Leave it to Supreme Court Justice Antonin Scalia to argue that the Constitution does not, in fact, bar sex discrimination.
Even though the court has said for decades that the equal-protection clause protects women (and, for that matter, men) from sex discrimination, the outspoken, controversial Scalia claimed late last week that women’s equality is entirely up to the political branches. “If the current society wants to outlaw discrimination by sex,” he told an audience at the University of California’s Hastings College of the Law, “you have legislatures.”
But Justice Scalia’s attack on the constitutional rights of women — and of gays, whom he also brushed off — is not just his usual mouthing off. One of his colleagues on the nation’s highest court, Justice Stephen Breyer, has just come out with a book called Making Our Democracy Work: A Judge’s View, which rightly argues that the Constitution is a living document — one that the founders intended to grow over time, to keep up with new events. Justice Scalia is roaring back in defense of “originalism,” his view that the Constitution is stuck in the meaning it had when it was written in the 18th century.
Indeed, Justice Scalia likes to present his views as highly principled — he’s not against equal rights for women or anyone else; he’s just giving the Constitution the strict interpretation it must be given. He focuses on the fact that the 14th Amendment was drafted after the Civil War to help lift up freed slaves to equality. “Nobody thought it was directed against sex discrimination,” he told his audience. (See “The State of the American Woman.”)
Yet, the idea that women are protected by the equal-protection clause is hardly new — or controversial. In 1971, the Supreme Court unanimously ruled that they were protected, in an opinion by the conservative then Chief Justice Warren Burger. It is no small thing to talk about writing women out of equal protection — or Jews, or Latinos or other groups who would lose their protection by the same logic. It is nice to think that legislatures would protect these minorities from oppression by the majority, but we have a very different country when the Constitution guarantees that it is so.And the fact that we have a very different country now from the days of the Founding Fathers is why Justice Scalia is on the wrong side of this debate. The drafters could have written the Constitution as a list of specific rules and said, “That’s all, folks!” Instead, they wrote a document full of broadly written guarantees: “due process,” “freedom of speech” and yes, “equal protection.” As Justice Oliver Wendell Holmes explained almost a century ago, the Constitution’s framers created an “organism” that was meant to grow — and to be interpreted “in the light of our whole national experience,” not based on “what was said a hundred years ago.”
Read more at Time.com: http://www.time.com/time/nation/article/0,8599,2020667,00.html#ixzz10HPbwlMO
In short, Scalia is adhering to the letter of the law, but not its intent–except where he thinks intent is important, like the 14th Amendment.
When we call the Constitution a “living document” we are not only affirming the intentions of the framers, we are also being practical. The world changes, societies change. Should we restructure a nation’s government every time something new comes along? Cloning, better redo Congress! Hmm, environmental protections, lets get rid of Statehood! No. We refer to our founding documents for guidance. And when our founding documents are wrong, or do not meet today’s challenges, we amend them.
If Scalia really is in favor of women’s rights, as he claims, he should also be in favor of the Equal Rights Amendment, which last came close to passing several months before Scalia’s nomination to the Supreme Court. At the time, he had the opportunity to freely voice his opinions and lend his support. This he did not do. His judgments show no sympathy toward women.
In fact, he was the lone dissenting voice in a case called United States v. Virginia, by which a public school’s male-only admissions policy was struck down.
Scalia’s opinion of 1996 states:
Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were—as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the countermajoritarian preferences of the society’s law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men’s military academy—so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States—the old one—takes no sides in this educational debate, I dissent.
518 U. S. 515 (1996) 567 (view online)
Scalia, J., dissenting
Scalia believes laws should be changed with the times, but the Constitution must remain constant. Yet there is an amendment process, one that makes it deliberately difficult to change the Constitution. He alleges that we mustn’t change the Constitution to protect women, but that women should not expect special treatment because it’s not in the Constitution.