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46 comments

1 aagcobb  Mon, Jan 3, 2011 3:02:02pm

If the 14th amendment doesn't apply to women, I guess that means they can be denied citizenship and sold into slavery, right?

2 Romantic Heretic  Mon, Jan 3, 2011 3:34:21pm

Now there's a surprise. /

3 alexknyc  Mon, Jan 3, 2011 3:37:34pm

re: #1 aagcobb

Slavery is the 13th Amendment so, presumably, no to the slavery thing.

Does Scalia believe women aren't citizens or just aren't entitled to equal protection under the law?

4 calochortus  Mon, Jan 3, 2011 3:40:46pm

re: #3 alexknyc

Slavery is the 13th Amendment so, presumably, no to the slavery thing.

Does Scalia believe women aren't citizens or just aren't entitled to equal protection under the law?

The latter. We're just not good enough...

5 Aceofwhat?  Mon, Jan 3, 2011 3:49:37pm

re: #4 calochortus

The latter. We're just not good enough...

yeah. that's what he said. he said that women were second-class citizens.

yeesh.

6 calochortus  Mon, Jan 3, 2011 3:50:42pm

It occurs to me that as a good Catholic and an originalist, Scalia must think abortion is acceptable at the very least before "quickening". And if he thinks the practices and laws of America at the time of the Constitution's writing supercede Church law, then abortion should be legal.

I won't wait up to hear his response.

7 Aceofwhat?  Mon, Jan 3, 2011 3:53:24pm

This is the weakness inherent in pure originalism - that we overstep our ability to divine the intentions of the founders. The weakness inherent in 'living Constitution' adherents is that one can overstep the boundary between judging and legislating. Neither approach is protected from misinterpreting the legislature.

8 calochortus  Mon, Jan 3, 2011 3:55:08pm

re: #7 Aceofwhat?

No kidding. It is my understanding that the ink had barely dried before the authors of the Constitution began arguing over what it meant. I can't imagine how anyone thinks its easy over 200 years later in a totally different world.

9 Aceofwhat?  Mon, Jan 3, 2011 3:55:59pm

re: #6 calochortus

It occurs to me that as a good Catholic and an originalist, Scalia must think abortion is acceptable at the very least before "quickening". And if he thinks the practices and laws of America at the time of the Constitution's writing supercede Church law, then abortion should be legal.

I won't wait up to hear his response.

your confusion of what one thinks IS constitutionally protected and what OUGHT to be constitutionally protected is resulting in an emotional response which doesn't do you credit.

whether or not i think that the constitution protects my right to, say, engage in sexual conduct with the tree in my backyard is immaterial to the question of whether i think such activity should be protected by law.

think about it for a second.

10 Aceofwhat?  Mon, Jan 3, 2011 4:07:30pm

although, for the record, i disagree quite strongly with Scalia here. "all citizens", taken literally, seems pretty obvious to me.

11 calochortus  Mon, Jan 3, 2011 4:08:04pm

re: #9 Aceofwhat?

I'm sorry, I'm not understanding you. I'm just pointing out that Scalia is not particularly consistent in his understanding and worship of the past.

Sure you can make a case that Constitution was intended to be a static document, but there's no evidence it was intended to be one. There is some evidence it was intended to evolve since the writers started amending it immediately.

12 Obdicut  Mon, Jan 3, 2011 4:08:49pm

re: #9 Aceofwhat?

Ace, I know you like Scalia, but this is a strange place to be defending him.

Take this comment of his:

The only issue is whether it prohibits [sex discrimination]. It doesn't. Nobody ever thought that that's what it meant.

Obviously, the Supreme Court has repeatedly interpreted the 14th amendment to include sex discrimination, so his comment is, at the least, extremely bizarre.

Furthermore, Scalia is in no way a real originalist. He is perfectly happy to interpret the Constitution in light of changing times when it suits him.

13 calochortus  Mon, Jan 3, 2011 4:12:06pm

re: #10 Aceofwhat?

although, for the record, i disagree quite strongly with Scalia here. "all citizens", taken literally, seems pretty obvious to me.

Its not as obvious as it would seem, women who were citizens and married a foreign national lost their citizenship for most of the 19th century and into the 20th.

14 Aceofwhat?  Mon, Jan 3, 2011 4:12:17pm

re: #11 calochortus

I'm sorry, I'm not understanding you. I'm just pointing out that Scalia is not particularly consistent in his understanding and worship of the past.

