Are women people? The inconsistency of absolute originalism

[Ivan Seeking]

As Stephen Colbert pointed out

Even though the court has said for decades that the equal-protection clause protects women (and, for that matter, men) from sex discrimination, the outspoken, controversial Scalia claimed late last week that women's equality is entirely up to the political branches. "If the current society wants to outlaw discrimination by sex," he told an audience at the University of California's Hastings College of the Law, "you have legislatures."

...Indeed, Justice Scalia likes to present his views as highly principled - he's not against equal rights for women or anyone else; he's just giving the Constitution the strict interpretation it must be given. He focuses on the fact that the 14th Amendment was drafted after the Civil War to help lift up freed slaves to equality. "Nobody thought it was directed against sex discrimination," he told his audience. (See "The State of the American Woman.")...

http://news.yahoo.com/s/time/08599202066700

Amendment XIV

Section 1. 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...

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

Emphasis mine.

Yet Scalia voted for corporate personhood.

Frankly, I don't know what to say. How did this guy ever get appointed to the court? Going back to Colbert, if women want to retain their Constitutional rights, perhaps they had better incorporate!

 

[D H]

One of the beauties of our Constitution is that it is so wonderfully broad and vague. If the original drafters of the 14th amendment intended that this amendment only cover former slaves and their descendants, why didn't they say just that? Instead they said that this amendment applies to "all persons born or naturalized in the United States".

Comparing the US Constitution to the ridiculously specific constitutions of some states and many other countries leads me to but one conclusion: The original intent of the framers of the Constitution was that the Constitution must be read somewhat liberally.

 

[Al68]

Comparing the US Constitution to the ridiculously specific constitutions of some states and many other countries leads me to but one conclusion: The original intent of the framers of the Constitution was that the Constitution must be read somewhat liberally.

I think you have that backward. The constitution was written to be (and was) approved as a legal contact, so all of its contents are completely literal. The framers made the enumerated powers and prohibitions relatively general instead of overly specific precisely because being overly specific would be too cumbersome for a legal document that must be taken literally while also legally impossible for the federal government itself to change its content.

 

[Ivan Seeking]

I think you have that backward. The constitution was written to be (and was) approved as a legal contact, so all of its contents are completely literal.

So then you agree that Scalia is wrong and women do have rights - equal protection under the 14th amendment?

 

[Al68]

Yet Scalia voted for corporate personhood.

Frankly, I don't know what to say. How did this guy ever get appointed to the court? Going back to Colbert, if women want to retain their Constitutional rights, perhaps they had better incorporate!

What are you talking about? The Fourteenth Amendment contains prohibitions on state action, not on any action of any private party.

You don't think it's the constitutional role of legislatures to distinguish between wrongful discrimination and acceptable discrimination, such as discriminating against men when hiring a stripper for a bachelor party or discriminating against women when hiring an actor to play Muhammad Ali in a movie?

And you object to the ability to name a corporation as a defendant in court (corporate personhood)? Or are under the common but false impression that corporate personhood endows corporations with some right or power it otherwise would not have?

This is just another nonsensical thread that should be locked. (Hint to moderators).

 

[Al68]

So then you agree that Scalia is wrong...

No. At least not in what you quoted.

...women do have rights - equal protection under the 14th amendment?

Yes. It would take a pretty major lack of comprehension of what Scalia said to think he said otherwise (in what you quoted).

 

[BobG]

The context of Scalia's comments (Justice Scalia: "A lot of stupid stuff is perfectly constitutional.") tie him into only one possible answer to the question he was asked.

Under Scalia's theory of constitutional interpretation known as "originalism" (the achievement Scalia is most proud of), the Constitution and its amendments have to be interpreted the same way it was when enacted and Scalia is clearly correct that the 14th Amendment was intended to cover former slaves and their descendants. In fact, there was specific language included to prevent the 14th from applying to Native Americans. Equal rights for women was an issue completely beyond the consideration of anyone writing or voting on the 14th Amendment.

His answer just illustrates the blind alleyways that Scalia's "originalism" theory leads one into. In fact, Scalia's vote to give corporations personhood show even he can't apply his theory in real world practice.

