The Fourteenth Amendment forbids any state to deprive any “person” of the equal protection of the laws.
Antonin Scalia believe that the Fourteenth Amendment does not forbid discrimination against women.
Therefore, Antonin Scalia does not believe that women are persons.
Discuss.
If, however, corporations were female…
Thou art a scholar, Mark. When the Eighth Amendment was written, certain punishments such as flogging with “the cat” and running the gauntlet were commonly applied in the military. Do you happen to know if the US Navy ever used keel-hauling? (The War of 1812 was largely caused by British sailors fleeing the harsh disciplines of Nelson’s navy and deserting onto American vessels, from which they were later abducted by British ships.) In any case, these punishments, according to Justice Scalia, would be perfectly constitutional if they were revived today. Lewis and Clark used the gauntlet on their expedition. That should be no problem today.
We can play with Mark’s syllogistic logic a bit if we want:
The 14th amendment forbids any state to deprive any “person” of the equal protection of the laws.
The Supreme Court has held that the 14th amendment doesn’t protect against discrimination based on age.
Therefore the Supreme Court doesn’t believe that old people are persons.
Does anyone find that plausible?
Antonin Scalia believes that the 14th amendment doesn’t forbid discrimination based on gender. The seminal case in the area is Craig v. Boren, where the justices closest to Scalia’s position found that young men were not protected by the 14th amendment from discrimination based on their gender. Did they dissent because they didn’t think those young men were persons?
Duhhh … perhaps because every person runs through a series of ages over his or her lifetime, so that treating people differently based on age doesn’t discriminate against any particular person?
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Is Thomas even right about the Fourteenth Amendment and Age? Glancing at the text of the amendment, it looks like it regulates state actions and civil rights - but not necessarily the discriminatory actions of private parties. You may recall that the Supreme Court invalidated the laws mandating segregated education, but it took an act of Congress to open up segregated lunch counters (the desegregation of interstate travel may have been mandated by the courts, though). The age-discrimination cases that I can offhand recall making it to the Supreme Court were against big private employers, and so I’m not sure the Fourteenth Anendment was even relevant.
I am also confused about why he thinks it only applies to former (male?) slaves, when the text does not use those words. I thought he was supposed to be against “interpretation.”
Someone please explain.
but not necessarily the discriminatory actions of private parties
Not how it works in practice, I think. Title VII? Racial-discrimination-in-employment lawsuits?
Jack Balkin has a post up contending that even if the 14th hadn’t covered women originally, it has to be read as doing so once the 19th Am. is ratified.
In fairness, the touchstone of Scalia’s view probably turns on the notion of “equal protection”; he argues in the interview that the framers of the 14th amendment didn’t intend to include women in their list of categories.
But this is why NCG hits it on the head: this view runs completely counter to his “textualist” theory of interpretation, which holds that we don’t look to original intent, but rather original MEANING. What would the reasonable person at the time have believed that the words mean? That’s why Scalia’s opinions are so filled with dictionary references. So either Scalia must mean that people at the time would not have believed “persons” to include women, or that “equal protection” would not have included discrimination. Neither argument is tenable, so Scalia retreats back to intentionalism.
It’s almost as if he uses textualism when it suits him to get him to conservative policy outcomes.
I am very much a layperson, but I thought racial discrimination in private employment was illegal because of federal legislation (the Civil Rights Acts or similar) not because of the Fourteenth Amendment. But then, I have no notion of the contents or status of Title VII.
C’mon Mark. Government hiring is a form of discrimination, and the government is allowed to discriminate against incompetents. Does that mean that the incompetent are not persons? The government is allowed to give all kinds of special protection to people in its Witness Protection program. I’m not in the Witness Protection program. Am I not a person?
Mark’s syllogism proves too much.
This doesn’t mean that women aren’t a protected class in the Constitution. (Our current jurisprudence seems to say that they are, to a limited extent.) What it does mean is that Constitutional interpretation involves history, context and plain horse sense, as well as verbal logic. And that the Equal Protection clause cannot possibly mean Harrison Bergeron equality.
