an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Supreme Court Justice Antonin Scalia is famous for being a stickler about the words of the Constitution, often castigating his colleagues for failing, in his opinion, to honor what the Constitution’s text actually provides. But Justice Scalia tends to apply this approach selectively, or not at all when it comes to the Fourteenth Amendment. Earlier this year, in McDonald v. City of Chicago, he backed away from the text of the Privileges or Immunities Clause, refusing to honor the words of the Fourteenth Amendment that explicitly safeguard substantive fundamental rights. Indeed, before the argument in McDonald, Justice Scalia went so far as to call the Privileges or Immunities Clause, “flotsam,” constitutional trash; so much for honoring the Constitution’s text. Then, when the Court decided the case, Justice Scalia agreed that the Fourteenth Amendment protects an individual right to bear arms, but relied for that conclusion on substantive due process – the doctrine he loves to hate in other contexts – rather than follow the Fourteenth Amendment’s text. Now, Justice Scalia argues we should also disregard the text of the Fourteenth Amendment’s broad guarantee of the equal protection of the laws. Earlier this week, in a widely-reported speech at the Hastings College of the Law, Justice Scalia argued that the Fourteenth Amendment does not proscribe sex discrimination by the states. To Scalia, it does not matter that the framers wrote the Equal Protection Clause in broad, sweeping terms that apply to all persons, whether African-American or white, native-born or immigrant, man or woman. “Nobody thought it was directed against sex discrimination.” Justice Scalia derided the last four decades of Supreme Court rulings holding that states may not deny women the opportunities to participate as equal citizens in all aspects of American life as “modern invention[s]” inconsistent with the Fourteenth Amendment’s meaning. “If the current society wants to outlaw discrimination by sex, you have legislatures.”
Scalia’s argument flies in the face of the text of the Equal Protection Clause as well as the reasons that the framers wrote a broad, sweeping guarantee of equality for all persons into the Fourteenth Amendment in the first place. The Equal Protection Clause was written to demand equal rights under the law for all persons in order to bring the Constitution back in line with the Declaration of Independence’s promise of equality, redeeming our Nation’s foundational document from the sin of slavery and securing the “new birth of freedom” Lincoln had promised at Gettysburg. The framers of the Fourteenth Amendment were concerned that states were denying many classes of persons equal legal protection -- newly freed slaves in the South, their white Unionist allies, and immigrants in the West, all faced persistent discrimination and lack of legal protection. To stop these abuses and prevent future ones, the framers wrote the Equal Protection Clause in broad, universal language designed to prohibit invidious discrimination against all persons. Women plainly are included within this broad mandate of equal rights under the law.
Justice Scalia’s only response is to fall back on the views of the framers of the Fourteenth Amendment, who sanctioned the denial of the right to vote to women in Section 2 of the Fourteenth Amendment and did not think that the Amendment disturbed state laws that denied equal rights to married women. Under prevailing understandings of marriage in many states at the time of ratification of the Fourteenth Amendment in 1868, women gave up their rights at marriage. Scalia, however, ignores the fact that the Nineteenth Amendment flatly rejected these understandings, erasing the Fourteenth Amendment’s constitutional sanction of sex discrimination. In ratifying the Nineteenth Amendment, “We the People” decided and decreed that women must be treated as full and equal citizens with the same right to vote and participate in the public sphere as men. Justice Ruth Bader Ginsburg, and a long line of renowned scholars across the ideological spectrum – including Akhil Amar, Steven Calabresi and others – have recognized that “[e]ver since the 19th amendment, women are citizens of equal stature with men.”
Justice Scalia’s argument is not even consistent with his own, previously-expressed views about how to interpret the Equal Protection Clause. Justice Scalia has long argued that the Equal Protection Clause forbids racial discrimination by the states, including all governmental affirmative action plans designed to redress our Nation’s long history of racial discrimination. Scalia’s broadside attack on affirmative action has nothing to do with the views of the Fourteenth Amendment’s framers, who recognized that race-conscious action was necessary if the newly freed slaves were to become equal citizens in American life. Scalia’s position is based purely on his view that the text of the Equal Protection Clause demands that governments treat persons as individuals, not as members of groups. The text of the Constitution is binding upon judges, not the subjective intent of the framers. But if Justice Scalia thinks we are bound by the framers’ intention when it comes to the rights of women, then his own broad attack on affirmative action also must fail.
Justice Scalia once recognized that “our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me.” Apparently, in Scalia’s warped version of the Constitution, that promise of equality no longer extends to women as it does to men.
David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.
Scalia refutes Breyer's alternative path (btw his new book is pretty good) of honest pragmatism as too empowering of judges without proper objective lines to follow.
Some, many more than I and so be it, could find fault with Breyer's approach. But, besides not being as much as an ass, Breyer at least is more honest about what he is doing.
This includes Scalia's selective following of precedent, non-originalist things (by his own admission) like regulatory takings (precedent) not treated the same as the right of privacy (absurd, precedent not to be respected), which can actually be defended on originalist grounds, though per his selective use of history in that regard, not in his view.