 

[talk2glenn]

As Stephen Colbert pointed outhttp://news.yahoo.com/s/time/08599202066700

Amendment XIV

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

Emphasis mine.

Yet Scalia voted for corporate personhood.

Frankly, I don't know what to say. How did this guy ever get appointed to the court? Going back to Colbert, if women want to retain their Constitutional rights, perhaps they had better incorporate!

What Scalia said isn't controversial, and is accepted under the law. The Supreme Court has consistently found that the Equal Protection clause does not itself prohibit outcomes that might be considered sexist or racist, but that Congress has the authority, under Section 5 of the quoted Amendment, to legislate to prevent such activities. See Loving vs. Virginia, 1967, and Craig vs. Boren, 1976.

So, no, nothing in the Constitution says a woman or anyone else must be given unenumerated "positive rights". The 14th Amendment only incorporates the Bill of Rights amongst the states, defines citizenship, and provides for equal protection. On the other hand, Title 7 of the Civil Rights Act famously extends certain private privileges to women and minorities on the basis of the Interstate Commerce Clause. The CRA is legislation, not constitutional text - hence Scalia's point.

Clearly Scalia's knowledge of the law exceeds your own. Probably because his education on the subject doesn't come from a television show on Comedy Central.

 

[Al68]

In fact, Scalia's vote to give corporations personhood show even he can't apply his theory in real world practice.

Got a reference? Link to case?

 

[Proton Soup]

so the http://en.wikipedia.org/wiki/Nineteenth_Amendment_to_the_United_States_Constitution" is superfluous?

 

[BobG]

Got a reference? Link to case?

http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

At least you asked for a link to a decision recent enough to be easy to remember.

 

[Al68]

http://www.supremecourt.gov/opinions/09pdf/08-205.pdf

At least you asked for a link to a decision recent enough to be easy to remember.

Nobody "voted to give corporations personhood" in that case.

Corporate personhood predates Scalia's birth, and corporations exercising "rights" of its shareholders does, too. In fact such cases were upheld unanimously by the court in the past (Santa Clara County v. Southern Pacific Railroad Company, 1886), before the court was corrupted by anti-constitution activists.

Oh, wait, that 1886 Supreme court must have been packed by right-wing extremist "neocons". :uhh: (Edit: every Supreme Court Justice prior to the mid twentieth century meets that definition as commonly used today, so I guess it was.)

 

[BobG]

What Scalia said isn't controversial, and is accepted under the law. The Supreme Court has consistently found that the Equal Protection clause does not itself prohibit outcomes that might be considered sexist or racist, but that Congress has the authority, under Section 5 of the quoted Amendment, to legislate to prevent such activities. See Loving vs. Virginia, 1967, and Craig vs. Boren, 1976.

So, no, nothing in the Constitution says a woman or anyone else must be given unenumerated "positive rights". The 14th Amendment only incorporates the Bill of Rights amongst the states, defines citizenship, and provides for equal protection. On the other hand, Title 7 of the Civil Rights Act famously extends certain private privileges to women and minorities on the basis of the Interstate Commerce Clause. The CRA is legislation, not constitutional text - hence Scalia's point.

Clearly Scalia's knowledge of the law exceeds your own. Probably because his education on the subject doesn't come from a television show on Comedy Central.

Do your comments only apply to cases specifically addressing gender discrimination or does it apply to women in any case they might bring? In other words, what if the case addressed an issue that might only apply to a woman, and equal treatment to men wouldn't even be applicable.

Such as in CLEVELAND BOARD OF EDUCATION v. LAFLEUR (1974). The Civil Rights Act doesn't really address labor laws and pregnancy. Just because Title IX of the Education Amendment and Title VII of the Civil Rights Act are often the most relevant reference for an issue doesn't mean those two acts are the sole justification for women's rights as a citizen of the US.

It does bring doubt into what Scalia's actually saying. If he is technically correct, it's not in any sort of practical way - it's more in a splitting hairs sort of way as applicable specifically to affirmative action programs and so on. In other words, the 14th Amendment protects women from discrimination the same as anyone else, but affirmative action programs designed to promote women's equal representation in the workplace would have to be based on legislation. But I'm kind of reaching for a point that he should have made clear if he wanted to make that point. And his words certainly sound like the 14th Amendment shouldn't apply to women in any type of case.

