Women fall within the category of “any person”
California Lawyer published an interview with Scalia in January 2011.
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.
Lenora M. Lapidus at the ACLU Women’s Rights Project said he was wrong.
His comments fly in the face of 40 years of Supreme Court precedent. Since the 1971 case, Reed v. Reed, it has been clearly understood that the 14th Amendment prohibits discrimination based on sex. In decision after decision, many authored by conservative Supreme Court justices, this principle has been reaffirmed.
Indeed, the text of the Constitution simply states that the government shall not deny “any person” the equal protection of the laws. The 14th Amendment does not specifically mention race and the language is intentionally broad. Clearly women fall within the category of “any person.”
Scalia’s views are extreme and out of step with the mainstream. He says that nothing in the Constitution prohibits discrimination against women; rather, it is up to legislatures to ban discrimination if they so choose. However, the Constitution provides a safety net to protect against the will of the majority when fundamental rights — such as the right to equal treatment — are at stake.
If the Constitution did not prohibit discrimination against women, the government could treat women like second class citizens in a wide range of areas. States could legally bar women from serving on juries, women could be prohibited from owning property, the government could pay women less, and women could be excluded from public schools — all things that happened in the past, before women’s rights to equal protection were enforced.
The equal protection clause is a big deal, and if it doesn’t cover you, you’re screwed. Scalia’s eccentricity on this is a little shocking.
Eccentricity is a kindly word choice.
Back in law school, I once asked whether, under an original intent theory of jurisprudence, we could completely reverse the meaning of a constitutional clause by amending it to say exactly the same thing it already says.
Never got a clear answer on that.
I mean, the answer is yes, obviously. Scalia’s right that nobody in the 1800s (save a few women’s rights activists who are historically noteworthy precisely because of how thoroughly they were ignored) was thinking that the 14th and 15th amendments guaranteed women the same legal rights as men. But the language seems to do it, and a lot of modern people look to it and interpret it as doing so. Which entails that, under naive originalism, if those amendments were passed today, they would work the way modern people think they should work based on their wording.
It’s simple: he was a vile man.
What I always wondered about Scalia was, 100% wrong as he was on almost all issues, how was he ever allowed to graduate law school?
Certainly if his major had been computer science he would have been unemployable.
Because his wrongness isn’t as objective as is sometimes claimed. “If the law meant X to the society that passed it then it continues to mean X until it is amended” isn’t objectively untrue. It’s just a subjective claim about the proper way to interpret legal meaning and legitimacy, with it’s own positives and negatives. The same is true of “the law is what it is even if we hate it,” or “we should interpret laws via the way their wording would have been interpreted by a linguist at the time the law was passed” or “I don’t consider that precedent you love to have been validly decided on the first place so I’m not going to give it much credence.”
Of course the negations of those sentences have their own positives and negatives as well.
Constitutional scholarship is a lot less objective than people think.
The cases where I think Scalia can be validly called out as objectively in the wrong are rare, and mostly involve church/state matters where the wrongness is related to factual rather than legal claims. And factual issues are rarely decided at the Supreme Court level.
When Scalia interpreted the constitution, it was all about the intent of the framers. From the NYT obit
But when Scalia interpreted statue, it was very much not about the intent of congress. From the same obit, three sentences later
Did he have any principled reason for this difference?
The obit got it wrong. Scalia was strongly critical of founding father centric originalism. He preferred an originalism focused on the meaning of the words of a statute or constitutional provision, as they would have been popularly understood within the society that enacted the text into law. When he talked about what a text originally meant to actual historical people, it was generally in a more abstract, societal, consensus based sense. Some people claimed he wasn’t always completely consistent in this, but this was officially his approach.
I’m pretty sure I once saw him refer to founding father centric originalism as a straw man of real originalism (I know he said this in a general sense but forget exact wording).He probably wouldn’t enjoy most of our national conversation about his legacy. And in a way… I’ve always felt that the straw man comment perfectly encapsulates the type of partisan he was. In a world filled with conservatives who prefer founding father centric originalism, he responded to that fact by lashing out at liberals for taking it seriously.
This whole “original intent” stuff sometimes strikes me as a bit of a fetish.
At a raw linguistic level, we do need to know what the words mean. For example, the 2nd amendment begins
I never understood what “well regulated” means in this context until just recently, when I read somewhere that it means “in good working order”.
But trying to settle contemporary controversies by parsing the “original intent” of the framers is a fool’s errand. For one thing, I am not convinced that any such original intent truly exists. I do not believe that the people who drafted and ratified the constitution and amendments necessarily had a common understand of its meaning. In fact, I suspect that there are things in the constitution that were ratified not despite, but in fact because, different people had different understandings of what they meant.
The original constitutional compromise between north and south over slavery rested not on differing ideas of what that compromise meant, but on differing expectations of its effect. The north thought that slavery would become less important over time; the south thought that it would retain the political advantage of a greater population. The industrial revolution invalidated both assumptions. Slavery became economically more important to the south, while urbanization swelled population in the north. In the end, that compromise became untenable.
Well, those are all criticisms with which Scalia would agree. Your second to last paragraph might as well be a Scalia quote, and summarizes why he rejected citation to legislative history or the individual writings of specific founding fathers. Whether his resolution of those problems is successful is debatable, but he would tell you that this is why he focuses on the meaning of the text itself as understood at the time the text was passed into law, and prefers to cite only to the general consensus of the relevant era, and even that only in a supporting role.
Personally, I’m always suspicious of efforts at creating a sort of gestalt “opinion of society” to which specific views are ascribed. I tend to find that this sort of abstraction is usually done in order to put questionable words or opinions into that gestalts mouth. But I understand the basics of what Scalia is up to. Constitutional interpretation tends to be very based upon our decisions about what sorts of things matter for legal legitimacy. Unfortunately, half the things that make legal decisions seem legitimate or illegitimate contradict the other half. Scalia put a lot of emphasis on basic principles like “don’t tell me what the legislature meant to write, tell me what they did write,” or “words are signifiers, and while what they signify might change over time, the law is in what was signified, not the symbols used to signify it.” And those aren’t bad principles. They’re just not the only principles. There are others that can be leveled in their opposition.
There is no objectively correct theory of constitutional interpretation.
The campaigners for the 14th amendment, while addressing primarily the matter of citizenship for blacks, were also largely for women’s rights, too. There was a huge split at the time between those who wanted to finish the rights for blacks work they had started as abolitionists and the ones who wanted to focus on women’s rights, but what if the ambiguity on sex in the 14th Amendment, the use of the word persons, was MEANT to be a backdoor to women’s rights?