Sorry Ladies, You Don’t Count
In a newly published interview in the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn’t itself outlaw that behavior:
In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. 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.
For the record, the 14th Amendment’s equal protection clause states: “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.”
Sorry ladies, you don’t count as citizens. I wonder then if the GOP is attaching statements about the “Constitutionality” of laws they’re passing is going to have make sure to say that this law applies to women, too. Aren’t you glad that it’s Scalia who going to teach a Constitutional law class to the incoming Tea Party freshmen?
Tags: Antonin Scalia, SCOTUS, sex discrimination
Urqi and Mr. Pete dupont on Wilm. The Constitution “is not a living document”. Which means we will have slavery, women with no right to vote, no dept. of Education, no dept. of EPA, no social security, no medicare, no medicaid, all that will be privatized. I tell you I fear the teabaggers and the corporate repukes more than I do the Taliban.
“You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.”
seems a little anti-teaparty to me.
just kiddin.. go on any of the website forums for the fox news entertainers and that is the standard view. I believe they think most amendments, including slavery and women voting, are not constitutional.
They really do not understand the document at all, amendments are part of the document and by definition are constitutional once they are ratified.
It is like trying to teach the concept of money to a five year old using the IRS website. It is just a waste of time and energy.
The Constitution does not prevent Congress from introducing or passing a bill that some claim to be unconstitutional.
In fact, a bill cannot be unconstitutional. Only laws can be unconstitutional.
If you believe a bill is unconstitutional, you can use that as a reason to vote against it, but you can’t just shout “Constitution!” and stop the bill.
The Constitutionality of laws is not determined by teabaggers, it is determined by the courts.
Anon go to hannity or limbaughs forum and they will tar and feather you for saying that. That is their premise for calling people in congress traitors for violating the constitution.
Justice Scalia should remember that there was a time in this country when Italians were part of the *discriminated minority*. If you start writing our some citizens of the US, you open the floor to start writing out others.
On the other hand, I wonder if we couldn’t form an experiment where *conservative* women are made to live without 14th Amendment protections — just so we can see first hand what not having the rights of a US citizen looks like.
Since the 14th amendment refers to “persons” as well as “citizens,” that means on Scalia’s reading that women and homosexuals are neither citizens nor persons. The man is a monster.
@DanaGarrett
Try reading Section 2 of the 14th Amendment
I read section 2 and see no reason why “male persons” in that section should be definitive for the general terms of “persons” and “citizen” in section 1. I especially don’t see it in light of reading the 14th amendment through the hermenutic prism of the 9th amendment.