Scalia says Constitution allows discrimination against women, gays

By Michael J.W. Stickings

As HuffPo's Amanda Terkel is reporting, right-wing Supreme Court Justice Antonin Scalia gave an interview recently during which he said that the Constitution does not prohibit discrimination against women and gays:

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?

Yes, yes. Sorry, to tell you that.

Scalia went on to say that regardless of what is, or is not, in the Constitution, laws may be passed prohibiting such discrimination:

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.

To a certain extent, Scalia is right. The Constitution obviously does not, and cannot possibly, address every single matter of public policy, and it is the responsibility of democratically-elected legislators and executives (the president, governors) to enact laws within the general framework established by the Constitution (along with individual state constitutions). 

But on this matter, Scalia is simply wrong. As Terkel writes:

For the record, the 14th Amendment's equal protection clause states: "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." That would seem to include protection against exactly the kind of discrimination to which Scalia referred.

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them."

In other words, while Scalia asserts that the Constitution doesn't currently require discrimination (it would if many Republicans had their way and an amendment prohibiting same-sex marriage were adopted) and that legislatures can prohibit discrimination, what he is saying, essentially, is that discrimination is up to "society," with no legal recourse whatsoever for those facing discrimination.

So if a legislature passed a law, say, barring homosexuals from government employment, that would be that. Or if a legislature passed a law, say, keeping women with children out of the workforce, that would also be that.

But, again, Scalia is simply wrong -- either that, or he knows better and is being disingenous. Indeed, based on his view here, why even have a Constitution at all?

As Tristero writes over at Digby's place:

I realize that this flies in the face of widely held conventional wisdom but I can't escape the conclusion that when it comes to understanding the founding documents of the United States, Scalia is a mediocre intellect. If that.

On the other hand, if we were to agree that this man really is as brilliant as everyone says, then that can only mean that Scalia is deliberately misreading these documents to make them say the very opposite of what Jefferson, et al, clearly wrote. Furthermore, it can only mean that a justice of the Supreme Court is, for reasons we can only guess at, consciously adopting a distinctly un-American, if not blatantly anti-American, bias both to his judicial philosophy and to his rulings. In other words, to believe that Scalia really is smart enough to understand the founding documents, and therefore deliberately misread them, is to believe that he is an activist, a reactionary, and a royalist openly seeking the destruction of this country.

I tend to believe that both are true. Scalia holds a limited, right-wing interpretation of the 14th Amendment, and of the Constitution generally, basically because he holds a right-wing, anti-American judicial philosophy and political bias. In a way, he is both brilliant (in a nefarious way) and mediocre at the same time.

Is this possible? Well, perhaps he is "brilliant" enough to distort the Constitution to suit his own partisan and ideological ends, while the intellectual limitations of right-wing ideology render his distortions "mediocre," at least in terms of the accuracy of Constitutional interpretation.

In this sense, he's a lot like Karl Rove and Bill Kristol, two very smart men who are wildly wrong about just about everything. Now, in all three cases, and even more so with respect to Rove and Kristol, I suspect that what drives them is partisan cynicism. Perhaps they all know better, more or less, or at least knew better, at some time, but I suspect that their right-wing delusions have blinded them to the very possibility of truth. The question is whether they actually know any better. Or at this point whether they are even capable of knowing any better.

Regardless, such delusion, however deep, should not be allowed to exonerate them, to rid them of all responsibility. Ultimately, they are fully responsible for their beliefs -- there's no false consciousness here.

And when it comes down to it, I'm on the side of brilliance over mediocrity. Which is to say, I tend to think they know what they're doing. In Scalia case, I tend to think he knows his interpretation (or misreading) of, say, the 14th Amendment is a limited, right-wing one, even if he wouldn't put it that way.

But, again, it's not clear whether he thinks he holds the right interpretation, one of multiple equally legitimate interpretations, or a distorted partisan interpretation. And so it's not clear whether he's being deliberately misleading or whether he's just plain wrong.

Who's to say what goes on inside such a brilliant mind? Then again, maybe that mind is so sick, so polluted, so twisted, so distorted, that he himself doesn't know what's going on, and what he's really all about.