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Linda_Owl's avatar

Can you believe that Justice Antonin Scalia says that the Constitution does NOT give equality to women?

Asked by Linda_Owl (7722 points ) September 19th, 2012

Justice Scalia says that the 14th Amendment gave equality to freed MALE slaves, but he is insistent that it did not mean that women were granted equality. He says that, basically, women are still non-people & that gender & sexual discrimination is perfectly legal. This goes a long way to explaining why the Republicans have been waging a war on women & gay people & trans-gendered people. Is this how you think the Constitution should be interpreted? Being a woman, I certainly do not think his interpretation is correct. You might find this link to be very interesting
http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html

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24 Answers

El_Cadejo's avatar

“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.”

Wow, he sounds like such a dick…

CWOTUS's avatar

What’s the surprise here? He’s a strict constructionist – for the most part – and the 14th Amendment does not say what you want it to say, and what it probably should say. For that matter, the original wording of the Constitution disrespected Native Americans and all slaves (who happened to be mostly black).

So? It says what it says, not what you want it to have said.

For what it’s worth, I think that women and gays should have equal rights. So does Scalia, I would expect. He’s not a troglodyte, as much as you might think he is. If the Constitution is going to say that women have equal rights, then it is up to Congress to propose the Amendment, and then up to state legislatures to ratify that.

That’s the process. It’s not up to us to interpret the Constitution to imagine that we know what it ought to say, and rule upon that.

Aethelflaed's avatar

I’m not at all surprised that Scalia thinks this, and this is exactly why there was (and is) a push for the Equal Rights Amendment.

wundayatta's avatar

My first job out of college was fundraising for the Equal Rights Amendment for women. People said it wasn’t needed. The constitution guarantees women equal rights already. And thus the ERA was not passed.

So it’s thirty years later or so, and a Supreme Court Justice tells us that we were lied to. The Constitution does not guarantee equal rights for women. Of course, it’s just one ninth of the court, so maybe no one is worried.

Then again, maybe it’s time to guarantee that equal rights for women is built into our Constitution.

CWOTUS's avatar

I agree, @wundayatta. I thought so then, and I think so now. The ERA should have passed. I’ve always been surprised 1) that it didn’t, and 2) that it wasn’t resurrected and the recalcitrant state legislatures lobbied hard for ratification.

But if the Constitution is ever to mean anything it has to be interpreted for what it actually says, and not for meanings that can be twisted into it. That’s partly why we have the mess of government that we do have; everything okayed because of an overly broad interpretation of “oh, it’s the Commerce Clause”.

wundayatta's avatar

Why do you think that, @CWOTUS? What is wrong with allowing interpretations to change as the needs of society change? Why must we depend on legislatures, which are mostly deadlocked these days, to do things? What is wrong with justices telling us what our laws mean today, when we really need to know.

SavoirFaire's avatar

It turns out that Scalia is wrong by his own standards. The Nineteenth Amendment says that the Fourteenth Amendment—along with the rest of the US Constitution—applies regardless of sex, so the US Constitution (which Scalia agrees includes all non-repealed amendments) does prohibit discrimination based on sex. Perhaps the Fourteenth Amendment didn’t do so when first passed (he could have just referenced Minor v. Happersett on that point rather than going into his roundabout justification quoted by @uberbatman), but it does now (and has since 1920).

jaytkay's avatar

The idea that the fourteenth amendment DOES NOT apply to women is ridiculous.

It says “all persons” deserve “equal protection of the laws”.

Here’s the text:
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.

Aethelflaed's avatar

@SavoirFaire I thought the 19th Amendment guarantees the right to vote regardless of sex, but says nothing about the rest of the Constitution, or other rights.

@jaytkay And then what does it say in the next section?

DrBill's avatar

Slanted question not deserving of an answer.

Aethelflaed's avatar

@DrBill If all these answers do not deserve questions, why do you answer them simply to denigrate them? Why not simply move along and not answer a question you deem not worthy of answering? And why not ask your own question that you think is unbiased?

ETpro's avatar

Scalia is full of elephant shit. That’s why he was nominated to the court. The Equal Protection Clause of the 14th Amendment says “no state shall… deny to any person within its jurisdiction the equal protection of the laws.”

