Justice Scalia says 14th amendment doesn't apply to women.

Status
Not open for further replies.
Reactions
425 55 1
#1
No, I'm not kidding

So, just to be clear, here,
14th amendment said:
"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."
apparently doesn't include women.
 
C

Chibibar

#2
Why would he think that (especially a Supreme Court Judge)? I read the article and I am still confuse. The clause states "Citizens of the U.S." so regardless of sex, race etc etc, these people are citizens and thus ARE protected by 14th amendment.
I didn't think it was rocket science.
 

Dave

Staff member
Reactions
2,634 1,231 23
#4
But them dames have a right to bake me a pie, amirite?

Good thing he's considered the intellectual one on the conservative side.
 
Reactions
516 182 2
#5
But them dames have a right to bake me a pie, amirite?

Good thing he's considered the intellectual one on the conservative side.
In all seriousness I do see what he's trying to say, but I don't agree with that approach to interpreting the Constitution.
 

Dave

Staff member
Reactions
2,634 1,231 23
#6
In all seriousness I do see what he's trying to say, but I don't agree with that approach to interpreting the Constitution.
He's not strictly interpreting the Constitution. He's attempting to make the Constitution back up his own views of the world, no matter how skewed. Same tactic is used by religious fanatics.
 

Espy

Staff member
Reactions
56 0 0
#8
It sounds more like he's actually talking about what someone at the time of the constitution being written would have understood it to mean, and that in his view we should go by that for our constitutional understanding and then use current legislature to get laws our society deems fit to be enacted.

He's talking about how to interpret the constitution, that instead of a "living" document that changes over time it has an intended meaning and that as society changes we can't change that meaning but instead we must use our other legislative resources to achieve what we deem societally right.
That what I get from this quote:
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.
I don't totally agree with that kind of view constitutional understanding but I get it and I don't think what he's actually talking about is quite the "woman-hating" crazytalk the fun folks at the huffpo want you to think it is. I think he's talking about original intent here and whether or not 9 judges should be allowed to change it from what he perceives as the original intent of the authors.

Added at: 17:28
Also he follows that quote up with this rather important quote:

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?
I do not pretend that originalism is perfect.
 
Reactions
425 55 1
#9
Intent is not in the jurisdiction of the Supreme Court. It isn't about intent, but interpretation. This pretending intent is important in some cases but not in others really doesn't sit well with me.
 

Espy

Staff member
Reactions
56 0 0
#10
I can't comment on "pretending intent is important in some cases but not in others really doesn't sit well with me" since I don't don't really know when the SC uh, "pretends" on this issue... but regarding interpretation/intent I would say this: I find it hard to believe anyone could interpret any historical document even remotely accurately without attempting to understanding it's intent first.
Added at: 17:40
Seems to me like he's saying, "Okay, here is the intent as best as I understand it, now based on that interpretation Issue 'xxxxx' is one that ought to be resolved by the legislature rather than by the supreme court". Maybe I'm wrong but thats what it sounds like, although I'm no lawyer so... *shrug*.
 
Reactions
425 55 1
#11
I know he's 'just talking', but it seems a dangerous precedent to start slinging this around.

There are quite a few different ways in which statutes are interpreted. This form is known as original intent, or originalism.

This article explains the problems I have with this type of interpretation.
 

Espy

Staff member
Reactions
56 0 0
#12
Well sure, and I'm sure many have issues with how you interpret it as well, doesn't make your way wrong, it just means that, like ANY historical document there are a variety of way to look at it and understand it, I don't think thats a bad thing. I don't agree with his view necessarily but when it's partnered with the idea that new concepts and laws can be added in via the legislature and the voters over a handful of judges I'm less freaked out by it.
 
Reactions
504 140 7
#13
You guys are funny. Read the 14th amendment. No, I mean the whole 14th amendment.

Sexual discrimination is explicitly and inextricably a part of the fourteenth amendment. All Justice Scalia is saying is that under his interpretation of this amendment, it would not prevent lawmakers from forming some discriminatory laws on the basis of sex, gender, sexual orientation, etc.

Other justices would likely disagree (chances are good the majority disagree with him).

To him, it's like saying the first amendment won't prevent lawmakers from making laws regarding the sale of candy to children. The two have nothing to do with each other, in his mind. That isn't to say something else isn't present that will prevent such laws from being upheld, but that he believes the original intent was not to prevent sexual discrimination, and therefore that is how he is going to vote.

But the article is a fluff piece. "Hey, look at this old codger in an important position. He has such cah-razy ideas!"

He has always held this position on this amendment, and all others. Why is the HP writing about it now? Who knows. Slow news day, I guess.

http://en.wikipedia.org/wiki/Scalia#Statutory_and_constitutional_interpretation
 
Reactions
728 112 11
#14
And i'm sure that when they wrote about freedom of religion they meant freedom of the christian religions... but they where also nice enough to write it in a more general way just in case. Just like they wrote "person" for the whole life and liberty thing.
 
