Alex Blaze

Antonin Scalia does not interpret that Constitution literally

Filed By Alex Blaze | January 05, 2011 8:30 AM | comments

Filed in: Politics
Tags: 14th Amendment, Antonin Scalia, equal protection clause, interpretation, law, polticis, sex discrimination, sxual discrimination, women

Much ado is being made about this statement from Antonin Scalia, and I think that's because people never really understood that his interpretation of the Constitution, at least in his mind, isn't based on the text itself in a vacuum, but on what he believes that authors thought they were writing. His objection to the "living Constitution" isn't that the words are being interpreted by silly humans, but that the words are being interpreted by today's silly humans. Yesterday's are just fine.

scalia.jpgIn 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?

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.

Here's what the Equal Protection Clause of the 14th Amendment actually says:

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.

I'm glad he said that to California Lawyer and maybe it'll clear a few things up.

Scalia's interpretations are generally the ones political conservatives prefer, and the way they usually defend them is by saying that they're the "literal" interpretation (in much the same way that Christian conservatives say they use a "literal" interpretation of the Bible). But we have to separate those two statements, because Scalia doesn't actually say that he's "literally" interpreting the Constitution, just activists on the right. In fact, it's something he's outright rejected himself:

I am one of a small number of judges, small number of anybody -- judges, professors, lawyers -- who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people. I'm not a "strict constructionist," despite the introduction. I don't like the term "strict construction." I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description "strict." I do believe, however, that you give the text the meaning it had when it was adopted.

This raises a few questions, like how he could know what people were thinking when they voted for an amendment, why he's assuming every one of the millions of people who vote (indirectly, even) for these things thought the same thing, if the fact that many people who lived in the US at the time weren't allowed to vote changes anything.... But he's been fairly consistent, as far as I can tell, in opposing the faux "literal" justification for his interpretations of the Constitution.

Which makes the argument a lot easier. Everyone who know how the law works cops to interpreting the document through someone's eyes. Liberals say they're interpreting it through the prism of today's society; conservatives through the view of a society that no longer exists.

Scalia makes it clear that a Constitution isn't worth much if we just interpret it as the majority wills at any given moment, since then by definition any law would be by definition constitutional, and I agree. It's just that liberals think that the Constitution should hold us up to the highest aspirations of its writers; conservatives think it should hold us down to their basest prejudices and the results of their realpolitik.

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So presumably, he'd be okay with bringing slavery back?

I just... it... the mind. It boggles.

Brad Bailey | January 5, 2011 11:07 AM

Scalia is now giving lectures on the Constitution to freshmen Republican congressmen.

I wasn't surprised by Scalia's insistence that equality and due process doesn't cover sex or sexuality. What surprised me is that he admits that he and some of the other judges on the court have outlived their usefulness.

"It's not about nine superannuated judges who have been there too long, imposing these demands on society."

So at least five out of nine of the judges have been there for too long and from what Scalia says they should resign for the good of the country. We would still be stuck with Roberts and Alito but I think that Obama could add five justices that are young enough to ensure that we would not have to rely on "superannuated judges" for quite a while.

That is interesting. He's been there since 1986, the year my sister was born. I wonder why he'd say that he's been there too long when it's clear he has but that he won't do anything about it.

Kathy Padilla | January 5, 2011 11:40 AM

It's interesting that the text doesn't include Italian people in it's definition of people. Nor do any Italians seem to be signers of the Constitution.

Best be turning in that gavel & removing your flabby butt from the bench, sir.

To counter Scalia's argument, if the authors of the 14th Amendment wanted to restrict its protections to apply to matters of race (or skin color, or ancestry, or ethnic origin, etc.) they could have said so.

They did know at the time that humans have personal characteristics other than race and such that can be politically controversial -- in fact, they even knew that some humans are female, and that some are more attracted to their own sex than the opposite. This wasn't news, not even in 1868.

Actually, the Thirteenth Amendment outlawed both slavery and involuntary servitude. Period. And yes, slaves were regarded as Persons.

Due process is actually first found in the Fifth Amendment. The phrase "equal protection of the laws" first appears in the Fourteenth.

Section 1 of the Fourteenth Amendment was framed to clear up any lingering assertions that individual states still had, under the rights reserved to them in the Tenth Amendment, a right to treat ANY citizen differently under the law.
It also specified that anyone born in one of the States, or any territory under US jurisdiction, WAS a US citizen. It clarified the status of emancipated slaves, but also of residents of the Western territories -- and eventually, Native Americans.

The US Supreme Court just flat out refused to enforce the equal protection clause against the Southern States for decades, claiming "states' rights". That's where today's conservative bigots get the phrase. It is being used to justify segregation -- of various sorts -- to this day.

But I am not saying that all political conservatives are bigots. And, although many advocates of immigration reform (reform is an overused term) now read into the Fourteenth Amendment a guaranteed citizenship for children born of illegal immigrants, I would agree with Scalia's [presumptive?] position that such was not the intent at the time of its adoption.

Chitown Kev | January 5, 2011 11:00 PM

"Actually, the Thirteenth Amendment outlawed both slavery and involuntary servitude. Period. "

That is not correct.

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted..."

Good point, Chitown Kev -- gotta carve out an exception so we can continue having all those Mississippi chain gangs full of black men caught with an ounce of marijuana ...

Thanks. The "Period" was a late edit that got away from me. I meant to imply that it applied to matters of race, ancestry, skin color, ethnicity, and that the idea was to prohibit Southern States from denying emancipated slaves state citizenship, and the privileges thereof.