Sure you can make a case that Constitution was intended to be a static document, but there's no evidence it was intended to be one. There is some evidence it was intended to evolve since the writers started amending it immediately.

that's fine - that's a very respectable and widely-held opinion. i mean to say that Scalia is making a fine point here (with which i disagree) but it seems that you and others are implying that he doesn't believe that women ought to be protected by law.

that's an unfair accusation. Scalia's statement above gives us no information about his views on women's rights, and we should avoid making such judgments without corroborating data.

15 calochortus  Mon, Jan 3, 2011 4:15:27pm

re: #14 Aceofwhat?

I can make some educated guesses about Scalia's opinions, but it would be completely unprovable and irrelevant.

Actually, I agree that the Constitution does very little to protect the rights of women. That's why we needed (and still need) an Equal Rights Amendment. Which we still do not have.

16 Aceofwhat?  Mon, Jan 3, 2011 4:16:45pm

re: #12 Obdicut

Ace, I know you like Scalia, but this is a strange place to be defending him.

Take this comment of his:

Obviously, the Supreme Court has repeatedly interpreted the 14th amendment to include sex discrimination, so his comment is, at the least, extremely bizarre.

Furthermore, Scalia is in no way a real originalist. He is perfectly happy to interpret the Constitution in light of changing times when it suits him.

2 things:

First, his statements above give us no idea about his personal views on womens' rights. Imputing such a thing is wrong unless i'm missing something significant.

Second, i quite doubt that he would disagree that the court has obviously and frequently interpreted the 14th to include gender, essentially making it so. He is abstractly disagreeing with that line of thinking, which is far different from saying that he'd through stare decisis out of the window on this topic.

Third, i disagree with him. A plain reading of the text addresses "all citizens". I don't need a JD to figure out how to interpret that.

Fourth, i quite agree with you in that originalists can create just as much out of thin air as those who believe in a more 'living' constitution.

Fifth, i appear to be having trouble with math at the moment.

17 Aceofwhat?  Mon, Jan 3, 2011 4:17:03pm

re: #15 calochortus

I can make some educated guesses about Scalia's opinions, but it would be completely unprovable and irrelevant.

Actually, I agree that the Constitution does very little to protect the rights of women. That's why we needed (and still need) an Equal Rights Amendment. Which we still do not have.

Civil Rights Act?

18 Aceofwhat?  Mon, Jan 3, 2011 4:17:53pm

re: #15 calochortus

I can make some educated guesses about Scalia's opinions

not on the basis of what he said above. that's my primary point here.

19 Aceofwhat?  Mon, Jan 3, 2011 4:18:25pm

re: #13 calochortus

Its not as obvious as it would seem, women who were citizens and married a foreign national lost their citizenship for most of the 19th century and into the 20th.

traitors!!

;)

20 calochortus  Mon, Jan 3, 2011 4:21:29pm

re: #17 Aceofwhat?

The Civil Rights Act only deals with employment, does it not?

re: #18 Aceofwhat?

That is true.

re: #19 Aceofwhat?

LOL, but in real life its more a case of married women not having a separate legal existence from their husbands.

21 WINDUPBIRD DISEASE [S.K.U.M.M.]  Mon, Jan 3, 2011 4:23:11pm

Oh Scalia, never stop being a slug

22 WINDUPBIRD DISEASE [S.K.U.M.M.]  Mon, Jan 3, 2011 4:24:09pm

re: #12 Obdicut

Ace, I know you like Scalia, but this is a strange place to be defending him.

Take this comment of his:

Obviously, the Supreme Court has repeatedly interpreted the 14th amendment to include sex discrimination, so his comment is, at the least, extremely bizarre.

Furthermore, Scalia is in no way a real originalist. He is perfectly happy to interpret the Constitution in light of changing times when it suits him.

He's probably the least intellectual member of the court

23 Aceofwhat?  Mon, Jan 3, 2011 4:27:26pm

re: #20 calochortus

The Civil Rights Act only deals with employment, does it not?

no, quite a bit more. here's the full title:

An act to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States of America to provide relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

also, did you know that many northern labor unions opposed the clause prohibiting gender discrimination? interesting stuff.

