Thursday, January 6, 2011

Women, watch out?

Yesterday, Republicans took control  of the House of Representatives. Today, there will be a ceremonial reading of the U.S. Constitution;  which, evidently, has never been done before.

And speaking of the Constitution, news sources today report a mild-to-middling uproar over Justice Antonin Scalia's acceptance of Tea Party House Caucus founder Michele Bachmann's invitation to address House members on that very document.

From the LA Times:
The meeting "suggests an alliance between the conservative members of the court and the conservative members of Congress," said Jonathan Turley, a law professor at George Washington University, who said Scalia had shown "exceedingly poor judgment."
That same paper, however, carries an editorial saying, "Let Scalia speak." 

Antonin Scalia has sat on the Supreme Court for 24 years. remembers his ascension this way,
In 1986, President Reagan promoted William H. Rehnquist to the position of chief justice in the wake of the retirement of Warren Burger. To fill the vacancy created by Rehnquist's promotion, Reagan nominated Scalia to the Supreme Court. The political focus on Rehnquist's nomination drew all the attention away from Scalia. Thus, even though Scalia had a much more conservative record than Rehnquist, ironically Scalia's nomination passed unanimously and virtually uncriticized. Scalia took the oaths of office, becoming the youngest justice on the Court. His staunch conservatism and obvious intellect excited many conservative advocates who saw much promise in his confirmation. presents Justice Scalia's judicial philosophy concisely in this way:

Justice Antonin Scalia is a conservative. He is one of two justices on the court (the other being Clarence Thomas) who believe in the philosophy of constitutional originalism, that the Constitution should be interpreted solely in terms of the framers' original intent. 
Amidst all the flaps and fanfares associated with the swearing in of a new Congress, however, came a glancing reference in the Washington Post to Justice Scalia's insistence that the Constitution (the same document about which he's been invited to instruct House members) does not protect equal rights for women, let alone gay men and lesbians.

The article referred to an interview  Justice Scalia had given to California Lawyer. Here's the relevant question and answer.

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.
This all took me back to 1996, when Justice Scalia was the only justice to dissent in United States vs. Virginia, the case that allowed women to attend Virginia Military Institute. In his dissent, Scalia wrote:
...the tradition of having government funded military schools for men is as well rooted in the traditions of this country as the tradition of sending only men into military combat. The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law.
Hmmmmm. So do I really not have Constitutionally guaranteed equal rights? Does Supreme Court Justice Antonin Scalia truly believe that  my employer can cite the Constitution as reason to pay me less than my male colleagues for equal work?

To me, it seems that he does. But, please, your thoughts . . .


  1. Well, given that Scalia is a classic American Crank, his view of "original intent" is quaint and quite wrong.

    The origin of the constitution was a desire to create a nation of laws and came in response to our desire as a country to throw off the yoke of the monarchy and the corporate elite that ruled the colonies and gain a measure of self government.

    The founders soon recognized that some basic rights and privileges needed to be guaranteed over and above what the various local legislatures were willing to do.

    The Amendments and laws that ensued were not all anticipated by what the founders intended. Indeed if we were to follow the logic of Mr Scalia, there would be no flexibility in dealing with civil rights issues that were non-existent in the founder's era.

    Mr. Scalia is a hypocrite anyway and should be viewed as such. He certainly didn't vote with his ideological conscience when he voted in favor of the recent Citizen's United decision.

    How ironic that this constitutional originalist has now shown his support for the very style of monarchic corporatism that the founders were so interested in protecting us against.

    Originalist indeed....

  2. Martha - very well written. I don't have to like what Scalia says or thinks, but you did a wonderful job of showing where he's coming from. But, since I moved to the Shenandoah Valley, I haven't work a job yet that pays me equally to a man doing the same thing. I don't like it, but I can't seem to get any unions organized in this Republican run part of the country. :)