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Posted at 4:30 PM ET, 01/ 4/2011

Justice Scalia's unsettling interpretation

By Marisa Katz

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.

By Marisa Katz  | January 4, 2011; 4:30 PM ET
Categories:  Katz  | Tags:  Marisa Katz  
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Comments

The root issue here is the legislative branch's abdication of its constitutional powers and responsibilities to the other branches.

Congress no longer decides when we go to war. Congress no longer decides what the bill says, the leave the meat and potatoes to the agencies to develop regulations. So no one knows what the laws even mean.

Rather than amend the Constitution, Congress allows the judicial branch to rewrite via interpretation. But any legal decision can be undone just as easily, compared to the difficulty of repealing a law.

Congress is too weak. The other branches are too strong.

Posted by: katorga | January 4, 2011 5:35 PM | Report abuse

Ms Katz,

what worries me most in my 6th decade of life is that it is the LEFT (and the DIMocRAT "leadership") that seems MOST intent on ending freedom of speech, which disagrees with their inbred PREJUDICES.
(not less than a dozen times since the 1st of December has a "poster" on "PP" said that conservatives/"teabaggers"/Republicans aren't capable of making "wise decisions" on matters of "public policy" & thus should be barred from the public airwaves and/or from voting!)

fyi, the more i learn about "the left", "the ruling class" & the DIMocRAT "leaders", the better i like poisonous snakes, venomous spiders & scorpions.

just my opinion.

yours, TN46
coordinator, CCTPP

Posted by: texasnative46 | January 4, 2011 5:51 PM | Report abuse

Before attacking a Justice of the High Court for expressing a point of view relating to the construction of an Amendment one should read the relevant Amendment.

It should be remembered that a judges is obliged to interpret this legislation as it stands and that he/she is not free to ignore what it says by substituting a 'modern' interpretation and application that is conflicts with the legislation.

A reading of the 14th Amendment shows that it does not treat all citizens equally. In fact, it clearly identifies classes of people all of whom have different standings.

Thus, all Americans may have been created equally but subsequently they are not equal.

In part the 14th Amendment reads as follows:

Section 1:
... 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. ...

Section 2:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. ... But when the right to vote at any election ... [is] abridged ... [then] ... the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3
No person ...

Section4
... But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

The assumption that the Constitution treats everyone equally and fairly is romantic nonsense because the 14th Amendment deliberately discriminates against slaves (black people), Indians and women.

The 14th Amendment recognises several classes of people all of whom have slightly different standings and rights. They include: citizens, men, women, Indians, slaves, traitors, criminals, those who have engaged in insurrection et al, judges and politicians.


Posted by: robertjames1 | January 4, 2011 6:56 PM | Report abuse

If Scalia really believed in such a tight definition of equal protection he never would have voted as he did in Bush v. Gore. He's just a blowhard with the power to be as dishonest as he cares to be.

Posted by: bbolles | January 4, 2011 7:46 PM | Report abuse

The statement is on equal protection, his reading of the 14th apparently skipped this statement:
Section One states "nor deny to any person within its jurisdiction the equal protection of the laws."
We would have to then say women are not persons, which is obviously a stupid conclusion. That does not seem to occur to Scalia though.
You cannot call it discrimination by race but ignore discrimination by sex or any other "discrimination" that exists. The effectiveness of enforcement has and always will be difficult, but it should nonetheless remain a prohibited activity.

Posted by: hamkast | January 4, 2011 10:35 PM | Report abuse

Scalia has stated that corporations are people too and enjoy the protections of the first amendment despite his knowledge that the Founding Fathers intended no such thing. So Scalia is a strict constructionist only when it suits him.

Since Scalia and perhaps a majority on the current Supreme Court don’t believe that the 14th Amendment gives women equal rights and since the Constitution refers to the President as “he” multiple times, would the current Supreme Court rule that women can’t be president?

Posted by: EarlyBird1 | January 5, 2011 5:57 AM | Report abuse

Hmm. So someone named Katz, agrees with someone named Ginsburg and disagress with someone named Scalia.
That's a real shocker.

