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.