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?Justice Scalia said the following in response:
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 (italics added).Scalia and Original Intent
Justice Scalia's statements in this interview will not surprise individuals who are familiar with his body of jurisprudence. Scalia adheres to a narrow version of originalism. He believes that any interpretation of the Constitution that strays from the "original intent" of the Framers is invalid. Accordingly, he is very critical of interpretive approaches that read the Constitution in light of legal changes that have occurred since the document was written.
While originalism sounds appealing, people who praise this form of constitutional interpretation incorrectly assume that the Framers' intent on any particular issue is readily discoverable or that the Framers always spoke with one accord. There are many other critiques of originalism that exceed the scope of the topic of this blog post. Needless to say, originalism is a controversial and problematic theory of Constitutional interpretation.
Scalia and Sex Discrimination
In terms of sex discrimination and the Constitution, it is generally the case that most of the members of the 39th Congress (that voted on the 14th Amendment) did not believe that they were voting to ban sex discrimination generally. Some more radical elements of the Republican Party probably envisioned the Constitution providing some protection to women, but their views reflected the minority position. Accordingly, a strict originalist view would lead to the conclusion that the Constitution does not generally prohibit sex discrimination.
Although Scalia explicitly embraces this view in the California Lawyer article, he alluded to it earlier in his dissenting opinion in the 1996 case United States v. Virginia. In United States v. Virginia, the Supreme Court held that the Virginia Military Institute violated the Equal Protection Clause by excluding women. Justice Scalia dissented and criticized the majority for applying what he viewed as a tougher standard than prior caselaw required.
In a passage that many scholars overlook, Justice Scalia argued that if the Court wanted to reevaluate the test used in sex discrimination cases, the better argument would lead to the lowering of the standard, not the toughening of it. Scalia implied that the Court should apply only rational basis review -- the Court's most deferential standard of review -- to sex discrimination cases.
When the Court applies rational basis review, it treats the type of discrimination at issue as presumptively constitutional. Most policies survive rational basis review. This is indeed the level of review the Court historically applied in sex discrimination cases and which led the Court to rule against all sex discrimination plaintiffs until the 1970s. Scalia would advocate a return to this earlier view of the Constitution.
Scalia and Hypocrisy
Although Scalia prides himself on being an originalist, his rulings on questions of equal protection do not always strictly follow the intent of the Framers. Consider the question of affirmative action. Justice Scalia is one of the most passionate judicial critics of affirmative action. Scalia argues that the Framers of the Fourteenth Amendment wanted generally to ban race-based discrimination. In one opinion, Scalia said that the only scenario that he could imagine a legitimate use of race was by prison officials trying to quell a race riot among inmates.
But as many legal historians have demonstrated, members of the 39th Congress did not see all forms of race discrimination as inconsistent with equal protection. For example, the 39th Congress passed laws the helped blacks and former slaves explicitly (by providing protection, essential services, etc.). Furthermore, this same Congress left in place a statute that mandated racial segregation in public schools in the District of Columbia. This history conflicts with Scalia's sweeping description of the Constitution as a bar to race-based public policy.
Scalia's opposition to affirmative action is even more complicated with respect to policies implemented by Congress. The Equal Protection Clause only applies literally to state governments. By drafting the 14th Amendment, Congress was trying to protect blacks in the South from further oppression by southern states. Nothing in the Constitution explicitly prohibits Congress from denying Equal Protection.
The Supreme Court, however, has held that the Due Process Clause of the Fifth Amendment -- which applies to the federal government -- operates as a guarantee of equal protection. Although this analysis seems justifiable, it is not something that is implicit in the text of the Constitution or in the intent of the members of the 39th Congress. Also, the liberal Warren Court most famously applied this standard in the 1954 decision in Bolling v. Sharpe, a companion case to Brown v. Board of Education, that invalidated racial segregation in Washington, DC public schools. That Scalia applies nonoriginalist standards from the Warren Court might shock readers who view him as the exemplar of judicial restraint.
Analyzing Scalia's jurisprudence comprehensively, it becomes clear that he embraces a narrow originalism to justify sex discrimination. On the other hand, he departs from origianlsim in order to vote against policies designed to ameliorate the conditions of racial discrimination. This hypocritical approach is more shocking and troubling than his general embrace of originalism.
This article has been cross-published on Huffington Post.