Scalia Thinks Women Aren't People!

[catsittingstill]

Scalia gave a talk in which he stated outright the 14th amendment does not protect the rights of women.

But the text of the amendment reads:

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 only way this doesn't apply to women is if women can't be either citizens or people.

No surprise Scalia feels that way, I guess.

[Later edit:  On pocketnaomi's good counsel I am revising the lede as follows "Scalia Thinks Women Weren't Considered "People" In Nineteenth Century; Thus Term "People" In 14th Amendment Does Not Count."

Comments

[pocketnaomi.livejournal.com]

Scalia believes that women weren't thought to be people at the time that amendment was written, and therefore wasn't whom the folks what wrote it had in mind. He is correct in this. He also thinks that is relevant to how it should be interpreted, and there I disagree with him. But you're too rational in general to get sensationalist like this, Cat... it makes a good headline, but it's not accurate, and I know accuracy matters to you. The truth in this case, as in many, is more complicated. I don't think Scalia's constitutional interpretations make any sense, but that's not the same thing as him not thinking women are people.

[admnaismith.livejournal.com]

He's just mad because Sotomeyer, Kagan and Ginsburg refuse to bring him coffee. And they keep butting in during Supreme Court sessions.

[smallship1.livejournal.com]

I remember the West Wing episode in which Ainsley Hayes (token Republican) maintained that the Fourteenth Amendment was the reason why the Equal Rights Amendment was unnecessary. She (as a fictional character, and one admittedly written by a liberal) obviously felt it applied to women.

He does seem to be saying that it doesn't, though. How he thinks that helps anyone is beyond me.

[pocketnaomi.livejournal.com]

He's Justice Ginsburg's closest friend. Don't try this crack with her around. :)

[pocketnaomi.livejournal.com]

He's an original-construction theorist, believing that the laws and the Constitution should be read to mean what the people who wrote a particular part of it thought they were writing it to mean at that moment, not what its text literally says or anything anyone may have used common sense to decide it meant later. There is some appeal (no pun intended) to this, especially to authors, who like to be interpreted as meaning what they meant to mean. The problem with it from a logical perspective is that the authors often used deliberately broad language precisely because they knew they couldn't think up every possible application, and they wanted to make sure later generations wouldn't find their law obsolete quickly and have to start all over again. The problem with it from a practical perspective is that we don't get things done very well when we are continually finding laws quickly obsolete and having to start all over again either.

[occams_pyramid]

Well, that's his job - to decide what the law means. If he wants to introduce the legal principle that the USA constitution must be interpreted only in the context of the date it came into force, I suppose that falls within his remit.

It will certainly be interesting to see what happens, since this principle must of course apply to the entire constitution.

It will obviously destroy any protection of privacy on the Internet. And there will be no constitutional right to bear arms of recent design. And that's just the first couple of things I thought of - there must be hundreds of others.

I wonder if he's actually thought this through?

[catsittingstill.livejournal.com]

?

Maybe I misunderstood. So Scalia believes, if we just passed the exact same amendment today, word-for-word...

That it would apply to women?

That seems weird to me.

[catsittingstill.livejournal.com]

I bet she still doesn't bring him coffee though.

[catsittingstill.livejournal.com]

:-) The right to bear arms applies to hand-made guns only.

Maybe there are some good points to this theory of the law.

[catsittingstill.livejournal.com]

Just like they thought they were people ;-)

[catsittingstill.livejournal.com]

I have edited my post to reflect your moderating influence.

[thnidu.livejournal.com]

And not to rocket or grenade launchers.

[gfish.livejournal.com]

He thinks that some abstract legal theory is more important than women being treated as people. It amounts to the same thing.

[randwolf.livejournal.com]

Well, if an amendment with that language were passed today, I think he'd probably find some other reason why it wouldn't apply to women. But that is the theory he claims to espouse, yes.

(I've read some of his decisions. Talk about labryinthine.)

[lil-shepherd.livejournal.com]

Oh dear.

I had a boss who refused to consider literal (and legal) interpretations of the EU regulations we administered because, and I quote, "That's not what we meant when we wrote it."

[maiac.livejournal.com]

In Canada, a judicial ruling (http://en.wikipedia.org/wiki/Edwards_v._Canada_%28Attorney_General%29) established that women are "persons" in the legal sense. The ruling was a Historic Moment in Canadian history the way Brown v. Board of Education was in ours. The ruling also established the principle that "a constitution is organic and must be read in a broad and liberal manner so as to adapt it to changing times."

Yet another reason to wish I were Canadian.

[catsittingstill.livejournal.com]

That does sound very humane and sensible.

[occams_pyramid]

Yes, it's probably going to annoy the National Flintlock Association rather a lot.

[pocketnaomi.livejournal.com]

If a reasonably normal composite of today's population passed the same amendment, word-for-word, today, then yes, by Scalia's standards it would include women.

[pocketnaomi.livejournal.com]

I'm sure she doesn't, but I doubt he minds that one bit. :)

[pocketnaomi.livejournal.com]

He thinks some abstract legal theory is more important than anyone being treated as people. It's not about women for him one way or the other.

I don't object to his being considered an ass -- I consider him one myself. But I like to be precise about what type of asininity we're dealing with.

[pocketnaomi.livejournal.com]

Yep, that's Scalia's position, all right. Makes no sense no matter what it's applied to.

[lil-shepherd.livejournal.com]

This particular character left to join a large consultancy. Representing a client, he told our enforcement arm that, "I know what that legislation means because I helped write it."

To which the said enforcement blokes replied, "Then you should be able to advise your client properly, shouldn't you, sir."

[dan-ad-nauseam.livejournal.com]

I suspect there may be a few professional discussions about the precedents her career generated and Scalia's commitment to stare decisis.

[dan-ad-nauseam.livejournal.com]

In theory, one could argue that M'Cullogh v. Maryland settled that an originalist approach was inconsistent with the Constitution, but I don't think that Scalia would agree.

(Sets seismograph by John Marshall's grave.)

[pocketnaomi.livejournal.com]

I'd love to hear one of those...

[antinomic.livejournal.com]

If we could just move Canada somewhere near the Bahamas I would follow you there. But it gets cold in Canada, which makes it unacceptable. Pity.

[catsittingstill.livejournal.com]

I have to say that I do not think it's a coincidence that he is not among the group he thinks should not be treated as people because of his abstract legal theory. Women not being people, fine. Blacks not being people, fine.

White men not being treated as people? I think he would find some excuse why his abstract legal theory didn't apply.

Gun rights being restricted to hand made guns? Ditto.

[maiac.livejournal.com]

:-)

I heard long ago from someone who worked for an airline that the busiest route was between Montreal and Miami.

[pocketnaomi.livejournal.com]

He has ruled against groups he belonged to before. Thomas and Roberts are more likely to bend their principles when they harm somebody the justices in question like. With one exception, when he just couldn't resist playing kingmaker, Scalia hasn't done so.

Again, know your breeds of ass. There are subtle differences among them.