In an interview with California Lawyer, Supreme Court Justice Antonin Scalia argued that the US Constitution does not guarantee a woman’s right to equal protection under the law. If you’re familiar with Scalia, this probably doesn’t surprise you.
Here’s the skinny. When asked whether the “equal protection” clause in the Fourteenth Amendment has been falsely applied to matters of discrimination based on sex and sexual orientation, Scalia heartily agreed.
Here’s what he said:
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.
But that’s exactly what Susan B. Anthony (among many others) thought it meant.
Scalia’s hang-up is the fact that women—and gays—are not explicitly mentioned in the amendment. While federal laws preventing discrimination are not unconstitutional, they aren’t exactly constitutional, either.
Scalia has made this argument before. He seems to fancy himself a bit of a telepath—a time-traveling telepath. It seems that the Fourteenth Amendment guarantees only what Scalia imagines its writers thought—regardless of what they actually wrote—it should: a tricky feat of psychoanalytic historical criticism. But such is the lot of the originalist.
Here’s the pertinent part of the Fourteenth Amendment:
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.
You might imagine—as most English speakers would—that “any person” means “any person.”
I think Scalia is confused about the inherent gender-inclusiveness of the word “person.” Maybe he believes that in 1868 a legislator writing “person” could only be referring to men, since the modern concept of gender inclusiveness would have been a mere figment of liberal futurist dreams. But that wouldn’t be true, since gender inclusiveness was the basis for Thaddeus Stevens’ 1866 Petition for Universal Suffrage.
But Stevens was denied, and so was Anthony. The language was kept broad (and inclusive) deliberately.
In making this argument, Scalia undermines some of the most important civil rights decisions of the last 140 years. The Fourteenth Amendment formed the basis for the Fifteenth, Nineteenth, and Twenty-Sixth Amendments, the landmark case Brown v. Board of Education, and also a little piece of legislation called the Civil Rights Act of 1964.
For Scalia, originalism is more than a method, it’s a lifestyle. When California Lawyer asked him about his pizza preference (leave it to Californians to ask a Justice about food), Scalia remained true to his New York-Sicilian roots: Washington pizza sucks; Chicago pizza isn’t really pizza. “I’m a traditionalist,” he offered.
At least he’s consistent.
—Photo via Wikimedia Commons