Thursday, January 06, 2011


I've had the links to Scalia's statement concerning the 14th Amendment not applying to women or to gays and lesbians for a while but I haven't written anything about it, mostly because anyone who already didn't know what Scalia thinks about women must have just arrived from some other planet. Likewise, anyone who didn't realize that the Republican seeding of the Supreme Court is partly aimed at keeping wimminz in their proper places must also have come out of outer space.

But people are talking about it, perhaps because Scalia has also made friends with the tea partiers, so it's worth looking at what he said

First, here's the first section of the 14th Amendment:
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.

Second, here's Scalia:
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 guess this is what an originalist interpretation of the Constitution and such means: A "person" or a "citizen" is a man. It also means that a Supreme Court made out of nine Scalia clones would gladly regard women as some sort of second class non-citizens.