The rights of minorities

                The ability of the Constitution to protect the rights of minority groups is dependent upon various factors. These include the interpretation taken by the Supreme Court, the actions of the executive branch, laws passed by Congress/state legislatures and in a broader sense that of public opinion. These inter-related factors need to be considered when examining the whole issue of minority rights and the Constitution. Let us consider each in turn.

                The philosophical outlook adopted by the Supreme Court is of very great importance to the defense of minority rights within the states. The two main perspectives are judicial activism, and judicial restraint. Judicial activism is a term used to describe a situation in which members of the Supreme Court seek to apply the general principles of the Constitution towards the modern era. Judicial restraint however exists where members of the Supreme Court interpret the Constitution on a literal basis. In regards to the Constitution and the rights of minority groups, an activist Court will interpret such rights in a more generous manner. Take the case of penumbras and reproductive rights. A woman can seek an abortion anywhere in the states on the basis of the Roe v. Wade (1973) judgment which was based upon the right to privacy as identified on the basis of an activist interpretation of the Constitution. The Court decided that women should have freedom of personal choice in matters of marriage and family life, including the decision whether or not to terminate a pregnancy. It should of course be noted here that women do not constitute a minority, but have traditionally been marginalized within the political process. As such, they have often experienced discrimination consistent with other minority groups.

                The executive branch can both enhance and undermine the rights of minority groups. Throughout our history, administrations from both parties have used executive orders to promote the rights of minorities. A number of Presidents have also used what Theodore Roosevelt called the “bully pulpit” to raise issues concerning the rights of minorities. It should also be noted that Republicans such as Richard Nixon and Ronald Reagan have criticized policies and proposals like busing and the Equal Rights Amendment; whereas Democrats such as Obama and Clinton have publically defended the practice of affirmative action. The executive branch has also taken the initiative in terms of affirmative action programs and other measures to improve the life chances of ethnic minorities. For instance, all federal government agencies and those organizations in receipt of federal funds are now required to implement affirmative action.

                As the nation’s legislative branch, Congress can pass laws within the remit of the Constitution that impact directly upon the rights of minority groups. As with the other branches of government, Congress has at times enhanced the rights of minority groups (as in the case of anti-discrimination laws) and on other occasions actively undermined those rights. State legislatures also impact significantly upon the rights of minority groups. The issue of states’ rights divides the two main parties, with the Democrats more favorable towards the federal government whereas the Republicans more supportive of the rights of the states. Inevitably, the Constitution can be used to support both lines of argument. Democrats might claim that the equal protection clause of the fourteenth amendment requires a strong role for the federal level in order to combat discriminatory laws from the states. In doing so, the rights of minority groups are adequately protected. A recent case study concerns the use of identity checks in Arizona. The Supreme Court ruled that the state of Arizona had taken on a role attributed solely to the federal government, and thereby ruled the action unconstitutional. Similarly, the Republicans routinely cite the tenth amendment when seeking to defend the rights of the states and highlight those instances in which the federal government poses a threat to our rights. This can at times bear relevance to minority groups.

                No discussion of the Constitution and minority rights would be complete without some consideration of public opinion. Attitudes towards sexual minorities and ethnic minorities have changed over time, and politicians have invariably reflected that change within public opinion. Once again, the Constitution provides some level of justification for such change. At the very least, those who adopt a progressive outlook can cite the Constitution when seeking to persuade people of their cause (such as the aforementioned equal protection clause of the fourteenth amendment).

                Before leaving this post on minority rights, it must be recognized that the Constitution was first codified at a time when women were not allowed to vote, a black man counted as three-fifths of a white man and attitudes towards homosexuality were radically different to those of today. The intention of the document was to protect the rights of individuals and thwart the tyranny of the majority. It made absolutely no allowance for the special treatment of minority groups. It must also be recognized that some of the framers of our Constitution were slave-owners and therefore held a very different perspective upon racial discrimination than that of today. That said; a number of inter-related factors have sought to enhance the protection of minority rights within the states; and many of those changes have in some way been related to the Constitution itself in some form or another.