The Language and Foundation of Institutionalized Discrimination

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By Linda S. Munoz

Our studies have focused on institutionalized ‘isms’ that work to preserve and maintain privilege, power, and difference in America and ensure the most resources are channeled to one, select group: white males. We have studied the ways our laws, programs, customs, and language are constructed and manipulated to ensure White Males are forever the dominant feature and featured group. Nowhere is this more obvious than in the foundation and formulation of the United States and in those documents that created and defined who, what, and how we would be. While words and terms such as “brotherhood”, “mankind”, and “fellowship of man” can be disturbing with their conveyed patriarchal bias, nothing is more oppressive than the deliberately chosen – and deliberately (mis)interpreted – wording of our own Constitution, upon which all laws of our land are based.

The Declaration of Independence (“Declaration”), the precursor document to our Constitution, used the phrase “all men are created equal,” however, it was understood that “men” meant only white, property-owning males. When drafting and adopting our Constitution, it is obvious that great care was taken to use deliberately non-specific pronouns, such as “people” (11 times), “person” (34 times), and “persons” (15 times) (Mount). Gender-specific terms such as “man” and “woman” do not appear, which lends credibility to the belief that the rights and responsibilities a member of the United States is afforded should equally apply to all persons, regardless of race, gender, class, or any other specifying – and segregating – designation.

We believe, especially with the passage of the Civil Rights Act of 1964, that we have achieved, at least on paper, equality for all. This success has led many to believe the fight is done – equal rights have been secured by all and that discrimination no longer exists in America. Unfortunately (and in addition to our lessons on how institutional discrimination does exist and persist, in the face of ‘laws’ banning it), the protections afforded by the Civil Rights Amendment are limited (“Transcript”). For instance, we assume that discrimination in the workplace has been legally eliminated through its passage; we do not realize these provisions are only for ’employers’ as defined within the 24th Amendment: those establishments with 25 or more employees. Discrimination is legally protected and sanctioned for any company with 24 or less employees. According to the 2004 Census (“Statistics”), 22% of established businesses have less than 20 employees (no data is available for specifically ‘less than 25’); this means it is not illegal in at least 25% of hiring situations to practice absolute discrimination – any employer may hire someone based only upon the applicant’s skin tone, heritage, or sex and may also legally not hire someone, based on the same criteria.

While the Civil Rights Act sought to further redefine and further clarify who was worthy of America’s rights, it did not address the language of The Constitution. Of the 27 Amendments, only six (#7, 8, 13, 16, 18, and 21) do not contain pronoun usage. 17 of the remaining 21 contain deliberately gender-neutral phrasing, including words such as “people,” “citizens,” “person”/”persons,” and “they”/”their”/”them.” However, four Amendments contain very gender-specific wording to specify who, exactly, is afforded rights: Amendment #5 (Trial and Punishment, Compensation for Takings) specifically says “…nor shall (he) be compelled in any criminal case to be a witness against himself…” Amendment #6 (Right to Speedy Trail, Confrontation of Witnesses) states “…to be confronted with the witnesses against him…obtaining witnesses in his favor…Counsel for his defence.” Amendment 25 (Presidential Disability and Succession) deliberately uses the gender-specific pronouns “his” (9 times) and “he” (3 times); as a matter of fact, barring the Amendments, there is only one part of The Constitution that repeatedly and exclusively uses gender-specific terminology: in Article II, Sections 1-4, when referring to the President of the United States. Suddenly, a document filled with thousands and thousands of words, many which are deliberately generic and non-exclusive pronouns, refers to what powers “he” (15 times) will hold  and what “his” (14 times) obligations will be. Just as Virginia is taught that yes, indeed, there is a Santa Claus, she is also taught to believe that yes, indeed, anyone can grow up to be President; she is never told that her Constitution specifically states that only a “he” can.

