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Tuesday, January 4, 2011

More Dumbed-Down Talk About The Constitution From A You-Know-Who

More dumbed-down talk about the Constitution from Tea Parties liberal columnists, this time Amanda Terkel (formerly of Think Progress) writing at HuffPo with the headline:
Scalia: Women Don't Have Constitutional Protection Against Discrimination
Gee, Scalia must hate women.

Except that the headline is a good example of a half-truth.  Scalia's point is the fairly standard originalist view that the 14th Amendment does not broadly apply to prohibit all forms of discrimination on the basis of sex.  Either sex.  It does not protect men against discrimination on the basis of sex, either.  The Supreme Court decision in Reed v. Reed, 404 U.S. 71 (1971) is read by some as offering broad protection on the basis of sex, but that is an overreading of a fairly limited opinion in which the Court found no rational basis for a state law giving preference to males in the appointment of estate administrators.  Other cases after Reed have applied a more strict scrutiny approach.  I assume Scalia disagrees with the Reed decision, not because he doesn't like the result, but because of the approach;  this difference in approach does not make Scalia wrong, or hostile to women as the HuffPo headline suggested.

Scalia's view is neither novel nor new.  That the Constitution does not address discrimination on the basis of sex as such was evidenced by the ultimately failed attempt to amend the Constitution to add an Equal Rights Amendment which would have added this provision:  "Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex." 

Scalia, in the interview in question, also made clear that Congress is free to pass anti-discrimination laws, and Congress has.  This is a distinction between constitutional and political protections:
"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."
This distinction between constitutional and political rights typically is ignored by the liberal media and advocacy groups.  So if  one takes the position that there is no constitutional requirement for something (the issue du jour is gay marriage), one immediately is labeled as being "anti-_____" or  "____phobic." 

This is the line of attack used against Robert Bork by Ted Kennedy, and used regularly against any jurist or politician who, unlike Ezra Klein, does not view the Constitution as one of those endlessly malleable political documents meant only to mean whatever we want it to mean now.

I wish these people would stop dumbing-down the Constitution.

(Note: Some changes were made from the original post to clarify Scalia's position and how it fits into the overall history of cases in this area.)

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  1. My Con Law professor was practically apologetic for having to teach us that the 14th Amendment only prohibits discrimination by the government.

  2. Agreed that the headline, and even the article you link to, are misleading and oversimplify the issue. Scalia has a judicial philosophy (a not un-popular one I might add) that requires a reading of the constitution based on the intent of those who wrote/amended it at the time. Although I strongly disagree with this idea (it seems strange to me that we would allow the morals and values of ordinary, fallible men to dictate how we live our lives today), it is not an indefensible position.

    At the same time, why can't you acknowledge that what Klein said was horribly misrepresented as well? What he said (essentially that it's difficult to understand exactly what the language of the constitution means in our current world, given that it was written in a different time) represents a different, equally-defensible theory of how to interpret the constitution (mainly that we should read the constitution to allow for changes in our society as a result of the evolution of, among many things, our morals or technology). Why can't you acknowledge this?

    Interpretation of the constitution (or law, as it's known to those of us who practice it) is a complicated and difficult job that most people do not fully understand. It is therefore incumbent upon those of us with a greater understanding to make clear the parameters of the debate, and what each side is saying. If I can acknowledge that Scalia has a valid, defensible legal philosophy, why can't you admit that Klein (and others like him, including some of Scalia's peers), has an equally valid and defensible legal theory?

  3. "I wish these people would stop dumbing-down the Constitution."

    Funniest thing an authoritarian, torture supporter has said today

  4. "Funniest thing an authoritarian, torture supporter has said today"

    Fail troll is fail.

    As for Klein's statements, the argument that it's tough to understand what the framers of the constitution meant for us today because it's an old document doesn't hold much water to me. Mainly because 1. a lot of things in the constitution are fairly clear (bill of rights, for example), and 2. the framers understood that society changes, which is why they put in a system for amendments.

