We are the 99%

January 4, 2011

Scalia: Constitution does not prohibit discrimination against women


Via HuffPo:
In a newly published interview in the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn't itself outlaw that behavior:
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.
Here's the relevant part of the 14th Amendment:
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.
This would mean that either Scalia believes that women still aren't "persons" or "citizens" or that since discrimination was allowed against women when that amendment was written they still don't have rights. You know, the same way that he believes that the 2nd Amendment only allows people the right to own muskets and cannons. Right.

Apparently Scalia said something similar back in September. Cenk Uygur of The Young Turks points out his hypocrisy when it comes to being a "strict constitutionalist" here:


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5 comments:

paddymurphy said...

While I disagree with Scalia on so many issues, his views on this are literally correct. When the 14th Amendment was written, debated and passed it was not contemplated that women or gay people would be protected by its Equal Protection clause. That being said, he is wrong to conclude that we are bound, today, by what the authors of the 14th Amendment intended. This originalist view of the constitution is intellectually bankrupt. Nowhere in the Constitution is it written that the words used therein are to be construed, for eternity, based on how they were construed by those who wrote those words.

Heir to the Throne said...

he believes that the 2nd Amendment only allows people the right to own muskets and cannons. Right.
I am sure that the gun grabbers in DC, NY and other big democrat controlled cities have confiscated muskets.
You don't understand that Modern Firearms are just more advanced version of muskets and cannons.
So you are saying the First Amendment only applies when something is spoken in public or created on a manual printing press?
Using that logic the left can ban "hate speech" on TV, in newspapers or posted the Internet?

Maria Lupinacci said...

"So you are saying the First Amendment only applies when something is spoken in public or created on a manual printing press?"

No, I'm not saying that. But if you follow his logic, Scalia must necessarily agree with that. Otherwise, he's a huge hypocrite.

Pgh_Knight said...

I know this will shock you, but I read this differently.

Section 1. you cite applies to the states... "No State shall make or enforce any law..." "nor shall any State deprive..." "...nor deny to any person within its jurisdiction the equal protection of the laws."

No where does it say that individuals or businesses can not discriminate all they want.

The point is, that the States have to pass the laws.

Piltdown Man said...

I'll raise this issue again, which I've ranted about before.

I truly believe that Supremes should be enjoined from flapping their gums outside The Court. They should NOT be able to give speeches, write editorials or otherwise blather their "opinions." Is that too much to ask for people who have permanent job security and who rule on incredibly important issues which effect over 300-million souls? No.

Hell, most corporations don't allow their people to speak unless through their press arm -- and the SCOTUS should be no different.

Basically, I just want them to STFU!