Quora Question: Can Discrimination be Constitutional?

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Answer from Charles Tips, retired entrepreneur:

Our Articles of Confederation that bound the colonies were quite democratic. By the time the Constitutional Convention was pulled together, virtually all of the delegates were eager to make only limited and specific use of democracy in the United States Constitution. Why?

James Madison, who headed the convention, put it this way.

Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third. Will the latter be secure? The prudence of every man would shun the danger.

(This has since become known as the "two wolves and a lamb voting on what's for dinner" problem.)

We were founded on this clarion principle in our Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

What the Articles of Confederation showed was that majorities were all too happy to vote away the rights of their fellow citizens, making them unequal. Our Constitution was a backlash emphasizing that governments are instituted in order to secure the rights of each and every one of us… not to provide means to vote them away.

Note that we "are endowed by [our] Creator with certain unalienable Rights" before government is established. Note that the rights are unalienable [more commonly, inalienable]. That means you cannot even renounce your rights much less have them taken away from you, even by vote of your fellow citizens or elected representatives.

Finally, there is the radical sentiment "all men are created equal." If you know your Anglo-Saxon, you know that man only leans a bit male; it has the meaning more of person.

All of that is the radical sentiment of our Quakers—God made each and every one of us; we are equally divine creatures regardless of race, gender, age or anything else. If we are equally worthy in His eyes, how wicked not to be equal in each other's eyes?

And all of the colonies found it all high-sounding and voted it in.

But it didn't exactly accord with custom and tradition… or certain key economic arrangements of the times. When northern states began abolishing slavery based on a clear reading of the Constitution, much of the country grew alarmed. The Democratic Party formed around 1828 in part on the principle that, quite contrary to how it reads, the Constitution is a democratic document to be read as "majority rules."

When the Whig Party proved insufficiently firm dealing with slavery, the Republican Party formed around 1854 to strongly oppose its spread and to pursue a republican interpretation of the Constitution. Two decades of Radical Republicans trying to impose republicanism on the South following our Civil War made little progress, but did burn out much of the republican sentiment in the North. Soon we had progressive politics in the North allying with Southern Democrats and a concerted push to retain custom and tradition over republican ideals.

The law schools of Harvard and Yale devoted themselves to novel readings of the Constitution that permitted white Anglo-Saxon male privilege to be protected. Law professor James Bradley Thayer in 1893 wrote The Origin and Scope of the American Doctrine of Constitutional Law. His student, Justice Oliver Wendell Holmes Jr.would declare that the very meaning of liberty is perverted if used "to prevent the natural outcome of a dominant opinion." That stands our constitutional republicanism on its head. Liberty means absolute majority rule!

Woodrow Wilson appointee Louis Brandeis went beyond Holmes. He became famous for his briefs founded on scientific opinion and quoting numerous "experts," such as:

Long hours of labor are dangerous for women primarily because of their special physical organization. In structure and function women are differentiated for men. Besides these anatomical and physiological differences, physicians are agreed that women are fundamentally weaker than men in all that makes for endurance: In muscular strength, in nervous energy, in the powers of persistent attention and application. Overwork, therefore, which strains endurance to the utmost, is the more disastrous to the health of women than of men, and entails upon them more lasting injury.

In short, you have no rights we jurists are bound to respect because science.

So, can we say that laws that discriminate based on race or sexual orientation are unconstitutional?

With a republican reading of the Constitution, they emphatically are.

All races are races of men. All men are equal. As for sexual orientation, take same-sex marriage. We have freedom of association. Marriage is a foremost form of association. End of story. No law can take away the rights of citizens.

With a democratic reading of the Constitution, they are not.

We have social arrangements honored in custom and tradition that must not lightly be cast aside. We must assume that legislatures best understand what is necessary in order to protect social and institutional arrangements.

With a progressive reading of the Constitution, they may or may not be.

All issues are political and must be coordinated. If progressive legislation advantages some over others… social justice. If progressive leaders decide that same-sex marriage is now acceptable… social justice. If they have not yet arrived at that determination… social justice.

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