Recently there have been some stories of speeches and interviews with Supreme Court Justice Antonin Scalia about which the conclusion has been drawn that Scalia does not believe the 14th Amendment to the US Constitution applies to women. In an article from The Washington Post yesterday a Q&A excerpt from a recent interview with California Lawyer Magazine reads:
"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."On the face it appears to be an outrageous assertion. "The Constitution does not require discrimination... the only issue is whether it prohibits it. It doesn't." Following that statement people from across the globe are decrying the notion in websites and news media. In the wake there are an incredible number of people attacking him, Catholics, and Republicans calling for nothing short of his assassination. It unfortunately is an example of the current political discourse in the country; if you do not agree with someone you attack their character or intelligence. And while it sometimes provides for quality entertainment it becomes a self-fulfilling cycle of hate; otherwise known as ad hominem.
And we here at II love fallacies. So when we came across this story and saw the reaction, hate, and abject ignorance we decided to step in.
Agree with him or not, Justice Scalia is no doubt a very well read, intelligent, and experienced man; especially in matters of the Constitution. There are very few people alive who he would not spin miles of yarn around in a debate before they uttered a single unconnected phrase. He is not the kind of person that makes assertions in public without just cause and ready to have an argument to back up his statement. Therefore the above statement demands dissection and evaluation.
Scalia asserts that the 14th Amendment does not prohibit discrimination in regards to sex.
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.This is what people most often refer to when quoting the 14th: the so-called "Equal Protection Claus." It states that all citizens are equally protected under the law. Argument settled. Scalia loses. Women are citizens and therefore receive equal protection. Not quite.
The obvious question at this point is "if the 14th Amendment was passed in 1868 why did the US craft the 19th Amendment?" If all citizens were protected from discriminatory laws then why did it take 52 years before women were allowed to vote? These are the questions normal people should ask when they hear seemingly abominable statements, no matter the source.
The problem comes from Section 2 of the 14th Amendment:
Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.The dual insertion of "male" was not a mistake by the 14th's framers or II. Quite literally the authors of the Amendment equated males and inhabitants and citizens in a calculated attempt to garner the necessary votes for the ultra-super majority needed to pass an amendment. Why? That was simply the attitude 150 years ago. Even the Constitution has been subjected to compromises and political dealing. The framers were willing to provide equal protection to blacks, but not women. And because of Section 2 and the subsequent Supreme Court confirmations women's suffrage was suppressed for another half century. So read the statement again:
"... 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."So was Justice Scalia right? Unfortunately for those that hate him he was technically correct; which is the best kind of correct. Justice Oliver Wendell Holmes, Jr once declared the Equal Protection clause "the usual last resort of constitutional arguments" because the wording of the Amendment mitigated its potentially grander impact. And as such a misunderstanding of the entirety of the Amendment leads to ignorance and hate. Does the 14th Amendment prohibit a government from discriminating its citizens on the basis of sex? As much as one wishes it does, it doesn't. Otherwise the would not have needed the 19th Amendment.
Sources:
http://www.bilerico.com/2009/04/scalia-gesture_1.jpg
http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html
http://teachinghistory.org/history-content/ask-a-historian/23652
http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
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