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?This is the text of Section 1 of the Fourteenth Amendment:
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.
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.Scalia's response is definitely consistent with his brand of originalism, which is a great argument against originalism. Even if it wouldn't have initially applied to women, I would think that once women won the right to vote, they would be considered full citizens for the purposes of this amendment.
What I find absurd about originalism is the idea that the Founders didn't intend for interpretation of the Constitution to evolve with time outside of the amendment process. If they were being so specific about their meaning, why weren't they more specific with their use of language? "Cruel and unusual punishment"? What the hell does that even mean? If they meant for the government to use the same standards on issues like that forever and ever, then you'd think they would have described more clearly what those standards were.
If Scalia really thinks that the court is comprised of "nine superannuated judges who have been there too long", then perhaps he should lead by example and step down. After all, with over twenty-four years under his belt, he's been there longer than any other sitting Justice.
2 comments:
While I agree with you that the 14th amendment probably does protect women from governmental discrimination (regardless of its original intent), I don't see anything there that would disallow private entities from discriminating based on gender, race, or anything other criterion. In fact, there was no federal law barring private discrimination until 1964, and it only applies to businesses that are open to the public. (The Elks can still disallow women and such, although in most states, they risk losing their liquor licenses by doing this.)
You're right, but Scalia is saying that the Constitution does not even bar discrimination against women by the government.
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