Scalia: Women, Gays Aren't Citizens Who Deserve Equal Protection


Please let me be the first to point out Scalia didn't actually say "Women, Gays Aren't Citizens Who Deserve Equal Protection." All he said was the 14th Amendment doesn't specifically address the issue of gender or sexual orientation discrimination.

Of course, the 14th Amendment doesn't specifically mention black men, either. The only specific groups of people the Amendment calls out are:

males over 21 years of age
untaxed indians

The amendment does not clarify whether untaxed indians include guest workers from India.
He's actually correct (and so is @1): None of these things are actually addressed in the constitution. However, our beloved Supreme Court has a long and (maybe not-so) illustrious history of making up things that aren't in the constitution and somehow finding a way to justify it anyway - if not making up things that go completely against what's in the constitution - so this doesn't really mean much.
Fucking papist! It's nothing short of bizarre to say equal protection doesn't apply to women and LGBT citizens. By his standard, slavery would still be legal. This is the kind of lunacy the Republicants give us when we vote for them. A society that never advances beyond the fourth century. I call on his gay child to come out of the closet, because I'm guessing he has one. Make it personal!
What do they say over at Democracy Now?
I'll bet Congress wasn't thinking of semi-automatic handguns when they wrote the 2nd, so I guess the right to bear arms only applies to front-loading muskets?

Congress probably wasn't thinking of internet, radio or TV when they wrote the 1st, so I guess the right to free speech only applies to pamphlets and newspapers?

Heck, Congress certainly wasn't thinking of Scientology, so I guess freedom of religion only applies to religions that predate the bill of rights?
"No State shall make or enforce any law which shall... deny to any person within its jurisdiction the equal protection of the laws."

That's in the Constitution.

"Any person" means "any person," which would seem to include women and gays. Therefore, the Equal Protection clause applies to women and gays. This is not some leap that the court made. It's right there.

This is extremely simple. But lots of "strict construction" types seem to like their imaginary Constitution better than, you know, the actual one.
Let me also point out the absurdity of the "strict construction" argument in this context.

These people say that the Constitution is this fixed document that establishes timeless principles. As societies change, we then apply those timeless Constitutional principles.

Then, when we pass a Constitutional amendment that says "all citizens are entitled to equal protection under the law," they say we can only apply that to whatever notions of equal protection were at the time -- even if that's nowhere included in the text.

Either we believe in free speech or we don't, for example. The First Amendment says we do, but it does not specify that non-property-owners have the right to free speech. By this "logic" we'd have to pass a law explicitly stating that they do instead of just applying the obvious principle. Absurd.

Also, what RiOrius said.
You know, there is no explicit language in the
constitution banning discrimination against guinea pope-worshiping dagos. So I guess if we want to pass the "Wop Control Act of 2011", Justice Scalia would have no objection as he is frog-marched to the internment camps.
When can this motherfucker be impeached?
Adam Cohen, in Time magazine, points out that Scalia is a little unfocused here. Scalia wants to be an "orginalist" (sticking to a strict interpretation of the Constitution) and yet he gave life (and rights) to corporations but won't to women and gays? And he had no problem using the equal-protection clause to protect Bush in Bush v. Gore and yet a correct interpretation of that clause would have been to protect the black Floridians and their votes.

The Constitution is a living, breathing document. Our founders did not use words like "due process" and "freedom of speech" and equal protection" just to fill up the space or get to X number of words.
So you guys think that music teacher in Alaska should get equal treatment then?

Let's be clear: the Fourteenth Amendment, as @6 points out, refers to ANY PERSON. That includes (and was explicitly intended to include) non-citizens.

The Fourteenth Amendment could have said "no state shall discriminate on the basis of race." It didn't. It established a far broader equality norm. Scalia, being what Anthony Weiner might call a "wholly-owned subsidiary" of the Republican Party, is not seriously engaging in any kind in textual analysis: he is taking his own rabid social conservatism and reading it into the Constitution, at the cost of either denying that women and gays are persons or denying that the Framers of the Fourteenth Amendment were capable of actually stating what they meant.
Oh Scalia. As if the ghosts of the long dead 40th Congress are somehow offended that their precious 14th Amendment was being interpreted in ways they didn't vote for.

Well I didn't vote for ANY part of the Constitution, but it still controls me. Maybe I WANT King George to quarter troops in my cabin. But if the general and typically vague wording of the amendments are being interpreted in such a way that the government is forced to stop being such a dick to people then, hey, I'm ok with it.

Unlike Scalia apparently.
I could try to write something clever but that's just too fucking retarded.
Overall, Constructivism seems like great hypocracy, used to justify some prejudice or restriction on rights by an empowered group. When it comes to really interpreting the will of the Founding Fathers, they seem to turn a deaf ear, as I have written in this essay on intellectual property:

Article I, Section 8, Clause 8

For all the people who go around claiming to be Strict Constructivists with regard to the Constitution, they tend to ignore much of its intent...specifically that it is a document, along with the Declaration of Independence, that upholds and affirms the rights of individuals. protect their rights in the face of an overpowering organization...not the other way round.


The recent fights in upholding patent laws with regard to software display not the remotest regard with the protect the individual inventor. Nowhere, in all the litigation, is the inventor a part of the claim, the credit...or the reward.…
I'll make sure to bring up this scenario the next time someone regurgitates the ol' "if elections were important, they'd be illegal" argument, this is why voting, participation in politics, being informed, getting involved, etc. matters.
@4 "Hello, welcome to Democracy Now, Democracy Now: The War and Peace Report, I'm your host Amy Goodman."?
@17, I meant to put that on the cake-v.-pie thread, not that that's much better...
Welcome to The Best Supreme Court Money Can Buy!
Get YOURS before the sale ends!
But WAIT! Call in the next 16 minutes and we'll give you TWO decisions for the price of ONE!
And we'll throw in TWENTY-FIVE additional lower court decisions for NO EXTRA COST (shipping & handling charges apply)!

