Q. 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?
A. 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.
A lot of people on the left and even the right are interpreting this to mean that Scalia believes the Constitution endorses misogyny, which is an interpretation you have to stretch a bit to include, altho I can see how and why, and even understand the degree of anger. I disagree with that sentiment, however. That does not mean I think Scalia should be NOW's poster boy or that Scalia is not a cad and a bigot.
I think Scalia's original quote was not incorrect. I read it as "The Constitution does not set aside women as a preferred class with respect to constitutional rights, and the 14th Amendment does not, either."
He's right. It doesn't. Aside from slaves, the constitution only refers to "person" as pertains to whom the document covers. Not man, not woman, not black, not white, not brown, not gay, not straight, but person. It does not make any "requirement" (his word) of gender or race.
The Reconstruction amendments (13th, 14th, 15th) attempt to redress the only definition the Constitution has of personhood and that is in the negative: slaves were 60% of a "person".
All other protections, with one notable exception which I'm surprised Scalia did not mention, are gender and/or race blind. The 19th, of course, gave women the vote (and in the context of preventing anyone from being denied the vote), and this was a curious omission on the part of a man who usually is very thorough.
All treatments that the US has applied to redress private and public civil rights wrongs have been statutory. Here, the whims of the people could revoke those rights at any time (else why would we need an ERA, and why would we need to fight to protect Roe v Wade?). What Scalia is responding to is the need for a Constitutional redress of discrimination. This is where people should get angry, in my view.
American history makes it very clear that we have come a long way from the time when women were ornaments and slaves were less than that. I would find it hard to believe that men like John Adams or Thomas Jefferson would not have recognized the value of their wives and friends in terms of intellect and problem-solving. Particularly Adams.
This is why I believe the Constitution was deliberately written with gender neutrality in mind (and race neutrality, beyond the slavery issue). Compare the "person" to the Declaration, which uses the words "man" and "men" as a gender neutral noun. If the Founders had meant for the Law of the Land to be so written, they would not have had any problem doing so. They clearly signaled that the law was to apply to all people, all humans..except slaves.
On that very narrow point, Scalia, whom I usually believe is a douchebag, is correct. In practice, he's still a douchebag.
OK, flame away in comments. I won't be around much to read them :-)
4) Unemployment dips to 9.4% as the US added 103,000 brand spanking new jobs last week. Stock futures tanked. Why? Well, the private sector added 113,000 jobs, while states and municipalities dumped 10,000 jobs. The estimates were for 120,000 net jobs gained. The private sector falls short by only 7,000 jobs (but beating the average since January 2009 by nearly 20,000 jobs!), while states and local governments dump workers because they've been forced to cut taxes. Yet, the economic royalists get upset. WTF???
6) Wassamatter, Cryboehner? Afraid you might have to cry on the house floor again? Seriously, for a bunch of testosterone-addicted asshats, the right wing sure has a lot of...emotional disbalance.
8) The Naderites really need an enema. He could run another forty times and still not amass enough votes in total to win the Presidency. Grow up, grow a set, and get involved in fighting for the party. Either one. I don't give a rat's ass, but stop with the holier-than-thou shit.
10) Finally, for all you folks opposed to the Park51 Cultural Center...two words: Suck. It. Not one of you would head to Mecca to do this at Eid ul-Fitr, would you?
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