Joan Walsh on Scalia’s selective view of the 14th amendment

You’ve probably heard that Scalia recently claimed the 14th Amendment doesn’t apply to women. Here’s an excellent response from Joan Walsh:

Of course, in 1971 the Supreme Court unanimously ruled that it does protect women from discrimination, and that interpretation has never been, and still is not, in peril. Scalia appears to be turning into a crank. Here’s what he told California Lawyer:

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….The only issue is whether it prohibits [sex discrimination]. 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.

It wouldn’t just be women who’d lose their right to equal protection if we took Scalia’s view: If we believe the 14th Amendment only existed to give black former slaves as well as free black their full citizenship rights – a long-overdue and worthy goal, by the way — then it doesn’t apply to Jews, Latinos, Asians, or for that matter, black women. I’ve got to say I’m glad Scalia admits that black men have some rights – I’m a glass half-full kind of person — but it seems a shame to leave out black women…and the rest of us…

What’s most preposterous is that Scalia was part of the most shameful and flagrantly political use – it was abuse, really — of the 14th Amendment in Supreme Court history, when he joined the majority in the Bush vs. Gore decision and stopped the Florida recount, brazenly using “equal protection” as one of the cornerstones. The pro-Bush SCOTUS majority argued that the white, wealthy George W. Bush would have his rights violated if if Florida counties used different procedures to recount votes and, in cases of some ballots, divine voter intent. Now, if Scalia really thought the 14th amendment only intended to make former slaves full citizens, he should have applied it to make sure black voters and black votes were treated fairly in Florida (and in fact, we know they were not.) What a joke.

Remember, it’s also Scalia the strict originalist, who insists we can’t interpret the Constitution’s authors in light of radically changed circumstances, who has taken the lead in giving “corporations” personhood rights, ruling in Citizens United that campaign-finance laws violated their speech rights under the First Amendment. “Corporations” weren’t mentioned by the writers of the Constitution or any of it’s amendments; I guess originalism has its limits, where the rights of the wealthy are concerned.

7 thoughts on “Joan Walsh on Scalia’s selective view of the 14th amendment

  1. Yes, can we please stop taking Scalia seriously now? I mean, the man wears his prejudices blatantly.

  2. Very few justices have ever operated any differently than Scalia. It is your job, as a SC Justice, to make the law fit your prejudices and preconceived opinions. That’s pretty much all anybody has ever done, and it happens just as much on both sides of the bench. How about you stop taking ANY of them seriously instead of settling for playing politics?

  3. @Mr Jender: we can stop taking him seriously when he stops being the intellectual linchpin of the Court’s right wing.

    @Anonymous: we can’t ever stop taking them seriously, since they do actually have a real effect on what happens here in the US (and in some cases abroad).

  4. He is a prejudiced a**, and he is unfortunately in a powerful position where his decisions impact our lives in a very real and immediate way. Dammit!

  5. This is what happens when you get lawyers involved in interpretation. Obfuscation is their weapon of mass destruction.

    The Constitution is clearly written and words have meaning. A little common sense is helpful too.

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