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Posted at 9:08 AM ET, 01/ 4/2011

Scalia: Constitution does not protect women against discrimination

By Emi Kolawole

Justice Antonin Scalia has weighed in on the 14th Amendment to the U.S. Constitution, leaving women's rights activists seething.

In an interview with California Lawyer, Scalia said that the Constitution itself does not protect women and gay men and lesbians from discrimination. Such protections are up to the legislative branch, he said.

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.

This is not the first time Scalia has weighed in on the 14th Amendment as it relates to the protection of women's rights. In September, Scalia told an audience at the University of California's Hastings College of the Law that, "If the current society wants to outlaw discrimination by sex...you have legislatures."

In 1996, Scalia was the only justice to dissent in the Supreme Court decision that ended the 157-year tradition of state-supported, all-male education at Virginia Military Institute. In his dissent in the case United States v. Virginia, Scalia wrote:

...the tradition of having government funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law.


(Source: California Lawyer)

By Emi Kolawole  | January 4, 2011; 9:08 AM ET
Categories:  44 The Obama Presidency  
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Comments

"the tradition of having government funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law."

Brilliantly said!

Posted by: Volubilis | January 10, 2011 3:10 AM | Report abuse

The notion that the Constitution does not protect the majority of the people in this country from discrimination is utterly ridiculous. Such a document would have no credibility. Scalia is a misogynist and bigot. Among other things.

Posted by: windyjammer | January 9, 2011 9:10 AM | Report abuse

Perhaps Justice Scalia just got his Amendments mixed up; clearly the 15th Amendment was meant to discriminate against women and the right to vote. Not only does it not mention sex (or gender) but was corrected by the 19th Amendment. Give the guy a break, I went to work with two different colored socks on once...

Posted by: dowhatsright181 | January 7, 2011 5:15 PM | Report abuse

Scalia exhibits the most pernicious form of judicial activism, making of himself an Oracle of the Constitution’s meaning. Yes, slavery was on the minds of all when the 14th amendment was passed. But the words of the Constitution promise not only former slaves but “any person” “equal protection of the laws.” One can easily imagine that a sufficient consensus was built around those words by including people with a variety of motivations: some cynically expecting nothing to change, some starry-eyed in their hope for true equality for all, and many in between. But the words they agreed on were “any person,” with no exceptions made to legalize discrimination against women, gays, or any others. Scalia however, pretends to divine the intent of each member of Congress who voted for the amendment, as well as each State legislator who voted to ratify it, in order to limit the plain meaning of the Constitution to that which he tells us was on their minds and in their hearts. Our history as a nation, beginning with the declaration that “all men are created equal,” is replete with examples of aspirations which even at the moment of their utterance exceeded the courage to act of those who spoke the words. Such principles all the same provide the sound and guiding principles towards which we the people can grow. Were the heterogeneous voters in favor of the 14th amendment narrowly intent on keeping the world just the same, just without legal slavery, or did they know – and perhaps even hope – that greater equality would need to follow? Under Scalia’s jurisprudence, only he can tell us.

Posted by: brian66 | January 6, 2011 2:00 AM | Report abuse

"Original intent" as an extreme method of interpretation simply does not make sense. Are courts expected to uphold such concepts as the 3/5th compromise or allowing the death penalty by hanging at the public square (with children watching)? Really?

Equal Protection is for all. By embracing diversity, we take the notion of individual rights and make it for the greater good. The focus on individual rights is not entirely selfish, but rather something that is balanced out by the philosophy of equal protection in the 14th Amendment.

Posted by: titantrain | January 6, 2011 12:08 AM | Report abuse

Let me get this straight: Scalia invites the Congress to pass legislation banning sex discrimination, for example. Let us say the Congress plays along and passes a law to that effect and the president signs it into the law of the land. The Justice's comrades (and hunting partners) spring into action without wasting time and sues the US alleging that the law is unconstitutional. Sure enough, Scalia, Scalia, Thomas, Roberts and Attila pretend to go through the Constitution -- which they insist on keeping embalmed in its 18th century splendor -- with a fine toothed comb and declare: "Yep, not in the Constitution. Sorry ladies."

Some game, no?

Posted by: hollywoodog | January 5, 2011 10:38 PM | Report abuse

It doesnt specifically say in constitution that people can drive SUVs or have multi shot guns. People have no rights for anything better than a musket. I bet they dont mention that though.

Posted by: jimbobkalina1 | January 5, 2011 8:00 PM | Report abuse

Scalia is the epitome of the GOP.

Show me a Republican woman and I'll show you someone who loathes herself and has deep-seated self-esteem issues. I hope one day every woman will respect herself enough to not vote Republican.

Posted by: B2O2 | January 5, 2011 6:12 PM | Report abuse

Rudy Giuliani and several Bush Administration officials have been caught red-handed giving material support to a group that's been on the State Department's terrorism list for over a decade. Any comments, Republicans? You got all bent out of shape because the president served on a Chicago school board with someone who consorted with an anti-war group when Obama was 8 years old.

Double standard much? You betcha.

http://gawker.com/5723432/rudy-giuliani-and-john-bolton-are-terrorists-now

Posted by: B2O2 | January 5, 2011 6:02 PM | Report abuse

What is so vague about "equal protection?" Seems preety simple; if you're a human being in the USA, you are entitled to equal protection. Men, women, children, black, white, red, yellow, tall, short, fat, sick, old, young, cripple. All are covered, Scalia. What is so confusing?

Posted by: ScottChallenger | January 4, 2011 9:45 AM

++++

Well Scott, then how about affording me equal protection with regard to income taxes. Why should I pay 39.6% and others only 10% of their income.

+++

Posted by: Hawaiian_Gecko | January 5, 2011 4:04 PM | Report abuse


Another warning flag & important reminder that ELECTIONS MATTER.

Scalia, Roberts, Alito & the other wingnuts of the good ole boys club represent the interests of their religious ideologies, catholic dogma and their corporate masters: only rich powerful (mainly white) men matter and are the only ones entitled to wield power over everyone else.

They wish to create a theocratic state in which money and finance is owned by corporations who place profits over people and everything else is controlled by religious zealots and all who benefit from theocratic fascism.

a relationship/symbiosis much like the Taliban, Al Qaeda and their rich Oil Masters in the middle east.

BEWARE those who pine for the good ole days when only the and their ilk were more equal than anyone else. They long for the AUTHORITARIANISM of controlling others, obedience to authority, refusing to acknowledge or care about those who are 'less' -- that was the rule of the land then and is what Scalia and the Roberts court wish to repeal and revert us to.

Democracy is messy. Freedom, equality and rights require civic citizen engagement including taking responsibility for the bad, complex, difficult and messy as well as the simplistic, orderly and easy.

Those like Scalia who long for those good ole days don't care about the ones who didn't have power, justice or equality and they still have no empathy or conscience when it comes to what the rest of the have-nots experience, then or now. This is more proof of it.

BEWARE. As effed up and corrupt and rigged as the system is now, VOTING MATTERS.

If you want more theocratic fascist good ole boys rich powerful religious zealots on the court, keep putting the right wingers, tea partiers & republicans in office.

If you believe in freedom, justice and equality for ALL citizens, you have to work to keep those rights and to keep moving forward instead of regressing to conformity, restrictions and evils of theocratic fascism.

. move forward . vote for democracy . work for equality . your vote matters .


Posted by: flacan | January 5, 2011 3:24 PM | Report abuse

If women are equal to men why do they need special considerations?

Posted by: welovetheUSA | January 5, 2011 10:55 AM
____________________________________
How is equal protection "special consideration"?

Posted by: luridone | January 5, 2011 1:11 PM | Report abuse

So because the equal protection clause doesn't include "sex" or "female" instead of "male" or that the writers of the amendment couldn't have thought it would be applied to women, it's safe to assume that not only to women not have the right to equal protection, but that we're not to be considered U.S. citizens with voting rights and the right to hold office as well? That's a dangerous line of reasoning. Is Sarah Palin going to speak out on this, I wonder?

Posted by: kblowry | January 5, 2011 11:56 AM | Report abuse

So because the equal protection clause doesn't include "sex" or "female" instead of "male" or that the writers of the amendment couldn't have thought it would be applied to women, it's safe to assume that not only to women not have the right to equal protection, but that we're not to be considered U.S. citizens with voting rights and the right to hold office as well? That's a dangerous line of reasoning. Is Sarah Palin going to speak out on this, I wonder?

Posted by: kblowry | January 5, 2011 11:56 AM | Report abuse

So because the equal protection clause doesn't include "sex" or "female" instead of "male" or that the writers of the amendment couldn't have thought it would be applied to women, it's safe to assume that not only to women not have the right to equal protection, but that we're not to be considered U.S. citizens with voting rights and the right to hold office as well? That's a dangerous line of reasoning. Is Sarah Palin going to speak out on this, I wonder?

Posted by: kblowry | January 5, 2011 11:55 AM | Report abuse

So because the equal protection clause doesn't include "sex" or "female" instead of "male" or that the writers of the amendment couldn't have thought it would be applied to women, it's safe to assume that not only to women not have the right to equal protection, but that we're not to be considered U.S. citizens with voting rights and the right to hold office as well? That's a dangerous line of reasoning. Is Sarah Palin going to speak out on this, I wonder?

Posted by: kblowry | January 5, 2011 11:54 AM | Report abuse

So because the equal protection clause doesn't include "sex" or "female" instead of "male" or that the writers of the amendment couldn't have thought it would be applied to women, it's safe to assume that not only to women not have the right to equal protection, but that we're not to be considered U.S. citizens with voting rights and the right to hold office as well? That's a dangerous line of reasoning. Is Sarah Palin going to speak out on this, I wonder?

Posted by: kblowry | January 5, 2011 11:53 AM | Report abuse

By Scalia's standard, the constitution does not protect fredom of speech on the internet b/c there is no way the founding fathers had that in mind when the wrote the first amendment. Does his apply this standard to the second amendment? Seem it should not protect the right to carry an assult rifle, because they didn't exhist either. In fact that standard would say it only protects the right to carry muskets.

Posted by: lamarilium | January 5, 2011 11:20 AM | Report abuse

welovetheUSA wrote: "If women are equal to men why do they need special considerations?"

If Christianity is equal to other religions, why does it need special protections?

Posted by: Garak | January 5, 2011 11:07 AM | Report abuse

If women are equal to men why do they need special considerations?

Posted by: welovetheUSA | January 5, 2011 10:55 AM | Report abuse

If women are equal to men why do they need special considerations?

Posted by: welovetheUSA | January 5, 2011 10:55 AM | Report abuse

Justice Scalia, with this simple minded analysis from someone who is suppose to be a great legal scholar, clearly demonstrates why a literal construction of the constitution is so mis-guided and ill-fitted to the reality of today's society. According to Scalia, it has to say "women" in the text of the amendment, or women are not included in the protections of the 14th amendment. This is an absurd conclusion leading to absurd results if carried forward in the law. I do appreciate and agree with the observations of one commentator above regarding the corporations' new found status as individuals with 1st amendment rights in the "Citizens United" case. This as opposed to the lack of constitutional rights of "women" under the 14th amendment who apparently do not, in Scalia's mind, meet the definition of persons because the framers of the amendment simply didn't have women in mind when they wrote the amendment. In the Gore v. Bush case where Justice Scalia and the GOP majority on the Court ruled that a recount in select counties would deny Bush the equal protection of the law, I don't recall anything in the 14th amendment protecting Presidential candidates' equal rights? Do you think the framers had Presidential candidates in mind when they wrote the amendment? Yet, Scalia did not hesitate to extend these protections to Bush. What's the difference?

Posted by: rcairo | January 5, 2011 10:18 AM | Report abuse

Justice Scalia, with this simple minded analysis from someone who is suppose to be a great legal scholar, clearly demonstrates why a literal construction of the constitution is so mis-guided and ill-fitted to the reality of today's society. According to Scalia, it has to say "women" in the text of the amendment, or women are not included in the protections of the 14th amendment. An absurd conclusion leading to absurd results in the law. I do appreciate and agree with the observations of one commentator above regarding the corporations' new found status as individuals with 1st amendment rights in the "Citizens United" case, versus the lack of constitutional rights of "women" under the 14th amendment who apparently do not, in Scalia's mind, meet the definition of persons because the framers of the amendment simply didn't have women in mind when they wrote the amendment.

Posted by: rcairo | January 5, 2011 10:10 AM | Report abuse

I have argued for years that Scalia is a political hack who has intellectual integrity. Any woman he meets should kick him hard where it hurts the most.

Posted by: queenskid | January 5, 2011 9:59 AM | Report abuse

This guy is a lying scumbag, who stood before a congressional hearing, and perjured himself by saying he had no predispositions and would judge every case on its merits. I hope he rots in Hell.

Posted by: daweeni | January 5, 2011 9:52 AM | Report abuse

"The Constitution also says nothing about murder, yet saying that doesn't mean murder is good. It's addressed by our laws instead."

100% WRONG! The 14th Amendment of the US Constitution guarantees that no one shall be deprived of LIFE, liberty or the pursuit of happiness without due process of law. Since murder is depriving one of life without due process of law, the constitution clearly says murder is unconstitutional. I wish it said that functionally illiterate people were not allowed to vote.

Posted by: fingersfly | January 5, 2011 9:32 AM
_________________________________
First off, it's "life, liberty, or property." Secondly, it only prohibits the States from taking life, liberty, or property without due process of law. It says nothing about the actions of individuals. Murder by a private person is NOT unconstitutional. Only illegal in every country in the world and against every moral code in existence.