24 calochortus  Mon, Jan 3, 2011 4:29:06pm

re: #23 Aceofwhat?


also, did you know that many northern labor unions opposed the clause prohibiting gender discrimination? interesting stuff.

Well, you wouldn't want uppity women taking men's jobs would you? Society would crumble around us.//

25 Aceofwhat?  Mon, Jan 3, 2011 4:38:01pm

re: #24 calochortus

Well, you wouldn't want uppity women taking men's jobs would you? Society would crumble around us.//

Especially if you're all going to r-u-n-n-o-f-t with some foreigner!!

26 calochortus  Mon, Jan 3, 2011 4:44:19pm

re: #25 Aceofwhat?

Sadly for the future of America, we now get to keep our citizenship when we do that. Anchor Babies!

27 wrenchwench  Mon, Jan 3, 2011 5:13:36pm

Scalia:

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.

Dude. Why did the founders put in that silly Article Five if not for the purpose of updating the Constitution?

This post has been heavily edited for the purpose of removing reams of profanity.

It's been a tough day.

28 theheat  Mon, Jan 3, 2011 6:03:29pm

One of the reasons I voted for Obama was because I knew SC positions were on the line, and I didn't want a new misogynist fundie prick being nominated to the position, since we already had so many.

Never could stand Scalia. He's part of that old school, dark and creepy, corporate whore brigade that smacks of Dick Cheney, paving Yellowstone Park, raping polar bears, closeted gay sex, and dictating a women's place is in an apron and on her knees.

Can't stand any of them. They're cruel, selfish, greedy, and dangerous.

29 prairiefire  Mon, Jan 3, 2011 6:20:04pm

F*#@% him!!!11!

30 Interesting Times  Mon, Jan 3, 2011 6:22:44pm

re: #29 prairiefire

F*#@% him!!!11!

Nah. His greasy black hair is a huge turnoff, along with his troglodyte views :)

31 sizzleRI  Mon, Jan 3, 2011 6:36:48pm

re: #22 WindUpBird

He's probably the least intellectual member of the court


I am so not willing to steal that label from Thomas.

32 ClaudeMonet  Mon, Jan 3, 2011 7:31:31pm

re: #22 WindUpBird

He's probably the least intellectual member of the court

I thought it was Known Fact (and therefore never to be challenged) that Justice Thomas has that distinction. That in itself

33 freetoken  Mon, Jan 3, 2011 7:32:52pm

Glad you posted this. When I saw it earlier today I couldn't help but wonder why Scalia wants to bring this issue up at this time. He has long been one of the few justices that the far right in this country find amenable to their views.

34 ClaudeMonet  Mon, Jan 3, 2011 7:33:21pm

re: #32 ClaudeMonet

I thought it was Known Fact (and therefore never to be challenged) that Justice Thomas has that distinction. That in itself

Oops, didn't quite delete all of what I had typed after the first sentence.

35 Our Precious Bodily Fluids  Mon, Jan 3, 2011 9:38:38pm

Scalia has also opined that it's completely okay under the Constitution to execute a person who is known and acknowledged to be actually innocent of the crime of which they were convicted, so long as they had a "fair trial", and that proof of factual innocence is not sufficient grounds to overturn a conviction.

[Link: www.supremecourt.gov...]

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able
to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

also: blah blah blah.
[Link: www.thedailybeast.com...]

36 Lidane  Mon, Jan 3, 2011 10:09:22pm

re: #29 prairiefire

F*#@% him!!!11!

Yeah, this.

I'd say more, but you just summed up my inner rant perfectly.

37 lostlakehiker  Mon, Jan 3, 2011 10:43:17pm

re: #3 alexknyc

Slavery is the 13th Amendment so, presumably, no to the slavery thing.

Does Scalia believe women aren't citizens or just aren't entitled to equal protection under the law?

Scalia believes that the Constitution says not whatever is "just" or "right", but what the words on paper meant when the people who ratified the amendment understood them to mean.

At the time of ratification, no one thought that that amendment included, for instance, the right to vote. They even went and passed another amendment for that. So there is no room at all for doubt on that score: the 14th amendment did NOT confer on women the right to vote.

Now I'm all in favor of women having the right to vote. But it wasn't "inherent" in the 14th amendment. And unless we accept Scalia's point that "Constitutional" is not a synonym for "we like it", then the Constitution means nothing whatever, and might as well just be thrown out and say instead that any law that Congress, or state legislatures, passes is OK unless 5 of the 9 judges say they don't like it.

