While engaging in the gays in the military thread I thought this would be a neat topic as many posters here on AD are self proclaimed experts of the constitution. I always thought that our constitution did not have much anything worded into it that would give any specific powers to the federal government to engage in acts of discrimination, and many times posters both left and right of the middle invoke the constitution to show why something is right or wrong when dealing with social matters.


So overall does the constitution reflect any specific means to allow persons to engage in discrimination using the federal government, or federal organizations?


If so, how?

Well, I haven't proclaimed myself a Constitutional expert yet, so I might as well do that now: I'm a Constitutional expert .

No, none whatsoever. There is no Constitutional prevision that allows the government to descrminate against a race, ethnic group, religion or other group of noncriminal citizens. Neither the Federal nor state governments have any legal power to descriminate against legitimate, noncriminal individuals or groups.

CP

Well, I'm no attorney, much less one specializing in constitutional law, I seem to recall that the constitution is a set of rules by which the federal government must play, with all the powers not specifically enumerated to the federal government being reserved for the states or to the people. The constitution, as amended, would seem to not permit discrimination against individuals or groups of people based on most identifiable characteristics such as race, creed, skin color or occupation.

Now, were I a Native American, I might not agree with the above...

Just my $.02 worth and probably overpriced at that rate

The answer is no, this is why the Founding Fathers when they drafted the Constitution insisted so much on the separation of church and state. I think the F.F.'s knew well enough how, if religion was given to the government's hands, it could be used in horrific and violent ways. This can be easily seen by the whole century after the Protestant churches were established by Luther, Calvin, etc. And wasn't the Constitution made as a thing the government had to follow, rather than a thing government could manipulate to follow its OWN rules?

gordo:

What do you mean by "discriminate"? If we use the word in its neutral sense, well, I discriminate when I pick chocolate chip cookie dough over rocky road as my ice cream flavor. Our government does the same, and so our government does discriminate with respect to its use of the taxing power [not all income is treated equally], its use of its spending power [some things are funded while some things aren't], etc. Re the topic that lead you to this, well, such explains why entspeak is so concerned with "procreation", since equal protection otherwise only applies to those similarly situated, and so the argument is that the ability to procreate on the one hand, and the inability to procreate on the other hand, means that we don't have two groups that are similarly situated, and so there is no denial of equal protection. The other argument is simply that males and females are treated equally, as neither can marry the same gender. As ConservPat otherwise alluded to by his use of "noncriminal", the Constitution does specificially discriminate and so the Thirteenth Amendment prohibits holding persons in involuntary servitude except as punishment for a crime.

Now, if you are speaking of "discriminate" in its "invidious" sense, then the Fifth Amendment's guarantee of due process of law [applies to federal government] and the Fourteenth Amendment's guarantee of both due process of law and equal protection [applies to states] provide a measure of protection against any invidious discrimination. I say "measure of protection" since, well, unless you posit "race" discrimination or "gender" discrimination, then all other discrimination is reviewed under a "rational basis" standard. So your challenge to tax discrimination and spending discrimination will likely fail since such is not based on gender and/or race, and the test is not a or the rational reason given by Congress, but any conceivable rational reason under the sun that might be used to support the challenged government action [or more correctly, the classification at issue must be rationally related to a legitimate government function or purpose]. Gender discrimination is reviewed under intermediate scrutiny, while race discrimination is reviewed under strict scrutiny. Intermediate scrutiny means the gender classification at issue must be substantially related to important government objectives. Strict scrutiny means a classification that serves a compelling state interest and is narrowly to meet only that interest. So as you can see, there is no outright prohibition on discrimination.

