Image via WikipediaDaily Kos: Justice Scalia's accidental argument for equal rights
Justice Scalia is known for many things. Advocating for an amendment to the Constitution to protect women from discrimination? Generally not chief among them.
But in an interview for the magazine California Lawyer, that's exactly what he did.
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.
The reaction to Justice Scalia's claim that the neither the Constitution, nor the 14th Amendment to it, protect women from discrimination was met with swift and fierce condemnation.
An editorial in the New York Times called his view "outlandish."
This is not the first time Justice Scalia has espoused this notion, and it generally tracks his jurisprudence in the area. Still, for a sitting member of the nation’s highest court to be pressing such an antiquated view of women’s rights is jarring, to say the least.
Amanda Terkel, of Huffington Post, reported that Marcia Greenberger, founder and co-president of the National Women's Law Center, was "shocked" by Justice Scalia's comments.
"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."
Justice Scalia's words should be shocking to precisely no one. In his decades-long tenure on the nation's highest court, he has repeatedly made clear his "originalist" views of the Constitution. Words can have no meaning or interpretation beyond their original intent. An amendment, such as the 14th, cannot be understood to apply to women, as it did not apply to women at the time of its writing, even though most sentient beings -- as well as a rich history of jurisprudence -- understand that the word "persons" applies to, you know, persons. Men and women persons.
Not according to Justice Scalia, though.
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."
Here's the twist: Justice Scalia's not wrong.
The Constitution doesn't protect women from discrimination. For all of our progress and fractured glass ceilings, the only part of the Constitution that recognizes any rights for women is the 19th Amendment, which only protects womens' right to vote. That's it. And that's not much. Even the Constitution of Afghanistan -- you know, that country we bombed liberated, in part, to free the women -- grants more rights to women than our own Constitution: mandated programs to balance and promote women's education and literacy; guaranteed financial rights and privileges for "women without caretakers"; and a requirement that a minimum number of women serve in various branches of the government. While Afghanistan isn't a perfect model of egalitarianism, its founding document, at least, recognizes more rights for women than our singular American right to vote.
American suffragists who fought for passage of the 19th Amendment understood at the time that it addressed only one of the many forms of discrimination against women; in order to achieve full equality under the law, the Constitution required further amendment. That's why Alice Paul, one of the leaders of the suffrage movement, also penned the original Equal Rights Amendment. "We shall not be safe," she said, "until the principle of equal rights is written into the framework of our government."
The ERA was first proposed in 1923. It was passed by both chambers of Congress in 1972. It was ratified by 35 of the necessary 38 states. (The 15 states that refused? Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.)
The text of the ERA is simple:
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.
One would think such a radical notion -- an amendment to prohibit discrimination on the basis of sex -- would not be controversial. For 40 years, even the Republican Party's platform included an endorsement of the ERA. (The conservative uprising in 1980 put an end to that.)
A poll conducted by the Opinion Research Corporation in 2001 found:
96 percent of Americans believe men and women should have equal rights
72 percent of Americans believe the Constitution already specifies equal rights for men and women
88 percent of Americans believe the Constitution should specify equal rights for men and women
If an overwhelming majority of Americans believe the Constitution has already been amended to ensure equal rights for men and women, one would think such an amendment would pass as easily and uncontroversially as a bill to name a post office.
That's why it has been re-introduced at the beginning of each new session of Congress for nearly 30 years. It was co-sponsored by our current president and vice president in 2007. It was again re-introduced last Thursday by Reps. Carolyn Maloney, Jerrold Nadler, Gwen Moore, and Sen. Robert Menendez.
Usually, re-introduction of the ERA gets a big yawn of dismissal, occasionally coupled with ridicule from the usual suspects, like the ever-vigilant defender of misogyny, Phyllis Schafly. Opponents dismiss the bill as a waste of time and a detraction from the real work of Congress. Besides, the need to amend the Constitution no longer exists. Everyone knows women are entitled to equal rights under the law. Right? Why waste resources righting for an unnecessary Constitutional amendment? Thus, each Congressional session, the bill to re-introduce the ERA fades into obscurity.
But this year, maybe, just maybe, things could be different. Thanks to Justice Scalia.
At Thursday's press conference, Rep. Moor, co-chair of the Congressional Women’s Caucus, said:
It’s a wake-up call when a sitting Supreme Court Justice says there is no Constitutional protection for women against discrimination. Apparently women’s rights are at the whim of the Court and will remain that way without the Equal Rights Amendment.
Women's rights organizations, like the National Organization for Women, also saw Justice Scalia's comments as a wake-up call. Terry O'Neill, President of NOW, who joined Congress members on Thursday, said:
We are way past due for a constitutional amendment explicitly acknowledging women's rights in the United States...Nothing less will do, as long as sexists like Supreme Court Justice Antonin Scalia feel completely justified interpreting women's rights as unprotected in the US Constitution.
Women's rights are at the whim of the Court. They always have been. It is not the Constitution that has protected women from discrimination. It is merely that, in the past few decades, enough Supreme Court justices have been willing to indulge the radical notion that women are "persons."
But, as illustrated by Justice Scalia, that's no guarantee. Women are as much at the mercy of the whims of the Court as they were a century ago -- with the notable exception, of course, of the right to vote. And given this particular Court's clear willingness to overturn long-standing precedent (see, for example, Citizens United v. Federal Election Commission), why shouldn't women all Americans be concerned that the Court could just as easily overturn the century of law that has bestowed upon women certain rights that, as Justice Scalia said, are not protected by the Constitution?
Justice Scalia may not have intended to voice support for a Constitutional amendment, but he issued a clear warning to all Americans who believe in women's equality. If we believe -- as, according to polls, the vast majority of us do -- that women should be equal under the law, we must act to enshrine that right. Nothing less than a Constitutional amendment will suffice to guard against an increasingly right-leaning Supreme Court, not to mention a newly minted, virulently anti-woman Congress.
The fact is, the Equal Rights Amendment is necessary -- and long overdue. It is time, at long last, for our founding documents to acknowledge, clearly and unequivocally, that women are indeed equal.
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