Justice Scalia's unsettling interpretation
My appreciation for the Constitution dates back to the constitutional convention. The one we had in my Wood Acres Elementary fifth-grade class, where each kid had to introduce an amendment, debate it, and then open it up for a vote. It was a surprisingly acrimonious affair. One by one, the amendments were voted down. Freedom of speech? Nope. Right to bear arms? Sorry. Protection from cruel and unusual punishment? It might have been a future Bush administration aide who stood in the way of that one. At the end of the day, only one amendment passed. Though I don't recall having had an especially feminist streak, I'd proposed an "equal pay for equal work" amendment, and all the 10-year-olds agreed that that made sense.
I realize that the Constitutional Convention of 1787 didn't play out quite like that. But I don't think the Constitution has taken shape quite the way Justice Antonin Scalia imagines it has, either.
As you may have heard, Scalia is ticking people off this week with the claim, in an interview with California Lawyer, that the Constitution doesn't protect against the discrimination of women. Here's the exchange:
CL: 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?
AS: 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.
This echoes a similar comment Scalia made when speaking to California law students back in September.
Okay, so he's right that the Supreme Court hasn't always interpreted the 14th Amendment to prohibit gender discrimination. There was the 1872 case, Bradwell v. Illinois, in which the court denied an Illinois woman a license to practice law. "The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother," Justice Joseph Bradley explained (perhaps while wondering what his wife, Mary, was orchestrating for dinner that evening).
But at least four decades of jurisprudence establish that the equal protection clause protects women from being denied opportunities because of their gender. As Justice Ruth Bader Ginsburg wrote, since Reed v. Reed in 1971, "the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature -- equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities."
The scary thing, as Think Progress has noted, is that Scalia isn't alone among the current Supreme Justices in thinking this way:
Justice [Clarence] Thomas, who has even gone so far as to call for a return to the days when federal child labor laws and laws banning whites-only lunch counters were considered unconstitutional, would almost certainly be moved by Scalia's claim that women's rights under the Constitution must remain exactly the same as they were in 1868. Similarly, as a young lawyer in President Reagan's Justice Department, Chief Justice [John] Roberts penned an article claiming that only race discrimination -- and not discrimination on the basis of other categories such as gender -- is limited by the Constitution.
Justice [Samuel] Alito does not appear to have weighed in on the question of how much protection the Constitution gives women against gender discrimination, but as a lower court judge, he penned a dissent which would have "eviscerated" the law banning race and gender discrimination in the workplace. Alito was also the author of the Supreme Court's unforgivable decision in Ledbetter v. Goodyear Tire, which cut off many women's ability to seek equal pay for equal work until President Obama signed a law overturning the decision.
If my fifth-grade class were passing all the laws, I wouldn't worry about gender discrimination being permitted or imposed. (Instead, I'd worry about being cruelly and unusually punished for violating restrictions on speech.) But since you never know what legislature you're going to get, this sort of thinking by our justices is unsettling.
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