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.
- Supreme Court Justice Anthony Scalia
As the Tea Party crowd steps into the House chamber, and the press obsess about their impact, Justice Scalia’s comments, shows an even stronger reactionary force is at work in the US Supreme Court.
Justice Scalia’s comments regarding the 14th Amendment were made in an interview in the recent edition of the California Lawyer magazine. http://www.callawyer.com/story.cfm?eid=913358&evid=1.
The question Justice Scalia was asked was a loaded one: “In ... 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?”
As an “originalist” Justice Scalia believes the Constitution is not an evolving document. It means what it says and says what it means. If the Constitution does not specifically enumerate a power or right, that power or right does not exist.
So Justice Scalia’s answer was not a surprise. He said in part “...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.”
I hate to disagree with Justice Scalia. After all he has a law degree and I don’t. I thought the 14th amendment was clear:
"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."
This section of the 14th Amendment is in two parts. The first part makes it clear that if you are a citizen the government cannot make laws that abridge your rights. Then in the second part of this section, when it changes from using the word “citizen” to the word “person,” the 14th Amendment extends constitutional protection to non-citizens as well.
When it was enacted the original intent of the 14th Amendment was to extend citizenship to the newly freed slaves by overturning the 1857 Dred Scott decision that held negroes, free or slave, were not citizens. But, in one sentence by moving from “citizens” to “person” the amendment’s framers, broaden the rights and protections of the Constitution to everyone, regardless of who the are or their citizenship status.
In this interview the Justice doesn’t address whether a legislature can curtail those rights. He simply patches over this omission with a blithe comment that legislatures can extend rights if the people chose, after all “that is what democracy is about.”
The framers of the 14th Amendment well understood the potential for state legislatures to tyrannize an unpopular minority. They were watching the Southern States, with the support if the President, implement “back codes” curtailing the rights of freed slaves.
By the 1890’s protected by the Supreme Court in “Plessy v. Feguson” state legislatures supported by the majority of voters curtailed and revoked the rights of their African-American citizens. This was exactly the “democracy in action,” the Amendment’s framers feared.
Today of course we have progressed beyond that point.
We no longer worry about African-American, but are alive to the danger of “anchor babies” and “illegal aliens.” The Arizona legislature has, with the support of the state’s voters, enacted a law that clearly abridges the rights of Latinos or people who appear to be Latino. Other state legislatures are preparing to follow in their footsteps.
The framers of the 14th knew they couldn’t list all the people the government could discriminate against in the future. So they elected to restrain the government’s powers against all persons.
The original framers of the Constitution also understood how fragile a person’s rights are in a Democracy. That is why they created the 9th Amendment, which specifically states: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Just because a particular right is not specified in the Constitution doesn’t mean that right doesn’t exist.
So taken together, these two Constitutional Amendments protect all rights, whether or not they are specified, of all persons in the country, regardless of their citizenship status.
I wonder if Justice Scalia would be so supportive of the wisdom of Democracy if State and Federal laws abridged the right of Italian Catholic lawyers as easily as the abridge the rights of women, Latinos and African-Americans.
Would Justice Scalia be this casual about a legislature of fundamentalist Protestant Christians, with the support of the voters, enacting laws against Catholics as he is when a majority of fundamentalist Protestant Christians write laws limiting what treatments or advice Doctors can give women?
I think not.
Justice Scalia, we do have these things called rights and a Constitution to project them. And “hey” just for the record, women are persons too.
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