Dispatches from the Creation Wars

Scalia and the 14th Amendment

I’ve been meaning to write about this and then someone sent me a video by a professor that does an excellent job of debunking it. Justice Antonin Scalia recently said, as he has said many times before, that the 14th amendment’s equal protection clause does not outlaw gender discrimination because the original intent of the amendment was only to protect blacks against discrimination.

Scalia is wrong, of course. But more than that, he’s utterly inconsistent in his thinking on such issues. On the one hand, he is on the record as rejecting the notion that courts should consider legislative intent (though he is inconsistent on that as well; see Edwards v Aguillard where he relies upon the very thing he rejects to get to the result he wants) when interpreting a law.

He is also on the record, as this video points out, of arguing that relying upon the intent of the lawgiver as opposed to the meaning of the words of the law is “tyrannical.” And yet that is exactly what he does in his argument about the 14th amendment. This is what he has meant when he has also claimed in the past to be a “textualist” rather than a genuine originalist. But the text of the 14th amendment is as broad as it could be. It says that no state shall deny to “any person” the “equal protection of the laws.”

Now, there is a sense in which Scalia is correct. The 14th amendment does not mandate laws against discrimination by private individuals or businesses. It applies to the state governments, not to businesses or individuals. We have anti-discrimination laws applied to businesses not because the constitution demands it but because of statutory law passed by Congress.

But that’s not what Scalia is referring to here. He believes that the state governments, and the federal government presumably, can apply the laws unequally to men and women without violating the equal protection clause and that it is up to legislatures to do something about it, not judges. But he’s flat wrong, even by his own previous statements.

Dispatches reader Patrick also made a brilliant argument in this regard in a comment on a previous thread. He writes:

Lets say we use Scalia’s preferred solution to laws we don’t like: amendment.

So we’ve got a law that says “All persons have Right X.” But Scalia says we have to interpret that to only apply to men, because the original intention at the time it was passed didn’t include women. Fine.

What amendment should we pass? We want it to apply to men and women equally. How about this language:

“All persons have Right X.”

Perfect! That precisely encapsulates the meaning we intend to impart to the passage! We’ll just amend

“All persons have Right X.”

to read

“All persons have Right X.”

But this time we’ll beam different thoughts at it while we cast our votes. And now no one will be confused.

Brilliant. And spot on. The amendment that Scalia says we should pass would be identical to the language that it’s amending.