Posted by: luridone | January 5, 2011 9:45 AM | Report abuse

Scalia is a judge, not a legislator. He says what is, not what ought to be. He isn't saying women should be discriminated against, only that the Constitution doesn't ban it. Pretty simple.

The Constitution also says nothing about murder, yet saying that doesn't mean murder is good. It's addressed by our laws instead.

Posted by: Dadrick
==========================================
Any sensible person would say that discrimination against anyone violates the 14th Amendments' equal protection clause. Scalia is a GOP operative in judicial robes. There was no legal basis to overturn FL election law, only a want for Dubya to be president. They ruled a flawed voting system could not give the state a valid outcome, so take the original flawed vote system count as actual. Harris also violated her state constitution by ratifying the result.

Posted by: jameschirico | January 5, 2011 9:41 AM | Report abuse

This judge is interpreting the constitution with his own biases and without regard to actual meaning. The equal protection clause is stated to apply to all people within the jurisdiction of the United States. So unless Scalia is prepared to claim that women (or people of differing sexual orientations) are not people (in which case he is off his rocker), the equal protection clause applies.

Therefore if it would be deemed inappropriate to not hire someone simply because they are a man (and I bet you the courts would be quick to condemn such actions), then it is equally inappropriate not to hire someone because they are a woman.

This is another example of the pattern I notice largely with Republicans. The constitution is interpreted literally and without regard to changes in society when it suits them (i.e. gun rights), but when they disapprove of a group that would receive benefit or protection from the constitution, suddenly those amendments should be ignored or interpreted differently. You can't have it both ways! Either you make allowances for modern times (which is reasonable) or you don't, and you can't ignore particular amendments just because you don't like them (i.e. separation of church and state).

Posted by: Wander099 | January 5, 2011 9:34 AM | Report abuse

"The Constitution also says nothing about murder, yet saying that doesn't mean murder is good. It's addressed by our laws instead."

100% WRONG! The 14th Amendment of the US Constitution guarantees that no one shall be deprived of LIFE, liberty or the pursuit of happiness without due process of law. Since murder is depriving one of life without due process of law, the constitution clearly says murder is unconstitutional. I wish it said that functionally illiterate people were not allowed to vote.

Posted by: fingersfly | January 5, 2011 9:32 AM | Report abuse

"The Constitution also says nothing about murder, yet saying that doesn't mean murder is good. It's addressed by our laws instead."

100% WRONG! The 14th Amendment of the US Constitution guarantees that no one shall be deprived of LIFE, liberty or the pursuit of happiness without due process of law. Since murder is depriving one of life without due process of law, the constitution clearly says murder is unconstitutional.

Posted by: fingersfly | January 5, 2011 9:31 AM | Report abuse

"The Constitution also says nothing about murder, yet saying that doesn't mean murder is good. It's addressed by our laws instead."

100% WRONG! The 14th Amendment of the US Constitution guarantees that no one shall be deprived of LIFE, liberty or the pursuit of happiness without due process of law. Since murder is depriving one of life without due process of law, the constitution clearly says murder is unconstitutional.

Posted by: fingersfly | January 5, 2011 9:31 AM | Report abuse

tlapresto wrote:
The problem is that liberals only see their tiny little sphere of pseudo reality that is always based on some form of perversion they are trying to get society to swallow. The gay men of today are nothing more than over sensitive, mentally ill, broken human beings that were taught how to think from their mothers, and didn't have a strong male figure to relate to. They are confused.
America went from the 1950's "Leave it to Beaver" lifestyle to the hell-hole we live in today in 50 years. This is after 10,000 years of a male dominated society of real men that protected and provided for their woman and family's. The Communist sympathizers of the Beatnik era evolved in to the hippie movement because of a perfect storm of 1960's turmoil that led to the feminization of many of the males. I doubt if we will ever return to normalcy. Freedom is not the right to do whatever you choose; it's about maintaining a standard of decency for the society that insures freedom. I want freedom from the infestations of perversion. Liberals are so locked in to their mental illnesses and self-centered desires that they and are unable to accept true reality. They have no objectivity or resolve like real men, so they nag constantly like woman at every opportunity, don't see wrong from right, and will never change. Ward Cleaver would never believe the sickness our world has sunken to.
**********************************
Hmm where to begin with this??
1. "...some form of perversion they are trying to get society to swallow."

Swallow?? Exhibit A,your Honor.

2."The gay men of today...strong male figure to relate to."
Indicates a longing for a simpler time when gays needed a strong male figure like oh i dont know tlapresto maybe?

3. "America went from..." Conservatives often try to paint 1950s America as just so darn innocent and homey! If only we could bring it back along with prayer in school,Mom and apple pie.

4. " They have no objectivity or resolve like real men..."
Again with the real men. Exhibit B,your Honor.
As far as tlapresto goes,Im imagining a Popeye/John Wayne type who likes his meat red,his women in the kitchen where they belong,and his dominance over gay men absolute if you catch my drift. Justice Antonin you sly devil! Is this you doing the presto chango?

Posted by: rsl903 | January 5, 2011 9:25 AM | Report abuse

The problem is that liberals only see their tiny little sphere of pseudo reality that is always based on some form of perversion they are trying to get society to swallow. The gay men of today are nothing more than over sensitive, mentally ill, broken human beings that were taught how to think from their mothers, and didn't have a strong male figure to relate to. They are confused.
America went from the 1950's "Leave it to Beaver" lifestyle to the hell-hole we live in today in 50 years. This is after 10,000 years of a male dominated society of real men that protected and provided for their woman and family's. The Communist sympathizers of the Beatnik era evolved in to the hippie movement because of a perfect storm of 1960's turmoil that led to the feminization of many of the males. I doubt if we will ever return to normalcy. Freedom is not the right to do whatever you choose; it's about maintaining a standard of decency for the society that insures freedom. I want freedom from the infestations of perversion. Liberals are so locked in to their mental illnesses and self-centered desires that they and are unable to accept true reality. They have no objectivity or resolve like real men, so they nag constantly like woman at every opportunity, don't see wrong from right, and will never change. Ward Cleaver would never believe the sickness our world has sunken to.


Posted by: tlapresto | January 5, 2011 6:02 AM
_________________________________
You are so disconnected from reality that you must believe that Ward Cleaver was a real person. You need major psychiatric help.

Posted by: luridone | January 5, 2011 8:24 AM | Report abuse

The Rapture – the Second Coming – Armageddon – the End of Days – The Apocalypse – 2012~! PLEASE - end this madness.

Posted by: kparc1212 | January 5, 2011 8:22 AM | Report abuse

Liberals don't seem to get the point Scalia is trying to make. Legislatures and are elected by the citizens to enact laws. If women and gays want special treatment look to your legislators, not a judge. The court should preserve the constitution, not find meanings to it that never existed. Why is this so hard for democrats to understand?

Posted by: dpo007 | January 5, 2011 1:04 AM
_____________________________________
We get his point. The problem is, he's wrong, and he's hypocritical. Scalia is a literalist when it leads to his desired result. But the plain language of the Equal Protection Clause is clear - States may not deny the equal protection of the laws to any PERSON. By its language, it's not limited to race. It applies to everybody. But that means that discrimination by States against women and gays is unconstitutional. So, since Scalia doesn't like that result, he falls back to his secondary interpretive model, original intent - clearly the drafters of the 14th Amendment, written and adopted so soon after the Civil War and the abolition of slavery (13th Amendment), were thinking primarily about racial discrimination. While he's right about that, whether through foresight or something else, the drafters used very broad language, that on its face goes well beyond just racial discrimination.

FYI, women and gays are not asking for special treatment. Just equal treatment. Why is it so hard for conservatives to understand equality, and the meaning of the phrase "any person"?

Posted by: luridone | January 5, 2011 8:20 AM | Report abuse

"The problem is that liberals only see their tiny little sphere of pseudo reality that is always based on some form of perversion they are trying to get society to swallow...Ward Cleaver would never believe the sickness our world has sunken to." Posted by: tlapresto | January 5, 2011 6:02 AM
________________________________
tlapresto...if you think Ward Cleaver's world was real, I've got a bridge to nowhere I'd like to sell you!

Posted by: pumor | January 5, 2011 8:07 AM | Report abuse

Scalia has become what we Italians call "an old goombah." They are characterized as suddenly bursting forth with loud, harsh statements of no merit, just blithering as they go loudly into the night, sadly trying to shine some light that missed them upon the egos that have long lived in an imaginary world. Scalia? He probably thinks he matters, and he obviously carries major antagonism that he isn't Chief Justice, which he feels is his crown, not Roberts. Alas, all these things congeal and ridiculous, almost dementia-like outbursts are shouted into our ears so we take notice. Okay, Johnny Boy, we hear you, now go back to your seat by the window box and look out at the world you never ruled. Though I'm sure you have a scepter in waiting.

Posted by: lorenzo2121 | January 5, 2011 6:08 AM | Report abuse

The problem is that liberals only see their tiny little sphere of pseudo reality that is always based on some form of perversion they are trying to get society to swallow. The gay men of today are nothing more than over sensitive, mentally ill, broken human beings that were taught how to think from their mothers, and didn't have a strong male figure to relate to. They are confused.
America went from the 1950's "Leave it to Beaver" lifestyle to the hell-hole we live in today in 50 years. This is after 10,000 years of a male dominated society of real men that protected and provided for their woman and family's. The Communist sympathizers of the Beatnik era evolved in to the hippie movement because of a perfect storm of 1960's turmoil that led to the feminization of many of the males. I doubt if we will ever return to normalcy. Freedom is not the right to do whatever you choose; it's about maintaining a standard of decency for the society that insures freedom. I want freedom from the infestations of perversion. Liberals are so locked in to their mental illnesses and self-centered desires that they and are unable to accept true reality. They have no objectivity or resolve like real men, so they nag constantly like woman at every opportunity, don't see wrong from right, and will never change. Ward Cleaver would never believe the sickness our world has sunken to.

Posted by: tlapresto | January 5, 2011 6:02 AM | Report abuse

Scalia is right about the original intent, but he's totally wrong about literal interpretation.

The 14th didn't say "equal protection under the law *for slaves*", it applies to all people. That Scalia doesn't like the implications of such a broad requirement is his problem, not that of the Constitution or the Amendment.

The Judge seems to think that generalities in the constitution - like freedom of speech - only apply to those things that existed at the time the document was written. If applied consistently, it would mean that *nobody* has the right to use the internet to express their views! That form of speech (unlike "the press") didn't exist when the 1st Amendment was written, so I guess we need a new Amendment for every new form of speech?

Scalia's position is logically indefensible.

Posted by: Westmiller | January 5, 2011 4:59 AM | Report abuse

Scalia is right about the original intent, but he's totally wrong about literal interpretation.

The 14th didn't say "equal protection under the law *for slaves*", it applies to all people. That Scalia doesn't like the implications of such a broad requirement is his problem, not that of the Constitution or the Amendment.

The Judge seems to think that generalities in the constitution - like freedom of speech - only apply to those things that existed at the time the document was written. If applied consistently, it would mean that *nobody* has the write to use the internet to express their views! That form of speech (unlike "the press") didn't exist when the 1st Amendment was written.

Scalia's position is logically indefensible.

Posted by: Westmiller | January 5, 2011 4:57 AM | Report abuse

so.. according to scalia, "equal protection" only applies to heterosexual men ?? doesn't sound very equal to me.

Posted by: elpolacko | January 5, 2011 1:23 AM | Report abuse

Liberals don't seem to get the point Scalia is trying to make. Legislatures and are elected by the citizens to enact laws. If women and gays want special treatment look to your legislators, not a judge. The court should preserve the constitution, not find meanings to it that never existed. Why is this so hard for democrats to understand?

Posted by: dpo007 | January 5, 2011 1:04 AM | Report abuse

Mr. Justice Scalia: Do you really think the framers thought that corporations were persons entitled to 1st Amendment protection? Original intent-the last refuge of right-wing judicial hypocrites.

Posted by: BBear1 | January 4, 2011 8:53 PM | Report abuse

The only problem with Justice Antonin Scalia is that there is only one of him. Eight more on the SCOTUS would ensure that the Soros Socialist Democratic Party could not destroy this country.

Posted by: twoeagle | January 4, 2011 8:31 PM
_________________________________________
Eight more (or 7, since Thomas is his lapdog) would lead us to fascism. I guess that's what you want. Why do conservatives hate our freedoms?

Posted by: luridone | January 4, 2011 8:40 PM | Report abuse

The only problem with Justice Antonin Scalia is that there is only one of him. Eight more on the SCOTUS would ensure that the Soros Socialist Democratic Party could not destroy this country.

Posted by: twoeagle | January 4, 2011 8:31 PM | Report abuse

Corporations are persons for purposes of the 1st Amendment but women are not for purposes of the 14th Amendment. Makes sense in the context of those amendments -- particularly, all those corporations seeking to exercise their speech rights in the late 18th Century and all those women seeking only to obey their betters in the mid 19th Century. Stupid construction is easy if you can make up what is relevant.

Posted by: gamind | January 4, 2011 8:31 PM | Report abuse

Corporations are persons for purposes of the 1st Amendment but women are not for purposes of the 14th Amendment. Makes sense in the context of those amendments -- particularly, all those corporations seeking to exercise their speech rights in the late 18th Century and all those women seeking only to obey their betters in the mid 19th Century. Stupid construction is easy if you can make up what is relevant.

