Justice Scalia Thinks the 14th Amendment Applies Equally To All Hetero Men.

Amanda Terkel notes a quite astonishing interview with Justice Scalia from the 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.
Hmm, here's the language from the 14th 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.
So that must mean women are neither "citizens" or "persons"?

Maybe Representative Maloney is onto something.

(Native Americans, don't even think about it.)

Either way, I'm sure glad I saved the button!


  1. Ah, correction -- that's all "land-owning" heterosexual white males, thanks!

  2. 3/5 compromise best part of constitution to Scalia

  3. The meatball man is stealing your material.

  4. Scalia needs a superannuated enema applied equally.

  5. ... with liberty and justice for all land-owning white heterosexuals...

  6. I hope he adopts the same position when health care reform lands on his lap. My sense is that he will be far less deferential to that "law" despite the fact that it was enacted by a "legislature."

  7. Public buildings no lomger have restrooms marked "white" and "colored." There are restrooms marked "men"and "women." Race discrimination is a matter of equal protection. Sex discrimination simply is not.

  8. “When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean so many different things.”
    “The question is,” said Humpty Dumpty, “which is to be master that’s all.”

    Obviously, white, land-owning heterosexual males are to be master.

  9. Beowulf is right, there is a legitimate argument to be made there, but I haven't seen it articulated much post Reed v. Reed in the early 70s.

  10. First, The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

    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.

  11. @ 2:34

    There are family restrooms that accommodate both sexes, and unisex bathrooms that do the same. I've never had a problem with either. It's a standing rule in most gay bars that you simply go to the room with the shortest line. But the 14th deals with a lot more important shit than where you take one.

    When there are only restrooms for one sex and none for the other, than your observation may have a point. Until then, try again.

  12. Did Scalia get buggered by some priest when he was a little tortelini?

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