Supreme Court Justice Antonin Scalia is planning to soon conduct classes in the Constitution for some freshmen members of Congress. He’s been criticized for this mostly due to the partisan nature of those members, many of us are more worried about what he’ll say, especially given his recent remarks in an interview with California Lawyer. In it, he says that women’s rights aren’t protected by the Constitution, because the Fourteenth Amendment was written to enfranchise newly freed slaves, not women. Thus the very specifically crafted section 1 of the amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
So the word “person” was not meant to apply to women? Not according to the justice. “No one was thinking it might,” he said. “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.” As Max Read wrote in one of the first national reports on this: “It’s not like anyone was talking or thinking about women’s rights when the amendment was ratified in 1868, so obviously no one thought women would be included in the categories ‘citizens of the United States’ or ‘any person.’ Oh, wait, the Seneca Falls Convention was held 20 years earlier? Whatever.” As the interview flew across the intertubes, that sentiment was amplified and deepened by historians, legal scholars, and others.
Adam Cohen at TIME immediately pointed out the obvious: ” The idea that women are protected by the equal-protection clause is hardly new — or controversial. In 1971, the Supreme Court unanimously ruled that they were protected, in an opinion by the conservative then Chief Justice Warren Burger. It is no small thing to talk about writing women out of equal protection — or Jews, or Latinos or other groups who would lose their protection by the same logic. It is nice to think that legislatures would protect these minorities from oppression by the majority, but we have a very different country when the Constitution guarantees that it is so.” Soon after, the New York Times weighed in: “[such] an ‘originalist’ approach [is] wholly antithetical to the framers’ understanding that vital questions of people’s rights should not be left solely to the political process. It also disrespects the wording of the Equal Protection Clause, which is intentionally broad, and its purpose of ensuring a fairer society.”
“I tend to think of myself as a person. I’d hazard a guess that most, maybe all, American women consider themselves to be actual human beings, too.” writes Ann Woolner at BusinessWeek, who adds that when the 14th Amendment was drafted, “state laws prevented women from owning property, signing contracts, serving on juries. Unmarried women were freer than their married sisters due to notions dating back to English common law. The ‘very being and legal existence of the woman is suspended during the marriage,’ explained William Blackstone, the definitive British legal commentator of the 18th century It is’consolidated into that of her husband under whose wing and protection she performs everything.’ No wonder my mother got divorced.”
Amanda Terkel talked to the National Women’s Law Center’s Marcia Greenberger, who “added that under Scalia’s doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools — all things that have happened in the past, before their rights to equal protection were enforced.” Terkel also noted the observation of legal scholar Jack Balkin about the drafters of the Amendment: “The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate….. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture [mentioned by Woolner above]. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination– discrimination in basic civil rights against single women.”
Andrea Lyon of De Paul University has met Scalia and heard him explain his legal theory of “originalism” from the man himself. “When Justice Scalia explained his position about originalism, one of his justifications is that it makes things so much easier. Just look at the words, he said, and that’s all one need do. Never mind that the framers of our constitution wanted the courts to be a check on power and to protect people, which at the time meant only white male landowners. No one has to protect women, gays or other minorities, according to Justice Scalia’s thinking, and such categories of people can be left to the mercy of the prevailing political majority when it comes to ensuring fair treatment. This view of a sitting justice becomes even more disturbing in light of his acceptance of a speaking engagement at the behest of the right wing tea party, which sends a disturbing political and politicizing message.”
A number of commentators immediately started worrying about Scalia’s future jurisprudence – especially given the upcoming docket. Joan Walsh found Scalia’s statement more than ironic given his majority opinion in Bush v. Gore, which “argued that the white, wealthy George W. Bush would have his rights violated if if Florida counties used different procedures to recount votes and, in cases of some ballots, divine voter intent. Now, if Scalia really thought the 14th amendment only intended to make former slaves full citizens, he should have applied it to make sure black voters and black votes were treated fairly in Florida (and in fact, we know they were not.).”
Amanda Marcotte , in the impressively titled Yes, Scalia, There Was Feminism in the 19th Century, also offers the Justice a brushup in what people were thinking after the Civil War. “The larger implication of Scalia’s comment, beyond just the 14th amendment, was that 1860s America was a fantasyland for misogynists, where the notion that women were subhuman was held by consensus and not especially controversial. This is simply false.” Noting that many of those writing the 14th Amendment were sympathetic to feminist claims, Marcotte cites the observations of Brooklyn Law professor Scott Lemieux and of Matthew Yglesias: “Rep. Benjamin Butler was present at the creation, and he believed the 14th Am. had the potential to guarantee equal protection for female citizens. Same with Chief Justice Salmon Chase, who affirmed a woman’s equal right to practice law in his 1873 dissent in Bradwell v. Illinois. Chase was not only closer than his fellow justices to the men who wrote the Amendment, he was much more deeply involved in the debates of the Reconstruction period.” Marcotte also points out that long before the 1970s Court decisions explicitly extending the 14th to women, an 1875 decision blocking female suffrage a nonetheless acknowledged woman as “persons” with inherent rights.
All of this frees me from the temptation to prophesy about the upcoming Court term, or feel like I have to call Lilly Ledbetter about this. I do think this might give a spur to a renewed effort to pass the Equal Rights Amendment – or, at least, revive the Fair Pay Act sooner than we’d feared.