Posted by: gamind | January 4, 2011 8:31 PM | Report abuse

Corporations are persons for purposes of the 1st Amendment but women are not for purposes of the 14th Amendment. Makes sense in the context of those amendments -- particularly, all those corporations seeking to exercise their speech rights in the late 18th Century and all those women seeking only to obey their betters in the mid 19th Century. Stupid construction is easy if you can make up what is relevant.

Posted by: gamind | January 4, 2011 8:30 PM | Report abuse

Corporations are persons for purposes of the 1st Amendment but women are not for purposes of the 14th Amendment. Makes sense in the context of those amendments -- particularly, all those corporations seeking to exercise their speech rights in the late 18th Century and all those women seeking only to obey their betters in the mid 19th Century. Stupid construction is easy if you can make up what is relevant.

Posted by: gamind | January 4, 2011 8:28 PM | Report abuse

"You do not need the Constitution to reflect the wishes of the current society. "

Really? If the wishes of the current society are "unconstitutional" then ... what?

Posted by: mikem1 | January 4, 2011 8:09 PM | Report abuse

Uhhhhhh. . . . Bradg? I don't want to alarm you, but the Constitution is the supreme law of the land. It contains a Bill of Rights. It applies to everybody.

Posted by: amstphd | January 4, 2011 6:33 PM | Report abuse

Is this a Catch-22?

Scalia's says that the Constitution doesn't protect women and gay men and lesbians from discrimination and it should be taken up by the legislative branch.

So if the legislative branch passes a law banning discrimination and it's challenged in the courts and ends up in the Supreme Court and if it isn't covered in the Constitution, isn't it going to be struck down?

Posted by: FauxReal | January 4, 2011 6:31 PM | Report abuse

"no state shall ... deny to any person within its jurisdiction the equal protection of the laws"

Since women and gay people are persons, they are protected from discrimination. Scalia is an ass.
-------------------------------------------

The key is equal protection of THE LAWS. Nothing says the laws are "equal" nor does it define equal. The 14th amendment does not give equal rights except those enacted by law. Hence why the inability for women to vote was not unconstitutional at the time.

Honestly, alot of this would be solve if they had passed the Civil Rights Act as an amendment to the Constitution. But they couldn't get enough Democrats to vote for it.

Posted by: BradG | January 4, 2011 6:13 PM | Report abuse

RealTexan1 wrote: I see nothing at all wrong with Justice Scalia's reasoning.

I think the Left has problems with anyone who does not land on the same side with an issue they care about, and the Left has no clue that judges are there to "call balls and strikes", not to decide which laws are "good or bad".
____________________________
No wonder my wife says it's impossible to be a Republican and a woman.

Seems to me that SCOTUS was doing a hell of a lot more than calling balls and strikes in Citizens United.

Posted by: amstphd | January 4, 2011 6:13 PM | Report abuse

The only folks who oppose Scalia's faithful interpretations of the Constitution are the majority today who are both Biblically and Constitutionally and historically illiterate and ignorant and should not be allowed out in public, i.e. should have their citizenship revoked, being far too incompetent, indeed dangerous, to exercise it, including most of the 546 clowns in Washington of our three branches of "government."

It is true that his Catholicism regrettably hinder this fine man from a full appreciation for our Protestant nation's foundation, however the fools that merely use name calling to slam him as a mere "shill" for the Catholic Church are clearly antiChristian bigots and thus far more ignorant and dangerous than the worst of his errors in that regard. As to the laughable "homosex-" fraud, to see how easy it is to brainwash the world into accepting this stupid oxymoron, see "The gay invention" at http://www.touchstonemag.com/archives/article.php?id=18-10-036-f as if any further proof were needed of how stupid and gullible most Americans are, believing whatever fascist pervert, like the immoral degenerate baby butcher in the White House demanding infanticide, tells them.

Posted by: russedav | January 4, 2011 5:55 PM | Report abuse

Scalia represents the Conservative political faction that defeated the Equal Rights Amendment a generation ago, and he represents their interests capably. It is long pat time to remove such obsolete and out-dated thinking from the American political scene.

Posted by: samsara15 | January 4, 2011 5:51 PM | Report abuse

it's hilarious how many of you think scalia is suggesting women have less rights than men. do you not realize, that he is saying persons of EITHER sex can be discriminated against. he isn't putting one sex above the other. get a clue!

Posted by: razor44 | January 4, 2011 5:39 PM | Report abuse

Intelligent Republican is an oxymoron. Republicans by themselves are just morons.

Posted by: c_attucks | January 4, 2011 5:38 PM | Report abuse

Do we need any more evidence that this man has no business sitting on the bench? Any bench.

All I am saying is give impeachment a chance.

Posted by: BigTrees | January 4, 2011 5:30 PM | Report abuse

So, according to Scalia, to be a woman is NOT to be a person. It explains so many of his decisions.

Posted by: tracyandreen | January 4, 2011 5:20 PM | Report abuse

So women, even though they can vote, are NOT citizens, and NOT protected by the Constitution; while corporations who are imaginary people and cannot vote, ARE protected by our Constitution.

I confess that the only differences I see are MONEY and IDEOLOGY.

Posted by: shadowmagician | January 4, 2011 5:10 PM | Report abuse

Amen, the lefties are upset at this because the constitution is only good when it works for them (same thing they blame the other side for).

Facts are facts, people in California went to the ballot box to say no to gay marriage and what happened? A judge throws the peoples vote out.

People don't want illegal aliens flooding the country, what happens? The peoples voice doesn't matter and even the president gets involved defending an illegal alien takeover.

So Scalia can't be right or wrong here in the eyes of the left. They fight the constitution when it's not in their favor and when the people go to the ballot box they have their judges reject the voice of the people.

It's all like global warming to them.

Posted by: james80 | January 4, 2011 5:05 PM | Report abuse

For the same sex issue, Homosexuality is defined by sex. Sexual intercourse that is. Were sex not part of the relationship the relationship would be a friendship. How then if homosexuality is defined by sex would that sex be protected? It seems the pro-gay folks are intent on protecting a non-entity like sex.

Posted by: dankintz | January 4, 2011 5:01 PM | Report abuse

Scalia nit-picks the Constitution to fit his needs. He is, and always will be a shill for ths Catholic church. What century does this man live in?

Quit whinning, just be glad your not a female in the middle east. You have it made in this country...the one founded by "old white men"

Posted by: mark0004 | January 4, 2011 4:53 PM | Report abuse

I don't see why the 'outrage'. All those PC idiots have to do is look at the writings during the time this amendment was drafted and debated. See any mention of women? Any mention of "gay" people? Guess that idea that they 'were not thought of' is what offends them.

Posted by: GarandFan | January 4, 2011 4:36 PM | Report abuse

At the time the 14th Amendment was ratified, it only applied to black men. Women, including those who were former slaves, were "free" but not enfranchised.

The problem with Scalia's argument is that those delightfully prescient beings known as the "Founding Fathers" to whom much obeisance must be paid, realized they were neither omnipotent nor infallible. Like smart computer programmers (which the Founders also never envisioned, let alone indoor plumbing) they left themselves and us a wide open back door: the ability to revise the Constitution as well as giving the power of interpretation of laws passed by Congress and by the states to the Supreme Court. Thus, we have modified, changed, refined, interpreted, and enhanced the Constitution.

Women, who were considered little more than chattel at one point, have been fully enfranchised at another. And only if Scalia, et al are willing to disenfranchise women, gays, blacks and other minorities can they repeal or restrict the rights passed to them by way of that enfranchisement. Without specifically disenfranchising gays, it becomes impossible to deny them rights afforded other simply because you don't like with whom they make love. Similarly, you'd need to disenfranchise women to suggest they do not have a right of habeas corpus, or any of the other rights accorded to white men.

Our Supreme Court has been dumbed down by the likes of Scalia, Roberts, Alito, Thomas. What should be one the most vibrant, intellectually stimulated groups of people is instead retarded by those who insist on partisan politicking and legislating from the bench.

Posted by: jade_7243 | January 4, 2011 4:14 PM | Report abuse

From his remarks I see that Justice Scalia is the spiritual heir of Chief Justice Roger B. Taney and his reprehensible Dredd Scott decision. Come to think of it Scalia probably thinks that Taney was not conservative enough and was closet liberal.

Scalia is a good example of why Supreme Court Justices should be term limited.

Posted by: larryclyons | January 4, 2011 4:05 PM | Report abuse

Scalia raise a valid logical interpretation of the Constitution and the role fo the Supreme Court. The problem is though that he only applies this strict literal interpretation to civil liberties issues involving whether or not a citizen has a protected right. Strict Constructionists argue "gay rights" or "womens rights" are not explicitly spelled out in the Consitituion and therefore are not protections. Well, where in the Constitution does it say the federal government has the pwer to execute people? What in the Constitution gives the federal government the authority to make laws outlawing abortion? Show me the Consitutional clause that states a courthouse can have the Ten Commandments erected on their lawn. The Contsitution doesnt explicitly say those things either. Most every law/regulation has been deemed to be valid under the "necessary and proper clause" which is just as much of a non-literal interpretation, if not more so, of the Constitution as reading gender into the 14th Amendment. If anything, look at the Preamble to the Contitution. It states that the constitution sets forth the powers given to the federal government by the people, not a document giving powers to the people from the government. it was never intended to be a document limiting the powers of the people, rather a document limiting the powers of the federal government. that IS stated explicitly. So I would ask Scalia, what in the Constitution gives the federal government the power to discriminate on the basis of gender?

Posted by: DaytonDad | January 4, 2011 4:01 PM | Report abuse

Wow.

Scalia seems to miss entirely the idea that a constitution enshrines rights for individuals that cannot be abridged by majority vote, majority rule or majority power.

Fortunately not only race but sex made it into the Civil Rights Act.

Posted by: cassandra9 | January 4, 2011 4:01 PM | Report abuse

Wow.

Scalia seems to miss entirely the idea that a constitution enshrines rights for individuals that cannot be abridged by majority vote, majority rule or majority power.

Fortunately not only race but sex made it into the Civil Rights Act.

Posted by: cassandra9 | January 4, 2011 4:01 PM | Report abuse

Thank God for Scalia. Is there anyone on the Left that actually reads and cares about the Constitution? Scalia doesn't say he's in favor of gender discrimination, he simply says that the Constitution doesn't prohibit it.

Posted by: MikeJonze | January 4, 2011 3:57 PM | Report abuse

HAS ANYONE EVER SEEN AN INTELLIGENT RIGHT-WINGER?

Posted by: analyst72 | January 4, 2011 3:47 PM | Report abuse

It's infuriating, but Scalia is apparently right in the technical sense. We've had to deliberately add certain "rights" either by passing legislation or (with much greater difficulty) by amending the Constitution because the Founders did not see, for example, black folks' freedom or suffrage for women as rights. And the rights we've added through actual amendments to the Constitution have been important enough to enshrine therein so that they are not subject to the vicissitudes of the normal legislative process, most particularly, repeal through whim and/or because of regional or cultural prejudice.

Scalia's position is frustrating because he insists (apparently) that in _each and every instance_ we are bound to live with the Founder's mistakes in their enumeration of rights (yes, for all their brilliance they made some mistakes, including some big ones) or seek legislative remedies, even to the extreme of amending the Constitution. He will not admit, either because of his brilliant and admirable legal scruples or his obstructionist perversity (depends on whom you ask, huh?), that the essence of other rights not specifically enumerated is so closely entwined with those that are listed that the acknowledgment of such "new" rights is implicit in the Constitution and is good and reasonable. (Is there a right to privacy or not?)

Hmmmmm . . . . Very difficult stuff . . . How many real slippery slopes are found in THIS landscape? And how many "wolf cries" of "Beware the slippery slopes!" will be howled by the obstructionists?

Posted by: post_reader_in_wv | January 4, 2011 3:45 PM | Report abuse

jbeeler said:

Far too many here are jumping the gun. Scalia wrote his opinion based on his view of what those people intended at the time.

Let's face it, in those days the rights of women were not paramount. He simply stated those that wrote the law were referring to men because a woman did not have rights at the time. The same can be said for GLBT. Regardless of how it is worded, at the time of enactment, those groups were not considered to HAVE rights.

At the end he is saying Congress should enact a law specifically to make those issues fact and the Constitution is not the place to for that decision.
----------------------------------
So, where in the Constitution did it tell Scalia that corporations are citizens? It must be in there, since he overrode a law made by our legislature and he is such a pure constructionist, right?

Posted by: billyvw | January 4, 2011 3:43 PM | Report abuse

Scalia nit-picks the Constitution to fit his needs. He is, and always will be a shill for ths Catholic church. What century does this man live in?

Posted by: jckdoors | January 4, 2011 3:38 PM | Report abuse

Where is all the brilliance they always attribute to this man? He always sounds like any northern redneck you would find in a local gin mill.

Posted by: FoundingMother | January 4, 2011 3:33 PM | Report abuse

I don't think there is any such thing as "women's rights". Women are people, and in the US, people have legally protected rights to be treated the same as other people (more specifically, "persons").

Same for so-called "gay rights". I have not heard anyone asking for anything special, just to be left alone to live their lives without interference.

Someone please, explain to me how not being treated as a second-class citizen of this great nation of ours constitutes "special treatment".

Posted by: OldUncleTom | January 4, 2011 3:17 PM | Report abuse
__________________________________________

AMEN! Exactly the point I was making earlier. Thank you for being a sane, logical, decent human being. I fear there are not enough these days.