 

[Jack21222]

so the http://en.wikipedia.org/wiki/Nineteenth_Amendment_to_the_United_States_Constitution" is superfluous?

I'm not even remotely a lawyer, but I'd have to say that if we repealed the 19th amendment, women would still have the right to vote. So I'd say yes, today the 19th amendment is superfluous. When it was written, it wasn't.

 

[Al68]

Just because Title IX of the Education Amendment and Title VII of the Civil Rights Act are often the most relevant reference for an issue doesn't mean those two acts are the sole justification for women's rights as a citizen of the US.

How is that relevant? There is no constitutional right "as a citizen" to not be discriminated against by a private party; there is legislation.

But I'm kind of reaching for a point that he should have made clear if he wanted to make that point.

His point is obvious: Supreme Court Justices lack any legitimate authority to fabricate constitutional requirements or restrict any actions of private parties, and the constitution simply does not restrict the actions of private parties. Legislation does.

 

[BobG]

His point is obvious: Supreme Court Justices lack any legitimate authority to fabricate constitutional requirements or restrict any actions of private parties, and the constitution simply does not restrict the actions of private parties. Legislation does.

It's not what he said (it does happen to be what Rand Paul said, however).

Perhaps it's what he meant, but the difference between what states and private parties could do never came up in the interview. He was simply following his 'originalism' theory all the way to its logical extreme - which was that the 14th Amendment wasn't intended to apply to discrimination against women which is entirely consistent with actual history. It was only intended to apply to discrimination against blacks.

 

[Ivan Seeking]

No. At least not in what you quoted.Yes. It would take a pretty major lack of comprehension of what Scalia said to think he said otherwise (in what you quoted).

You said the Constitution must be taken literally. The 14th amendment literally says "All Persons".

Scalia specifically says this does not apply to women. Which is it?

 

[BobG]

Nobody "voted to give corporations personhood" in that case.

Corporate personhood predates Scalia's birth, and corporations exercising "rights" of its shareholders does, too. In fact such cases were upheld unanimously by the court in the past (Santa Clara County v. Southern Pacific Railroad Company, 1886), before the court was corrupted by anti-constitution activists.

Oh, wait, that 1886 Supreme court must have been packed by right-wing extremist "neocons". :uhh: (Edit: every Supreme Court Justice prior to the mid twentieth century meets that definition as commonly used today, so I guess it was.)

If one followed Scalia's 'originalism' theory to its logical end, any of the court cases that went against the original intent of the First Amendment would have been flawed. Scalia never has suggested that the court was infallible ("I haven't persuaded a majority on the court or the professoriat, but I've brought it into the discussion, anyway, and I'm proud of that," Scalia said).

Using original intent, the First Amendment applied primarily to individuals, not groups (not even political parties, which were barely beginning to develop). They listed one exception to individuals - the press.

 

[Ivan Seeking]

And you object to the ability to name a corporation as a defendant in court (corporate personhood)?.

Can a corporation serve time in jail? Can the government kill a corporation? Can the CEO of a company be sentenced for the actions of a corporation, or do charges have to be filed against an individual?

Santa Clara County v. Southern Pacific Railroad Company, 1886, was about contract law. To say that the rights of individuals acting as a group cannot be violated, is not the same as declaring that a corporation is entitled to all of the rights and protections as a person.

 

[Ivan Seeking]

Was it the intent of the framers that foreign governments could directly influence US elections through campaign contributions, through multinational corporations?

Yes or no?

 

[russ_watters]

It is hard to tell how much of the OP is intentionally flip and how much is just wrong. The idea that anyone could think women aren't people is so absurd I must assume it is just flip. The implication from a contextless quote from Scalia that women aren't entitled to protection under the Constitution looks serious though. But this is probably just much ado about nothing (tough to tell without full context, though).

There are several levels on which to view this, none of which should be particularly controvertial.

