I wish Antonin Scalia was just that crazy old uncle in every family that we all kind of put up with. You know, the type that’s stuck in the past, who still wishes he could hear Jack Benny on the radio, and calls women “gals” and African Americans “the coloreds.” But unfortunately Scalia is 1 of only 9 Supreme Court justices, arbiters of all of our rights and liberties under the Constitution, the last and final word on the meaning of the great document. Add to that that he is universally recognized in the legal world as brilliant and that he also essentially controls Justice Thomas’ vote and you can see why his take on the Constitution has significant importance.
So now comes an interview with Scalia in California Lawyer magazine where he was asked whether the country has gone too far applying the 14th Amendment’s grant of equal protection to cases of sexual discrimination against women and he answers: 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.
So what this means is that according to Scalia, the Constitution can only apply to issues that were around at the time the document was drafted or amended. It cannot ever be adapted to be applied to current society. If current society wants to remedy something they see as wrong that is not specifically enumerated in the Constitution, then their local legislatures or the Congress has to enact a law to do it. This of course ignores decades of prior Supreme Court case law that says the equal protection clause applies to women. But it also means something else. It means that if a State should decide to treat women as second class citizens then the Constitution gives those women no recourse. They cannot sue in Federal court asserting their Constitutional rights because according to Scalia nothing in the document says they have rights. That’s absurd and downright dangerous because right now Tea Party candidates are gaining momentum. Scalia and Thomas are the darlings of the movement and this strict constructionist philosophy is allegedly their mantra. (Remember Christine “I Ain’t No Witch” O’Donnell arguing that “separation of church and state” is not required by the Constitution because those words don’t actually appear in the document?) So if eventually the Tea Party captures a state, that state could start unraveling certain rights that were not specifically enumerated in the Constitution or in Federal legislation if this doctrine were to be the law of the land. Scalia, Thomas, Justice Alito and to some extent Justice Roberts think along these lines, so a few more votes in their corner is all they need for it to become the law of the land. And if you think they won’t just turn around and change nearly one hundred years of precedent, look at the U-turn in the law they took in the Citizens United case (about campaign reform) to see how they will ignore precedent when they see fit.
Since the beginning of this country there has been a struggle between the notion of a Federal government and the rights of the States. The Tea Party is essentially revving up that argument again and this latest statement by Scalia is likely to be memorized and revered by the followers of that movement. But they like Scalia completely ignore that when the 14th Amendment was passed, it was supposed to specifically mention race as the reason why equal protection could not be denied. But Susan B. Anthony and others fought to have gender included. While they lost that battle, (largely because the congress believed that it would undermine a husband’s rights to a woman’s property after marriage) the Congress did decide to frame the amendment neutrally without mentioning race, though they kept race in the Fifteenth Amendment which gave the newly freed slaves the right to vote. Some congressmen said they agreed to this to specifically protect the rights of single women. (Forget for now the irony that they didn’t care at all about the rights of married women though that is another reason we should be careful about complete reverence to the “founding fathers”). So Scalia is just flat wrong that protection for gender discrimination was not contemplated. Here is the text of the actual amendment:
“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.”
What is unclear about this? How can this be realistically argued? “Nor deny to ANY PERSON . . . the equal protection of the laws. ” Now of course the US Supreme Court has ruled that States can treat people differently and have created a sliding scale of whether a law can be passed if it discriminates. The lowest level applies to discriminatory laws that target “non-suspect” classifications (like sexual orientation or age). They pass constitutional muster as long as the State has a “rational basis” for the law. The highest level applies to “suspect classes” (like race or citizenship) and they must pass a “strict scrutiny ” test to see if the law is designed to meet a societal goal. Gender is seen as being a class in the middle of these two classes. Statutes that treat men and women differently must be more than merely reasonable, they “must serve important governmental objectives,” and the differing treatments of men and women “must be substantially related to achievement of those objectives.” Scalia’s doctrine would all but throw out these classifications and basically state that only the strict scrutiny standard for race is all that survives since that was the intent of the Congress in 1869 when they drafted the 14th amendment. That’s what we want, isn’t it, to judge American society in 2011 by what a couple of hundred white men thought in 1869? Ridiculous.
Marcia Greenberger, founder and co-president of the National Women’s Law Center, was quoted in the Huffington Post as stating that under Scalia’s doctrine, “women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools — all things that have happened in the past, before their rights to equal protection were enforced.”
Another important point about Scalia’s diatribe. Its not new, as he has expressed this view before on other public occasions. But what is new, is this willingness on the part of an active, sitting Supreme Court Justice, to express his views on Constitutional issues outside the court. That used to be looked down upon and you rarely saw a Supreme speak about Con law so as not to reveal his position on a particular subject. Thomas really broke that mold with his many paid appearances on the lecture circuit and Scalia has followed suit. It’s not a good trend.
So, its frustrating and troubling to see that Scalia thinks the Constitution is forever frozen in time and is willing to declare that to anyone who asks his opinion on the subject. More troubling is that the Tea Partyers are likely to latch on to this and use it to perhaps one day soon gain control of the US Supreme Court.