  5. The bill of rights is anything but clear. Define "due process" (5th amendment) for me. Tell me what constitutes an "unreasonable search[] and seizure[]" (4th amendment) or "cruel and unusual punishment" (8th amendment). If the second amendment protects private ownership of arms, why does it mention militias?

    This is exactly the problem I was talking about in my first comment. We don't need to engage in a debate about the meaning of the constitution here, I'm fairly certain it could go on forever and nobody would be convinced of anything they don't already believe. My only point is that the constitution is anything but clear, which is why we have been debating its meaning for 200+ years.

    I agree that we should avoid "dumbing down" the debate, but saying that "a lot of things in the constitution are fairly clear" is just as bad as saying "Scalia doesn't think women have constitutionally-protected rights" (actually it's a little worse, because the truth is that Scalia doesn't believe that women have constitutionally-protected rights, although this does not in itself say anything about his positions on women's rights outside of the constitution).

  6. This is why he's said on many occasions, don't take things to the courts, if the legislatures can resolve it, he's pointing to the plain meaning
    of the Amendment

  7. No, he's not Narcisco. He's pointing to the historical context of the Amendment's creation. Plain meaning of "equal protection under the law" would seem to protect any citizen, regardless of what Scalia thinks.

    Nonetheless, as Jack Balkan notes, Scalia is wrong to say the Amendment guarantees racial protection too, since the word race does not appear in it.

    Plain meaning means plain meaning, not "the people who wrote didn't think babes deserved equality, thus they have no authority in the Constitution for that protection."

    Balkan also has an awesome point vis avis the most silly Supreme Court decision of the last decade (Bush v Gore) by pointing out state voters aren't a classification the Amendment considered or mentioned, but Tony didn't have a problem finding Constitutional protection for them.

    As he ages, his partisanship shows more and more. He's now almost as repulsive as Thomas or Alito

  8. You're a nitwit, timb. You read the Constitution *AND* you consult sources such as the Federalist papers to discern the framer's intent, their "plain language", (regardless of what you might wish/hope/dream) and, between the two, you can arrive at pretty spot-on determinations of exactly what they intended. (The same goes for Joshua's bloviating on what 'this' and 'that' means*.)

    Liberals, of course, love that most people have no idea what the Federalist Papers (among other sources) are because it allows them all the wiggle room they need to warp, spindle and mutilate the Constitution at will.

    *The only people for whom the Constitution is unclear are those who wish it to be some sort of opaque, anachronistic, Bible-like text that is open to countless, warped, interpretations that, surrpsise!, dovetails w/ their political spoon-bending.

  9. timb: I never thought of Prof. Jacobson as a "torture supporter" until I realized he is choosing not to delete your comments.

  10. Ok ecm, you successfully ignored my questions by dismissing them as "bloviating," and you're correct that reading the federalist papers and consulting other primary sources from the time are a good way to discern the intent of the framers. I hate to come back to the same line of questioning (and please excuse my wordiness), but I really can't help it. Just tell me: what do the federalist papers and the constitution say about the government monitoring my phone and internet activity? Did Madison think it would be an "unreasonable search" for the government to read my email without a warrant? What did Jefferson think about corporations' first amendment rights in terms of donating to non-candidate PACs?

    Please, give me the "spot-on determinations of exactly what they intended" in these situations? I must have missed the specific federalist paper that explained it.

    Again, this is the problem with a philosophy grounded in the idea that whatever a group of late-18th century men (normal, fallible men not really any different than you or I ecm. Unless of course you're a woman, in which case according to those guys you probably shouldn't be worrying your pretty little head over "men's issues" like these) should apply to all of us going forward in perpetuity.

  11. ecm fails to know or realize that "plain meaning" is a legal term for a style of statute interpretation, instead of what he thinks is. I'm sorry I don't have time to teach you Con Law, ecm, but why don't you google plain meaning before you think you know something you do not.

    Hey, Smithee, Protein Wisdom is calling. They are apparently missing their dufus and need you to come back