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Scalia, Originalism, and Women

I am shocked, although by now I shouldn’t be, by the number of people weighing in on Justice Scalia’s remarks at UC Hasting’s School of Law. Many have accused him of misogyny for one of his remarks, but I believe they miss the mark of what Scalia was really talking about.

Scalia is a leading proponent of a school of though called originalism. Originalism, actually a family of legal theories, holds that laws should be applied using the intent of the drafters of the law. Predominantly, it has come to be thought of as an approach to Constitutional application. Originalists would generally reject the idea of constitutional “interpretation.”

So, in the interests of being fair, let’s take a look at what Scalia was asked, and what he answered.

Question:    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?

Answer:    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.

Note that the question begins with the professor saying that in 1868, nobody would have thought that the amendment applied to sex or sexual orientation discrimination. And then he finishes the question by asking if the current stream of 14th amendment law is fundamentally in error. So the ultimate question he asks is whether the 14th amendment has been used in a way it was never intended to be used. Or, perhaps, whether the 14th amendment has been applied incorrectly to situations the framers of the amendment didn’t envision.

Scalia then answers by saying yes, that the amendment has been stretched beyond its intent. Not once does he say that discrimination on the basis of sex or sexual orientation is right, or good, or desirable. He merely says that neither form of discrimination is prohibited by the 14th amendment. His position is consistent with a judicial and legal philosophy that many people, including some legal scholars, agree with.

Scalia goes on in his answer to give the basic framework of that philosophy. He says, “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.” The point he makes is that the constitution cannot address every possible contingent of modern life. In those areas where it is silent, for example, about discrimination on the basis of sex, look to the legislature to reflect society’s current interests. “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about.”

Scalia’s point is not only cogent in a legal theory framework, it also reflects a certain practicality. In America, abortion is still a terribly divisive issue, almost forty years after Roe v. Wade. In England, it’s not. Why? Perhaps because in England, the question was voted on by the people, and the people chose to make abortion legal. There are plenty of people in England that are pro-life, but they are also aware that they live in a society that gives them a voice, and their voice was heard, and they are willing to live with that result. In America, the issue wasn’t settled by legislation, but by judicial fiat. Even the justice who authored the decision later admitted it had to be fabricated out of whole cloth, because there is no right to abortion mentioned in the constitution.

Scalia has it right when he says that he doesn’t even need to read the briefs in abortion cases. It’s neither a federal issue nor a constitutional one. It’s an issue that lies within the purview of the people or their representatives. Not every issue has a solution in the constitution, nor should it. And to be fair, it’s not just abortion. Death penalty? Not a constitutional question, except in its application and equal protection concerns. Don’t like the death penalty? Get the legislature to outlaw it.

The point Scalia makes is not about sex discrimination, nor about women. It’s a more fundamental point about the nature of the government, its relationship to the governed, and the nature of the constitution itself. If the constitution can mean anything “nine superannuated judges who have been there too long” says it means, than it means nothing except what they say it means. If that is truly the case, then we no longer have a republic, we have an oligarchy of the unelected.

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