by John Grooms
Theres an angry, reactionary man with antiquated ideas going around saying ridiculous things. Hes a genuine foe of freedom, and he needs to be reprimanded, censured or impeached. No, not Bill James. Im talking about Supreme Court Justice Antonin Scalia. Late last week, Scalia, aka Tony the Douche claimed that womens equality is not protected by the Constitution. And gay rights? Fuggedaboudit! Thats right the longest-serving U.S. Supreme Court justice says that if a legislature decided to pass a law mandating discrimination against women (again, never mind gays), then the Supreme Court couldnt do anything about it because its not specifically mentioned in the Constitution of the U.S.
For as long as anyone can remember, of course, the Supreme Court has said that the equal-protection clause of the 14th Amendment protects women (or men) from sexual discrimination. My man Tony, though, says those decades of court precedents are completely wrong. From his viewpoint as a constitutional originalist, he says the Constitution is not to be interpreted, but rather followed to the letter, as it was originally written. (Never mind that if we did that, women couldnt vote, blacks would still be slaves, and it would be impossible to rule on anything generated by modern life.) Scalia claims that the men who wrote the 14th Amendment did not intend for it to do anything other than give freed slaves U.S. citizenship. Scalia says, "Nobody thought it was directed against sex discrimination."
For the record, here is the 14th Amendment's equal protection clause: "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." The original meaning of the last part of the clause seems pretty damned clear: No state can deny anyone the equal protection of the laws, period.
Adam Cohen, a lawyer who writes for Time, put it more clearly than I can:
The fact that we have a very different country now from the days of the Founding Fathers is why Justice Scalia is on the wrong side of this debate. The drafters could have written the Constitution as a list of specific rules and said, "That's all, folks!" Instead, they wrote a document full of broadly written guarantees: "due process," "freedom of speech" and yes, "equal protection." As Justice Oliver Wendell Holmes explained almost a century ago, the Constitution's framers created an "organism" that was meant to grow and to be interpreted "in the light of our whole national experience," not based on "what was said a hundred years ago."
I would go farther and say that in this day and age, a Supreme Court justice who would openly opine that the Constitution doesnt protect womens equality isnt fit to serve on the court in the 21st century and should probably be impeached.