Supreme Court Justice Antonin Scalia is a constitutional originalist who interprets the constitution based on what he believes its authors meant—you know, without pesky things like "protection against discrimination on the basis of gender or sexual orientation."
Surprise, surprise! There is no line in the Constitution that reads, "ATTN: ANTONIN SCALIA JUST SO YOU KNOW WOMEN ARE AFFORDED THE SAME CONSTITUTIONAL PROTECTIONS AS EVERYONE ELSE FYI," so Justice Scalia is pretty confident that no such protections exist. And, hey! Don't complain to him—you want to protect women, pass a goddamn law. He's busy! From an interview in California Lawyer:
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.
So good to know that Chief Justice Warren Burger and the other eight justices on his court were wrong when they ruled the other way in 1971! This is not, of course, a surprising take on the Fourteenth Amendment from Scalia, but it's always nice to see him talk about what an asshole he is. (And, hey, why aren't we interpreting the Second Amendment the same way? "Arms" didn't mean semi-automatics to Thomas Jefferson!)
Oh, well. In case you want to write a little bit of Supreme Court ruling fanfic, here's the Fourteenth Amendment's equal protection clause:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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."
It's not like anyone was talking or thinking about women's rights when the amendment was ratified in 1868, so obviously no one thought women would be included in the categories "citizens of the United States" or "any person." Oh, wait, the Seneca Falls Convention was held 20 years earlier? Whatever.
[California Lawyer via HuffPo]
Send an email to Max Read, the author of this post, at max@gawker.com.
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