Calvin Massey interviewing Justice Scalia for 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.
Max Fisher at The Atlantic with the round-up
Amanda Terkel at Huffington Post:
For the record, the 14th Amendment’s equal protection clause states: “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.”
Marcia Greenberger, founder and co-president of the National Women’s Law Center, called the justice’s comments “shocking” and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.
“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” she said. “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011. It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”
Greenberger added that under Scalia’s doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools — all things that have happened in the past, before their rights to equal protection were enforced.
HuffPo headlines: “Women Don’t Have Constitutional Protection Against Discrimination.” The writer, Amanda Terkel, quotes the 14th Amendment, and concludes, with unironic textualism: “That would seem to include protection against exactly the kind of discrimination to which Scalia referred.” Thanks for the analysis, Amanda.
Terkel also called up Marcia Greenberger, founder and co-president of the National Women’s Law Center, who professed to find Scalia’s opinion “shocking” — even though he’s been saying it for at least 15 years.
Scott Lemieux at Tapped:
Scalia has never been consistent about applying the principles expressed above. Nobody who voted for the 5th or 14th Amendments thought that they were prohibiting affirmative action, and yet Scalia has found that both amendments prohibit affirmative action in virtually all circumstances. Scalia also believes that Brown v. Board was correct, although very few of the persons who voted in favor of the proposal or ratification of the 14th Amendment believed that it prohibited racial segregation. When the originalist principles outlined above clash with (rather than reinforce) his political preferences, Scalia has no problem ignoring them.
Scalia’s answer when it comes to gender? That while the framers and ratifiers of the 14th Amendment did not think they were outlawing affirmative action or school segregation, they did think they were outlawing racial discrimination; they didn’t specifically discuss gender discrimination. The problem with this response is that Scalia’s choice to stop at this particular point on the ladder of abstraction is completely arbitrary. Scalia has already made clear in other cases that he doesn’t think that the concrete expectations of framers or ratifiers are binding. And the 15th Amendment demonstrates that the framers of the 14th could have limited the equal protection clause to racial discrimination, but they did not. So what basis does Scalia have for being certain that the 14th Amendment permits gender discrimination?
He doesn’t. Scalia’s belief that the 14th Amendment does not prohibit gender discrimination is a political choice in no way compelled by the text of the Constitution.
Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That’s not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination– discrimination in basic civil rights against single women.
Moreover, the Constitution was subsequently amended. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment’s guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children’s Hospital, decided immediately after the ratification of the Nineteenth Amendment.
Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution’s framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964’s ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia’s arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today’s world. That is to say, he doesn’t really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.
Second, if Scalia had really wanted to be faithful to the expectations and assumptions of the the adopters of the Fourteenth Amendment, he had no business joining the opinion in Bush v. Gore, because the Amendment was not intended to change state rules concerning the right to vote.
During the interview Justice Scalia says that he doesn’t even need to read the briefs to know what originalism permits, requires or forbids; but I would respectfully suggest he needs to read a bit more history.
Gee, Scalia must hate women.
Except that the headline is a good example of a half-truth. Scalia’s point is the fairly standard originalist view that the 14th Amendment does not broadly apply to prohibit all forms of discrimination on the basis of sex. Either sex. It does not protect men against discrimination on the basis of sex, either. The Supreme Court decision in Reed v. Reed, 404 U.S. 71 (1971) is read by some as offering broad protection on the basis of sex, but that is an overreading of a fairly limited opinion in which the Court found no rational basis for a state law giving preference to males in the appointment of estate administrators. Other cases after Reed have applied a more strict scrutiny approach. I assume Scalia disagrees with the Reed decision, not because he doesn’t like the result, but because of the approach; this difference in approach does not make Scalia wrong, or hostile to women as the HuffPo headline suggested.
Scalia’s view is neither novel nor new. That the Constitution does not address discrimination on the basis of sex as such was evidenced by the ultimately failed attempt to amend the Constitution to add an Equal Rights Amendment which would have added this provision: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”
Cat White at Scholars and Rogues:
So how important is the Constitution for protecting people’s rights? Apparently not very. Scalia goes on to say, “You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.”
Unless you happen to be a corporation. Scalia et al continued the practice of defining corporations as persons with equal protection under the 14th Amendment (there is an article here on the history and meaning of the practice here–in short, define which “persons” are “citizens” and then grant protection to “citizens.”) Corporations are, of course, “legal persons” endowed by their creators with perpetual life and by the courts with inalienable rights by the 14th Amendment (as opposed to us “natural persons” who have limited life and apparently limited protection against discrimination by the 14th Amendment).
Apparently, “natural persons,” or at least female “natural persons” only need the protection of the laws, as Scalia said about the limits of the Constitution, “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 who else does not need the additional protections of equality? Perhaps workers over 40, African-Americans, gays and lesbians?
Did corporations really need to be given the rights to control our elections through donations? What’s next, the corporate right to vote? Oh, right–they’d only get one vote that way, much better to control the whole process through funding.