Posted by: rhalter3633 | January 4, 2011 3:26 PM | Report abuse

I don't think there is any such thing as "women's rights". Women are people, and in the US, people have legally protected rights to be treated the same as other people (more specifically, "persons").

Same for so-called "gay rights". I have not heard anyone asking for anything special, just to be left alone to live their lives without interference.

Someone please, explain to me how not being treated as a second-class citizen of this great nation of ours constitutes "special treatment".

Posted by: OldUncleTom | January 4, 2011 3:17 PM | Report abuse

Scalia prescribes to the "Originalist" school of thought even to women's rights.
Women didn't have rights under the Constitution and neither did Blacks who were considered 3/5 th's of a human being.
Will Scalia comment of civil rights next?

Posted by: logcabin1836 | January 4, 2011 3:16 PM | Report abuse

But the constitution does protect old, daffy Supreme Court Justices.

Posted by: tinyjab40 | January 4, 2011 3:10 PM | Report abuse

scalia is 100% correct. and i dont know why the washington post makes this about womens rights more than men's rights.

Posted by: dummypants | January 4, 2011 3:06 PM | Report abuse

scalia is 100% correct. and i dont know why the washington post makes this about womens rights more than men's rights.

Posted by: dummypants | January 4, 2011 3:06 PM | Report abuse

Justice Antonin Scalia is my hero!!!!

Posted by: Computer_Forensics_Expert_Computer_Expert_Witness | January 4, 2011 1:26 PM
____________________________________
Wow, are you easily impressed.

Posted by: luridone | January 4, 2011 3:00 PM | Report abuse

I could almost swear I have seen Scalia playing a tough guy in Godfather.

Posted by: kishorgala | January 4, 2011 2:47 PM | Report abuse

sorry, the excuse that Scalia was only determine what the Constitution's writers 'really meant' is bogus. He has constantly insisted that we should follow the Constitution for laws and is now using it to give an excuse for people to have those laws removed from them. I am amused that he doesn't appear have the nerve to include people of color in his determination of what the Constitution "really" mean for freedom of United States citizens.

Posted by: amccormick | January 4, 2011 2:39 PM | Report abuse

I dislike the guy, but he makes an interesting point.

But, it obscures a basic tenent in our Bill of rights, that all "men" are created equal. Taken literally, only adult males have any rights in America.

We know that not to be the case. (at least technically)

Once you transpose reason over archaeic language to derive a true meaning, your left with an opposite conclusion that the one Scalia offers.

Certainly interpretation of the rationale behind the Framers intent can be situational, to say the least. But, one intent is crystal clear...Inclusion rather than Exclusion.

Anything that excludes a class of people from their opportunity for Life, Liberty and the Pursuit of Happiness is contrary to the spirit of the document we call The Constitution.

INclude, Yes. EXclude, No.

Posted by: joecairo | January 4, 2011 2:26 PM
________________________________
If he consistently applied the doctrine of original intent, I could at least respect his opinion, disagree with it though I would. But he uses that doctrine only when the plain letter of the law ("nor shall any State...deprive any PERSON within its jurisdiction the equal protection of the laws") clearly contradicts his personal preference. His jurisprudence is completely results oriented.

As an FYI, "all men are created equal" and "life, liberty, and the pursuit of happiness" are from the Declaration of Independence, not the Constitution, and have no legal significance whatsoever.

Posted by: luridone | January 4, 2011 2:35 PM | Report abuse

And in the 70's I remember conservatives using the arguement that the 14th amendment guaranteed rights to all persons including women and that is why we didn't need the equal rights amendment. Oh how times have changed!
Posted by: Oakton59
*************
excellent point

Posted by: overed | January 4, 2011 2:34 PM | Report abuse

I dislike the guy, but he makes an interesting point.

However, it obscures a basic tenent of our Bill of rights, that all "men" are created equal. Taken literally, only adult males have any rights in America.

We know that not to be the case. (at least technically)

Once you transpose reason over archaeic language to derive a true meaning, you're left with an opposite conclusion than the one Scalia offers.

Certainly, interpretation of the rationale behind the Framers intent can be sometimes situational, to say the least. But, one intent is crystal clear...Inclusion rather than Exclusion.

Anything that excludes a class of people from their opportunity for Life, Liberty and the Pursuit of Happiness is contrary to the spirit of the document we call The Constitution.

INclude, Yes. EXclude, No.

Keeping people on the outside of the process that decides their fate is the antithesis of what the Founders had in mind. The whole "taxation without representation" theme of their outrage speaks to their dissatisfaction and their strong desire to break loose those bonds which held them back.

If protecting the rights of others isn't constitutional and in keeping with the original idea for this country, then nothing is.

Posted by: joecairo | January 4, 2011 2:33 PM | Report abuse

"Want to have some "fun"? Propose a n amendment that specifically allows rights for women and see how many will oppose it. Then see how many of those clowns can get reelected. It will be a bloodbath."

Actually, the Equal Rights Amendment of 1972 was never ratified and has basically "died" in Congress in June 1982, without any bloodbath. Women's rights and children's rights have never been able to be ratified in the US Congress. That ought to say a lot about your US gov't, non?

Posted by: AliceW2 | January 4, 2011 2:32 PM | Report abuse

So will Mr. Justice Scalia recuse himself when it comes time to decide on California's Proposition 8? Unfortunately, not likely.

This man is one of the worst Supreme Court justices since Chief Justice Taney.

Posted by: apn3206 | January 4, 2011 2:32 PM | Report abuse

Far too many here are jumping the gun. Scalia wrote his opinion based on his view of what those people intended at the time.

Let's face it, in those days the rights of women were not paramount. He simply stated those that wrote the law were referring to men because a woman did not have rights at the time. The same can be said for GLBT. Regardless of how it is worded, at the time of enactment, those groups were not considered to HAVE rights.

At the end he is saying Congress should enact a law specifically to make those issues fact and the Constitution is not the place to for that decision.

Posted by: jbeeler | January 4, 2011 2:27 PM | Report abuse

I dislike the guy, but he makes an interesting point.

But, it obscures a basic tenent in our Bill of rights, that all "men" are created equal. Taken literally, only adult males have any rights in America.

We know that not to be the case. (at least technically)

Once you transpose reason over archaeic language to derive a true meaning, your left with an opposite conclusion that the one Scalia offers.

Certainly interpretation of the rationale behind the Framers intent can be situational, to say the least. But, one intent is crystal clear...Inclusion rather than Exclusion.

Anything that excludes a class of people from their opportunity for Life, Liberty and the Pursuit of Happiness is contrary to the spirit of the document we call The Constitution.

INclude, Yes. EXclude, No.

Posted by: joecairo | January 4, 2011 2:26 PM | Report abuse

"The Constitution does not protect women against discrimination." A child who read the Constitution and its extant Amendments knows this. Why don't liberals, leftists, socialists, and Communists? Answer: Because they don't WANT to admit it.

Posted by: DoTheRightThing | January 4, 2011 1:43 PM
__________________________________
A child who read the Constitution, and the 14th Amendment in particular, would be badly confused by Tony's (and your) views - the Equal Protection Clause says that States may not deny the equal protection of the laws to any PERSON. Are women not persons?

Posted by: luridone | January 4, 2011 2:26 PM | Report abuse

For once Scalia is absolutely right.

The 18th century parchment called the U.S. Constitution originally only recognized the rights of white, property-owning males. Homosexuals and women were and still are out of luck since 18th thinking, even among "liberals", didn't treat women as human beings.

Women were and, therefore according to Scalia's thinking, are and always will be more like pieces of property than U.S. citizens (on this count, even the French has the U.S. beaten).

Fortunately for African-Americans, a blood bath called the Civil War allowed black folks to attain a semblance of a post-18th century status.

And the amended U.S. Constitution even has been interpreted to give private corporations all of the rights of citizenship with NONE of the responsibilities.

But ladies, you are out of luck...forever. And you can thank the Ayatollah Antonin Scalia and the Republicans that elected him to the U.S. Supreme Court.

Posted by: jjedif | January 4, 2011 2:24 PM | Report abuse

And in the 70's I remember conservatives using the arguement that the 14th amendment guaranteed rights to all persons including women and that is why we didn't need the equal rights amendment. Oh how times have changed!

Posted by: Oakton59 | January 4, 2011 2:22 PM | Report abuse

This fellow Scalia suffers several dangling wires.

Posted by: jimsteinberg1 | January 4, 2011 2:16 PM | Report abuse

Excellent. Anything that cuts down the feminists and perverts is great with me.

Posted by: nomobarry | January 4, 2011 12:17 PM
____________________________________
Spoken like a true bigot.

Posted by: luridone | January 4, 2011 2:13 PM | Report abuse

Here's the dilemma for strict constructionists: do you pay attention to the literal meaning of the words in the amendment, or do you consider solely the authors' intentions? Scalia's actually argued both ways on that.

Scalia always argues whatever the "conservative" position is - that is, he believes the Constitution ALWAYS comes down on the side of entrenched corporate (Republican) power.

The activist right wingers on the Supreme Court don't even try to pretend to be anything other than another political arm of the Republican party anymore (see Citizens United).

.

Posted by: DrainYou | January 4, 2011 2:11 PM | Report abuse

Justice Scalia needs to resign. His refusal to recuse himself when a client with whom he hunted's case came before him was scandalous. This is the final straw. Corporations are 'persons' but 'women' are not. Unbelievable!

Posted by: commonsense101 | January 4, 2011 2:11 PM | Report abuse

Scalia makes it so hard not to wish him ill health.

But I will restrain myself and just say thank god there are some decent human beings on the court who have recognized and interpreted the 14th Amendment to apply to all people.

Posted by: peterdc | January 4, 2011 2:08 PM | Report abuse

Scalia was right about one thing, "judges who have been there too long, imposing these demands on society."

Perhaps he should take his own advice. Equal protection of the law is equal protection of the law.

Posted by: caribis | January 4, 2011 2:07 PM | Report abuse

A Constitution sets the framework of laws. The framework was written and amended at various times in our history and for specific purposes both prescribing and restricting. Laws, on the other hand, are passed by various state legislatures or the U.S. Congress. Laws are tied to society's social, economic, or political needs or wants at any given time.

The laws pertaining to discrimination of all sorts are fine as the Constitution refers to a person's rights. Scalia simply says that all specific rights that we deem proper today, are not delineated in the Constitution but are supported by it. That's all falks!

Posted by: myonecent | January 4, 2011 2:05 PM | Report abuse

Want to have some "fun"? Propose a n amendment that specifically allows rights for women and see how many will oppose it. Then see how many of those clowns can get reelected. It will be a bloodbath.

Posted by: pjohn2 | January 4, 2011 2:01 PM | Report abuse

Well, we can see how Scalia and Thomas at least are going to vote when Califoria's Prop 8 challenge gets to the SC. Also, maybe Scalia is techically right about when the 14th amendment was written anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. But, Mr. Scalia, when the 2nd amendment was written, people used muskets, not semi-automatic weapons.

Posted by: Sandydayl | January 4, 2011 2:01 PM | Report abuse

And so we do need an Equal Rights Amendment to the Constitution, just so it becomes crystal clear:
http://www.equalrightsamendment.org/

bullet Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
bullet Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
bullet Section 3. This amendment shall take effect two years after the date of ratification.

Posted by: bethechangeyouwant | January 4, 2011 1:58 PM | Report abuse

Here's to wishing Scalia a BIG, FAT heart attack in the new year! Cheers!

Posted by: B-rod | January 4, 2011 1:56 PM | Report abuse

Hmmmm. It sounds like Justice Scalia is arguing that women are not "persons."

From my pocket copy of the Constitution, Amendment 14, ratified July 9, 1868:

"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."

Of course, arguments over what this means are what fueled the Equal Rights Amendment. But if you take Justice Scalia's claims as a "strict Constitutionalist" seriously, a strict reading of the 14th amendment indicates that (as long as women or homosexuals are considered "persons" and by birth/naturalization "citizens") no State can "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

I carry the Constitution with me specifically to counter arguments like this. It would be nice if "strict Constitutionalists" actually did strictly read the Constitution.

Posted by: Banzai45 | January 4, 2011 1:56 PM | Report abuse

Hmmmm. It sounds like Justice Scalia is arguing that women are not "persons."

From my pocket copy of the Constitution, Amendment 14, ratified July 9, 1868:

"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."

Of course, arguments over what this means are what fueled the Equal Rights Amendment. But if you take Justice Scalia's claims as a "strict Constitutionalist" seriously, a strict reading of the 14th amendment indicates that (as long as women or homosexuals are considered "persons" and by birth/naturalization "citizens") no State can "make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

I carry the Constitution with me specifically to counter arguments like this. It would be nice if "strict Constitutionalists" actually did strictly read the Constitution.

Posted by: Banzai45 | January 4, 2011 1:53 PM | Report abuse

This highlights the folly of teabaggers who constantly hold up the Constitution and the views of the Founding Fathers as gospel. After all, the Declaration of Independence states that "All *men* are created equal"; it says nothing about women.

Posted by: koygdb | January 4, 2011 1:50 PM | Report abuse

Scalia is right. The Constitution is remiss in guaranteeing everyone equal rights, which is why the Equal Rights Amendment (ERA) needs to be passed.

Posted by: greeenmtns | January 4, 2011 1:50 PM | Report abuse

"The Constitution does not protect women against discrimination." A child who read the Constitution and its extant Amendments knows this. Why don't liberals, leftists, socialists, and Communists? Answer: Because they don't WANT to admit it.