Warren, you are right: according to the standard interpretation, the 14th Amendment only applies to state action. Of course, as the greatest constitutional scholar of all time, Charles Black, once noted, the Supreme Court’s jurisprudence of the state action doctrine is a “conceptual disaster area.”
Warren: I am not a law professor, so I’m sure you’ll get a better answer from Jonathan, but basically the 14th Amendment is how the Bill of Rights got applied to the states. I forget exactly how- I think it’s just a clause in there somewhere! Failing that, the Commerce Clause would probably work too for workplace discrimination, since pretty much everything is interstate now. The federal government has the right to regulate such commerce. And boy does it!
What’s funny about what Scalia said is that women would also lose all those other rights too - no more First, Fourth or Fifth Amendment rights for women. It really would be like being a chattel again.
NCG, as I understand it, the Bill Of Rights protects speech, not speakers. So even classifying women as non-people might not abrogate their First Amendment rights. Similar arguments hold for the Fourth and Fifth amendments. It’s only when you get to their rights as individuals that the implications of Scalia’s position start to take effect.
Ebenezer, I don’t even see where you’re coming from here. The Constitution and Amendments say equal rights, not equal outcomes (though consistently, unfairly unequal outcomes are a warning flag that rights may be being denied). No one in this thread (except you, flailing against a strawman invented by Kurt Vonnegut in one of his more dyspeptic moods) has said that the NFL’s got to hire a sixteen-year-old girl as a linebacker - they’ve just said that the state doesn’t get to mandate by law that sixteen-year-old boys get precalculus and sixteen-year-old girls get Home Ec.
Jeez, I need to break down and learn about the doctrine of original intent.
It seems like the obvious response to Scalia goes like this:
The Founders had a fairly good idea of what a person was, but they erroneously thought that females and blacks were not persons. We’re in fairly close agreement with them on the personhood issue…we basically agree about the intension (with an ‘s’) of the term. We disagree about the extension, though, because we have recognized certain implications of their views that they themselves pretended not to notice.
Surely folks like Scalia don’t think that we ought to be bound by what the Founders thought about the *extensions* of their terms, do they? If so, then, were we to discover that, say, dolphins are persons (every bit as intelligent, etc. as humans) dolphin-Americans would, however, have no rights, because they weren’t included in the extension of ‘person’ by the Founders.
Because that would be crazy.
(Again, I really don’t have even a good layperson’s understanding of the issues here, so the above almost certainly contains some stupid mistakes.)
Winston -
“Surely folks like Scalia don’t think that we ought to be bound by what the Founders thought about the *extensions* of their terms, do they?”
No, he doesn’t, at least not officially: instead, he believes we ought to be bound by what a “reasonable person” at the time thought that those words meant. Supposedly this framework prevents judges from putting their own policy preferences into the Constitution. But of course 1) we have no idea what a “reasonable person” thought; and 2) we don’t know whether it should be the general definition of the word or whether it should be applied here. This of course gives judges like Scalia all kinds of reasons to put his own preferences into decisions. And then, in a case like this, when it gets tough for him, he jettisons the framework and starts talking about intent, which supposedly is what he was trying to avoid. He’s just intellectually dishonest.
Mark, is that response a concession that the syllogism doesn’t work? Because that’s really all we need to move on.
Warren, yes, I am right. The issue has been presented in cases involving states as employers. And, no, the first amendment doesn’t protect speech, it protects speakers.
NCG, Scalia has a book entitled “A Matter of Interpretation.” He’s very clearly in favor of interpretation. I’m not sure how you get from the fact that discrimination based on gender isn’t constitutionally barred by the 14th amendment to your conclusion that without a right against discrimination based on gender there are no constitutional rights. The fact that the rule against gender discrimination is gender neutral seems little noticed around here.