Posted by: ej_smug | January 5, 2011 7:36 AM | Report abuse

Ugh, textualism is not a real view point. The Constitution also does not say anything about having:
an Air Force, an Intelligence Agency, a Federal Police force (FBI), or an agency for Space Exploration (NASA), an agency for Environmental Protection (EPA) etc. (presumably you can find one agency in the list you think is worthwhile).

does that mean we can't have any of these? 21st century America should not be held captive by 18th century founding fathers simply because they did not have a crystal ball with them at the Constitutional Convention.

Posted by: igotstripes | January 5, 2011 7:48 AM | Report abuse

If the 14th Amendment isn't protecting women (and other minority classes) from discrimination, well, then, convene a Constitutional Convention and write one that does!

If you impeach Scalia, you might have to impeach a couple more of the Supremes for poor judgement--if you're a private citizen. If you're a corporation, then this Court is doing a great job!

Who *are* defined as "persons" in the Constitution and its amendments, aside from propertied white males of majority age? Must look that up.

Ms. Katz writes:
"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).

I'd wonder if poison was one of the ingredients, were I him, and making such a statement.

Posted by: AMarinaF | January 5, 2011 8:23 AM | Report abuse

When did the SCOTUS become a vehicle to transport us back in time? Did America become "great" when women stayed home and cooked dinner, or when they rolled up their sleeves and went to work, running the country while the men went off to fight wars? And today, women are fighting the wars as well. American greatness evolve BECAUSE of the freedoms for ALL of it's citizenry. We cannot progress if we live in the past. We cannot be world leaders if we maintain a centuries-old mentality. It's frightening when a Justice thinks that the 14th Amendment does not protect women, but the !st Amendment gives corporations the right of free speech which, in modern day America is translated as money given to politicians. I think that Scalia is slipping into senility.

Posted by: pattreid | January 5, 2011 8:26 AM | Report abuse

Article 14 Sec. 2 would allow a state to deny the vote to men subject, however, to a loss of congressional representation, while Article 19 prohibits the denial of the vote to women. I suppose Scalia's view, if it carries the day, could eventually spark retaliation from female literalists in control in some states in some imagined future. Especially in states with only one Congressperson. Scalia's view might allow DE to deny the right to vote to males with no penalty at all, unless the VRA intervened for minority representation - would males be a disadvantaged minority in Scalia's framework, or would only black and brown males be re-enfranchised by the VRA?

Posted by: mark_in_austin | January 5, 2011 8:34 AM | Report abuse

It's really the Supreme Court (Republican)of the United States--shortened to SC(r)OTUS.

Posted by: GeneTouchet | January 5, 2011 9:24 AM | Report abuse

And is it not equally unsettling that you don't know what kind of judges and justices you will get? That is really Scalia's point: if a small handful of unelected officials can decide when and how the Constitution has evolved, is that not worse than having a broader elected body decide when the law should change?

Posted by: naranja | January 5, 2011 9:42 AM | Report abuse

Scratch my post at 8:34AM EST. Should have reread the 19th, rather than having gone from memory of it as "womens' suffrage". It prohibits discrimination based on sex. It amends, somewhat, Article 14 Section 2. No actual conflict. I apologize.

Posted by: mark_in_austin | January 5, 2011 9:56 AM | Report abuse


I was reading your blog with interest , Ms. Katz, until you noted Soros-funded Think Progress' opinion.

As with any opinion a Soros-funded organization espouses, I consider the source and move on.

Posted by: janet8 | January 5, 2011 10:07 AM | Report abuse


Hmm. So someone named Katz, agrees with someone named Ginsburg and disagress with someone named Scalia.
That's a real shocker.

Posted by: ej_smug
+++++++++++++++++++++++++++++++++++++++
Wow, Smug (so aptly named) you have proven, more than any other comment I have EVER read on these boards, the truth of the old adage "Better to keep one's mouth shut and be thought a fool, than to open it and remove all doubt."

Posted by: DCSucks | January 5, 2011 10:25 AM | Report abuse

If we go back to the consciousness of the men who wrote that ammendment and consider scalia's view that they were not thinking of women...then we must also reflect on the fact that in the 19th century women could murder their husbands with impunity because men just could not conceive that a woman could do such a thing and they would always look elsewhere for the murderer. Oh, the good ole days.