What we have on the other side of the question is a very good way to paste the word "constitutional" on every doubleplus good question, and "unconstitutional" on every "doubleplusungood".

None of these rights people are talking about now are inherent in the Constitution. If the right of women to vote was not inherent in the general scheme of things, then no lesser right was either.

If society deems it best to say that they are so part of the Constitution, then the Constitution becomes a dead letter. Do not complain when some truly evil scheme gets ruled Constitutional, just because it's popular. You crossed that bridge when you wrote into the Constitution rights that weren't there, because hey they should have been. Your logic will be quoted right back at you, and it will be as logically valid in the hands of the evil as it was in the hands of the righteous.

38 WINDUPBIRD DISEASE [S.K.U.M.M.]  Tue, Jan 4, 2011 1:25:10am

re: #31 sizzleRI

I am so not willing to steal that label from Thomas.

hahaha I love you guys :D

39 alexknyc  Tue, Jan 4, 2011 2:29:10am

re: #37 lostlakehiker

And unless we accept Scalia's point that "Constitutional" is not a synonym for "we like it", then the Constitution means nothing whatever, and might as well just be thrown out and say instead that any law that Congress, or state legislatures, passes is OK unless 5 of the 9 judges say they don't like it.

What we have on the other side of the question is a very good way to paste the word "constitutional" on every doubleplus good question, and "unconstitutional" on every "doubleplusungood"

Isn't that pretty much what we've got going now?

40 Obdicut  Tue, Jan 4, 2011 3:15:40am

re: #37 lostlakehiker

Scalia believes that the Constitution says not whatever is "just" or "right", but what the words on paper meant when the people who ratified the amendment understood them to mean.

No he doesn't. He's perfectly willing to depart from originalism when it suits him.


If society deems it best to say that they are so part of the Constitution, then the Constitution becomes a dead letter. Do not complain when some truly evil scheme gets ruled Constitutional, just because it's popular. You crossed that bridge when you wrote into the Constitution rights that weren't there, because hey they should have been. Your logic will be quoted right back at you, and it will be as logically valid in the hands of the evil as it was in the hands of the righteous.

Sigh. Women's rights weren't ruled Constitutional because they were popular, but because they fit the philosophical basis of the Constitution-- that we are all equal.

41 Michael Orion Powell  Tue, Jan 4, 2011 3:55:06am

Women's suffrage was granted by Woodrow Wilson. We all know what we're supposed to think of him.

42 lostlakehiker  Tue, Jan 4, 2011 9:16:02am

re: #40 Obdicut

No he doesn't. He's perfectly willing to depart from originalism when it suits him.

Sigh. Women's rights weren't ruled Constitutional because they were popular, but because they fit the philosophical basis of the Constitution-- that we are all equal.

The philosophical basis of the Constitution is not the Constitution. It's a background to it. The philosophical basis of the knight's move in chess is that it's the eccentric piece that can jump. But that doesn't mean the knight has the right to jump from any square to any other that's not along a rank, file, or diagonal.

Women's right to vote was never "ruled constitutional". Back in the day, the Supreme Court knew the proper limits to its authority. If, unjustly and immorally, the current voters decided to deny women the right to vote, then women wouldn't have the right to vote.

And that's how it was, because the SC is not, of itself, the supreme law of the land. It does not make law. Or, more accurately, it didn't always make law. Now, it does. It's a second legislature.

What happened was that the people came to understand that their rules on who could vote were inconsistent with the spirit of the Constitution, inconsistent with basic morality, and in need of reform. Denying women the right to vote became unpopular---men saw the error of their ways. So they amended the Constitution and put that thing right.

By doing it that way, they both got the right result, and got it the right way. They preserved the precedent that changing the law is done by changing the written text of the law, rather than going in and debasing the currency of the whole idea of law just to fix that one thing.

From the time of Hammurabi, the essence of law has been that it's written (in his case literally) in stone. It doesn't change unless it's explicitly changed. One knows where one stands, and the law is the same for all, and the same next year as last year.

As things now work, laws mean anything and nothing. The direct, explicit text of the law can be stood on its head by a string of enlightened court rulings and executive memorandums. Everybody's happy. Because the new meaning of the old words fits [somebody's take on] the philosophical basis of the Constitution.