Jonathan, I think you’re misreading the interview. As is typical for an interview, Scalia is the one answering the questions, and doesn’t in his answer at all retreat to intentionalism. On the merits, I think the short answer is that you are wrong about what the original meaning was.
Jonathan, while we’re talking about intellectual dishonesty here, would you quote the piece in the interview where you think Scalia lapses into intentionalism? Quote, please.
Warren, I went a bit over the top with Harrison Bergeron. But you didn’t answer my point.
“Equal protection” does not mean equal rights or even literal equal protection. I don’t have a right to the kind of police protection that people get in the Witness Protection program. Therefore, I don’t get literal “equal protection” from the cops. And that’s a good thing; I don’t need it, and the taxpayers can’t afford it. Or, for another example, rich people (should) pay higher taxes. Do they have an equal protection claim? Of course not!
As interpreted by our courts, equal protection just means that certain specific kinds of discrimination based on certain criteria are suspect. All other kinds of government discrimination are just fine. The Equal Protection clause gives few hints as to what the suspect criteria are, apart from race. Scalia thinks that this means that the equal protection clause is limited to race. Most other people (including Supreme Court precedent) don’t agree with him.
Scalia’s view is not the law, thank God. But the law of equal protection is scarcely self-evident. It certainly doesn’t mean that the law cannot discriminate among persons and circumstances.
First of all, note that Section 2 of the 14th Amendment refers specifically to males. Hence, we know that the drafters of the Amendment were perfectly capable of using the word “male” when they meant “male?” So why assume that they meant “males” when they wrote “persons?”
Second, who cares what they thought? More precisely, if Scalia is correct about their intent, then “persons” does not include women because in the drafters’ view of the world women were somehow second-class humans, inferior in important respects to men. The word “persons” excluded them for that reason. But the drafters were wrong. Women are not second-class humans. Hence they are covered by the term, whatever the drafters thought.
Scalia’s argument amounts to saying that we are stuck with the 19th century view of society and womens’ role in it. We are not. We follow the principle of equal protection for persons, but recognize that the 19th century definition of this category was wrong.
Our understanding of the world changes and improves over time. To think that the Constitution requires us to ignore this is foolish.
Thomas -
“Nobody ever thought that that’s what it meant. Nobody ever voted for that.” You can’t really call that an original MEANING argument, unless Scalia is saying that “no reasonable person ever would have thought that the word ‘persons’ in the 1860′s meant women.” And he can’t be saying that. Instead, what he’s saying is “no one ever believed that the 14th Amendment was intended to apply to women.” Maybe right, but irrelevant on an original meaning argument. And “nobody ever voted for that” is unintelligible as anything but an original intent argument, I think. You could argue that he misspoke, but then what is the original meaning argument on this?
I’m surprised no one brought up Romer v Evans, the 1996 SC decision that voided Colorado Amendment 2 — an amendment to the State constitution, which, I believe, was adopted by popular referendum, which prohibited the State, or any of its creatures (Universities, municipalities, departments, etc.) from adopting or enforcing any kind of ordinance or policy of nondiscrimination affecting gays and lesbians. Justice Kennedy wrote the opinion for the 6-3 majority, which found that the 14th amendment applied; Justice Scalia, naturally, wrote a dissent. If you are interested in how the Justices think through these issues, the opinions are instructive.
Kennedy: http://www.law.cornell.edu/supct/html/94-1039.ZO.html
Scalia: http://www.law.cornell.edu/supct/html/94-1039.ZD.html
The popular politics — not to be confused with legal reasoning — turned on the rhetoric of “special rights”: the always popular on the Right idea that anti-discrimination statutes give certain identity groups, special privileges. Actual anti-discrimination statutes use universal categories — sex, race, religion, national origin, etc. — and political reaction is often founded in the defense of privilege, but, nevermind. When the Right in Colorado hit upon the idea of a reverse-anti-discrimination constitutional provision, they, tellingly, did not name a universal category; their provision didn’t say, “sexual orientation”. They named their targets: “homosexual, lesbian or bisexual orientation, conduct, practices or relationships” could not be afforded legal protection.
