Tuesday, January 4, 2011

Antonin Scalia: A woman isn't a person, or a citizen

An interview with Antonin Scalia:

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.

The text of the equal protection clause of the 14th Amendment:

Section 1. 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.

Emphasis mine. 

Even if you want to argue that legislators of the 1860s didn't intend for women to be protected by the equal protection clause, I'd think that even Scalia would agree that it's not very smart to read one amendment of the Constitution in isolation from the others. If women didn't count as "citizens" or "persons" during the Reconstruction Era, they most certainly did by 1920, when the 19th Amendment was passed guaranteeing women the right to vote. 

It's not crazy for people to read the equal protection clause as protecting every citizen within the United States. That's plainly what the amendment says. If Scalia wants it to apply only to men, he can go back and have a vote. We already have the law and its language.

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