However, the most troubling presence of gender-specific pronoun usage is in the wording of Amendment 14 (Citizen Rights): out of all the Amendments, this is the only place where specific clarification is deliberately made: three times within this Amendment, it is specified that citizen rights are for “male inhabitants” and/or “male citizens.” This deliberate distinction portends dire consequences, especially in light of a recent published interview with California Lawyer (Terkel). In it, Judge Antonin Scalia, the senior member of the Supreme Court (whose job it is to interpret and apply the principles of The Constitution of the United States), publicly stated that The Constitution and specifically the 14th Amendment do not necessarily afford protections for women and may, in fact, specifically exclude women. The ‘Honorable’ Judge Scalia, an ‘originalist,’ is committed to applications of law based solely on the actual words of The Constitution, and dismisses claims that The Constitution is a ‘living, breathing’ document (“Antonin”).  Not only is this dangerous for any perceived gains made by and for women in the past 235 years, this portends a deliberate and calculated move to deliberately and specifically exclude women from any equal rights. Left to interpret the document strictly on its literal words means that (at least) with Judge Scalia’s (highly influential) position, a woman can never be elected President, as any ‘she’ is specifically excluded by the wording of the Constitution;  according to Scalia’s interpretation, the only right any woman will have is the right to vote, as specifically awarded her in Amendment 19.

Why is this so important? Haven’t ‘we’ grown to believe and accept that ‘equality for all’ means exactly that? Haven’t ‘we’ decided that pronoun usage, regardless of the ease of deferring to the word ‘he’ to refer to ‘all’, is the accepted interpretation? We have spent centuries redefining, remanipulating, and reinterpreting this extremely important document to ensure (on paper) that equality is at least perceived to be available to all people, removing manufactured barriers such as country of origin, race, landownership, and residency requirements (Wolf). Piece by piece, we have dismantled each maneuver intended to preserve and reserve privilege to its ‘intended’ select group. Before and after the Civil Rights Amendment, we continue to use the court systems to ‘test’ the validity of existing applications and continue to enact Executive Orders to further clarify who, exactly, is entitled to equality and how, exactly, it will be delivered.  However, in the face of these accomplishments and advances, we still refuse pass the Equal Rights Amendment, originally introduced 88 years ago, in 1923 (Francis). Almost a century later, we still do not find a need to further clarify that ‘equality for all’ also includes ‘women’. As a matter of fact, by successively and successfully defeating it each session, we go on record declaring that women should be excluded from any further clarifications.

In a day and age when we admit that, on a sociological level, there is still much work to be done to ensure equality for all, we rest assured that, at least on paper, we’ve established laws banning discrimination. We blithely ignore the fact that at least 25% of the time, these laws are not in effect. Conversely, we think the work has been done regarding equality for women; we rest assured that, sociologically speaking, women are seen as equals. Again, we blithely ignore that, even though on paper we (seem to) ban discrimination, on that same paper we specifically state women are excluded; we currently have very powerful law-making and law-interpreting individuals who have already decided women are specifically excluded.

How can we ever achieve equality for any ‘minority’ – Hispanic/Asian, Muslim/Jewish, transvestite/lesbian – in a land that is governed by a document that specifically excludes its majority, by deliberately excluding 50.7% of its population?  What hope can there be for real or perceived equality for anyone when we are ruled by a document that specifically states – and protects – that each and every “she” is excluded?

Works Cited

“Antonin Scalia.” Wikimedia Foundation, Inc. 7 March 2011. Web. 12 March 2011.

Declaration of Independence. Archiving Early America. 2011. Web. 12 March 2011.

Francis, Roberta W. The History Behind the Equal Rights Amendment. ERA Task Force. Web. 12 March 2011.

Mount, Steve. The United States Constitution. Walenta, Craig. 2011. Web. 12 March 2011.

“Statistics about Business Size.” U.S. Census Bureau. 2010. Web. 12 March 2011.

Transcript of Civil Rights Act (1964). Lillian Goldman Law Library. 2008. Web. 12 March 2011.

Terkel, Amanda. Scalia: Women Don’t Have Constitutional Protection Against Discrimination., Inc. 2011. Web. 12 March 2011.

Wolf, Dr. S. Rowan. The Dialect of Social Inequality: Understanding Race, Class and Sex in the United States. Dr. S. Rowan Wolf. 2007. Print.

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