Scalia’s view — one that he has expressed on multiple occasions — was that the Supreme Court should not take sides in what he termed, a Kulturkampf. (The original Kulturkampf was a policy of discrimination and secularization conducted by Bismark’s new German Empire against the Catholic Church. Wikipedia summarizes: “Priests and bishops who resisted the Kulturkampf were arrested or removed from their positions. By the height of anti-Catholic legislation, half of the Prussian bishops were in prison or in exile, a quarter of the parishes had no priest, half the monks and nuns had left Prussia, a third of the monasteries and convents were closed, 1800 parish priests were imprisoned or exiled, and thousands of laypeople were imprisoned for helping the priests.)
Scalia simply does not like the equal protection provisions of the 14th amendment. The only time he has ever invoked them was in his majority opinion for Bush v. Gore, in what can only be termed a calculated insult.
Not to put too fine a point on it, Scalia is a piece of work and damn proud of it, I think.
Jonathan, “Nobody ever thought that’s what it meant” is explicitly an original meaning argument (or, more accurately, it’s an assertion about the original meaning). He’s not saying that “no one ever believed the 14th Amendment was intended to apply to women”, he’s saying that, at the time of the ratification, the amendment’s guarantee of equal protection of the laws was not understood to mean that state laws treating men and women differently were barred. “Nobody ever voted for that” is perfectly intelligible as a statement of what those voting on ratification understood the amendment to mean, which is an original meaning argument, not an original intent argument.
Thomas -
I don’t think so; original meaning concerns what the WORDS meant at the time. What did “persons” mean? Would a reasonable observer, seeing the word “person”, have concluded that THAT WORD only referred to men? Think about it this way: HOW could a reasonable person have concluded that the 14th Amendment didn’t “mean” women were included? Only by looking at the words. To say, “at the time of the ratification, the amendment’s guarantee of equal protection of the laws was not understood to mean that state laws treating men and women differently were barred” elides a question: WHY was it not understood to mean that?
If a person in 1866 had said, “That’s not what it means”, he MUST have been saying one of two things. Either 1) the word “person” does not include the category “woman.” Perhaps, but original meaning people have a lot of work to go on that one. Or 2) “that’s not what the framers intended”, which is intentionalism. Put another way: on what basis would someone have concluded in 1866 that “no person shall be denied equal protection” did not include women? Only by looking at the intent. There’s no other way on the basis of the language unless you want to say that in 1866, a reasonable person would have concluded that the word “person” did not include “woman.”
“Nobody ever voted for that” is another good example. If a legislator said, “Hey, I didn’t vote for that!” he can only mean one of two things: 1) the word “person” as anyone would have understood it did not include “woman”; or 2) “that wasn’t what I ‘meant,’”, which is to say — that wasn’t my intention. And that, of course, is intentionalism.
Scalia insists on this: it’s not what people at the time thought a phrase would mean. It’s what a REASONABLE PERSON at the time thought it would mean. He advocates it because it supposedly is an objective test.
And of course it’s not about laws “treating men and women differently”; it’s laws denying “equal protection.”
What Fred said.
It’s bad enough that this dishonest ideologue sits on the Supreme Court. What adds insult to injury is the notion that he’s some kind of intellectual giant.
Jonathan, I think that Scalia would say that women were understood to be protected by the 14th amendment, and are protected from certain kinds of practices via the equal protection clause. This suggestion that there’s a disagreement about the meaning of the word “persons” is just silly. You’re taking a joking post as serious commentary. Is there some suggestion that Scalia believes that the Black Codes were constitutionally permissible to the extent that black women were subject to them, but not to the extent that black men were? No one believes that, do they? Surely you don’t mean to suggest that’s what is in dispute here.