Hey, Scalia, et al., go fuck yourselves. And tell everybody I said so, too.
@1 and @2: No. What Scalia said was, "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't." That's not a superfluous historical observation. He's not just noting that the word "women" doesn't appear in the text. He is literally and explicitly saying that the Constitution does not prohibit discrimination against women.

It's frustrating when people respond to insanity like this by pointing out that "technically, he's correct". Even among people who disagree with nutjobs, there's always a group that rushes to justify their nutjob rants by pointing to the tiny kernel of truth buried in the mountain of bullshit. But that one superficial truth does not justify the bullshit conclusion Scalia is spouting. Nor does the historical fact that women weren't legally considered persons in 1868 negate the holy-shit-duh fact that in 2011 they are.

"Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." We can disagree all we want about Constitutional interpretive philosophy, but it is simply insane to argue that in 2011, that sentence does not apply to women.
I have said before and I will say again that Constitutional literalism is a doctrine of cowards and a paper shield for racists. It presumes both that the Founders had no intention or purpose - to which we can look for guidance in application - when writing the document, and that the people they represented when doing so had no motivation either; and that neither the Founders nor the people had the faintest trace of foresight, meaning of course that the generalisms and deliberately broad language of the document must have been softheaded lack of specificity rather than accommodation for the inevitable changes time would wreak on the then-new nation.

Scalia is half a man. He has only the capability to hate and destroy. I don't know what became of his vision, optimism, and capacity for love, but they've been missing for a long time.
@13- You can quarter all the British troops you want, you just can't be forced to do so. That's the beauty of democracy.
Stranger riding the hyperbole train! Choo choo.

Go find some news you don't need to tell complete bullshit about that's worth posting. Isn't that what you're supposed to do, find news? Not just overblown copypasta?

This sort of shit is why liberals still get called idiots. Some of us can be really dumb sometimes.
@24 I believe the pediment on the front of the Supreme Court of the United States says it all:
"Equal Justice Under Law"!!!
Scalia's analysis here is such a pile of crap. The Constitution was written in broad strokes--"due process" rather than a laundry list of specific procedures, "denied the equal protection of the law" rather than "denied equal treatment based on race." If they'd wanted to ban race discrimination but leave intact other forms of pointless bigotry, they would've said so. They didn't: they drafted the Fourteenth Amendment in sweeping terms, to declare the humanity and full citizenship and legal equality of every person (nb, not "man") born or naturalized in the United States. Courts have interpreted this to ban a wide range of crazy bullshit, not just the particular forms of crazy bullshit explicitly contemplated by the drafters--just like they interpret "due process," another fuzzy wuzzy term, to bar unfair procedures not yet imagined at the time of the adoption of the Fifth and Fourteenth Amendments.

There are good practical reasons we read broadly: much like subsequent generations of elected officials, the dudes who drafted the Fourteenth Amendment were dicks. At the time, Congress was perfectly comfortable discriminating against the Chinese. A narrow originalist analysis would suggest that, while Mississippi has to treat black and white people on equal terms, they're allowed to have no-Chinese-allowed public pools (or public schools). But that's not what the Amendment says and it's not what the Amendment means. Scalia's trotting out a fictitious conflict between kooky liberal activists and grownup, law-abiding conservatives. Don't buy it. Where the plain text of the Constitution and the spirit of the drafters conflict with his discriminatory policy preferences, he's willing to ignore both.
So it appears by reading a wide array of blogs that many constructionists are horrified that the Constitution has become corrupted by the inclusion of women in the 14th amendment and adding gays to the mix will be it's downfall. Oh whahhhhhh. Women and gays don't have to go through years and years of political crap to be included in the equal protection clause. They get precedent instead. Whahhhhhh. They are not second class to us. Whahhhhhhh. Well tough crap. If the 14th amendement only applies to straight men the document is so flawed that it should just be chucked and they can go to their legislatures or the voters for their rights just like the rest of us. Fuck em.
@1, 2: More to the point, if Congress had meant to specifically address the issue of race in the 14th Amendment, they could very easily have done so. In fact, the very next Constitutional amendment specifically does address "race, color, or previous condition of servitude." Now, I think originalism is a load of crap (not in least part because it's entirely disingenuous), but even if you accept the premises of originalism, you have to consider the fact that the 14th amendment was written in extremely broad terms. Pretty doubtful that this was a matter of pure sloppiness and/or lazy drafting. Even if equal protection of women, gays, etc. wasn't specifically within the 1868 Congress's contemplation at the time, the fact that the 14th Amendment was drawn so very broadly (as opposed to the 15th Amendment) probably wasn't an accident either.

Neither "person" nor "equal protection of the laws" is specifically defined within the text of the Constitution. Meaning that, sorry Nino, the meanings of those words will necessarily change over time. Scalia himself, after all, has written in opinion after opinion that words are ordinarily given "their most common meaning." Which leads to the conclusion that "any person" must at least now include women and teh ghey.

Besides, Scalia is constantly railing against the use of legislative history and the chimera of Congressional intent. Why is discerning the intent of the 1868 Congress somehow more legitimate than discerning the intent of today's Congress? If anything, the latter would be more clear and readily applied than the former.

(@ 5280 - I know you weren't justifying Scalia's approach so much as making a comment about how the Constitution has always been subject to interpretation. Which is, of course, totally true.)