Posted by: cozzete | January 5, 2011 10:30 AM | Report abuse

If we go back to the consciousness of the men who wrote that ammendment and consider scalia's view that they were not thinking of women...then we must also reflect on the fact that in the 19th century women could murder their husbands with impunity because men just could not conceive that a woman could do such a thing and they would always look elsewhere for the murderer. Oh, the good ole days.

Posted by: cozzete | January 5, 2011 10:33 AM | Report abuse

Unfortunately, the writer - and many commenters - are so intent in berating Justice Scalia, that they totally misunderstand his point - and the U.S. Constitution - in the process. The 14th Amendment guarantees every person the equal protection of the law. That means that, if there is a minimum wage law, a working man cannot be paid less than that, and neither can a working woman. But, if there is no law encted that requires women and men to receive equal pay for equal work, then the Constitution, in and of itself does not prohibit an employer from paying female workers less (or more) than their male counterparts. Scalia is not arguing that there shouldn't be such laws, only recognizing that his role as a Justice isn't to invent such a law by misinterpreting the Constitution. That is the mark of a true constitutional scholar, not the other way around.

Posted by: bpadrino | January 5, 2011 10:56 AM | Report abuse

Scalia chooses whether the words or his intuition of the intent of the writers of the Constitution should prevail based on which interpretation fits his prejudices.

Did the authors of the 14th Amendment have women in mind? Probably not.

Did the authors of the 1st Amendment have corporations in mind WRT freedom of speech? Certainly not.

But the 1st must be interpreted in terms of the broadest extension of its words and the 14th must be interpreted according to the narrowest understanding of the intent because Scalia wants one result and not the other.

Posted by: fpfrankpalmer | January 5, 2011 11:49 AM | Report abuse

This "opinion" piece is a bunch of bologna - to use an old word.

The only actual quote used was Justice Scalia's - most of the links are to other "opinions" in blogs, or other articles and in the cases where they actually link to a document, you'd have to read it with the premise that the Justice is going to write something that seeks to harm you or a group of you's rather than just writing an opinion of their own.

Rather than worry over three of the SC Justices "opinions" on constitutional law, how about we spend some time on the fact that President Obama is bypassing the legislature that Scalia refers to using regulation rather than legislation?

Posted by: LMW6 | January 5, 2011 12:07 PM | Report abuse

Your jump from what you quote justice Scalia as saying to your later statement that he wants to roll us back and take away women's rights is a bit nonsensical as he does not say anythign of the sort. He is merely stating bhis reaidng of the
Constitution. You are obviously trying to make a mountian out of a mole hill to appease your loyal supporters. If they buy what you have written then they should wear a stupid sign. I hope they have more intelligence than you do

Posted by: pprucci | January 5, 2011 2:01 PM | Report abuse

Just a moment, Ms. Katz. Justice Scalia makes an argument: he notes that the framers of 14th Amendment couldn't have had in mind the prohibition of discrimination by gender (women wouldn't even get the franchise for another half century), nor, certainly on the basis of sexual orientation. He argues, further, that the Constitution neither proscribes nor prescribes sexual discrimination and concludes that it's the legislature's role and right to proscribe (or prescribe) such discrimination in law. OK, that's the argument, and it's not, at least superficially, an unsound argument. I understand that you don't like his conclusion: the proper rejoinder would be to attack his premises or reasoning. What I object to is the gross appeal to the received ideology to counter a reasonable argument.

Posted by: vacohee | January 5, 2011 6:06 PM | Report abuse

It's not the height of hypocrisy for Scalia to demand submission to his subjective assessment of the Framers' original intent when interpreting the plain words of the Constitution while scorning original intent when interpreting the plain words of Congressional legislation.

It's just not, O.K.? Get over it.

Posted by: yarbroughr | January 5, 2011 7:00 PM | Report abuse

The 14th Amendment recognises several classes of people all of whom have slightly different standings and rights. They include: citizens, men, women, Indians, slaves . . .


Posted by: robertjames1
* * * * * * * * * * * * *
By the time the 14th Amendment was passed and ratified, slavery in the U.S. had already been abolished by the 13th Amendment. Section 4 says that former slaveholders could not claim any payment for their "lost property." The 14th is one of the Reconstruction Amendments, which assert that former slaves were citizens.

Posted by: CherieOK | January 5, 2011 7:35 PM | Report abuse

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