Posted by: DoTheRightThing | January 4, 2011 1:43 PM | Report abuse

Justice Scalia's position is a legitimate argumentative position visa the constitution. However there are consequences that stem from that position and it behooves all those who are cheering or support Justice Scalia to acknowledge them.

This position restricts the Constitution and the Supreme Court to upholding any injustice no matter how egregious or obvious if it is not specifically outlawed by the state majority. Such a position is completely consistant with the Dred Scott decision and would overturn Brown vs Board of Education. This is contradictory to the entire intent of the Constitution which was to protect the minority from the tyranny of the majority. Yet Justice Scalia would willingly turn a blind eye to any tyranny not specified in the Constituion. Anyone really willing to cheer this position?

Posted by: kchses1 | January 4, 2011 1:42 PM | Report abuse

Fat Tony says the Constitution only protects corporations and his rich cronies.

Posted by: Jerryvov | January 4, 2011 1:41 PM | Report abuse

I find it interesting to read all of these comments they are sent by people who want to exert their opinion on what the Constitution says and most of them have no idea what they are talking about. I find it absurd to read so many opinions of most of these and they should consider what they are saying before they write such rubbish. A court is a place which should evaluates the law and the constitution as it is not what they think about its meaning but what is the meaning.
If you want laws like this try to get they passed by elected officials not the court.

Posted by: jerry110 | January 4, 2011 1:41 PM | Report abuse

I find it interesting to read all of these comments they are sent by people who want to exert their opinion on what the Constitution says and most of them have no idea what they are talking about. I find it absurd to read so many opinions of most of these and they should consider what they are saying before they write such rubbish. A court is a place which should evaluates the law and the constitution as it is not what they think about its meaning but what is the meaning.
If you want laws like this try to get they passed by elected officials not the court.

Posted by: jerry110 | January 4, 2011 1:40 PM | Report abuse

If you think about the society that existed in the time the Constitution was written, Scalia's point is valid. Society in that time was completely different, so it's moronic to think that they wrote the Constitution with modern values in mind.

Posted by: forgetthis | January 4, 2011 1:36 PM | Report abuse

Right (far right), Scalia. And African-Americans are three-fifths of Caucasians.

Posted by: jimsteinberg1 | January 4, 2011 1:34 PM | Report abuse

Well then, if this is the case, we can finally put to bed this foolishness about the second amendment as well. Obviously, the founding fathers could not have envisioned semi-automatic weapons, large ammo clips and the such. Therefore, we need to use todays prevailing wisdom which is to say guns are bad and stupid and need to be legislated out of existence. Or is Scalia just doing his conservative base bidding? What a dolt.

Posted by: dougw3 | January 4, 2011 1:34 PM | Report abuse

Well then, if this is the case, we can finally put to bed this foolishness about the second amendment as well. Obviously, the founding fathers could not have envisioned semi-automatic weapons, large ammo clips and the such. Therefore, we need to use todays prevailing wisdom which is to say guns are bad and stupid and need to be legislated out of existence. Or is Scalia just doing his conservative base bidding? What a dolt.

Posted by: dougw3 | January 4, 2011 1:33 PM | Report abuse

Justice Antonin Scalia is my hero!!!!

Posted by: Computer_Forensics_Expert_Computer_Expert_Witness | January 4, 2011 1:26 PM | Report abuse

Scalia thinks that corporations are insular minorities that are entitled to the protections of the Fourteenth Amendment. They are entitled to the same protections as the then newly freed slaves the corporations could, and did, own prior to the Civil War amendments.

Posted by: esch | January 4, 2011 1:24 PM | Report abuse

Excellent. Anything that cuts down the feminists and perverts is great with me.

Posted by: nomobarry | January 4, 2011 12:17 PM | Report abuse

Like Sarah Palin and Larry Craig, I get it now.

Posted by: elbuzz1 | January 4, 2011 1:24 PM | Report abuse

That dog whistle he's blowing is deafening. Go ahead and bring appeals of Prop 8 to the court, bring the Walmart discrimination case and I wouldn't be surprised if he wanted to revisit separate water fountains.

I can't think of anything more activist than stating that hundreds of millions of CITIZENS are not protected by the Constitution.

This guy should be swinging by his neck and not sitting on the highest court in the land.

Posted by: theobserver4 | January 4, 2011 1:23 PM | Report abuse

I do not like Scalia's jurisprudence, nor his politics, but even I can see his argument is a reasonable one.

It's just that he's not acknowledging the *other* reasonable arguments for extending the 14th amendment's equal protection clause, such as Distillation of Intent or, if you're into ad hoc-type legal philosophy, precedent.

Posted by: brickerd | January 4, 2011 1:21 PM | Report abuse

People can complain about Scalia's views all they want, but what he actually said should be very palatable to most of Scalia's critics, especially to those who complain so loudly about conservative judges holding too much sway on the bench.

Scalia's point is simply that where the Constitution says nothing, it is not the responsibility of the courts to invent something, but the responsibility of the legislature to fill in the gaps. He is encouraging more reliance on democratically elected representatives instead of appointed judges, which should be a relief to those who fear Scalia legislating from the bench.

The problem is that liberals became too accustomed to legislating from the bench ever since FDR began stacking the Court after it found several of his New Deal policies unconstitutional. FDR hung around so long that he appointed almost every seat on the Court, which provided liberals with an activist majority for decades. When the majority finally started to slip away from liberals in the 1980s, they suddenly began to cry foul, even though the Court's decisions since then have arguably been less activist than any time since the late 1930s.

In terms of women's rights in particular, women actually hold a majority in America in terms of population. If they want something, they can easily vote in the legislators who will get it done for them.

Oh, wait...women aren't all mindless drones of the women's rights movement and of old-school feminism, and they don't all think and vote alike. Well, gosh, men don't either. Welcome to democracy. Sell your ideas. Convince a majority of the public or of legislators, and you'll reach your goals. Relying on courts to legislate what Congress does not is hijacking the system. Scalia critics complain about this when conservative judges do it, and yet they desperately want and need liberal judges to do the same on their behalf because they seem incapable of accomplishing their goals through a democratic process.

Posted by: blert | January 4, 2011 1:20 PM | Report abuse

Scalia is right, as usual. Liberals totally miss the point.

Posted by: TheLastBrainLeft | January 4, 2011 1:19 PM | Report abuse

Bought and paid for by the business elite. This guy is a corruption of the impartial jurist. I bet none of his family want for jobs, money or access.

Posted by: citizen625 | January 4, 2011 1:14 PM | Report abuse

Looks as if Justice Scalia has provided the country with an excellent rationale for revisiting the Equal Right Amendment.

Posted by: topperale | January 4, 2011 1:08 PM | Report abuse

Scalia is splitting hairs. It's certainly true that the 14th amendment wasn't part of the original Constitution, but it has been in place for 143 years.

It's very typical of a right-wing judicial activist like Scalia to interpret the constitution literally when it suits him, and 'liberally' when he wants to invent policy like free speech rights for corporations.

Posted by: micron26 | January 4, 2011 1:05 PM | Report abuse

Looks as if Justice Scalia has provided the country with an excellent rationale for revisiting the Equal Right Amendment.

Posted by: topperale | January 4, 2011 1:05 PM | Report abuse

If you read the Constution of the United Statea it makes no mention of women but it does not include children either. The constuiton is a document that includeds all Legal Americans, regardless of Sex, Age, Race or relegious beleifs. It is only the people who attempt to change or interpete the Constution that make the discrimination of people. What we need
are judges and politicans who do not try to change the intent nor the desires that our foregfathers had the inteligence to put into the Consutiton.

Posted by: jmsmaxwell | January 4, 2011 12:56 PM | Report abuse

If you read the Constution of the United Statea it makes no mention of women but it does not include children either. The constuiton is a document that includeds all Legal Americans, regardless of Sex, Age, Race or relegious beleifs. It is only the people who attempt to change or interpete the Constution that make the discrimination of people. What we need
are judges and politicans who do not try to change the intent nor the desires that our foregfathers had the inteligence to put into the Consutiton.

Posted by: jmsmaxwell | January 4, 2011 12:55 PM | Report abuse

So, women don't have equal protection under the law, but corporations do?

Posted by: billyvw | January 4, 2011 12:55 PM | Report abuse

If the Constitution is so darn clear about everything, then why do we need these trolls on the Supreme Court at all?

Posted by: gmcduluth | January 4, 2011 12:47 PM | Report abuse

Well, he's right about his having been on the Court too long.

This is the same justice who believes that torture is OK as long as it's performed pre-trial. The Constitution doesn't prohibit cruel and unusual interrogation, he says, only punishment.

Posted by: i_go_pogo | January 4, 2011 12:46 PM | Report abuse

Does the Constitution explicitly protect Italian-Americans from discrimination?

Posted by: rcasero | January 4, 2011 12:38 PM | Report abuse

DOMA for instance (Defense of Marriage Act) has recently been ruled unconstitutional. Why? Because you can't write a law, Mr. Scalia, per our constitution, that expressly prohibits a legal union of jew and gentile, or african-american and caucasian, or a short person and a disabled person. And yes, "persons" under a certain age cannot make legal decisions for themselves, nor animals of any variety… although somehow non-breathing entities known as corporations are somehow deemed "persons" by your court… Oh, what logic! What "expertise"! Ha… anyway, per the above, you also (soon) will NOT be allowed to prohibit any longer the union of two persons of the same sex, who are already in a union of their own making. Grow up already. You're a big boy now.

Oh, and why is it that we can relieve the commander of an aircraft carrier of his duty for being a poor and degrading leader of others (i.e. Capt. Owen Honors), yet the other captains of the "ship" holed-up in our supreme court are completely immune to consequences. Are you all really THAT wise? Talk about a tradition that has outlived its usefulness…
http://www.washingtonpost.com/wp-dyn/content/article/2011/01/02/AR2011010201160.html?hpid=topnews

We need a constitutional amendment to solidify the notion and process that there are checks and balances for supreme court justices, not a guaranteed job for the rest of their life - that is insanity on our part and a detriment to our society that's drags us down decade after decade after decade. Let's just change it :\

Posted by: LawsLuvr | January 4, 2011 12:37 PM | Report abuse

I guess this would explain why the 1944 Republican party platform stated:
"We favor submission by Congress to the States of an amendment to the Constitution providing for equal rights for men and women. We favor job opportunities in the postwar world open to men and women alike without discrimination in rate of pay because of sex."
Anyone think that today's Republican party would propose such an amendment?

Posted by: pandes | January 4, 2011 12:36 PM | Report abuse

I don't understand why people are outraged by his comments. Once again, the Post gives a misleading headline to try and stir the pot. If you READ what he said, there is no room for debate at all. He is only speaking the truth.

Posted by: Jsuf | January 4, 2011 12:26 PM | Report abuse

"He is a strict Constitutionalist." Ha, Ha, what a joke!! I'm sure the Founding Fathers felt that a contractual entity (corporations) should be viewed as "persons" by the Court. Or that individual property rights should be trampled for the benefit of corporations (see the Bridgeport, CT decision). Or that the Supreme Court should determine a Presidential election.

Posted by: ben16 | January 4, 2011 12:26 PM | Report abuse

In all honesty though, rights are inalienable. They are universal. The constitution does not grant rights, as that implies that you don't have rights to begin with. The constitution is there to limit the scope of which the government can intrude in our lives.

It's why a lot of what was written in the constitution began with "Congress shall make no law..." - it's there to limit government, not to give us rights that we should already have to begin with.

So Scalia is somewhat wrong. I won't pretend that I'm a constitutional scholar, but my interpretation is that while the constitution does not grant rights, it implies that rights are already there, and that it prevents the government from infringing on those rights. In a way, that DOES protect women, gays, and minorities from discrimination.

Posted by: ClandestineBlaze | January 4, 2011 12:21 PM | Report abuse

What a maroon.

In 1868 no one thought anyone but white males had any rights.

Posted by: bmschumacher | January 4, 2011 12:19 PM | Report abuse

That's a huge declaration by Scalia. At first I was stunned by the women's rights verdict but he's correct. It will also help clarify the upcoming immigration battle announcement scheduled for tomorrow.

Posted by: Desertdiva1 | January 4, 2011 12:19 PM | Report abuse

I don't know why this would cause anyone to get their dander up- it's historically accurate. When the 14th amendment was passed it said: "no State shall make or enforce any law that shall abridge...." It reinforces the responsibility of the States to create laws to protect people- it creates the framework.

The Supreme Court does not create law- it only votes on the constitutionality of existing laws. The historical intent of the amendment had no sexual context because women were no allowed to vote then. This was changed in the 19th amendment in 1919.

If you want to get working on something- try raising sons withour sexual bias. I somehow do not understand how a sexist can have a mother- but they do- and women support the behavior. Both men and wonem need to raise their children to have an appreciation for both sexes. Did laws stop prejudice between the races????

Posted by: poppysue85 | January 4, 2011 12:18 PM | Report abuse

I don't know why this would cause anyone to get their dander up- it's historically accurate. When the 14th amendment was passed it said: "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."

Highlight "no State shall make or enforce any law that shall abridge...." It reinforces the responsibility of the States to create laws to protect people- it creates the framework.

The Supreme Court does not create law- it only votes on the constitutionality of existing laws. The historical intent of the amendment had no sexual context because women were no allowed to vote then. This was changed in the 19th amendment in 1919.