What is in dispute here is what “equal protection of the laws” meant when the amendment was adopted. Does that phrase mean that laws treating men and women differently are constitutionally disfavored, or even presumptively unconstitutional as denials of equal protection? (I’m not sure what your issue is with my phrasing; the question is whether laws that treat men and women differently thereby deny equal protection. Your alternative I guess is whether denials of equal protection thereby deny equal protection, which I don’t find to be sensible as a question, much less an improvement to my phrasing.) That’s a question of meaning, not of intention (though I think that to the extent we have evidence of intentions and of expected applications, we have evidence of meaning). In answering the question, one might begin by noting that the amendment itself, in Section 2, sets men out separately as a category in the context of voting rights.
I confess I haven’t studied the 14th amendment closely enough to say whether Professor Massey is right on his historical claims about the original meaning (“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.”). But whether that claim is right or wrong, it is a claim about meaning, and it doesn’t reduce to intentionalism.
Thomas, Mark’s post was a joke, but it was a serious joke. The 14th Amendment doesn’t say “men” — it says “person.” If Scalia is going to argue from original meaning, he can’t pick and choose which parts of the amendment he wants to analyze to reach his favored result. He does such things routinely, and here is a typical example. You can parse his statement all you want — “well yes, of course he believes that the 14th amendment protects women, but he just believes that it doesn’t protect them in any meaningful way.” He believes that the 14th Amendment is about race. Protecting Black women as you suggest would be a straightforward race discrimination issue — you don’t have to discriminate against ALL Blacks to discriminate against Blacks.
Indeed, the very fact that Section 2 DOES specifically mention men, under Scalia’s usual textual framework, that would be a prima facie argument that the 14th Amendment DOES cover women, and covers it to the same extent that it covers Blacks. But of course that nowhere enters his discussion, because it doesn’t fit into what he wants.
In any event, it still doesn’t work. The issue under an original meaning analysis remains what the phrase “equal protection of the laws” meant to the reasonable observer in 1866. If it meant “refusing to hire someone for a government job for reasons having nothing to do with the job itself” aka invidious discrimination, then there is no reason under an original meaning theory for it to apply to Blacks and not to apply to women. There is nothing in phrase “equal protection” that would apply to Blacks but not to apply to women. A state couldn’t have Black Codes, and it couldn’t have Women’s Codes (say, women aren’t allowed to sign contracts) — under an original meaning framework.
I’m not familiar with the article to which you refer, but Massey seems to miss a step. The issue isn’t whether equal protection applies to sex discrimination — the issue is first “what does ‘equal protection’ mean”? Then, when we find what that phrase means, we take a look at the facts and determine whether those facts violate the GENERAL notion of equal protection. That’s the whole point of Scalia’s formalism: find general principles and apply them downward (uncontroversially, of course, which always yields a conservative result). Massey is also eliding the question if he is trying to make an original meaning argument. “I don’t think anybody would have thought equal protection applied to sex discrimination” — the question is WHY nobody would have thought that. Did the very notion of “equal protection” carry a gender exception? If not, then there is no basis for saying that it wouldn’t apply. If Scalia is saying that the very notion of “equal protection” in 1866 implied that women didn’t count, that is a VERY hard argument to make, and makes him even more extreme and a worse historian than I thought he was.
The more natural reading of Scalia’s language is that nobody INTENDED it to apply, and that might be right. But it is an intentionalist argument, not a meaning argument. Again, you can parse it all you want, and try to rescue the man, but he’s not coming along with you. Maybe he should.
All other kinds of government discrimination are just fine.
Nope. Still have to have a rational basis.
The article I refer to is the article you refer to-Professor Massey is the one interviewing Justice Scalia. (And his words are his, and not Scalia’s.)
