I’m not a lawyer. I’m not a Constitutional Scholar. I just want to put that out there right now. Now that said, I just read what Supreme Court Justice Antonin Scalia said about the equal protection clause of the 14th Amendment to the Constitution does NOT protect against discrimination on the basis of gender or sexual orientation and I’m left scratching my head.
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.
I’m sorry what? The equal protection clause states:
“Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”
Maybe I’m slow. How does this not protect against sex discrimination? It seems to pretty much cover everyone. Now Scalia is saying that if women want equal protection, we need to pass laws to guarantee what should already be guaranteed? Again, maybe I’ve just been misled about the protections the Constitution affords myself and other citizens. I didn’t even think this was up for debate. Maybe I’m wrong.
Or maybe Scalia is just talking out of his ass.
Scalia says some dumb shit sometimes but this right here? Come on, whether you’re conservative or liberal you should have a problem with that. As a matter of fact, I’d think all these Conservatives who are so mad at activist judges and Government not following the Constitution should be up in arms right now.
But we know that won’t happen. As a matter of fact, I await some conservative to come out and defend this bullshit.
His point is that those who ratified the amendment in 1868 would not have considered it to extend to women or gender protection, which I would say is probably generally true. However, the wording of the amendment doesn’t expressly exclude gender, so his argument is pointless. Devote Constitutionalists refuse to acknowledge that one of the greatest attributes of our Constitution is that it was created with the idea that it could change and grow along with the country as it progresses forward.
Jessica, you’re correct on the first half of your post. You’re incorrect on the second half of your post.
The Constitution was indeed created with idea that it could change and grow along with the country. The avenue by which the Founding Fathers gave us to change the Constitution was the Amendment process. That process has been used twenty-seven times in our nation’s history, but has been used far less in recent decades. Why? It’s because within the last sixty years the concept of the “Living Constitution” has become more widespread. Prior to that time, nearly all judges embraced a Constructionist philosophy. Scalia talks about it more here:
http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm
Now, as far as the specific matter at hand goes, I believe Scalia is correct in a couple different instances.
First, Scalia is correct philosophically. The basis of Scalia’s philosophical opposition is not that women and gays shouldn’t have equal rights. The basis of his opposition is to the procedure used to grant women and gays equal rights. The Constitution does not specifically address these two groups, but the Constitution provides us a means by which to address these two groups through the Amendment process or state legislatures. Scalia believes in both adhering to law as it was intended and in adhering to the democratic method.
Second, Scalia is correct historically. The 14th Amendment is currently used by judicial proponents of the Living Constitution theory to apply it’s protections to women and homosexuals. But was that really what the 14th Amendment was about? No. The Reconstruction Era Amendments were an attempt to address the discrimination against black people, and namely black men. The question is what “citizen” stoood for in the 14th Amendment. Sadly, citizen as defined in those times meant men only. Sure women were considered citizens (small c), but if they were considered full Citizens (big C).
A simple way to see that is to look at the language of the 19th Amendment. The 19th Amendment in 1920 that gave women the right to vote, and it specified “sex”. Here’s the text of the 19th:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
If “sex” was meant to be considered under the 14th Amendment, then why did Congress specify it fifty years later in the 19th Amendment? The 19th Amendment also shows that the idea of the Constitution growing with the times is a fairly new belief. If it wasn’t a fairly new belief, then why didn’t the 1920 Congress merely say that women already have the right to vote based on our “Living” reading of the 14th Amendment? The answer is because judges and politicians didn’t embrace the Living Constitution concept at that time.
Scalia is talking about procedure and history. Scalia is not saying those two groups shouldn’t have rights.
“As a matter of fact, I’d think all these Conservatives who are so mad at activist judges and Government not following the Constitution should be up in arms right now.
But we know that won’t happen. As a matter of fact, I await some conservative to come out and defend this bullshit.”
I just did.
And I don’t get your conclusion that “Conservatives who are so mad at activist judges and Government not following the Constitution should be up in arms right now.” Scalia is saying that other judges have been activist in their Constitution interpratation and have ignored Consitutional intent as written. Scalia is arguing the exact opposite position that your conclusion puts on him.
The problem with Guest’s argument is that conservatives do not apply their constructionist principles evenly across the entire Constitution, namely, the right to bear arms. I would think most scholars would agree that this right was inserted primarily to allow the newly independent citizens the right to protect themselves against oppression from another government, not other citizens. A constructionist reading now would then in theory not expressly call for the right for each citizen to bear arms, but instead “the people,” meaning some collection of citizens, properly regulated. If ‘citizen’ meant white or black man in the 14th amendment, I would think people would not mean citizen in the 2nd.
A wikipedia excerpt
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”