Amicus Curiae: In Defense of Antonin Scalia


I have a daily news browsing routine: once I’ve finished reading funny stories about awful customers and people who should stay far away from social networking (Not Always Right and Failbook, respectively), I make my way to CNN, the New York Times, and finally The Huffington Post. One day this week, I’m not sure which, I saw a headline that read “Scalia: Women Don’t Have Constitutional Protection Against Discrimination (1/3/11 ) — I admit, I didn’t read the article when I first saw it because I was somewhat distracted.

Today, however, I saw “Democrats, Women’s Rights Leaders Blast Scalia Comments on 14th Amendment”, (1/6/11) so I pretty much had no choice but to read on… As expected, this short article chronicled protests that Supreme Court Justice Antonin Scalia‘s comments (which I had not read at that point) somehow created a danger for women seeking equal protection under the 14th Amendment to the U.S. Constitution. Curious, I clicked the handy link to the first article; in it, reporter Amanda Terkel briefly recounted an interview published in this month’s issue of The California Lawyer in which Justice Scalia was quoted as saying that the Constitution does not address discrimination against women, following up with an initial reaction from National Women’s Law Center founder/co-president Marcia Greenberger, who speculated as to the negative results of such a position — including the possibility of legislation that explicitly or implicitly discriminates against women being upheld on review.

Because it’s fairly certain that most people don’t have the entire Constitution and all of its amendments memorized, here is the exact text of the equal protection clause, the first clause of the Fourteenth Amendment:

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.

Before I made it to the quoted portion of the article, I was fairly upset — after all, I am a woman and a citizen and I believe that I deserve equal treatment and protection under our laws. However, Terkel’s article only includes one question from the CL interview, so I restrained my blogging fingers and clicked the link to the full-text article, “The Originalist”.

And you know what? I think people are getting the wrong idea of Justice Scalia.

Any student of the Constitution or of constitutional law falls into one of two groups: those who believe in an evolving Constitution that should adapt to changes in social norms; and those who believe in an enduring Constitution that remains a cornerstone around which legislation should be built, rather than a “living” document. (In the interest of full disclosure, I am somewhere in the middle but I lean toward an evolutionary view.) Justice Scalia, as you’ve likely already assumed, believes in an enduring Constitution; as he says during the interview:

Now if you give to those many provisions of the Constitution that are necessarily broad — such as due process of law, cruel and unusual punishments, equal protection of the laws — if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all. If the cruel and unusual punishments clause simply means that today’s society should not do anything that it considers cruel and unusual, it means nothing except, “To thine own self be true.”

In regards to the equal protection clause, Justice Scalia’s assertion that the drafters of the Fourteenth Amendment did not intend for the clause to specifically prohibit discrimination against women is partially correct. Married women were not considered “people” in their own right until the ratification of the Nineteenth Amendment, which occurred more than fifty years after the Fourteenth Amendment. For a constitutional purist such as Justice Scalia, then, the conclusion is that the Constitution does not protect women against discrimination — which is what he said.

As to his further argument that we have somehow erred in applying the Fourteenth Amendment to cases of discrimination by sex or sexual orientation, I understand it even if I don’t agree with it. Justice Scalia is not making an argument for discrimination against individuals on the bases of sexual orientation or gender; rather, his primary argument is that legislation is the appropriate way to reflect society’s evolving views on equality and equal protection, among other things: “All you need is a legislature and a ballot box…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.” That is, Justice Scalia advocates for a limited judiciary and a more substantial legislature.

For those afraid that Justice Scalia’s views could gain traction among his fellow conservative justices, there is the part of the picture that he didn’t get quite right. As I said above, married women did not have individual rights (such as to own land or engage in commerce) under the common law idea of “coverture”. However, single women did enjoy most common law rights (with the obvious, also previously mentioned, exception). Therefore, even a Constitutional purist could reasonably accept that the equal protection clause applied to some women. As Jack Balkin writes:

Moreover, the Constitution was subsequently amended. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment’s guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. (Originally in the 1/3 Huffington Post article by Amanda Terkel, linked above)

Also, because the Supreme Court tends to rely on its own precedent in many cases, the likelihood of the Court’s upholding a law directly discriminating against women is extremely low. And finally, there is non-Constitutional legislation on the books that specifically lists sex/gender as a protected class and imposes strict penalties for discrimination on such a basis.

Bottom line: I don’t think Justice Scalia is necessary right, but I don’t think that he spoke with any malicious intent either toward women, the women’s rights movement, or discrimination legislation still on the books. At the end of the day, it’s important to understand the full context of any statement before jumping to conclusions or the worst-case scenario.

And we should all give Justice Scalia a break.

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One comment

  1. […] Amicus Curiae: In Defense of Antonin Scalia (shanshantastic.wordpress.com) […]

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