I agree with you that the question is, what does equal protection mean? That’s what we’re looking for. Your position as I understand it is that, if we asked the average reasonable person in 1866-1868 what equal protection of the laws means, such a person would say something like this: it means a state can’t invidiously discriminate against women, and by that I mean that most of our contemporary laws treating men and women differently are barred; our laws on voting rights, for example, are clearly unconstitutional. Massey says that, as a historical fact, no one would have said that then. As I said before, I’m no expert on the history the 14th amendment. But I can see that you and Massey have a straight-forward disagreement about the history and original meaning.
I don’t agree with you on the meaning of the specific mention of men in Section 2. If you are right about the meaning of Section 1, then state laws denying women the vote were unconstitutional. It would be odd, to say the least, to see that the consequences of denying the franchise to women wouldn’t have any effect under Section 2. To me, that’s not determinative, but it is suggestive of difficulties for your position. (I suppose you could write out the bit about voting rights-I’ll let you make the case there.)
I don’t think it’s right to say that original meaning inevitably collapses into original intent (and I think that to the extent you are right to insist it does, we’d be forced to conclude that some of the critiques of intent originalism really don’t have much bite). My view is that we can’t talk about meaning and rules without talking about context and expectations-we must think things, not words.
Finally, you say that Scalia’s originalism “always yields a conservative result”). But of course this isn’t true except in the trivial sense that things that originalism does not readily yield innovations. There are plenty of examples of cases where Scalia’s originalism has led him to positions that do not have a “conservative” valence (in the political sense) (see the confrontation clause cases, for example). And certainly on the most hotly contested social issues, Scalia’s position has generally been to allow the democratic processes to work: states can ban sex discrimination and can abandon their traditional practices, etc.
“Your position as I understand it is that, if we asked the average reasonable person in 1866-1868 what equal protection of the laws means, such a person would say something like this: it means a state can’t invidiously discriminate against women, and by that I mean that most of our contemporary laws treating men and women differently are barred; our laws on voting rights, for example, are clearly unconstitutional.”
No — my position is that most people wouldn’t have considered the question. It simple would not have arisen if people were wondering, “Hmmm…what does equal protection mean?” They would have said, equality means treating people impartially. It means you can’t be unfair. It means that the law doesn’t get to treat one person better than the other by virtue of his background, etc. Standard Jeffersonian/Jacksonian stuff.
And then, if you had asked, well, doesn’t that mean that women should be treated equally?, they would have said, “Oh, no, that’s not what I meant at all. I just mean equality for men.” And then you would have asked, “Do you think that in the army, say, that Black men should be equal to whites?” and they would have said, “Are you kidding? Not at all.” And then you would have asked, “Can the government discriminate in giving, say, a business license to people?” And they would have said, “Of course! Whites are superior.” In which case, the ENTIRE POINT is that people used big words and phrases like “equal protection of the laws” without really thinking through what the applications were.
So an original meaning theory would say, “what did people think the general phrase ‘equal protection’ meant WITHOUT looking at the applications.” I certainly HOPE that that’s what Scalia means because if he doesn’t, then he thinks Brown v. Board of Education was wrongly decided, because we know that the very same Congress that wrote the 14th Amendment also mandated segregated schools in Washington DC. And as soon as he does that, then he has to explain why a “person” who is entitled to “equal protection of the laws” doesn’t include a woman who is discriminated against for no other reason than that she is a woman. And his refuge in that case is, “nobody thought that that’s what they were doing”, which would be a completely different theory of constitutional interpretation than the one he claims he espouses. Or if his refuge is, “well, it covers women because they are persons but as a practical matter that means nothing because the government can write laws stripping women of all their property without violating it”, for example, then he has an incoherent theory.
Now, I’m all in favor of incoherent theories — I actually think that adjudication is all ABOUT incoherent theories. Mechanical jurisprudence doesn’t work, and it never has. Pragmatism of a Posner, or a Traynor, or a Stevens, or a Jackson, etc. But part of acknowledging that you don’t have an airtight theory that guarantees a “rule of laws and not of men” is that you have to acknowledge your ideological biases and stop ranting and raving like a spoiled child from the bench that everyone who disagrees with you is an idiot or an activist, which is usually Scalia’s MO.