Now we have a court that claims corporations are persons, but women are not. Absurd.

Judi's avatar

That’s why we needed the Equal Rights Ammendment but we couldn’t get it ratified in the ‘70’s when we tried.

Sunny2's avatar

Justic Scalia operates in a world of the past and imagines what people then would think now. Dangerous business.

Brian1946's avatar

Objective question deserving of many answers. ;-)

Adirondackwannabe's avatar

Men suck. I know, I’m male.

tedd's avatar

Scalia?

Yah that sounds about right….. lol

wundayatta's avatar

Isn’t Scalia’s argument that when these Amendments were written, they were written by men who didn’t think of women as citizens. So therefore the Amendments could not have been about equal protection for women; they only referred to men, because at the time, only men counted in politics and society.

Is he wrong in his assessment of the time? If you’re an originalist, don’t you have to interpret things according to what they meant at the time?

Now many jurists interpret according to language, and don’t try to get into intent so much. Intent requires reading minds and that’s a dangerous business. Most likely, the mind you are reading is your own. Still, people like Scalia believe they can read the minds of those in the past, and that is a reasonable thing to do.

Linda_Owl's avatar

Personally, I would like to see Scalia IMPEACHED and removed from the Supreme Court.

SavoirFaire's avatar

@Aethelflaed I’m using Scalia’s reading technique against him. His version of originalism is concerned with how reasonable people at the time would have read the law and what they would have thought they were voting on. The Nineteenth Amendment was specifically passed to overrule the Supreme Court’s contention that the Fourteenth Amendment did not apply to women. Thus a reasonable person at the time would have thought they were voting on a law that recognized equality between the sexes.

This forces Scalia to fall back on a reading of the specific words. He will insist on the fact that the Nineteenth Amendment only talks about voting. But once he takes that tack, we get to bring in @ETpro‘s point: the Fourteenth Amendment is about people, not just men. The US Constitution has long been clear on the different meanings of “male,” “citizen,” and “person.” If the legislators of the day really dropped the ball on this, then that would make them unreasonable. Since only “reasonable” opinions count on Scalia’s view, his argument fails again.

SavoirFaire's avatar

@wundayatta You are correct about Scalia’s argument, but that would make him incorrect in his assessment of the time. Women were clearly considered people, and the Fourteenth Amendment says that all people are henceforth citizens. So it doesn’t really matter whether or not women were (previously) considered citizens—though if they were not, it’s unclear why they were allowed to avail themselves of the other rights of citizens—it matters only whether they were considered people.

In Scalia’s defense, however, his version of originalism is not one of determining original intent. His version maintains that what matters is the original meaning. The former requires reading the minds of legislators, whereas the latter requires understanding only how words were used at the time (thus all the talk of “plain text readings” of the US Constitution). I’m not saying that there aren’t problems with the original intent doctrine as well, but it does not require time-traveling telepaths.

I recognize that the argument I give in this and the previous post may appear to be a conjurer’s trick. If that really is the case, however, it is only because I am playing the originalist’s own game. If my arguments are a conjurer’s trick, then the originalist’s whole position would appear to be one as well.

Nullo's avatar

I certainly can believe that there is no amendment stating that women are people. I always thought it was a given.
Personally, I think that we’re past the point of needing this de facto law written down.

wundayatta's avatar

@Nullo Yet if the majority of the Supreme Court ever comes to think as Scalia does, then we will clearly not be past the point of needing the law written down. In fact, the fact that even one supreme court justice thinks this way is worrying enough to make people think we do need to be specific in the law.

Imagine what kind of Tea Party judges Romney might appoint if he is elected. Scalia’s view could easily become the majority view. At that point, the lack of a specific law would be disastrous. Hopefully for the radical right, soon enough after that.

CWOTUS's avatar

@Nullo I’m afraid that you’re incorrect on this. One would have thought, for example, that “The right of any person to defend self and family [from unreasonable and inappropriate force] being inalienable, the right to keep and bear arms shall not be infringed,” would also not need to be written down, instead of couching the Second Amendment in terms of the practicality of “a well-regulated militia” and “a free state”. And then having endless arguments over what that means, exactly.

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