Marty Ingels jumps on Tom Leykis

If you had been a witness to the 39th Congress' debate on the Civil Rights Bill of 1866, you almost certainly would have said to yourself, "One day this will end very badly. One day this will open the door for Marty Ingels to sue Tom Leykis for age discrimination."

The Congress that wrote the Fourteenth Amendment took some anti-discrimination language out of the Civil Rights Bill of 1866 just before the final vote. The lawmakers were worried that the words might lead the courts to a "latitudinarian construction" that was "not intended," specifically, that the courts might say Congress had meant to ban racial discrimination.

This they most certainly did not intend to do.

That's why the Supreme Court handed down rulings like Plessy v. Ferguson, saying the Constitution didn't require anything more than separate but equal.

The Brown v. Board of Education decision in 1954 made up a new standard that said, in effect, discrimination that makes people feel badly about themselves is not only undesirable, it's unconstitutional.

And now comedian Marty Ingels is suing radio talk show host Tom Leykis for age discrimination because Leykis told him on the air that he was too old to be on the show, called him "Pops," and suggested that he call a Big-Band station with a different "targeted demographic."

So far the courts aren't buying it, but you never know.

The Constitution has never been amended to ban racial discrimination or gender discrimination and that's why people can fly into court with any wild claim of discrimination and take their shot at legal greatness. Every constitutional "right" to be free from discrimination -- whether by race, gender, age, disability, looks, weight, health, national origin, immigration status, or "targeted demographic" -- is grounded not in the text of the Constitution but in an interpretation of "due process of law" and "equal protection" that was pulled out of the air.

So on any given day, a federal judge somewhere in America might look favorably on a discrimination claim and wreak havoc with private businesses that are just going about their business, exercising their own rights to make decisions that benefit their own interests.

Just the fear that a judge might rule in favor of a claim, no matter how groundless, is enough to cost businesses vast amounts of money in legal fees for forms and disclaimers and employee handbooks and sensitivity training.

Think how much simpler it would be if we amended the Constitution to say, in plain language, that there shall be no discrimination on the basis of race or gender. Then no one would have to fear that the new Supreme Court justice will lead the Court to roll back civil rights or turn back the clock on women's rights.

Imagine how much quieter this summer would be if the Constitution actually said, in plain language, that a woman has a right to privacy in the first trimester of her pregnancy and a fetus has a right to life in the third.

We're paying the price for decades of allowing the Supreme Court to amend the Constitution for us. It may have seemed like a good idea at the time but it's not what the Framers had in mind, however much Ben Franklin might have wanted to call Leykis 101.


Copyright 2005

For complete source notes on the debate over the Fourteenth Amendment and the Civil Rights Bill of 1866, and the later Supreme Court rulings, please see the appendix to The 37th Amendment, online at http://www.ExtremeInk.com/appendix.htm.
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