Reactions
425 55 1
#15
@Espy- Did you even read the link I posted? From what you replied, it doesn't seem like it. You didn't dispute any of the concerns I had, you just said "Well, people will think different, ho hum!" Ayeah, I know people will think differently on things. How about explaining why you agree or disagree with his view on how to interpret the constitution beyond 'it hasn't concerned me so far'.

@FLP Sometimes an article I post is something I found interesting and didn't know already. I didn't mean to offend you with something I wasn't aware of before. Perhaps it is ok to post about the crazy old codger who is the most powerful man on the Supreme Court and point out his views on how the Constitution should be interpreted.

Oh, I think you are funny too. :)
 
Reactions
425 55 1
#17
Now, lets not get carried away! I certainly want to avoid the more extreme language to prevent misunderstandings!
 
Reactions
504 140 7
#18
Ah, but if you don't spell out exactly what you intend with your post, then perhaps a hundred years from now someone will completely misinterpret what your post actually means...
 

Espy

Staff member
Reactions
56 0 0
#20
@Espy- Did you even read the link I posted? From what you replied, it doesn't seem like it. You didn't dispute any of the concerns I had, you just said "Well, people will think different, ho hum!" Ayeah, I know people will think differently on things. How about explaining why you agree or disagree with his view on how to interpret the constitution beyond 'it hasn't concerned me so far'.
I'm sorry, you seem to think we were fighting over something? I don't need to explain why I agree or disagree with his view because I'm not defending it. All I've said is that I don't have a problem with the variety of views that are used to interpret it and that I think it's good to have that variety on the bench. You seem to hold to the view that he and anyone who agrees with him are "doing it wrong" and honestly I think thats as close minded as anyone who think you or judges who agree with you are "doing it wrong". I don't think there is one, definitive way to read historical documents, theres just to many factors that go into understanding older texts. Thats why I'm cool with a variety of those views in the Supreme Court.
 
Reactions
425 55 1
#21
Ah, but if you don't spell out exactly what you intend with your post, then perhaps a hundred years from now someone will completely misinterpret what your post actually means...
Or make some outlandish claim that they are the brilliant soul who knows exactly what I intended to say with my post and everyone who disagrees is a powder head.

That is EXACTLY why I find originalism to be absurd.
 
Reactions
504 140 7
#22
We have significant historical documentation and data that suggests his analysis is correct. No one is claiming that the original intent is different than what he's saying. Are you asserting that the original writers truly meant all people, men and women, and truly meant all forms of discrimination? No one else is asserting this, and therefore you would stand quite alone if you did.

What everyone else is saying is that we can and should interpret the constitution according to our current language usage and culture, not on the language and culture that existed at the time it was written.

Originalism has a sound, logical basis in historical data and understanding. It's not really the extreme that you suppose ("What are the thoughts of the writer...") it's merely interpreting the document with baseline of the time (culture, language) that it was created in.

The funny thing is that many people agree with originalism on certain issues. Take, for instance, the idea that corporations are very nearly "people" for many intents and purposes. The framers did not have this view in mind, and many people agree with our current quasi-person state that "incorporated" companies exist in simply because they do agree with the "original intent" of the document. It's a murky situation, because to become incorporated literally means to become a person. Given that they pay taxes, shouldn't they then have representation beyond lobbying - ie, voting? It's the reason corporations are allowed to advertise freely - they are actually held to the first amendment in that regard. Go to Germany and many other countries and corporations don't have such protections.

At any rate, originalism isn't absurd any more than saying that the constitution changes over time merely because our language and culture changes. I believe there's a balance to be struck between the two.
 
Reactions
425 55 1
#23
FLP you make some interesting points. I'll think some more on the subject and comment again when I've gathered my thoughts.
 

Espy

Staff member
Reactions
56 0 0
#24
At any rate, originalism isn't absurd any more than saying that the constitution changes over time merely because our language and culture changes. I believe there's a balance to be struck between the two.
This is pretty much what I was trying to get at. The majority views on interpreting the constitution all have their strengths and flaws and all have their place at the table.
 
Reactions
728 112 11
#25
We have significant historical documentation and data that suggests his analysis is correct. No one is claiming that the original intent is different than what he's saying. Are you asserting that the original writers truly meant all people, men and women, and truly meant all forms of discrimination?
As i recall some of the people that contributed to making the document in question did write about freeing the slaves and other progressive stuff like that... so i wouldn't really discount it as an intention just because social and economical(sp?) reasons didn't allow for that.
 
T

TheBrew

#26
This is pretty much what I was trying to get at. The majority views on interpreting the constitution all have their strengths and flaws and all have their place at the table.
Textualism is pretty stupid, though.

The "right to bear arms" doesn't mean I get to swap my limbs with Yogi, even if they have an inherent advantage in getting picinic baskets.
 
Reactions
728 112 11
#30
The "right to bear arms" doesn't mean I get to swap my limbs with Yogi, even if they have an inherent advantage in getting picinic baskets.
Wait, wait, wait... you're telling me that i don't have the right to take bear's arms and stockpile them?! Man, then i mauled all those bears for nothing...
 
Status
Not open for further replies.
Top