43 lostlakehiker  Tue, Jan 4, 2011 9:24:34am

re: #35 negativ

Scalia has also opined that it's completely okay under the Constitution to execute a person who is known and acknowledged to be actually innocent of the crime of which they were convicted, so long as they had a "fair trial", and that proof of factual innocence is not sufficient grounds to overturn a conviction.

[Link: www.supremecourt.gov...]

also: blah blah blah.
[Link: www.thedailybeast.com...]

Scalia didn't write what you say he wrote. What he wrote was that it's Constitutional to execute someone who has been tried and found guilty in a fair trial, even though some OTHER court disagrees with the weight the jury put on this or that piece of evidence.

There was nothing in the record to establish that Davis was "actually innocent". There was no videotape of the incident. That Davis said he was innocent can hardly be the deciding fact. Almost every defendant will say that he didn't do it.

Misquoting people, to put odious words in their mouths, is shameful. But you either did that deliberately, or your reading comprehension slipped a gear.

44 sizzleRI  Tue, Jan 4, 2011 1:27:28pm

re: #42 lostlakehiker

This is most likely a dead thread by now, but I have to respond to this. The Supreme Court is not a second legislature but it is the sole interpreter of the the Constitution. If you don't like that take it up with Article VI, Clause 2 of the United States Constitution, Marbury v. Madison and over 200 years of SCOTUS precedent.

45 lostlakehiker  Wed, Jan 5, 2011 1:03:52pm

re: #44 sizzleRI

This is most likely a dead thread by now, but I have to respond to this. The Supreme Court is not a second legislature but it is the sole interpreter of the the Constitution. If you don't like that take it up with Article VI, Clause 2 of the United States Constitution, Marbury v. Madison and over 200 years of SCOTUS precedent.

You're right as a matter of fact. If the SC decides to stand the law and the Constitution on its head and rule that up is down, then as a matter of case law, from then on, up is down.

All I'm saying is that the SC ought not do so. It ought to stick to what the text of the law and the constitution mean, as read by anyone with good reading comprehension and some background knowledge. Part of that background knowledge would be knowing what contemporaries wrote about what the law or the constitutional provision meant, especially if such explanations went undisputed at the time.

So yes, if the SC so chooses, it can rule that it's unconstitutional to deny minors aged 13-17 the right to vote, and it can extend the franchise to them. But they ought not do it. If reason and justice, or the passions of the time, require that these teens get the right to vote, then Congress ought to pass a law and bestow upon them that right. The notion that everything a majority wants becomes, by virtue of that wish, implicit in the Constitution and becomes retroactively there all along, is wrong headed and will get us into trouble if we make it a habit to do things that way.

46 sizzleRI  Wed, Jan 5, 2011 5:34:12pm

re: #45 lostlakehiker

You're right as a matter of fact. If the SC decides to stand the law and the Constitution on its head and rule that up is down, then as a matter of case law, from then on, up is down.

All I'm saying is that the SC ought not do so. It ought to stick to what the text of the law and the constitution mean, as read by anyone with good reading comprehension and some background knowledge. Part of that background knowledge would be knowing what contemporaries wrote about what the law or the constitutional provision meant, especially if such explanations went undisputed at the time.

So yes, if the SC so chooses, it can rule that it's unconstitutional to deny minors aged 13-17 the right to vote, and it can extend the franchise to them. But they ought not do it. If reason and justice, or the passions of the time, require that these teens get the right to vote, then Congress ought to pass a law and bestow upon them that right. The notion that everything a majority wants becomes, by virtue of that wish, implicit in the Constitution and becomes retroactively there all along, is wrong headed and will get us into trouble if we make it a habit to do things that way.

But that is what is happening. Right now. Almost nothing was undisputed at the time. And since 1787 many new things that the founders did not or could not have addressed have come up. We are stuck interpreting. Originalists are interpreting what they think is original. Thats it.

Heller v. District of Columbia illustrates this issue really well. Both the majority and the dissents go back and analyze what the gun laws were like when the 2nd Amendment was written. Both sides do extensive research on what contemporaries wrote and the laws that were on the books. I do not think a single justice on the Supreme Court lacks reading comprehension skills. And they came to different conclusions. They came to well reasoned and Constitutional conclusions. They were just different.


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