Remember the Equal Rights Amendment killed by voters in the south and midwest several decades back? One of the conservative mantras against the ERA has been its “redundancy” in that the 14th Amendment already guarantees equal protection of the law. Only now, Scalia says it doesn’t.
Here’s one case in which “original intent” conflicts with “strict construction.” His argument is that because those voting to pass the 14th Amendment did not contemplate the abolition of sexual (and sexual preference) discrimination it therefor follows that the Equal Protections clause cannot be applied against it. Only those forms of discrimination contemplated at the time count, and presumably that means only discrimination according to race.
Did they contemplate discrimination between voters of different counties such that the recount rules should be uniform despite different realities? Scalia didn’t have any problem with finding prohibitable discrimination in Bush v. Gore ten years ago. Maybe he’s changed his mind?
And for the strict constructionists here, this is the text of the applicable portion of the 14th Amendment.
“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.”
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January 4, 2011 at 1:36 pm
Plain Jane
Then there is the issue of corporate personhood which is based on the 14th amendment.
January 4, 2011 at 2:17 pm
Mitch
Scalia (brilliant or not, Eric) is frightening.
That he can take this phrase from the current constitution — “nor deny to any person within its jurisdiction the equal protection of the laws” — and not reach the conclusion that gender-based discrimination is unconstitutional suggests that he is blinded by his partisanship.
Women, as feminists have argued, are persons. Scalia… not so sure.
January 4, 2011 at 2:29 pm
Mitch
Can you just picture Scalia weighing in on Lincoln vs. the Confederacy? No doubt nothing could be more obvious to him than that slavery was constitutional, and that freeing the slaves was an egregious government property taking.
January 4, 2011 at 2:40 pm
Plain Jane
Why do I have such a feeling of doom – that things are going to get much worse before they get better? Now they’re blaming union workers for the economic crisis. “It was their too high wages that drove manufacturing offshore and wrecked the economy.” It is public employees who must pay for the tax cuts and wrecked economy because “they are the halves and the taxpayers are the have-nots now.” And the REALLY horrid part of it is how many working class people agree. I think they’re putting something in the water or mind control waves from Fox broadcasts. I just can’t believe so many people could be this dumb naturally. end of rant
January 4, 2011 at 3:01 pm
Matt
“The devil can site scripture for his own purpose! An evil soul producing holy witness is like a villain with a smiling cheek.” [Merchant Of Venice]
January 4, 2011 at 3:20 pm
Eric Kirk
Mitch – slavery was Constitutional. It was even provided for. Part of the revisionism of conservatives, and why Bush made an odd reference to it in his second debate with Kerry, was to argue that Dred Scott was bad law and to compare it with Roe v. Wade. But absent the 14th Amendment definition of citizenship and the 13th Amendment ban on slavery, the following provision justified as a matter of law the Dred Scott decision.
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.
Cut and dry.
That’s why the abolitionist William Lloyd Garrison often held Constitution burnings. From his perspective, and I agree, that provision essentially negated all of the good of the rest of the document. As far as I’m concerned, we were a brutal banana republic slave state until the 13th and 14th amendments and we were not a truly democratic republic until the 19th.
January 4, 2011 at 3:38 pm
Mitch
Eric,
Yes, I realize that slavery was constitutional at the time of the founding of the republic. But I’d like to think that any human being, today, looking back at the Constitution of the time, would consider slavery unconstitutional whether or not the Constitution had been amended.
“We the People” should be sufficient, no?
January 4, 2011 at 3:47 pm
Mitch
Damn. I’m re-reading the thing. You’re right, I’m wrong.
January 4, 2011 at 9:11 pm
Matt
Bottom line is, Scalia is a clown. He doesn’t have a solid philosophical foundation on which he evaluates law and bases his legal decisions even though he likes to pretend he does. If he really did have such a principled approach, you could understand his logic and respect the consistency in his rulings, even if you didn’t necessarily agree.
Here’s another take: http://www.salon.com/news/opinion/joan_walsh/politics/2011/01/04/scalia_on_women_and_rights
January 4, 2011 at 9:59 pm
Joel Mielke
“Brilliant or not”? Is there some evidence for Scalia’s “brilliance”?
Let’s see it.
January 4, 2011 at 10:03 pm
Eric Kirk
Joel – it would involve reading his decisions, and even my liberal law professors admired his depth. His sparring with Justice Brennan was legendary. Scalia hasn’t had anybody as brilliant as Brennan to face off with, although Blackmun was very close.
Suffice to say, he does have a keen understanding of the law and history. Some of his decisions are arbitrary, but the problem is not with his comprehension. It’s with his philosophy.
January 6, 2011 at 8:37 am
Eric Kirk
This is mildly amusing. The Republicans in Congress are going to read the Constitution today as part of the Tea Party’s “return to the Constitution” program. Only, they’ll be censoring the slavery portions. He who controls the present controls the past.
http://tpmdc.talkingpointsmemo.com/2011/01/house-reading-amended-slavery-free-constitution.php?ref=fpb
January 6, 2011 at 8:39 am
Eric Kirk
I guess it’s already happening. Eric Kleefeld says: “This is the most boring seder I’ve ever witnessed.”
January 6, 2011 at 8:28 pm
Eric Kirk
Even funnier – the Republicans open up by reading the Constitution, and then promptly violate it.
http://tpmdc.talkingpointsmemo.com/2011/01/pete-sessions-breaks-rules-shuts-down-rules-committee-1.php?ref=fpa
January 6, 2011 at 8:29 pm
Eric Kirk
Oh, and a birther in the gallery helped set the tone.
http://tpmmuckraker.talkingpointsmemo.com/2011/01/birther_interrupts_house_reading_of_constitution_yells_help_us_jesus.php?ref=fpb