News Are women people? The inconsistency of absolute originalism

[CAC1001]

There are no strictly liberal activist judges.

I think Ginsburg might qualify.

 

[Al68]

Scalia says at the time the 14th amendment was written, it was intended to apply to men who were slaves/former slaves, and that it true. He also says that at the time it was written, it wasn't intended for women, and that is also true.

I have yet to see a reference for this claim. Saying that the 14th amendment didn't prohibit gender discrimination isn't the same as saying it didn't apply to women. After all, it didn't prohibit racial discrimination, either.

For example, the 14th amendment would prohibit a law that outlawed newspaper articles written by women, or a law that prohibited women, but not men, from possessing a gun.

 

[zomgwtf]

I have yet to see a reference for this claim. Saying that the 14th amendment didn't prohibit gender discrimination isn't the same as saying it didn't apply to women. After all, it didn't prohibit racial discrimination, either.

For example, the 14th amendment would prohibit a law that outlawed newspaper articles written by women, or a law that prohibited women, but not men, from possessing a gun.

Dude it's not so hard to understand, seriously.

The amendment was made for a purpose and women were outside this purpose. No one that was part of the amendment was thinking, hey we should say people so women get rights too! No, this wasn't part of their thinking back then. You can SEE that quite CLEARLY based on the fact that after this amendment discrimination was still ok based on gender.

You have to interprete the amendment differently than the way it was originally interpreted in order for it to apply to women. It's perfectly clear, as I said from the fact that after this amendment discrimination based on gender could still happen.

Obviously if they specifically meant women to be included in the scope of the amendment then it would have happened at the sam time it happened for the blacks, etc.. This is not rocket science.

EDIT: Why would they need to, 50 years after the amendment, fight for legislation protecting gender discrimination if they were already given it?

 

[Al68]

Dude it's not so hard to understand, seriously.

No, it's pretty simple, really.

The amendment was made for a purpose and women were outside this purpose. No one that was part of the amendment was thinking, hey we should say people so women get rights too! No, this wasn't part of their thinking back then. You can SEE that quite CLEARLY based on the fact that after this amendment discrimination was still ok based on gender.

It was still OK based on race, too. Does that mean you can SEE quite CLEARLY that the 14th amendment didn't apply to black people?

You have to interprete the amendment differently than the way it was originally interpreted in order for it to apply to women. It's perfectly clear, as I said from the fact that after this amendment discrimination based on gender could still happen.

Again, based on that logic, it would be equally clear that, since discrimination based on race could still happen, the amendment would have to be interpreted differently than the it was originally for it to apply to black people.

EDIT: Why would they need to, 50 years after the amendment, fight for legislation protecting gender discrimination if they were already given it?

The fight against racial discrimination took longer than that. Does that mean the 14th amendment applied to women long before it ever applied to black people? It's not rocket science.

 

[zomgwtf]

No, it's pretty simple, really.It was still OK based on race, too. Does that mean you can SEE quite CLEARLY that the 14th amendment didn't apply to black people?Again, based on that logic, it would be equally clear that, since discrimination based on race could still happen, the amendment would have to be interpreted differently than the it was originally for it to apply to black people.The fight against racial discrimination took longer than that. Does that mean the 14th amendment applied to women long before it ever applied to black people? It's not rocket science.

Racial discrimination was still ok by govn'ts after the 14th amendment? I hope you know 'ok' doesn't mean people still did it. And that 'it could still happen' was specifically talking about govn'ts not individuals.

EDIT: I'll just answer for you, it wasn't ok. The Jim Crow laws were based on 'equal but seperate', notice 'equal'? They found 'a way around it' which was allowed for a bit but blacks were still necessarily regarded as equal by govn'ts... right? This was not necessary for women, why? because when the amendment was originally made it wasn't intended to include them in the scope.

Clearly the women weren't considered as equal by that amendment when the second section is only protecting the voting rights of males?

 

[Proton Soup]

i think it's pretty clear now that women are people, they're just not persons.

 

[Al68]

Racial discrimination was still ok by govn'ts after the 14th amendment?

No, it wasn't OK. But racial discrimination in general was not prohibited. I specifically said "in general" earlier, if not in the post you responded to.

