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Adam Cohen notes Antonin Scalia once again asserting that the Constitution does not protect gender equality. His reasoning is superficially originalist:
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.Far from being convincing, this just illustrates some of the obvious problems with originalism:
- As Scalia himself has argued many times, originalism must be concerned with the constitutional text, not the subjective intentions of the framers. But that leads us to an obvious problem: the text of the 14th Amendment's equal protection clause is not confined to race. As you can see by scrolling down to the subsequent amendment, the equal-protection clause could have been confined to race; it just wasn't. So according to Scalia's textualism, what people thought it was "directed at" in 1868 is beside the point. We're bound by what they wrote, not by what they expected.
- If we accept that the expectations of the framers and ratifiers have some relevance, then Scalia runs into a different problem: Brown v. Board. Scalia believes that Brown was right -- but the vast majority of the 14th Amendment's framers and ratifiers did not believe it would force school integration. The way Scalia answers these objections is by climbing originalism's ladder. He says the specific questions of "school segregation" and "affirmative action" are subsumed by "racial equality." That phrase, of course, is not in the text itself; it's simply an interpretation at a higher level of abstraction. The problem is once you're on this ladder, there's no principled reason to stop at any particular rung. Why not climb one step further to incorporate "gender equality," which is obviously analogous in many respects?
- And, finally, Scalia's belief that the Constitution provides no protection whatsoever against gender discrimination is very normatively unattractive. Since originalism 1) leads to grossly unjust results that are not remotely compelled by constitutional texts, and 2) as we've seen does very little to constrain judicial discretion, who needs it?
-- Scott Lemieux