If you want to get working on something- try raising sons withour sexual bias. I somehow do not understand how a sexist can have a mother- but they do- and women support the behavior. Both men and wonem need to raise their children to have an appreciation for both sexes. Did laws stop prejudice between the races????

Posted by: poppysue85 | January 4, 2011 12:17 PM | Report abuse

Excellent. Anything that cuts down the feminists and perverts is great with me.

Posted by: nomobarry | January 4, 2011 12:17 PM | Report abuse

He also gives us a lesson in the check and balance of our great system.

-----------------------

yea, as in the middle class writes the checks to cover tax breaks for the rich corporations now considered to be human beings...and balanced as in the Fox News Division propaganda, run by former Repubican Party Dirty Trickster Roger Ailes

Posted by: Poleman | January 4, 2011 12:14 PM | Report abuse

Surely the founders were also not envisioning that the First Amendment would absolutely protect huge corporations wishing to make unlimited campaign contributions, but when it comes to the rights of corporations, "original intent" for some reason does not enter Scalia's mind. Scalia's constitution suddenly becomes quite expansive, even imaginative, when the rights of the rich and powerful are at issue.

It is only when the rights of "little people" are on the block that Scalia reaches for the history books to deny constitutional rights.

Scalia is a politician, a conservative Catholic politician. He is going to vote against women and gays, and vote for big corporations almost every time. My only issue with him is that he is intellectually dishonest. He puts on the judicial robes and dresses up his conservative Catholic views as some kind of legal methodology.

Posted by: tboyer33 | January 4, 2011 12:13 PM | Report abuse

Surely the founders were also not envisioning that the First Amendment would absolutely protect huge corporations wishing to make unlimited campaign contributions, but when it comes to the rights of corporations, "original intent" for some reason does not enter Scalia's mind. Scalia's constitution suddenly becomes quite expansive, even imaginative, when the rights of the rich and powerful are at issue.

It is only when the rights of "little people" are on the block that Scalia reaches for the history books to deny constitutional rights.

Scalia is a politician, a conservative Catholic politician. He is going to vote against women and gays, and vote for big corporations almost every time. My only issue with him is that he is intellectually dishonest. He puts on the judicial robes and dresses up his conservative Catholic views as some kind of legal methodology.

Posted by: tboyer33 | January 4, 2011 12:12 PM | Report abuse

I don't know why this would cause anyone to get their dander up- it's historically accurate. When the 14th amendment was passed it said: "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."

Highlight "no State shall make or enforce any law that shall abridge...." It reinforces the responsibility of the States to create laws to protect people- it creates the framework.

The Supreme Court does not create law- it only votes on the constitutionality of existing laws. The historical intent of the amendment had no sexual context because women were no allowed to vote then. This was changed in the 19th amendment in 1919.

If you want to get working on something- try raising sons withour sexual bias. I somehow do not understand how a sexist can have a mother- but they do- and women support the behavior. Both men and wonem need to raise their children to have an appreciation for both sexes. Did laws stop prejudice between the races????

Posted by: poppysue85 | January 4, 2011 12:11 PM | Report abuse

Scalia goes back to original intent when it suits his political biases. However, he fails to apply this logic when it comes to the 2nd Amendment. The "arms" the founders wrote about were single shot muskets and pistols with horrendous aim, certainly not semi- and automatic weapons capable of murdering multiple people in mere seconds. If Scalia meant what he says about original intent, he'd vote only to allow unfettered access to muskets, sabers and cannons.

Posted by: healthpolicyanalyst | January 4, 2011 12:10 PM | Report abuse

A Group of PERSONS is not a person. To give a group rights is to assume that an individual person had their rights taken from them. Scalia is correct. He is simply saying the Constitution neither protects nor takes away rights of a group. He also gives us a lesson in the check and balance of our great system. We should be re-learning this lesson as the Executive branch continues to take power away from the legislative branch.

Posted by: redduke | January 4, 2011 12:09 PM | Report abuse

making the point that asking the Supreme Court to fix or address stuff that should be handled with "ordinary" laws is wrong, is fine. Suggesting that what the drafters were thinking when they wrote the 14th amendment is all that matters is absurd, and he knows it. What matters is what they WROTE. They didn't have to be thinking of women when they wrote PERSONS, and the amendment was meant to address slavery, but by what argument can one suggest that state laws discriminating against women isn't contrary to the 14th?

Posted by: JoeT1 | January 4, 2011 12:09 PM | Report abuse

A Group of PERSONS is not a person. To give a group rights is to assume that an individual person had their rights taken from them. Scalia is correct. He is simply saying the Constitution neither protects nor takes away rights of a group. He also gives us a lesson in the check and balance of our great system. We should be re-learning this lesson as the Executive branch continues to take power away from the legislative branch.

Posted by: redduke | January 4, 2011 12:08 PM | Report abuse

No, Mr. Scalia, the unrestrained majority imposing its will on the unprotected minority is called fascism.

Posted by: truke | January 4, 2011 12:05 PM | Report abuse

Corporations are people and money is speech according to Scalia but women and gays for the purposes of the 14th amendment are not considered to be persons except when they are the descendants of slaves?

Posted by: exbrown | January 4, 2011 12:05 PM | Report abuse

I'm sure the Ku Klux Klan and the Nazi skinheads would be very comfortable with Scalia's interpretation. That should say it all right there. Scalia and the rest of this court, based on the 2000 installment of Bush over Gore, the Citizens United case that declares corporations to be people, and if Scalia has his way, the limiation of the 14th amendment will go down as one of the most wrong-headed facist courts in our history. You can't get much more UN-AMERICAN than this Gang of Five on the Supremely Screwed Up Court. These guys should all be sent to Gitmo for their attack on our former democracy.

Posted by: Poleman | January 4, 2011 12:03 PM | Report abuse

I'm pretty sure the drafters of the 14th Amendment weren't envisioning the equal protection analysis that Scalia used in Bush v. Gore either. It didn't bother him when "nine superannuated judges" selected the President of the United States.

I would respect his ideological position more if he were actually honest about it.

Posted by: alyttle | January 4, 2011 11:23 AM
___________________________________________
This comment needs to be re-posted.

Posted by: Lefty_ | January 4, 2011 11:59 AM | Report abuse

These comments are no surprise coming from a Catholic, religious, white male radical. This moron should be impeached. But there is no chance of that as the morons now run the country. Backward America lives!!!!!

Posted by: fare777 | January 4, 2011 11:51 AM | Report abuse

Scalia is correct and once again asserts why he is the greatest Justice on the current court. He is a strict Constitutionalist. It boggles the mind how an amendment designed to grant citizenship to freed slaves has been coopted for such disparate causes from citizenship to illegals to gay marriage.

If Congress wants gay marriage it needs to pass a law. If Congress wants women at VMI it should pass a law. We need more Scalias to get this country right again.

Posted by: cleancut77 | January 4, 2011 11:50 AM | Report abuse

All "hate crime" laws are unconstitutional. Am I not entitled to the same protection under the law just because just because I'm not a negro and don't commit sodomy?

Posted by: carlbatey | January 4, 2011 11:32 AM | Report abuse
_____________________________________________

Ignorance personified. Of course you are entitled the same protection. The law prohibits anyone from harrassing you, threatening you, or inflicting harm upon you. The sad thing is that we have to spell it out to protect difference exactly because of the ignorance you exhibit here.

Posted by: rhalter3633 | January 4, 2011 11:36 AM | Report abuse

Um, hello? Of course the apologists on here are men. I don't care if you are "liberal" or not, you are dead wrong, and so is Scalia. The text of the 14th amendment uses the word "PERSONS" - not "white heterosexual men," which of course, if we are being honest, is exactly whom Scalia in his twisted mind imagines the Constitution is meant to protect first and foremost. Pardon me, but are your mothers, grandmothers, sisters and daughters people, or not? Are gay men and women people, or not? Are black men and women people, or not? I am a woman and I assure you that I am a PERSON the same as any man. I believe the text makes it quite clear that PERSONS may not have their life or liberty infringed upon by any law and that they are due equal protection. What, precisely, is unclear about this, to Scalia or to anyone else? The language is quite simple and easy to understand, folks.

Posted by: rhalter3633 | January 4, 2011 11:33 AM | Report abuse

All "hate crime" laws are unconstitutional. Am I not entitled to the same protection under the law just because just because I'm not a negro and don't commit sodomy?

Posted by: carlbatey | January 4, 2011 11:32 AM | Report abuse

This one is a no brainer well, almost as libs don't get it. IF the 14th was about sexual discrimination, we wouldn't have needed the 19th Amendment. Oops! Watch the libs head's explode over that one. LMAO!

Posted by: illogicbuster | January 4, 2011 10:42 AM
___________________________________
And if the Equal Protection Clause effectively prohibited discrimination by States against blacks, we wouldn't have needed the Voting Rights Act!

Sometimes the law needs to be redundant to get the point across. Particularly to illogical, ignorant conservatives.

Posted by: luridone | January 4, 2011 11:25 AM | Report abuse

I'm pretty sure the drafters of the 14th Amendment weren't envisioning the equal protection analysis that Scalia used in Bush v. Gore either. It didn't bother him when "nine superannuated judges" selected the President of the United States.

I would respect his ideological position more if he were actually honest about it.

Posted by: alyttle | January 4, 2011 11:23 AM | Report abuse

Hes actually right on this one, surprisingly enough. That is why we have had to pass anti-discriminatory legislation before like the Age Discrimination Act of 1975, the various Civil Rights Acts of the 1960s, Equal Pay Act, etc.

Posted by: ozpunk | January 4, 2011 10:41 AM
______________________________
Completely incorrect. The 14th Amendment applies to State governments, not private entities. The laws you refer to regulate private behavior.

Posted by: luridone | January 4, 2011 11:18 AM | Report abuse

Scalia may have meant to say that the Constitution does provide protection but not the details or regulations which the legislative and executive branches must develop.

Posted by: kishorgala | January 4, 2011 11:17 AM | Report abuse

We should be no more upset with this dimwit justice spouting malarky than we are at dimwit senators doing the same thing. The SCOTUS is just a 'superannuated' version of the senate, no more deserving of special respect or attention than the senate. It's a club of mostly rich white men (present progress excepted), with no connection to real society, who just pay back their constituents like any other politicians.

Posted by: postsucks99 | January 4, 2011 11:15 AM | Report abuse

"It's not about nine superannuated judges who have been there too long, imposing these demands on society."

Unless you are talking about corporate business interests, of course. Then up is down, black is white, and corporations have the rights of people ...

Given his expertise in 'the letter of the Law being of higher priority then the spirit of the Law' especially in regard to the constitution, I'm still waiting for Justice Scalia to point out the sentence in our Constitution equating the rights of individual, American citizens to those of corporations comprising of multinationals ...

Hypocrisy, apparently, is not limited to the executive and legislative branches of government.

Posted by: peter2001 | January 4, 2011 11:11 AM | Report abuse

Scalia belongs in a mental institution.

Posted by: Jihm | January 4, 2011 11:11 AM | Report abuse

I am a vegetarian. Do I get equal protection under Scalia's Constitution? Or I am a lefty. Or I am a sock-and-a-shoe, sock-and-a-shoe person. Or like to part my hair to the right.

Posted by: kishorgala | January 4, 2011 11:10 AM | Report abuse

Scalia is a judge, not a legislator. He says what is, not what ought to be. He isn't saying women should be discriminated against, only that the Constitution doesn't ban it. Pretty simple.

The Constitution also says nothing about murder, yet saying that doesn't mean murder is good. It's addressed by our laws instead.

I am a liberal who firmly opposes sex discrimination, but I understand the difference between the judiciary and legislature. If judges just go deciding to see whatever they want in the Constitution, one could someday find, say, a right to discriminate! Fellow liberals, learn some civics.

Posted by: Dadrick | January 4, 2011 10:59 AM
__________________________________
What part of "any person" do you and Scalia not understand?

And, FWIW, individuals ARE free to discriminate. And under the Constitution, so are any private entities, such as corporations and unions. That type of discrimination IS banned, but only by legislation (under the authority of the Commerce Clause, but I digress), NOT the Constitution. It's the government that is not allowed by the Constituion to discriminate.

Posted by: luridone | January 4, 2011 11:09 AM | Report abuse


What is so vague about "equal protection?" Seems preety simple; if you're a human being in the USA, you are entitled to equal protection. Men, women, children, black, white, red, yellow, tall, short, fat, sick, old, young, cripple. All are covered, Scalia. What is so confusing?

Posted by: ScottChallenger | January 4, 2011 9:45 AM

-----------------------------

You are slightly incorrect. Not all human beings are protected. The 14th says "persons born in the United States." Unborn humans and non-citizens are not protected.

Posted by: anti-elitist | January 4, 2011 10:43 AM
________________________________
You are completely incorrect. Both the Due Process and Equal Protection Clauses of the 14th Amendment refer and apply to any "person." No State may deny due process or equal protection of the laws to any person. They are not limited to citizens.

Posted by: luridone | January 4, 2011 11:03 AM | Report abuse

anti-elitist, I think you are missing the point here. Scalia isn't referring to the unborn or non-citizens. He is broadly asserting that the liberties and freedoms that white people of property and wealth took for granted back in the early days of the Republic, could justifiably be denied to others--women, non-white, even people without property or means--simply based on his asinine, overly restrictive view that the Constitution has no specific language conferring such rights.