My view of the 14th Amendment is that it is largely superfluous - that the Constitution already guaranteed everyone equal protection. But it is a simple historical fact that Blacks were denied that protection and the equal protection clause of the 14th Amendment was crafted specifically for the purpose of granting them that protection. The fact that the wording is generic enough that it can be interpreted broadly to apply to everyone doesn't really change the level of protection afforded to women by the Constitution: Either the 14th Amendment redundantly reiterates what was already there or it doesn't.

Now what is really ironic about the article and the OP is that it appears to me that Scalia is just pointing out the reality of something that is perhaps the central component of the liberal ideology: the explicit protection of individual rights for certain favored oppressed groups via legislation. Everything from affirmative action to title IX to hate crime laws to the proposed anti-discrimination against obese people laws are laws that if everyone was equally protected already would not need to exist. They should be superfluous unless they give those people something beyond what others get. Ie, with AA quotas that allow (force?) colleges to discriminate on the basis of race or a city to throw out the results of an exam because the wrong race did best. Everyone is equal, but some favored classes are more equal than others, according to the liberal ideology.


This doesn't even include the host of examples of legal discrimination that exist and are allowed and that certainly everyone knows about. Ie, if everyone is equal, why is it not illegal for car insurance companies to have higher rates for men than women?

So Ivan - it looks to me like you're objecting to something that you actually believe in because of the way it was characterized!

 

[russ_watters]

...and the corporate personhood thing: as we have discussed before, all that really does is ensure that you don't LOSE Your rights by joining a group. That shouldn't be controvertial either.

 

[BobG]

It is hard to tell how much of the OP is intentionally flip and how much is just wrong. The idea that anyone could think women aren't people is so absurd I must assume it is just flip. The implication from a contextless quote from Scalia that women aren't entitled to protection under the Constitution looks serious though. But this is probably just much ado about nothing (tough to tell without full context, though).

I agree the article Ivan linked to seemed to be of poor quality, especially for an article associated with Time. That's why I linked to the actual interview which provides context for Scalia's comments. While the original article is sensationalistic, it is an essentially accurate portrayal of Scalia's comments. Taking Scalia's 'originalism' theory to the extreme, his comments are where you wind up (and the interview was about his 'originalism' theory and more in the thought problem vein than asking Scalia whether women deserved equal rights).

And the 14th isn't superfluous since the Bill of Rights applies to the federal government, not to actions by the States (unless you listen to the rationale of those that felt it unnecessary to include the Bill of Rights in the body of the Constitution in the first place, in which case all 10 of the first 10 amendments & the 14th Amendment are all superfluous since no government should have any say about those items in the first place).

 

[mheslep]

Frankly, I don't know what to say. How did this guy ever get appointed to the court?

Top of his class Georgetown, again top of his class at Harvard law; six years private practice; law professor UVA, Georgetown, Chicago and Stanford; several general counsel positions in the federal government; Judge US Court of Appeals; upon appointment to SCOTUS received no opposition in committee, where his testimony was razor sharp, quick witted, and direct (I've seen it) back before the Thomas hit job when such testimony was still possible, and finally garnered a vote of 98-0 in the full Senate.
http://en.wikipedia.org/wiki/Antonin_Scalia#Judge_and_nominee
http://usconservatives.about.com/od/champions/p/ScaliaBio.htm

 

[BobG]

He was helped by the fact that Rehnquist was being nominated for the Chief Justice position at the same time (in fact, the vote on Scalia was later in the same day of the Rehnquist vote). At the time, Rehnquist was the most conservative member of the court so Dems in the Senate focused most of their efforts fighting about him. He still would have won confirmation; just not breezed through so easily.

Thomas's nomination battle used some particularly nasty tactics, but an occasional 'hit job' or two has been the norm when pushing the edge on nominations. A President can nominate someone sure to breeze through approval (Souter, for example) and worry how conservative or liberal that particular justice might stay, or he nominate someone that will appeal to his base and face the possibility of a fierce nomination battle (Nixon had two nominees from the South shot down in a row before finally nominating Harry Blackmun).

