So, can Congress simply legislate away women’s rights with regard to sexual discrimination? Is Scalia’s position consistent with originalism, or is he interpreting the Constitution to be more limited than what it actually says?
Persanally, I think Scalia is losing his mind, and is incapable of keeping his increasingly conflicting ideology straight. Or else he just doesn’t care anymore about how thin the fig leaf covering his paleo-conservative agenda appears, and is just one more way he says, “Vaffanculo!” to the Constitution.
Scalia is right. The 14th actually has language that specifically indicates it’s talking about males only:
This is why it required the 19th amendment to give women the vote. The 14th was obviously not about gender. So Scalia is right that the 14th isn’t about gender.
He also said legislatures passing laws would be needed to cover gender equality. Take a look at the history of gender issues and lo and behold, he’s right. It did take legislatures passing laws about equality of pay, equal access to education (the infamous Title IX), etc. to bring a legal equality of the sexes.
So if there is no constitutional guarantee against gender discrimination, could Congress pass laws that make it illegal to hire women? On what Constitutional basis would that law be opposed?
The Supreme Court held voting is not a privilege or immunity of citizenship in Minor v Happersett in 1870. In the same decision, the Court did apply the 14th Amendment to woman and said that woman are entitled to the privileges and immunities of citizenship. Even in 1870, the Court would not have allowed a state to deny a woman the privileges and immunities of citizenship. These privileges and immunities apply to every person.
To the extent they mean anything, since the Privileges and Immunities Clause was eviscerated by In re Slaughter-house Cases, 83 U.S. 36 (1872) anyway. But the reach I was referring to came via the due process clause, and specifically the concept of substantive due process.
A bigger question: why should we be limited to the specific understanding of the 14th amendment at the time it was passed instead of using a generalized, open view that allows for expansion and clarification? Do we really want to go back to the understanding of free speech at the time of the 1st’s passing? That would probably only leave us with a right against prior restraint by the federal government.
Because we have a general notion of self-governance in this country: we believe we are governed by laws passed by our elected representatives.
If we say that the laws have changed over time, without their words changing, then we seem to be saying that the laws are being made, or remade, by unelected rulers with lifetime appointments to their positions. In my view, that flies in the face our our general notion about the governance of the country.
Couldn’t that argument then be extended to the 2nd amendment if we’re saying what an amendment was “planned” for? His opinion in Heller vs DC is more broadstroking than defending one’s self against the King of England. Scalia’s bringing up an unmentioned substantial right of “self-defense” which doens’t exist in the 2nd amendment nor in the spirit of the 2nd amendment. The amendment was (obviously arguably*) written in a *national *defense
*Note my parentheses. I used the words “obviously arguably” since we don’t completely know or are able to agree upon the rationale behind the writing of the amendments. That said, all we should base the laws upon are what’s written and not the spirit behind them. In fact, that tends NOT to be Scalia’s usual position. He tends to go off of strict interpretation and prefers to ignore any precedents set after. Or when it’s at least convenient for his position to do so.
Do you believe that states can have segregated public schools? The same Congress that passed the 14th amendment also funded segregate schools.
Do you believe the federal government can arrest and imprison people for speaking against the government (assuming they pass law to do this), regardless of whether that speech creates a clear and present danger? The framers’ view of free speech was a right against prior restraint. They thought juries would protect against bad prosecutions.
No, i don’t agree. Minor v Happersett discussed extensively the question of whether a woman was a citizen by virtue of the Fourteenth Amendment and then whether voting was the right of all citizens; it did not address the more general question of whether the entirety of the amendment’s protections were to apply to women as well as men.
So, when the First Amendment talks about “abridging the freedom of speech, or of the press,” can it can only be talking about spoken words or words printed on printing presses? Can that freedom not include words spread through and internet message board, because they are not literally “speech” or produced on a “press”, and because the people who wrote the text had no idea what computers might be in the future?
The difference is that we cannot give the Fourteenth Amendment effect based only upon its words without leading to an absurd result. The law does not “equally protect” both me and Tom Delay; Delay can be confined in prison but I cannot. The reason, of course, is that Delay has been found guilty of a crime. So the law obviously must allow the government to create classes of persons based on various criteria. The question that must then be answered is: what are valid criteria? Conviction of a crime is certainly a valid basis for classification. Race is not.
But that leaves a long list. Those questions have to be answered because the plain text of the amendment is not sufficient.
In contrast, the Second Amendment may be more readily applied as is, since its focus is narrow, as opposed to the Fourteenth’s reach to “all laws.”
Would the people at the time the Amendment was passed believed that words handwritten on a piece of paper were protected? Sure they would. How about words carved onto a stone? Sure they would. It’s clear that extending the protections to a message board is not a substantive change, because the medium was not significant in the first place.
The problem I mentioned above had to do with our notion of what self-governance means: when a new, substantive change to the law is made. Your question doesn’t seem to mention a substantive change to the law.
He didn’t say it doesn’t apply to women, he said it doesn’t apply to sex discrimination. Congress can’t take away women’s right to due process, to free speech, etc.