The only type of racial discrimination prohibited by the 14th amendment was that that "abridged privileges or immunities" or "deprived people of life, liberty, or property, without due process of law" or "denied people equal protection of the laws". That leaves a lot of discrimination (discrimination in general) un-prohibited.

But back to the point, Scalia used the phrase "sex discrimination". He obviously was not referring to government itself passing laws that violated women's rights when he said that the only constitutional mechanism to outlaw sex discrimination was legislation.

And, like I said earlier, Scalia very well may have said that the 14th amendment doesn't apply to women. For all I know, Scalia has advocated a bounty on all of their heads. But that's not what he said in the quotes provided in this thread.

 

[jtbell]

i think it's pretty clear now that women are people, they're just not persons.

Some years ago, while visiting Calgary, I encountered a monument to a decision of the British Imperial Privy Council on whether Canadian women were "persons."

Edwards v. Canada

The Famous Five (Canada)

 

[Proton Soup]

Some years ago, while visiting Calgary, I encountered a monument to a decision of the British Imperial Privy Council on whether Canadian women were "persons."

Edwards v. Canada

The Famous Five (Canada)

living tree, eh? sounds a little too much like the Living Word for my tastes. i suppose that for some, nationalism is the new god, but it ain't for me.

 

[BobG]

living tree, eh? sounds a little too much like the Living Word for my tastes. i suppose that for some, nationalism is the new god, but it ain't for me.

You don't like the word 'living'? Or you just don't like it used as an adjective, but using it as a verb or noun is okay? Or you don't like it used as an adjective for single syllable words, but using it as an adjective for multi-syllable words would be okay (such as "Living Constitution")?

Just curious, because that's a very interesting quirk for a person to have.

 

[zomgwtf]

living tree, eh? sounds a little too much like the Living Word for my tastes. i suppose that for some, nationalism is the new god, but it ain't for me.

Huh? Did you even read the case overview provided?

 

[Proton Soup]

You don't like the word 'living'? Or you just don't like it used as an adjective, but using it as a verb or noun is okay? Or you don't like it used as an adjective for single syllable words, but using it as an adjective for multi-syllable words would be okay (such as "Living Constitution")?

Just curious, because that's a very interesting quirk for a person to have.

i reject the entire doctrine as stated on the wiki. a term like "living constitution" is an oxymoron. if a Constitution is "living", and therefore subject to the interpretive whims of whoever happens to be in power at the moment, then it lacks "constitution". to me, this is a dangerous state of affairs.

the alternative is to have a "non-living" document that retains the intent of those who wrote it. and then, if society evolves to a point that a supermajority thinks it should be changed, then you write amendments. some minority in power might find this all a bit inconvenient, but then, that is much of the point of it. holier than thou types rarely are.

 

[Al68]

the alternative is to have a "non-living" document that retains the intent of those who wrote it.

While I agree with the rest of your post, I have to disagree (slightly) with this. A better alternative is to just stick to the actual text that was approved and ratified, regardless of supposed intent.

As a strict constructionist rather than an "originalist", it seems to me that "the intent of those who wrote it" is not a single intent, and not necessarily the intent of those who approved the text. Those who wrote the constitution (and each amendment), and those who approved it, were not a single monolithic entity with a single "original intent".

The only "intent" they had in common was the intent to approve the actual text of the constitution and amendments.

Edit: Of course while you and I bicker about whether it means what it says or what the authors intended it to mean, power hungry politicians and their corrupt court nominees instead routinely decide that it means whatever allows the implementation of the agenda they advocate.

 

[Proton Soup]

Edit: Of course while you and I bicker about whether it means what it says or what the authors intended it to mean, power hungry politicians and their corrupt court nominees instead routinely decide that it means whatever allows the implementation of the agenda they advocate.

i agree!

 

[mheslep]

i reject the entire doctrine as stated on the wiki. a term like "living constitution" is an oxymoron. if a Constitution is "living", and therefore subject to the interpretive whims of whoever happens to be in power at the moment, then it lacks "constitution". to me, this is a dangerous state of affairs.

the alternative is to have a "non-living" document that retains the intent of those who wrote it. and then, if society evolves to a point that a supermajority thinks it should be changed, then you write amendments. some minority in power might find this all a bit inconvenient, but then, that is much of the point of it. [...]

Simply and well said, just like the document itself. All seems obviously so to me.