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.”