And one more thing. You said:
“My view is that we can’t talk about meaning and rules without talking about context and expectations–we must think things, not words.”
Yes! Yes! Exactly! Absolutely! Tell Justice Scalia!
As I understand it, Massey and Scalia would say, equal protection of the law means that the black codes have to go, and you can’t do things like that. My understanding is that they’d say that the amendment was a reaction to a particular concrete practice, and that the amendment was understood at the time as barring a particular kind of law. I confess, I find it more plausible to think that laws are reactions to practices than that they are intended (a dangerous word, but forgive me, it’s late where I am) merely as content-less aspirations.
I know there’s a lively debate about just what the history shows on the original meaning and segregated schools. I’ll let you and McConnell fight that out. I don’t think it’s a clear cut as you suggest that Brown was wrongly decided on an originalist basis.
And on your follow-up: I’m not sure he disagrees. He surely seems aware of the issues, and his view (but not yours) is that we must start with the concrete practice-the things. (His position on legislative history is wrong (but right in so many ways) for reasons related to context and expectations, but that’s a problem with his textualism, not with his originalism.)
Since this is so much fun, I have a question about privacy. Why did the Framers put in a search-and-seizure amendment if there was already one about takings? If the government can’t take your stuff without due process, why would you need protection against the government just coming in and having a look around, unless there was an expectation of … privacy?!!! Because otherwise, wouldn’t the rule be that if you haven’t done anything wrong, you shouldn’t mind the government looking through your unmentionables drawer? I’ve never understood that one.
I know many of you will now say that, well sure people had an expectation of privacy, it just wasn’t *our* idea of privacy (ie, right to reproductive freedom). But if so, why this idea that it’s not in there at all? It is such a ridiculously extreme position. I think it’s silly, I don’t think anyone would have signed the thing if that’s what they thought it meant. So there!
That Anonymous was me. It was probably very boneheaded so I shouldn’t let someone else get the blame.
Or, for another example, rich people (should) pay higher taxes. Do they have an equal protection claim? Of course not!
Of course they do, since we don’t tax people, we tax incomes.
BTW, Brett, can you explain why we didn’t need a Constitutional amendment extending the First Amendment to cover radio and, later, television and, even later, the Internet? Thanks in advance!
Freedom of speech applies no matter how the speech gets from your mouth to somebody’s ear. This is rather like the way your right to be free from unreasonable searches and seizures applies regardless of what you build your house out of. “Freedom of the press” means the freedom to use devices to record written text and pictures. Even when the 1st amendment was written, there was more than one technology to do this, and nobody would have seriously asserted that woodcuts, for instance, or lithographs, lacked 1st amendment protection.
“Smellovision” might be in trouble on this analysis…
Let’s not give him any more bad ideas than he already has.
And yet somehow, “person” and “citizen” don’t just as clearly include “woman.” Amazing. That originalism, that’s some catch.
[i]This is rather like the way your right to be free from unreasonable searches and seizures applies regardless of what you build your house out of.[/i]
Great. What does “unreasonable” mean?
[i]nobody would have seriously asserted that woodcuts, for instance, or lithographs, lacked 1st amendment protection.[/i]
O RLY? Tell that to James Joyce or Bob Guccione or Larry Flynt or . . .
And before you get all nitpicky and jump on the fact that those cases related to content-based censorship rather than medium-based censorship, I’ll whip out Mutual Film Corp., in which the Supreme Court ruled that motion pictures were not entitled to First Amendment protections. More than one county and state have argued seriously that video games do not deserve First Amendment protection. So take your weak “nobody would have seriously asserted” and try again.