 

[mheslep]

He was helped by the fact that Rehnquist was being nominated for the Chief Justice position at the same time (in fact, the vote on Scalia was later in the same day of the Rehnquist vote). At the time, Rehnquist was the most conservative member of the court so Dems in the Senate focused most of their efforts fighting about him. He still would have won confirmation; just not breezed through so easily...

<shrug>. Maybe. One could also argue that if Scalia was alone in his nomination he would attracted less attention than a dual confirmation, demanding more news cycles, etc.

 

[Al68]

It's not what he said (it does happen to be what Rand Paul said, however).

Perhaps it's what he meant, but the difference between what states and private parties could do never came up in the interview.

Yes it did. He specifically said if "society wanted to outlaw discrimination based on sex", which is very different from whether government can deprive people of their rights based on sex, which is what the 14th amendment refers to. The former refers to private action while the latter refers to state action.

Using original intent, the First Amendment applied primarily to individuals, not groups...

Are you referring to groups of horses or groups of people. If the latter, then applying to individuals necessarily means applying to a group of individuals.

 

[Al68]

You said the Constitution must be taken literally. The 14th amendment literally says "All Persons".

Scalia specifically says this does not apply to women. Which is it?

He didn't say that in what you quoted. Do you have another reference?

The author of the article you referenced is very, very confused. Scalia never said the 14th amendment didn't apply to women in that speech.

That article is a propaganda piece, complete nonsense. There simply is no logical connection between the claims made in the article and the actual quotes of Scalia it contains or any actual court decisions. There are only vague hateful implications that any 12 year old with average IQ could see right through immediately. What on Earth made you think this article was worthy of discussion?

Can a corporation serve time in jail? Can the government kill a corporation? Can the CEO of a company be sentenced for the actions of a corporation, or do charges have to be filed against an individual?

Well, if I stab someone, do I get charged with the crime, or does my knife get charged with a crime? Corporations are sometimes used as tools by people to commit crimes. The people responsible for the crime should be charged.

Santa Clara County v. Southern Pacific Railroad Company, 1886, was about contract law. To say that the rights of individuals acting as a group cannot be violated, is not the same as declaring that a corporation is entitled to all of the rights and protections as a person.

The corporation is the agent of "individuals acting as a group". You can't have it both ways. If you want to name a corporation as a defendant as an agent for shareholders in an attempt to collect from them, then you must consider the corporation an agent of shareholders for exercising their rights.

 

[Vanadium 50]

My view of the 14th Amendment is that it is largely superfluous - that the Constitution already guaranteed everyone equal protection.

Ah, but what the 14th Amendment did was require that the states do likewise.

 

[BobG]

The author of the article you referenced is very, very confused. Scalia never said the 14th amendment didn't apply to women in that speech.

That article is a propaganda piece, complete nonsense. There simply is no logical connection between the claims made in the article and the actual quotes of Scalia it contains or any actual court decisions. There are only vague hateful implications that any 12 year old with average IQ could see right through immediately. What on Earth made you think this article was worthy of discussion?

Probably the same reasons Scalia thought the issue was worthy of discussion in his interview?

Originalism, as applied by Scalia, is a theory of interpreting the 1789 Constitution and later amendments according to the meaning understood at the time they were ratified.

As Scalia explained it during his talk, "I interpret in the way it was understood by the society at the time."

An opposing theory, sometimes known as the living Constitution and described by Scalia as "evolutionism," holds that the document is flexible enough to take account of changing societal conditions and values.

There is also a third interpretation: literalism, which is that the Constitution (or laws passed by Congress) should be interpreted exactly as they were written. Literalism is the justification for saying the 14th Amendment only applies to state governments; not private parties (and, technically, to the idea that it's unconstitutional to force private businesses to refrain from discrimination).

The interview was specifically about Scalia's 'original intent' philosophy, not about interpreting the Constitution literally.

And, at least to the point where original intent of a law or article of the Constitution should be considered and discussed in any relevant case, he's correct. It just shouldn't blindly be followed no matter how bizarre the outcome of that line of logic leads to (nor does Scalia apply his originalism theory to that extreme).

 

[BobG]

Literalism: a law or an article of the Constitution should be intrepreted exactly as it was written.

