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Judge Scalia: The Constitution Permits Sexual Discrimination

In an interview with the California Lawyer Magazine US Supreme Court Justice Antonin Scalia declares that the 14th Amendment to the US Constitution does not prohibit discrimination based on one's sex or sexual orientation.

Scalia is an "Originalist" is one who adheres to the words of the law and what the framers of the law meant when they wrote the words and the document was passed (by the electorate.

A fairly simple guide to Originalism and non-Originalist thinking can be found here

As a general fan of Scalia's I was asked if I agreed with his statement that the 14th does not encompass equal rights for women. I do not. That is because within the Originalist camp, there are two distinct branches. Scalia is an Intentionalist- Someone who interprets the Constitution according to the way he thinks the people who wrote it meant for it to be passed. This style of interpretation is popular among Neo-conservatives but a number of Classical liberals (libertarians) also hold the view.

I am a textualist. I believe the text means what the text says. I would probably be closer in vision to the late Justice Hugo Black who would decide 1st Amendment issues by reminding his colleagues that "Congress shall pass no law" meant NO. LAW. Textualists look at the words and give to them the meaning that they have. We do not believe that one can go back and decide what the collective voice of the people was except by using the words themselves.

Getting back to Scalia if he is correct that the people who framed the 14th amendment as well as the people who voted for it were not concerned with sexual equality or the equal treatment of those with non-traditional views of sexual orientation then in his view such discrimination would be as legally legislated as the banning of such discrimination.

I do not believe however, that the Constitution is limited by what the majority of people thought at the time of passage. I doubt we can truly discern that. I fall on the side that says read the statute literally as it is the only document we know was voted on. So in this case the 14th Amendment at least for me as a classical liberal means what it says:

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.

Broken down: All persons (Male female black white other etc)born or naturalized in the United States (meaning born here not born here of documented or non documented aliens, BORN. IN THE USA. or given citizenship by us after birth somewhere other than IN THE USA),are Citizens of the US and the state where they reside (So the states do not have a choice in who they may bestow rights upon.)
No State (NO. STATE.)shall make or enforce any law (ANY LAW) which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person (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.

I think Justice Scalia needs to rethink even his sense of Originalist thought. I do not believe that voters (who were mostly male at the time of the adoption of the amendment) did not think their wives or daughters were not persons or citizens. Whether they could conceive the law would someday be applied to women they could have understood it would. After all they failed to exclude them and they could have done so if they never wanted the amendment to apply to these women. I think that trying to apply what they would have decided to do had they issue been debated is just not possible. The original words speak for themselves Women were citizens. The end.

I expect to see Tea Party people try to limit the scope of the 14th amendment and claim to other conservatives that the original intent requires that the amendment not apply to citizenship of the American born children of undocumented aliens. THAT IS NOT WHAT THE AMENDMENT SAYS. Further I can guarantee none of those types of people are smart enough to discern what Americans of 1865 thought. They have no idea what Americans today think I don't want them straining to go back 150 years.

Hattip: Huffington Post

Full post as published by That Lawyer Dude on January 04, 2011 (boomark / email).