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Scalia: Constitution does not prohibit discrimination against women, gays

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Scalia: Constitution does not prohibit discrimination against women, gays

Old 01-04-11, 02:59 PM
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Scalia: Constitution does not prohibit discrimination against women, gays

http://www.huffingtonpost.com/2011/0..._n_803813.html

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. ... 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.
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Old 01-04-11, 03:13 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Well that settles it. Kitchens and closets, you people.
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Old 01-04-11, 03:15 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

That's why I'm not an originalist.

Granted, Scalia is usually an originalist only when it suits him.
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Old 01-04-11, 03:49 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

He is correct though or you wouldn't need the 19th amendment, right?
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Old 01-04-11, 04:01 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

I think the 19th amendment is redundant given the E.P. clause of the 14th amendment, but yes, if Scalia is true to his word (above), that amendment would be necessary to prevent states from restricting the right to vote to women.
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Old 01-04-11, 04:48 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by Hokeyboy View Post
Well that settles it. Kitchens and closets, you people.
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Old 01-04-11, 07:54 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

What is the OP's purpose for starting this thread?
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Old 01-04-11, 08:08 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by TruGator View Post
What is the OP's purpose for starting this thread?
To inspire the usual Otterville discussion and smartassery on the topic. Jeez!
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Old 01-04-11, 10:07 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Well, a good point in this is that the Constitution is not all-encompassing. We can ban trans fats too, but to make a Constitutional argument about it would be silly.

Obviously banning discrimination is better than banning trans fats and relates far more to individual rights, so it's a stupid example.
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Old 01-04-11, 10:08 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by Venusian View Post
He is correct though or you wouldn't need the 19th amendment, right?
Isn't the 19th Amendment part of the Constitution?

I think the truth of his statement depends on whether he's talking about government discrimination or private. If a public school system required all girls to attend a school where they learn to cook and sew and nothing else, I think that'd be a pretty clear violation of the Equal Protection Clause regardless of whether Congress intended that when they passed the amendment. But could Congress get rid of the EEOC and allow companies to discriminate against female employees? Sure, there's no Constitutional requirement that the government prevent discrimination in private spheres, though there's nothing to prevent them either.
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Old 01-04-11, 10:16 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by Sean O'Hara View Post
Isn't the 19th Amendment part of the Constitution?

I think the truth of his statement depends on whether he's talking about government discrimination or private. If a public school system required
Stop right there. Public what?!
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Old 01-04-11, 11:03 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by Sean O'Hara View Post
I think the truth of his statement depends on whether he's talking about government discrimination or private. If a public school system required all girls to attend a school where they learn to cook and sew and nothing else, I think that'd be a pretty clear violation of the Equal Protection Clause regardless of whether Congress intended that when they passed the amendment.
But that's Justice Scalia's point. The Congress that passed the Fourteenth Amendment didn't intend to reach forms of discrimination other than race-based discrimination, and under Justice Scalia's conception of the Constitution, if it wasn't intended when the Amendment was passed, then it's not in the Amendment.
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Old 01-04-11, 11:36 PM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Does Justice Scalia believe that "the right to bear arms" only applies to pitchforks and musquets?
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Old 01-05-11, 12:51 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by eXcentris View Post
Does Justice Scalia believe that "the right to bear arms" only applies to pitchforks and musquets?
The fact that machine guns are not legal to own shows that the originalist intention was followed, doesn't it?

I would have to agree with Scalia. I don't want discrimination of sex or sexual orientation, but I think it is silly to simply make the constitutional amendments fit what you want them to currently when you have the ability to change the laws via the legislature.

Naturally that means that some violations of original intent I still like and some original intent decisions I don't, but philosophically, I agree with him.

I've never liked the idea that something could be challenged on constitutional grounds a hundred years after the thing was written. If the amendment meant so many different things, it would have been challenged quite early, wouldn't it?

I also think it puts too much power in the judicial branch. Will we ever see another consititutional amendment? I doubt it because there is no need for one. We simply warp everything to somehow fit the constitution and challenge it based on that.
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Old 01-05-11, 01:14 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by JasonF View Post
But that's Justice Scalia's point. The Congress that passed the Fourteenth Amendment didn't intend to reach forms of discrimination other than race-based discrimination, and under Justice Scalia's conception of the Constitution, if it wasn't intended when the Amendment was passed, then it's not in the Amendment.
I should correct myself here, because I was not accurate. As I understand it, Justice Scalia doesn't care about the original intent of the Amendment. He cares about the original meaning. He doesn't care what the Senators who voted for the Fourteenth Amendment intended when they adopted that Amendment. He does care what they understood the words in the Fourteenth Amendment to mean.

I still think that's a fools' errand, though. The Fourteenth Amendment was passed by 54 Senators and 193 Representatives, then ratified by 28 (bicameral) state legislatures. What did each of those hundreds of individuals understand the Amendment to mean? It's easy to say that they didn't understand it to include sexual orientation (probably, though who is to say that is true for each and every person who was involved in ratifying the amendment?), but not all cases are that easy. Judges are not historians, and the further in time we get from 1866-68, the less competent judges are going to be to opine on what things meant then. Hell, judges often can't even agree on what things written today mean.