Yet, simply reading the Preamble to the Constitution infers that such rights are broadly implied to all citizens. The broad principles in that lofty language would ring pretty hollow to the world--and indeed did in those early days--if by some deceitful trickery, one could cherry pick the criteria that make one a citizen eligible for the "blessings of liberty". It is abundantly clear that the Founders intended the Constitution follow the founding precepts outlined in our Declaration of Independence: "We hood these truths to be self evident: That All Men are created Equal. It is clear enough that by all "men" they were asserting a far broader set of rights than Scalia and the Libertarians are willing to grant.

Posted by: jaxas70 | January 4, 2011 11:01 AM | Report abuse

Scalia is a judge, not a legislator. He says what is, not what ought to be. He isn't saying women should be discriminated against, only that the Constitution doesn't ban it. Pretty simple.

The Constitution also says nothing about murder, yet saying that doesn't mean murder is good. It's addressed by our laws instead.

I am a liberal who firmly opposes sex discrimination, but I understand the difference between the judiciary and legislature. If judges just go deciding to see whatever they want in the Constitution, one could someday find, say, a right to discriminate! Fellow liberals, learn some civics.

Posted by: Dadrick | January 4, 2011 10:59 AM | Report abuse

Once again, Scalia frustrates liberal-progressives....because he's absolutely right.

See, liberal-progressives are used to just forcing their ideology on people ("sometime people are too stupid to know what's good for them" - Bill Maher). So, they like the pretend the Constitution says stuff it doesn't. That's why the founders left MOST powers (at least with domestic policy) to STATE legislatures, as opposed to granting the FEDERAL judiciary power to make whatever laws they please out of thin air (read: Roe vs Wade). Scalia is right: the FEDERAL judiciary exists to interpret laws, not make them.

But liberal-progressives don't like that. Trying to convince the masses of their ultimate enlightment and wisdom is too time-consuming, and actually winning elections and ballot issues is messy and hard work. Progressives much prefer to find sympathetic judges who will, with the wave of the pen, make progressive ideology become law by fiat.

Just imagine a world where states are free to determine their own domestic policy....Massachusetts wants high taxes, universal health care, and taxpayer funded abortions? Great. Put it on the ballot. And if Idaho doesn't share those values, they are free to make laws that reflect THEIR values instead of having statist elitism shoved down their throats by progressives thousands of miles away.

If only the Founders had the forethought to give states liberty to decide these matters for themselves....

Yours,
The 10th Amendment

Posted by: dbw1 | January 4, 2011 10:33 AM
________________________________
You must have been asleep when the 14th Amendment was adopted - it places significant limits on the authority of STATE legislatures to restrict the rights and freedoms of the people. Try reading it.

Posted by: luridone | January 4, 2011 10:57 AM | Report abuse

Scalia is a judge, not a legislator. He says what is, not what ought to be. He isn't saying women should be discriminated against, only that the Constitution doesn't ban it. Pretty simple.

The Constitution also says nothing about murder, yet saying that doesn't mean murder is good. It's addressed by our laws instead.

Posted by: Dadrick | January 4, 2011 10:57 AM | Report abuse

I disagree with Scalia, and it comes down to the age-old debate as to whether the Constitution must be interpreted restrictively, in terms of what existed at the time that its provisions were ratified, or more broadly, according to the view that the ratifiers intended broadly worded provisions to apply even to developments that they could not foresee. Being in the latter camp, I believe that those who ratified the Fourteenth Amendment, while clearly intending to address the issue of slavery and discrimination against African-Americans, also intended to guarantee ALL citizens the equal protection of the law. Had they intended the Fourteenth Amendment only to guarantee equal treatment to African-Americans, it would have been simple enough to say so in the Amendment itself. And with respect to the interpretation of legislation, Scalia has frequently reiterated his view that courts should look only at the text of the provision at issue, in which case the circumstances surrounding its enactment would not matter. Moreover,in my opinion, Scalia himself does not always embrace "strict constructionism" of the Constitution. For example, he accepts the concept of a "regulatory" taking, although there is a strong case to be made that those who ratified the Fifth Amendment had no such thing in mind and that the Supreme Court essentially invented that doctrine in the twentieth century.

Posted by: AdrianMole | January 4, 2011 10:56 AM | Report abuse

Scalia is a judge, not a legislator. He says what is, not what ought to be. He isn't saying women should be discriminated against, only that the Constitution doesn't ban it. Pretty simple.

The Constitution also says nothing about murder, yet saying that doesn't mean murder is good. It's addressed by our laws instead.

Posted by: Dadrick | January 4, 2011 10:56 AM | Report abuse

roscym1:
"Thomas Jefferson is spinning in his grave over Citizens United. His views and that of other founding fathers was clear when it came to "entities" like corporations pretending to be people."

Do you suppose Mr. Jefferson is likewise 'spinning in his grave' due to 'entities' like labor unions who pretend to represent middle-class workers, yet which exist merely to fleece workers paychecks and redirect that money to the political campaigns of the very candidates and left-wing issues many of the union workers vote AGAINST?

In 2010, nearly half of union members voted Republican (47%, per Zogby). Yet, their union leaders directed some 90%-95% of political contributions to Democrats. How does that pattern line up with representing their membership?

And, by the way, what you wouldn't know from all the "Citizen United" complainers on the left is that DEMOCRATS, not the GOP, raked in the majority of contributions from corporations in 2006 and 2008. Only when Obama declared war on the folks who create jobs in this country and businesses switched their donations to the GOP in 2010 were Democrats suddenly concerned about the 'corrupting influence' of corporate donations.

I can only hope that maybe you will be the one liberal in history to be swayed by actual facts instead of talking points from the DNC, and realize the lunnacy of your statement.

Posted by: dbw1 | January 4, 2011 10:54 AM | Report abuse

What an illeterate monster this Scalia is- he cannot even read the constitution! He makes statemsts about law the only justify his own political beliefs. He is about 2 centuries behind, and should be impeached !

Posted by: soccerhead | January 4, 2011 10:54 AM | Report abuse

Look. For more than two and a quarter centuries, people with Scalia's mindset have been resisting our Constitution and the powers it grants to and divides among the three Branches of the federal government. Scalia and the Libertarians have demonstrated through their publicly asserted views that they feel more comfortable with the previous form of government--The Articles of Confederation, a dismal failure the major feature of which was a central government so weak that it could not maintain stability among the states.

Indeed, Scalia and the rabble he appeals to would be perfectly at home with a government where in effect, the various states had complete autonomy. In fact, we would not be a country at all and would probably be at war constantly as states would be eternally involved in all manner of disputes concerning who owns what and who can travel in freedom through whatever territories or states that would exist under such a wildly anarchic system.

Posted by: jaxas70 | January 4, 2011 10:47 AM | Report abuse

What is so vague about "equal protection?" Seems preety simple; if you're a human being in the USA, you are entitled to equal protection. Men, women, children, black, white, red, yellow, tall, short, fat, sick, old, young, cripple. All are covered, Scalia. What is so confusing?

Posted by: ScottChallenger | January 4, 2011 9:45 AM

-----------------------------

You are slightly incorrect. Not all human beings are protected. The 14th says "persons born in the United States." Unborn humans and non-citizens are not protected.

Posted by: anti-elitist | January 4, 2011 10:43 AM | Report abuse

The Constitution does not even mention corporations, much less call them persons. Yet Scalia opined that they have Constitutional rights as actual people. The Constitution gives states the right to determine election rules. Yet Scalia voted to usurp the Florida Supreme Court when it was politically expedient to make sure a Republican was elected.

Scalia is not nearly as smart as he thinks he is. He quit learning as a teen and has spent his entire adult life justifying his teenage opinions. But he is certainly slicker than deer guts on a doorknob in defense of his stratified opinions.

Watch what they do. Not what they say.

Posted by: BuddyK | January 4, 2011 10:42 AM | Report abuse

This one is a no brainer well, almost as libs don't get it. IF the 14th was about sexual discrimination, we wouldn't have needed the 19th Amendment. Oops! Watch the libs head's explode over that one. LMAO!

Posted by: illogicbuster | January 4, 2011 10:42 AM | Report abuse

Hes actually right on this one, surprisingly enough. That is why we have had to pass anti-discriminatory legislation before like the Age Discrimination Act of 1975, the various Civil Rights Acts of the 1960s, Equal Pay Act, etc.

Posted by: ozpunk | January 4, 2011 10:41 AM | Report abuse

Scalia's problem is that he himself is hypocritically inconsistent. When it suits him, he pushes hard for using the black letter of the law, as in cases involving privacy rights, including abortion, on the basis that the Constitution never uses the word "privacy." But when the black letter of the law leads to results that he doesn't like, as in equal protection cases, he switches to "original intent." But the black letter of the Equal Protection Clause is clear - no State may deny the equal protection of the law to ANY person. It is not limited by its language to race, much less to just blacks.
Posted by: luridone
**************
+1
This buffoon makes me embarrassed to be an attorney.

Posted by: overed | January 4, 2011 10:41 AM | Report abuse

Interesting how Scalia wants to limit discussion of equal protection to the scope of original intent in 1868 but when it comes to speech, he's happy to ignore the fact that in 1787 when the first amendment was applied, there were no such things as national corporations with unlimited cash to influence politicians but he has no problem saying they have unlimited protections.

Posted by: greenmountainboy | January 4, 2011 10:39 AM | Report abuse

Well, for Heaven's sake Judge Scalia! Using that overly restrictive view would put us back right smack dab in the middle of where we were when we daid slavery was OK constitutionally ecause the black people or "negro slaves" were not people at all but property. Isn't that the nub of your view. That state legislatures can just willy nilly define what constitutes being a person and what does not thus allowing them to make all manner of mischievous laws that effectively make a mockery of the language in the Preamble as it states one of the main purposes of the Constitution was to "secure the blessings of liberty to ourselves and our posterity".

Clearly, Scalia's mind is more at home in the early days of the Republic when all manner of discrimination against the more disadvantaged members of our society was tolerated because of such malevolent, backward, elitist thinking which had the unhappy result of vast numbers of our citizens in a state of oppression.

Aside from all of the history and precedent that Scalia seems to be resisting is the moral question: Of what value is a Constitution that embraces the concept of liberty in broadly asserted principles but denies that blessing to vast numbers of citizens because no specific language in the Constitution defines the scope and extent of just what the "blessings of liberty means" and who is eligible for that blessing.

I find it appalling that a modern jurist would be a devotee' of such backward looking and oppressive views.

Posted by: jaxas70 | January 4, 2011 10:36 AM | Report abuse

LMAO!

Posted by: TOMHERE | January 4, 2011 10:34 AM | Report abuse

Thomas Jefferson is spinning in his grave over Citizens United. His views and that of other founding fathers was clear when it came to "entities" like corporations pretending to be people.
The Second Amendment was written because of a fear of having a standing army not to let any shmuck keep and uzi by his bedside.
And Bush v Gore was another classic case of Scalia the "original intent guy" doing the bidding of the Right. Of course we you talk about Scalia you should include his second vote aka Justice Thomas.

Posted by: roscym1 | January 4, 2011 10:28 AM | Report abuse
/////////////////////////////////////////
Very stupid, off-the-wall reasoning on your part.

Scalia is a self-enamored megalomaniac whose intellectual narcissism has deluded him into the "it is correct simply because I thought it" syndrome. The notion that he contradicts himself is rejected of of hand because of his belief in his own inerrancy.

Posted by: polysciprof | January 4, 2011 10:21 AM | Report abuse
/////////////////////////////////////////
Backwards thinking. Look in the mirror or at your Dem party members, THEN your words will ring true.

Posted by: RealTexan1 | January 4, 2011 10:33 AM | Report abuse

Once again, Scalia frustrates liberal-progressives....because he's absolutely right.

See, liberal-progressives are used to just forcing their ideology on people ("sometime people are too stupid to know what's good for them" - Bill Maher). So, they like the pretend the Constitution says stuff it doesn't. That's why the founders left MOST powers (at least with domestic policy) to STATE legislatures, as opposed to granting the FEDERAL judiciary power to make whatever laws they please out of thin air (read: Roe vs Wade). Scalia is right: the FEDERAL judiciary exists to interpret laws, not make them.

But liberal-progressives don't like that. Trying to convince the masses of their ultimate enlightment and wisdom is too time-consuming, and actually winning elections and ballot issues is messy and hard work. Progressives much prefer to find sympathetic judges who will, with the wave of the pen, make progressive ideology become law by fiat.

Just imagine a world where states are free to determine their own domestic policy....Massachusetts wants high taxes, universal health care, and taxpayer funded abortions? Great. Put it on the ballot. And if Idaho doesn't share those values, they are free to make laws that reflect THEIR values instead of having statist elitism shoved down their throats by progressives thousands of miles away.

If only the Founders had the forethought to give states liberty to decide these matters for themselves....

Yours,
The 10th Amendment

Posted by: dbw1 | January 4, 2011 10:33 AM | Report abuse

Thomas Jefferson is spinning in his grave over Citizens United. His views and that of other founding fathers was clear when it came to "entities" like corporations pretending to be people.
The Second Amendment was written because of a fear of having a standing army not to let any shmuck keep and uzi by his bedside.
And Bush v Gore was another classic case of Scalia the "original intent guy" doing the bidding of the Right. Of course we you talk about Scalia you should include his second vote aka Justice Thomas.

Posted by: roscym1 | January 4, 2011 10:28 AM | Report abuse

I see nothing at all wrong with Justice Scalia's reasoning.

I think the Left has problems with anyone who does not land on the same side with an issue they care about, and the Left has no clue that judges are there to "call balls and strikes", not to decide which laws are "good or bad".

