shall
abridge the privileges or imunities of citizens of the United States…” (O’Brien,
15)
True, the 14th Amendment prohibits States from discrimination but the courts
are also subject to the Amendment with Trial courts and Appellate courts dealing
within states. Equality of marriage is violated by the national government as states
continue to concur with the national government. What happened to a more
perfect union or choosing to disagree through the ballot box as Lincoln stated?
IV. Conclusion
There is little evidence to claim there is equality written in the constitution. Though it
may be in “covert language” as Lincoln has found the issue of slavery, it does not appear
clear enough for courts to acknowledge marriage. The constitution does provide
supporting evidence regarding equality within the 1st and 14th Amendment but how we
know it is to be universal remains to be the subject of debate.
My point in this Essay is thus straightforward: the ability to protect individual
rights through state constitutions is inherently limited. If the goal cannot be
accomplished via the Unisted States Constitution, the state constitutional law
is a great back-up plan. But discussions of state constitutional law must
include this reality; state constitutional law is a second best way to advance
individual liberties and civil rights. (Chemerinsky, 1697)
The ability of the Constitution, or at least how we know it, is to provide people
with unalienable rights from the national government and its constitutuents.
However, as proven, the Constitution does not protect people regarding equality.
Though the courts have dealt with eqaulity of opportunity and economics, they
fail to acknowledge gay marriage is part of the opportunity jurisdiction. Thus, the
prohibition by the courts regarding the equality of marriage for homosexuals is
unconstitutional.
Let it be known the court is capable of trading one presedence for another even
if the case is similar. The cases dealing with prayer in school and gay marriage are
a great example. The courts have stated prayers in school violate the 1st
Amendment as well as the 14th. Yet, gay marriage has the same violation of rights
but is constitutional to prohibit from becoming a right. The Constitution does not
provide the protection of the rights of all individuals only the national
government.
Works CitedBelz, Herman. "Abraham Lincoln and American Constitutionalism." The Review
of Politics 50.2 (1988): 169-197. Jstor. Web. 10 Feb. 2010.
Chemerinsky, Erwin. "Two Cheers for State Constitutional Law." Stanford Law
Review 62 (2010): 1695-1709. Print.
Cohen, William. "Thomas Jefferson and the Problem of Slavery." The Journal of
American History 56.3 (1969): 503-526. Jstor. Web. 10 Feb. 2011.
Engel v. Vitale, 370 U.S. 421 No. 468. Supreme Court of US. 25 June 1962. Print
Mohr, Richard. "The Case for Gay Marriage." Notre Dame Journal of Law, Ethics
& Public Policy 9 (1995): 215-239. Eripsa.org. Web. 10 Feb. 2011.
O'Brien, David. Constitutional law and politics . 7th ed. New York: W.W. Norton
& Co., 2008. Print.
Wilkinson III, J, Harvie. "The Supreme Court, the Equal Protection Clause, and
the Three Faces of Constitutional Equality." Virginia Law Review 61.5 (1975):
945-1018. Jstor. Web. 10 Feb. 2011.