Neither the words equality or discrimination are found in the U. S. Constitution, nor inferred, and no new amendment to the Constitution has been added moving either from a state to a federal prerogative, which is the required path detailed in Article V for enlarging the powers of the federal government. State delegates formed the U.S. Constitution and they gave the federal government no power over human association. We naturally discriminate between philosophies, organizations, and people we wish to embrace, date or avoid; even whom or what we like. We call it freedom.
Now the House of Representatives, presently controlled by the Democratic Party, wishes to impose upon us restrictions over human associations without a new amendment to the Constitution. Under the misnamed Equality Act it wishes to enshrine “sexual orientation” and “gender identity” to the 1964 Civil Rights Act outlawing discrimination respecting race or sex in employment, housing, and public accommodations. What it does in practice is to “allow the government to impose a belief system about sexual decisions and sexual behaviors on the nation.” The Act is “basically government-sanctioned discrimination against religious people” (CBN News, October 2018). If government is empowered to manage human associations it manages everything.
So how would the misnamed Equality Act violate the Constitution? Remember the Founding Fathers created a system called federalism which recognized the principle of dual sovereignty between the states and the federal government, neither the master nor slave of the other—the states to have domestic dominance, the federal government foreign policy dominance.
The Constitution restricts the federal government, (the executive, legislative and judicial branches) to the enumerated clauses housed in Article I, Section 8. In this it was restricted to four areas of federal law, these were: to tax, to pay the debts, to provide for the general welfare and national defense. To restrict the federal government from enlarging its power, which is its natural tendency to do, the last two of the four grants of power, general welfare and national defense, each required an additional eight clauses giving greater restrictive clarity.
Neither equality or discrimination were named, or inferred, as a function of the federal government. The eight clauses of general welfare benefited citizens equally and at the same time. None made distinctions between types of people or human associations.
All powers not specifically listed, or added later to the Constitution by way of the Amendment process outlined in Article V, were left to the States. There exists no new powers to distribute. The states retain all power that they did not specifically give to the federal government. The federal government can only expand its power at the expense of the states by distorting or ignoring the existing list. This can be done only when the people are ignorant of the Constitution or do not care. Proponents of the Equality Act include both.
Even with this clarification, states, fearing that the federal government might still attempt to grow at their expense, refused to ratify the Constitution without additional restrictions on it, hence the Bill of Rights. But none of these housed either equality or discrimination. The Bill of Rights end with the clarity of Amendment 10: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
So neither equality nor discrimination are in the Constitution or Bill of Rights but the word equal (not the same as equality) is in the 14th Amendment. This was a Civil War amendment (1868) designed to ensure that the rights of ex-slaves were protected as the South was attempting to re-enslave them through legislation. It reads in part, “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.” One cannot pluck out this phrase and give it new meaning outside the context of its origin, — to protect freed men from slavery.
But there is another problem with the broad use of the phrase “equal protection of the laws” used out of context, This phrase applies only to that law already constitutional, and that, has to have a solid base in the listed powers of Article I, Section 8 or in a new amendment to the Constitution ratified by three-fourths of the states as required by Article V. Any other interpretation destroys the Constitution as designed.
A great irony of our time is that the misnamed Equality Act “creates grave inequalities between those who simply want to live according to their religious beliefs and the reigning culture of political correctness. In short, it threatens our most fundamental freedoms of speech, religious exercise, and privacy. The Equality Act upends two centuries of First Amendment law that restrains government from forcing Americans to speak messages or participate in events that violate their deeply held religious beliefs” (https://firstliberty.org/what-is-the-equality-act/).
The Equality Act has no origin in the Constitution, and thus is unconstitutional. If passed it would violate a large part of the First Amendment more especially the free exercise of religion, speech and press. It opens up a myriad of new laws on human association, also without constitutional base. Neither equality or discrimination can be defined and certainly not guaranteed without Orwellian governmental control. Perhaps that is the intention.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He taught history and political science from this perspective for over 30 years at Taft College. Newspapers have permission to publish this column. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