Posted by: RealTexan1 | January 4, 2011 10:28 AM | Report abuse

Scalia is a self-enamored megalomaniac whose intellectual narcissism has deluded him into the "it is correct simply because I thought it" syndrome. The notion that he contradicts himself is rejected of of hand because of his belief in his own inerrancy.

Posted by: polysciprof | January 4, 2011 10:21 AM | Report abuse

There obviously needs to be an insanity waiver to the lifetime appointment of Supreme Court justices. What Scalia fails to mention however, is that when the Legislature does indeed pass these anti-discrimination laws, Scailia and Roberts will be there to declare it unconstitutional. This being the case, Scalia should and must now recuse himself from any future cases on this subject because he's already made his opinion clear and cannot argue in any way that he's able to render a n unbiased decision based soley on the arguments. Scalia is a justice with an agenda - to make law from the bench. In spite of their year's long arguments to the contrary, the hypocritical Republicans apparently only reject this notion when it's a liberal circuit court judge making the decision.

Posted by: Byrd3 | January 4, 2011 10:18 AM | Report abuse

There obviously needs to be an insanity waiver to the lifetime appointment of Supreme Court justices. What Scalia fails to mention however, is that when the Legislature does indeed pass these anti-discrimination laws, Scailia and Roberts will be there to declare it unconstitutional. This being the case, Scalia should and must now recuse himself from any future cases on this subject because he's already made his opinion clear and cannot argue in any way that he's able to render a n unbiased decision based soley on the arguments. Scalia is a justice with an agenda - to make law from the bench. In spite of their year's long arguments to the contrary, the hypocritical Republicans apparently only reject this notion when it's a liberal circuit court judge making the decision.

Posted by: Byrd3 | January 4, 2011 10:16 AM | Report abuse

Any conservative and that particular wing of the Supreme Court that hews to an "originalist" point of view when it comes to the Constitution would be well advised to view the following:

http://www.youtube.com/watch?v=qBU_VjN2Jjw

Posted by: njacobs | January 4, 2011 10:16 AM | Report abuse

A constitution is best used in a democracy to protect against the tyranny of the majority, especially when they happen to be Neanderthals in places of privilege and power, like the U.S. Supreme Court.

Posted by: SarahBB | January 4, 2011 10:16 AM | Report abuse

Any conservative and that particular wing of the Supreme Court that hews to an "originalist" point of view when it comes to the Constitution would be well advised to view the following:

http://www.youtube.com/watch?v=qBU_VjN2Jjw

Posted by: njacobs | January 4, 2011 10:14 AM | Report abuse

We demand legislation without representation!

Posted by: politbureau | January 4, 2011 10:13 AM | Report abuse

All Conservatives need to pack thier bags and leave this country. They are all crazy and becoming dangerous. This obese sweaty pig needs go back to the hole he fell out of.

Posted by: porcelainproductions | January 4, 2011 10:08 AM | Report abuse

A sitting Supreme Court Justice should not opine on these issues. Doing so signals how he or she will rule. Scalia should let his opinons, majority or dissenting, do his talking.

He should be recused from any such cases.

Posted by: Garak | January 4, 2011 10:06 AM | Report abuse

The 14th Amendment protects "any person," which clearly covers women. What Scalia is talking about is original intent, which he conveniently abandons when it comes to other amendments, such as the 2nd.

I don't think the framers intended the 2nd amendment to protect automatic machine guns, or possibly even handguns since they had no way of knowing what the future would bring in terms of weaponry.

Posted by: trace1 | January 4, 2011 10:06 AM | Report abuse

If you don't use original intent as a guide for interpreting the Constitution what consistent philosophy do you use? Liberals merely want to turn it into a less democratic legislative institution, the better to get away from the sentiments of the great unwashed.

Posted by: edbyronadams | January 4, 2011 9:21 AM
________________________________
Scalia's problem is that he himself is hypocritically inconsistent. When it suits him, he pushes hard for using the black letter of the law, as in cases involving privacy rights, including abortion, on the basis that the Constitution never uses the word "privacy." But when the black letter of the law leads to results that he doesn't like, as in equal protection cases, he switches to "original intent." But the black letter of the Equal Protection Clause is clear - no State may deny the equal protection of the law to ANY person. It is not limited by its language to race, much less to just blacks.

Posted by: luridone | January 4, 2011 10:06 AM | Report abuse

The 14th Amendment 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.

According to Scalia, at the time of passge of the 14th Amendment (1868), only white heterosexual males were citizens of this country and the 14th Amendment was a post civil war remedy for slavery. But if the writers of the 14th amemdment only wanted to limit its protections to blacks and freed slaves, I am sure that they would have specifically stated its limitations. However, to the contrary, they wanted to include and protect "all citizens" of the US.
I guess, according to Scalia, 143 years of legal scholarship by various members of the Supreme Court got this wrong and he has it right. What a pity.

Posted by: JMac_in_MD | January 4, 2011 10:06 AM | Report abuse

The 14th Amendment granted citizenship to “all persons born or naturalized in the United States,” which included former slaves recently freed. In addition, it forbids states from denying any person "life, liberty or property, without due process of law" or to "deny to any person within its jurisdiction the equal protection of the laws.”

It was not exclusive of any group so Justice Scalia may want to rethink his narrow view of the 14th Amendment, at it is broadly stated, "any person within its jurisdiction..." period.

Within the US borders the US should protect the rights of ALL it's Citizens, irrespective of their sexual orientation, race, creed, color, or religious beliefs, this is the spirit of the Constitution and the American People.

Posted by: patmatthews | January 4, 2011 10:02 AM | Report abuse

"no state shall ... deny to any person within its jurisdiction the equal protection of the laws"

Since women and gay people are persons, they are protected from discrimination. Scalia is an ass.

Posted by: hitpoints | January 4, 2011 9:54 AM | Report abuse

If you don't use original intent as a guide for interpreting the Constitution what consistent philosophy do you use? Liberals merely want to turn it into a less democratic legislative institution, the better to get away from the sentiments of the great unwashed.

Posted by: edbyronadams
----
How is it LESS democratic to ensure that women and gays have the same rights as the rest of the population? How is a country
MORE free when it denies the same liberties to women and gays? Where is it the business of government to legislate who sleeps with who? Yours is an opinion, and you are entitled to it, but your opinion, if it became the law of the land, would certainly make this country less free and less democratic, and, yes, less American.

I think the Constitution is one of the greatest documents ever written, but it is great because it is vague and allows for interpretation. To think that the writers, as brilliant as they were, could have forseen all the changes of the last two hundred years, is ridiculous. They were intelligent and reasoned. They were not clairvoyant.

Scalia is probably one of the most intelligent justices on the court, and he is certainly one of the worst. His is a law that exists in a vaccuum, rarely conceeding that law exists to serve society. He has said that the Constitution does not prohibit the death penalty for any crime or any age, which, in practice, could mean that the state could execute a five year old for stealing a candy bar.

Perhaps the Constitution does not explicitly prohibit discrimination against gays and women but those men were wise and were responding to the time, and few would deny that the justices that followed who legislated many of the laws that prohibited that discrimination has made this a better and freer country. I think that had Jefferson been writing today he would have written "We hold these truths to be self-evident, that all men AND WOMEN are created equal".

Posted by: nyrunner101 | January 4, 2011 9:50 AM | Report abuse

Scalia is 100% correct, and he is saying nothing controversial.

Posted by: pgr88 | January 4, 2011 9:20 AM
_________________________
You're joking, right? Nothing controversial? Women are not protected by the 14th Amendment? Not only is that incredibly controversial, it is 100% wrong, under the current interpretation of the Equal Protection Clause by the SCOTUS.

Posted by: luridone | January 4, 2011 9:48 AM | Report abuse

What is so vague about "equal protection?" Seems preety simple; if you're a human being in the USA, you are entitled to equal protection. Men, women, children, black, white, red, yellow, tall, short, fat, sick, old, young, cripple. All are covered, Scalia. What is so confusing?

Posted by: ScottChallenger | January 4, 2011 9:45 AM | Report abuse

What is so vague about "equal protection?" Seems preety simple; if you're a human being in the USA, you are entitled to equal protection. Men, women, children, black, white, red, yellow, tall, short, fat, sick, old, young, cripple. All are covered, Scalia. What is so confusing?

Posted by: ScottChallenger | January 4, 2011 9:44 AM | Report abuse

"the tradition of having government funded military schools for men is as well rooted in the traditions of this country..."

Tradition is often wrong which is why our nation does not consider tradition to be the law of the land. This is why women, people of color, the poor, can vote. This is why we no longer have slavery. There are so many of those "this is why"(s) that it is impossible to put them in these comments. The point is that a nation which operates under the RULE OF LAW does so because tradition is not always (perhaps seldom) LAWFUL but is often a way to discriminate against segments of society.

scalia's comment proves just how unfit he is to have a seat on our Supreme Court. Which is less supreme when people like him are members. What an embarrassment to our country.

Posted by: spike591011 | January 4, 2011 9:41 AM | Report abuse

he's the poster boy for justices not having lifetime appointments, you have to weed out the a$$h0les regularly.

Posted by: calif-joe | January 4, 2011 9:41 AM | Report abuse

"the tradition of having government funded military schools for men is as well rooted in the traditions of this country..."

Tradition is often wrong which is why our nation does not consider tradition to be the law of the land. This is why women, people of color, the poor, can vote. This is why we no longer have slavery. There are so many of those "this is why"(s) that it is impossible to put them in these comments. The point is that a nation which operates under the RULE OF LAW does so because tradition is not always (perhaps seldom) LAWFUL but is often a way to discriminate against segments of society.

scalia's comment proves just how unfit he is to have a seat on our Supreme Court. Which is less supreme when people like him are members. What an embarrassment to our country.

Posted by: spike591011 | January 4, 2011 9:41 AM | Report abuse

"the tradition of having government funded military schools for men is as well rooted in the traditions of this country..."

Tradition is often wrong which is why our nation does not consider tradition to be the law of the land. This is why women, people of color, the poor, can vote. This is why we no longer have slavery. There are so many of those "this is why"(s) that it is impossible to put them in these comments. The point is that a nation which operates under the RULE OF LAW does so because tradition is not always (perhaps seldom) LAWFUL but is often a way to discriminate against segments of society.

scalia's comment proves just how unfit he is to have a seat on our Supreme Court. Which is less supreme when people like him are members. What an embarrassment to our country.

Posted by: spike591011 | January 4, 2011 9:40 AM | Report abuse

Scalia is just demonstrating (for the umpteenth time) his rank hypocrisy. On the one hand, he constantly rails on the need for judges, including SCOTUS Justices, to apply the black letter of the law, including the Constitution, to cases, that "intent" is too nebulous a concept to be used in jurisprudence. On that basis, he would not only deny a woman the Constitutional right to have an abortion should she so choose, but he would also overturn ANY ruling that is based on a Constitutional protection of individual privacy.

And yet, when the black letter of the law (in the case of the Equal Protection Clause - "No State shall...deny to any PERSON the equal protection of the laws" - no mention of race, gender or any other defining characteristic) leads to results that he doesn't like, such as providing equal rights to women, non-black minorities, gays, and other disfavored groups, all of a sudden he harkens back to "original intent."

Sorry, Tony, but you can't have it both ways.

Posted by: luridone | January 4, 2011 9:40 AM | Report abuse

Let me see if I understand Justice Scalia: The plain meaning of "person" at the time the 14th amendment was drafted included blacks but not women and therefore only blacks are entitled to equal protection of the laws. I guess under Scalia's interpretation, it is constitutional for the government to discriminate on any other basis other than race and that there is no reason to believe that the drafters sought to extend the guarantee of equal protection of the laws beyond blacks.

Is this person really qualified to sit on the Supreme Court?

Posted by: ZardsFan1 | January 4, 2011 9:35 AM | Report abuse

F.ucking hypocrite!
Doe the constitution protect imbeciles, bigots, and right-wing trash?

Posted by: analyst72 | January 4, 2011 9:34 AM | Report abuse

What a hypocrite. I suppose the outcome of Citizens United was intended by the Founders?

Posted by: dconover | January 4, 2011 9:30 AM | Report abuse

Apparently, this columnist it too young to remember the fight to pass the ERA (Equal Rights Amendment) which failed. He or she should look this up!

We've known for a long time that women don't have equal rights by law in the United States. Nobody seems to care anymore.

Posted by: tina5 | January 4, 2011 9:24 AM | Report abuse

Welcome to the land of the Right wing Taliban. he he he he.
Ladies vote GOP, and that what you get.

Posted by: tqmek1 | January 4, 2011 9:22 AM | Report abuse


If you don't use original intent as a guide for interpreting the Constitution what consistent philosophy do you use? Liberals merely want to turn it into a less democratic legislative institution, the better to get away from the sentiments of the great unwashed.

Posted by: edbyronadams | January 4, 2011 9:21 AM | Report abuse

Scalia is 100% correct, and he is saying nothing controversial.

He is simply saying - if Americans want "gay rights" - then legislate it. Don't pretend it is in the intent of the constitution, because it is is NOT.

Posted by: pgr88 | January 4, 2011 9:20 AM | Report abuse

i wonder how the supreme court judges can use or read the constitution.it is written and spoken in english yet we do not have a national language.why is every piece of paper that comes out of d.c written in english and spanish.

Posted by: SISSD1 | January 4, 2011 9:18 AM | Report abuse

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