Perhaps this soul otherwise puts it best:

"In 1996, Justice Scalia provided an explanation of the Court's application of its standards of scrutiny. He said

“I shall devote most of my analysis to evaluating the Court's opinion on the basis of our current equal protection jurisprudence, which regards this Court as free to evaluate everything under the sun by applying one of three tests: 'rational basis' scrutiny, intermediate scrutiny, or strict scrutiny. These tests are no more scientific than their names suggest, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case. Strict scrutiny, we have said, is reserved for state 'classifications based on race or national origin and classifications affecting fundamental rights,' Clark v. Jeter, 486 U.S. 456, 461 (1988) (citation omitted). It is my position that the term 'fundamental rights' should be limited to 'interest[s] traditionally protected by our society,' Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality opinion of Scalia, J.); but the Court has not accepted that view, so that strict scrutiny will be applied to the deprivation of whatever sort of right we consider 'fundamental.' We have no established criterion for 'intermediate scrutiny' either, but essentially apply it when it seems like a good idea to load the dice. So far it has been applied to content neutral restrictions that place an incidental burden on speech, to disabilities attendant to illegitimacy, and to discrimination on the basis of sex.

I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it)." (United States v. Virginia et al. (94-1941), 518 U.S. 515 (1996))

It is disheartening to have a Supreme Court Justice explain the Court's standards of review in this manner. However, a review of numerous cases makes it impossible to refute his statement."

I am not aware of any race discrimination classification having survived strict scrutiny. As concerns gender discrimation, well, given our war in Iraq, one gender classification that did survive was the male-only draft. See, Rostker v. Goldberg, 453 U.S. 57, 101 S. Ct. 2646, 69 L. Ed. 2d 478 (1981). But proving Justice Scalia correct, in upholding the male-only draft, the US Supreme Court avoided discussion of intermediate scrutiny.

I cant find anything in the constitution that would give the federal government reasons to discriminate against persons.

Such as say an openly homosexual person wants to apply for the position of president, or say the federal government wants to make a law that bans people of a certain skin color from being in politics, to different shades of the same object, and I cant find anything in the constitution that would allow for the government to make a law to deny the persons in question from running for president or for banning activities based on skin color for instance. I can find writing though that would make such moves themselves illegal.

Basically this spawned from the homosexuals in the military thread. The military is a federal organization, its what funds it and operates such. Now I don’t know how blurred these lines become in regards to state militias such as the national guard, but say for the federal military, on what grounds does the government have to discriminate against homosexuals in all reality? I cant find such having any grounds in the constitution. If per say we want to have the federal government be able to make such laws with no consideration giving from legislation from the constitution, then we allow basically for people in a contemporary sense to make any arbitrary laws. This of course does not hold, as of course when it comes to say laws around guns, everyone is quick to bring up the constitution to say its wrong, or they are quick to state that the constitution does not matter when it comes to federal law giving tax money to religion, or for that matter putting bans on people based on difference. I mean you can bring up people that can talk in different subjective directions on the issue, but can you show me something in the constitution that would grant the federal government means to discriminate, and how that would function and the scope of such?

Discrimination is, at its essence, making a choice. The government discriminates within the bounds of constitutional law all the time. It must make choices... to the benefit of some, to the detriment of others. That is just the way it works. The Constitution provides a framework around which the government must operate - it limits the government's ability to discriminate.

To borrow an example from Kivrot:



Despite the fact that this very clearly wasn't the topic that led gordo to start this tread, it does provide a good example of how the constitution (and constitutional law) limits (or should) the government's ability to discriminate. An explicit ban on same-sex marriage must be related to a valid State interest. In Illinois, for example, the State can't reasonably claim that it has an interest in banning same-sex marriage because of an interest in procreation. The State very clearly has a law on the books that explicitly allows a particular group of non-procreative heterosexual couples to marry (it, in fact, requires them to be so). That being the case, the State, can't discriminate against same-sex couples in banning their marriage simply because they can't procreate and, meanwhile, allow those heterosexual couples that it knows can't procreate to marry. There you have two similarly situated groups... both non-procreative... one of whom is invidiously discriminated against.

This type of argument was tried regarding race and failed:

From Loving:


So, the government has the power and, in fact, the need to discriminate. They are limited by the Constitution as to how and to what extent they can do so.

There are provisions in the Constitution that enforce age discrimination. You have to be a certain minimal age to be a representative, a senator or president. The Constitution also discriminates against naturalized citizensnot allowing them to serve as President.