Scalia on Discrimination

Great Debates
1

In Justice Scalia’s interview on NPR, the interviewer brings up how some people believe that Justice Scalia is inconsistent in his approach to originalism. The interviewer discusses how Justice Scalia has voted to strike down affirmative action on the basis of the 14th Amendment. The interviewer also discusses how the same Congress that passed the 14th Amendment set up special programs to help to former slaves and black soldiers. (The interviewer does not discuss how the same Congress funded segregated schools.) The interviewer uses these facts to show that the at the time it was passed the 14th Amendment’s equal protection clause was not understood to outlaw all forms of racial discrimination. Justice Scalia’s response is the text is clear and prevents all discrimination on the basis of race:

To me this is nothing but question begging. The text does not say you cannot discriminate on the basis of race, it says:

The very question we are trying to answer is does the equal protection clause prevent all forms of racial discrimination including racial discrimination that is designed to correct for past wrongs. To me, Justice Scalia’s response says nothing more than the equal protection clause prevents all forms of discrimination because the the equal protection clause prevents all forms of discrimination.

Am I misunderstanding what he is saying or is he full of it?

2

Mmmmmm he’s not full of it, you aren’t misunderstanding, and here is where Justice Scalia and I part ways with his approach.

We start with the plain text: No state shall deny to any person within its jurisdiction the equal protection of the laws.

Now, unlike “cruel and unusual punishment,” this language doesn’t come to us with a lengthy history of meaning as applied by the legislatures and in the courts of the land. So the first efforts by the Court after the adoption of the amendment had to address what exactly was meant by words like “equal protection of the laws.” This was not an easy task: it has been noted that there probably was not concensus regarding the meaning of those words, even by the Congressmen who voted in favor of the bill authorizing the amendment. Please note the total hash the Court made of interpreting the meaning of the words “privileges or immunities of citizens of the United States” contained in an earlier clause in the same section of the Amendment (see The Slaughterhouse Cases).

It was pretty clear that the words should not be interpreted to mean that states cannot pass laws or take other actions that differentiate among people. For example: a law that makes rape illegal, and punishes it, discriminates against those who have committed rape. More generally, a law that says that people who are infected with small pox cannot travel by common carrier clearly discriminates against those with small pox, yet the framers of the amendment surely did not intend to preclude such efforts to treat one group of people differently from the others.

Now, as time went by, one approach to giving meaning to the phrase “equal protection of the laws” centered upon the fact that the amendment was part of an attempt to cleanse the land of laws that treated blacks as less than full members of society. So, it seems likely that a good starting point for deciding what type of action denies “equal protection” and what type of action doesn’t is to look to racial classification. Current constitutional law requires that any attempt to take state action which is based upon a classification that discriminates against people because they are part of a protected class (i.e.: African-Americans) be scrutinized very carefully; it is rare that such a classification will be allowed to stand. That this should be so is obvious from the history of the amendment.

However, as time passes, this test for scrutinizing actions strictly begins to mutate. Is it actually a test that is triggered by an attempt to discriminate “against” racial minorities? Or is it a test that is triggered by an attempt to discriminate “on the basis of” race? That is, does the amendment allow us to treat previously discriminated against classes with favor, but not disfavor? Or does the amendment require that we become a truly color-blind society?

Which brings us to Justice Scalia:

His approach is to say that, since we have determined that the meaning of the words “equal protection of the laws” applies to cases where unequal treatment is based upon race, that you cannot pick and choose when you wish this meaning to apply. If a “black” can claim denial of equal protection of the laws by asserting that a state action penalizes him for being African-American, then, Scalia asserts, a non-“black” must be able to calim denial of equal protection of the laws by asserting that a state action penalizes him for NOT being African-American (or, by extension, for being “white”). Having asserted that the words “equal protection of the laws” include baring racial classification, Scalia says that this cuts both ways.

Of course, this skips a fundamental intermediate step: it is far from clear that the Supreme Court has ever accepted the notion that the meaning of “equal protection of the laws” is “no classifications based on race.” In the absence of that step, then he is butressing his opinion with an assumption that is not yet valid.

In sum, yes, you are right: the words themselves say nothing of the sort. Whether or not we have accepted that that is what they say is at the heart of the Bakke decision, as well as the recent University of Michigan cases. On this, Justice Scalia does not speak for the majority of the Court.

Yet.

3

As I understand the interview, Justice Scalia is not making any appeal to the history of the interpretation of the equal protection clause, he is appealing directly to the text. He is saying the text itself says you cannot discriminate on the basis of race, not that it has been interpreted that way. He seems to be objecting to the way it has been interpreted.

4

You aren’t understanding the interview if that is your interpretation. The text clearly says nothing about discrimination at all. Obviously, he is invoking at some level the meaning that has been assigned to the words.