Originally Posted by kvrdave View Post
Will we ever see another consititutional amendment? I doubt it because there is no need for one. We simply warp everything to somehow fit the constitution and challenge it based on that.
The Constitution was amended about 20 years ago, and about 20 years before that. It's been amended six times since World War II.
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Old 01-05-11, 02:14 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

And I am sure the next one will be just as groundbreaking as the 27th. It was simple feel good crap. Could have (was?) been done by simple legislation.
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Old 01-05-11, 02:22 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Wow, just read up on it..... http://en.wikipedia.org/wiki/Twenty-...s_Constitution

It got its start in the 1700s. That next amendment is right around the corner.

I would like to see a similar one that makes it so congress cannot exclude itself from legislation it passes, though. I'm sure congress will act on that post haste. The only reason we likely got the 27th amendment is because it was proposed 200 years before it was ratified.
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Old 01-05-11, 06:01 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by eXcentris View Post
Does Justice Scalia believe that "the right to bear arms" only applies to pitchforks and musquets?
I know you are Canuckian, and thus ignorant of history and world events, but the rifle was invented in 1520.

Which was at least four or five years before the signing of the Constitution.
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Old 01-05-11, 09:24 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by kvrdave View Post
Wow, just read up on it..... http://en.wikipedia.org/wiki/Twenty-...s_Constitution

It got its start in the 1700s. That next amendment is right around the corner.
You're ignoring the other five post-war amendments, along with the fact that all but a handful of 27th Amendment ratifications occurred in the years immediately prior to ratification of the Amendment.
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Old 01-05-11, 09:26 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by aintnosin View Post
To inspire the usual Otterville discussion and smartassery on the topic. Jeez!
The Politics forum requires some form of commentary when posting an article to start a thread. Perhaps that would be helpful in taking this in the direction it was intended.
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Old 01-05-11, 09:28 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by JasonF View Post
I still think that's a fools' errand, though. The Fourteenth Amendment was passed by 54 Senators and 193 Representatives, then ratified by 28 (bicameral) state legislatures. What did each of those hundreds of individuals understand the Amendment to mean? It's easy to say that they didn't understand it to include sexual orientation (probably, though who is to say that is true for each and every person who was involved in ratifying the amendment?), but not all cases are that easy. Judges are not historians, and the further in time we get from 1866-68, the less competent judges are going to be to opine on what things meant then. Hell, judges often can't even agree on what things written today mean.
I tend to agree with you. I think a textualist (is that the word you fancy lawyers use?) approach makes more sense. There is the issue when words change meaning over time but that doesn't happen much
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Old 01-05-11, 09:31 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by JasonF View Post
I should correct myself here, because I was not accurate. As I understand it, Justice Scalia doesn't care about the original intent of the Amendment. He cares about the original meaning. He doesn't care what the Senators who voted for the Fourteenth Amendment intended when they adopted that Amendment. He does care what they understood the words in the Fourteenth Amendment to mean.

I still think that's a fools' errand, though. The Fourteenth Amendment was passed by 54 Senators and 193 Representatives, then ratified by 28 (bicameral) state legislatures. What did each of those hundreds of individuals understand the Amendment to mean? It's easy to say that they didn't understand it to include sexual orientation (probably, though who is to say that is true for each and every person who was involved in ratifying the amendment?), but not all cases are that easy. Judges are not historians, and the further in time we get from 1866-68, the less competent judges are going to be to opine on what things meant then. Hell, judges often can't even agree on what things written today mean.

That's certainly the premise of his book. Worth a read, but as I said, he's very selective in how he uses it.

Incidentally, none of this from Scalia is news. One need only read his opinion in the VMI case. I'll certainly never forget that one - it was handed down right before I took constitutional law and was basically the focal point of one of my essay questions on my con-law exam.
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Old 01-05-11, 09:35 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by Venusian View Post
I tend to agree with you. I think a textualist (is that the word you fancy lawyers use?) approach makes more sense. There is the issue when words change meaning over time but that doesn't happen much
I don't know if JasonF uses it, but I do.
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Old 01-05-11, 09:38 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Originally Posted by kvrdave View Post
I would have to agree with Scalia. I don't want discrimination of sex or sexual orientation, but I think it is silly to simply make the constitutional amendments fit what you want them to currently when you have the ability to change the laws via the legislature.
Easy to say given your background. A minority relying on a majority to protect their rights and guarantee equality is a risky proposition. May I remind you that it was the judiciary that finally got the ball rolling on black equality in the 1950s, even with the presence of a 14th amendment for 80+ years.
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Old 01-05-11, 09:52 AM
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Re: Scalia: Constitution does not prohibit discrimination against women, gays

Personally, I discriminate against everybody. Why should women and gays get special treatment?
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