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:
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.)