I think Thomas has made a number of good points in the thread above, but a simpler rejoinder is the following (whether Mark’s original post was meant to be taken seriously or not): Justice Scalia’s comment has led to the usual ad hominem attacks as well as assumptions about his views which he doesn’t seem to have expressed. Instead, I think he was making a narrow point that the 14th Amendment was not meant to confer equal rights by gender, since the context was that it was one of the Civil War Amendments. Evidence of the correctness of this position is that the 19th amendment was even necessary.
On the other hand, the extrapolation from his comment to the assumption that he does not believe that gender based rights exist today is nonsense. However, such rights may not enjoy specific constitutional protection, but instead have been lawfully granted, as have guarantees for the other “protected” groups, (those over age 40, for example). Such laws can be passed (constitutionally) if they are not banned by the constitution, though they may not be required by the constitution. It is an important distinction from an academic perspective, but having little or no practical effect today given the legislative activity over the last 50 years.
By the way, as I am sure you all know, efforts to provide specific constitutional protection for women (by means of the ERA) have repeatedly failed.
Bernard Yomtov’s point about the use of the word “male” is particularly important because the whole presence of that word in the 14th Amendment is the result of the women’s suffrage movement. (Susan B Anthony was both outraged and a bit proud.) So the historical context in which the amendment was written, and the intents that the writers had, are pretty clearly not what scalia claims. But then he’s been a sadistic slimeball since long before he was on the supreme court.
First, Balkin’s argument that the 19th Am. has to be read back into the 14th is, I think, very strong.
Second, if we want to know what “person” means in the Constitution, let’s look how it was used before the 14th was enacted. For example, the 5th Amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Did anyone at the time the 14th Am. was enacted so much as imagine that “person” in that text did not include women?
“Person” is all through Article I. Did the census on which the apportionment of seats was based count women when it counted “free persons”? I believe it did.
Scalia is talking bullshit to journalists who can’t or won’t call him on it.
Anderson, you are entirely wrong about the interview. The interviewer was Professor Calvin Massey, a law professor at UC Hastings and a graduate of Columbia Law School. And he’s the one who made the controversial statements about the original meaning!
Paul, you think the fact that women’s suffrage was contested and rejected in the context of the 14th amendment is helpful to the argument that gender discrimination is covered by the amendment? I wonder on that view what could possibly count as evidence against.
Anderson, you are entirely wrong about the interview.
I stand corrected, though Scalia does give this same patter to college journalists etc. All the more disgrace for Massey then.
Regardless, those who profess to believe the Constitution means what it says, but who cavil at “person” including women in the 14th, are not to be taken seriously as interpreters.
By the way, as I am sure you all know, efforts to provide specific constitutional protection for women (by means of the ERA) have repeatedly failed.
So what? A Constitutional amendment requires extreme super-majority support to pass. The failure of an Amendment affirming or clarifying an existing principle does not invalidate the principle.
If it did, then the easiest thing in the world would be amending the Constitution in reverse, as it were, by introducing redundant Amendments and using their failure to change the meaning of existing provisions.
Would the failure of an ERA for Muslims deny them the protections of the First Amendment?
And yes, I do think redundant Amendments may be worthwhile, if for no other reasons than to make things 100% clear to dunderheads.
Mr. Yomtov, you are correct that the constitution is (intentionally) difficult to amend, requiring a clear consensus to do so. My point is, whether you or I like it or not, such consensus has not formed around the ERA, and I contend that the Constitution, as per Scalia’s narrow point, does not provide the specific protection you believe should (normatively) be there. My other point is, so what? There has been a legislative consensus regarding equal protection for women and other protected groups, which the Court (including Justice Scalia) has no interest in upending. You may feel that such groups have a vulnerability since what the legislature giveth it can taketh away, but I don’t lose any sleep over that. If such a move were ever in prospect, initiatives like the ERA might suddenly gain some traction. In the meantime, it will continue to be opposed by a significantly large enough group to frustrate consensus, since it has been tied to the overreaching concept of “comparable worth” which many do not support. That’s too bad.
Amen Winston Smith but better, were females corporations…