For example, customs law bans certain items from being brought into the country. If the person tries to bring banned items into the country, they can dispose of the prohibited items or they can take them back to whatever country they came from. The US government does not have to buy the items from the traveler or have to compensate them for the banned property they had to dispose of. The 5th Amendment does not apply. The wording of the law:

The FTCA establishes a general waiver of sovereign immunity for tort claims against the government, but it also makes several exceptions to the waiver. One exception is for "[a]ny claim arising in respect of [...] the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer.

Using the idea of literalism, the lawmakers inadvertantly (or advertantly) created a "gotcha" that allows any law enforcement officer to take your property and you have no right to compensation.

Originalism: a law or article of Constitution should be interpreted in the same way the authors intended it.

Did the authors of the customs laws really intend that New Orleans police officers should be allowed to loot stores while on duty without the store owner being compensated? Did they intend that the meter maid should be able to write you a parking ticket, and just to add insult to injury, take your Carl's junior from you and eat it in front of you? Did they really intend to protect prisons to be able to lose your luggage without compensating you? (Ali vs Federal Bureau of Prisons)

Literalism: The states voting to ratify the 16th Amendment did not all vote on the same amendment. The states voted on different versions of the 16th with different versions having slightly different wording. Therefore, the 16th Amendment wasn't properly ratified and is not really part of the Constitution.

Originalism: The intent of every version of the 16th Amendment was identical, therefore the amendment was properly ratified. Get real. If literalism were literally applied in this instance, no amendment written before the age of Xerox and word processors was properly ratified.

 

[Al68]

Probably the same reasons Scalia thought the issue was worthy of discussion in his interview?

The issue Scalia discussed is not the same issue presented in the article. That was my point. The claims made in the article are based on miscomprehension or purposeful deception or both.

There is also a third interpretation: literalism, which is that the Constitution (or laws passed by Congress) should be interpreted exactly as they were written. Literalism is the justification for saying the 14th Amendment only applies to state governments; not private parties (and, technically, to the idea that it's unconstitutional to force private businesses to refrain from discrimination).

Nonsense. Discrimination by private parties cannot logically be covered by the 14th amendment because there is no law involved to be declared unconstitutional and struck down. Prohibiting discrimination by private parties requires legislation, which is what Scalia said.

This is true of any private action. A private action is legal in the absence of legislation prohibiting it, so legislation is the mechanism to prohibit private actions.

Of course the constitution must be interpreted as written. It is 100% literal, and contains no non-literal speech. It, or its meaning, can only be changed by the amendment process it contains. It's a legal contract, not a collection of metaphors.

Literalism: a law or an article of the Constitution should be intrepreted exactly as it was written.

For example, customs law bans certain items from being brought into the country. If the person tries to bring banned items into the country, they can dispose of the prohibited items or they can take them back to whatever country they came from. The US government does not have to buy the items from the traveler or have to compensate them for the banned property they had to dispose of. The 5th Amendment does not apply.

Still nonsense. The 5th amendment applies. The prohibition on taking property does not apply in this case because the fifth amendment says it doesn't apply if interpreted literally. If the property were being taken for public use, instead of just being banned from import, the government would have to compensate them.

 

[Proton Soup]

wouldn't one of the problems with literalism be that the generally-accepted literal meaning of statements will evolve over time?

 

[Al68]

wouldn't one of the problems with literalism be that the generally-accepted literal meaning of statements will evolve over time?

No. Unless one thinks that the prohibition on "quartering" soldiers in private homes refers to a butchering process or something equally silly.

The constitution was written for the average Joe of the 1700's to easily understand, and it is easy to understand. The current controversy is hogwash. There is no real substance to it. As far as I can tell, no one has claimed that women aren't people or that the 14th amendment doesn't apply to women. Just a combination of strawman arguments, non-sequitors, and incoherently absurd logic.

 

[G037H3]

Keep in mind that the Constitution was written by the Founders to refer only to European, land-owning males. (It should have stayed that way.)

Also, women aren't people.


[PLAIN]http://operatorchan.org/vg/src/vg43581_trollface.jpg