“If It Offends Me, It Must Be Unconstitutional”

Very often, people think that if something offends them, it must be unconstitutional. Exhibit A is the Washington Post’s editorial today on the Town of Herndon’s decision to shut down its taxpayer-funded day laborer center.

Citing an obscure Virginia state court judge, the Post argues that a municipal day-laborer center should not exclude illegal aliens, because “day laborers, even if they have entered the country illegally, are entitled to equal protection of the laws. This is a constitutional no-brainer. As the 14th Amendment says, ‘No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.'”

This is a novel reading of the Fourteenth Amendment. Excluding illegal aliens from services available to citizens may offend the Post, but that doesn’t make it unconstitutional. The Equal Protection Clause has never been construed to mean that the government must extend taxpayer subsidies or welfare benefits as broadly and “equally” as possible.

For example, the government bars illegal aliens from receiving Medicaid and food stamps (although the children of illegal aliens are eligible), and a federal judge upheld the exclusion of illegal aliens from state colleges in Virginia in Equal Access Education v. Merten (2004).

The government constantly discriminates based on countless other characteristics, such as age and geographic origin, as the Supreme Court observed in its Kimel and Garrett decisions. For example, age is a prerequisite for things like drivers’ licenses and social security benefits, even though age is a very imprecise gauge of a person’s abilities and needs. Lawful state residency usually is, and can be, a requirement for in-state tuition at state colleges.

Aside from discrimination based on race, religion, and gender, governmental units generally have a free hand in how they distribute benefits. Such distinctions may or may not be good policy, but they are not unconstitutional, and the proper remedy for such decisions is at the polls, not in the courts.

Ironically, despite its belief that illegal aliens must be treated as “equal” to everybody else, the Post has had no problem with citizens being treated unequally based on their race. It supported the University of Michigan’s use of race in admissions, which disadvantaged white and Asian applicants. It has also endorsed racial set-asides in government contracts. And it supported the race-based student assignment policies of the Seattle School District, which were struck down by the Supreme Court, even though Seattle’s use of race was forbidden by not just the Constitution, but by the express language of the 1964 Civil Rights Act.

These forms of “unequal” treatment do not offend the Post, so it considers them constitutional. To paraphrase George Orwell, all animals are equal, but some are more equal than others.