Are women people? The inconsistency of absolute originalism

[BobG]

The issue Scalia discussed is not the same issue presented in the article. That was my point. The claims made in the article are based on miscomprehension or purposeful deception or both.

A different (and third) article about the interview: Supreme Court's Scalia talks Constitution at UC Hastings appearance

The Constitution's equal-protection clause should not apply to women's rights or to other safeguards against discrimination, U.S. Supreme Court Justice Antonin Scalia told law students here Friday.

Speaking at UC Hastings School of Law, Scalia discussed legal theories that could come into play if the court battle over same-sex marriage reaches the high court. The equal-protection clause, part of the 14th Amendment, was a response to slavery and should not be updated for modern issues, the associate justice said.

Perhaps it would help if you'd post a link to an article written by the only person in the room who you felt interpreted his comments correctly.

And, like I said before, he was absolutely correct about the history behind the 14th Amendment. Congress was very careful to make sure the amendment applied to blacks, but not Native Americans. The language wasn't narrow enough to ensure it would only be applied to blacks, though.

When the 15th Amendment was passed, Congress learned from their past mistakes and spelled it out in clear language that no one could mistake that the 15th only applied to blacks. This was important because there was a fear using language similar to that used in the 14th could be interpreted as to give the right to vote to Chinese-Americans and Irish-Americans (giving Chinese-Americans the right to vote would have doomed the amendment in California and giving Irish-Americans the right to vote would have doomed the amendment in the Northeast).

(I don't think the history behind the passage of the 14th Amendment and the attitudes of the nation during that era are particularly relevant in how the 14th should be interpreted today, but the history of the Reconstruction amendments are very interesting.)

 

[BobG]

wouldn't one of the problems with literalism be that the generally-accepted literal meaning of statements will evolve over time?

Not at all. The 2nd Amendment is perfectly clear and is one of the most well written amendments ever written. That's why people argue about it so often.

 

[Proton Soup]

Not at all. The 2nd Amendment is perfectly clear and is one of the most well written amendments ever written. That's why people argue about it so often.

they argue over the meaning quite a bit, if that's what you mean by clear.

 

[Al68]

Perhaps it would help if you'd post a link to an article written by the only person in the room who you felt interpreted his comments correctly.

I'm not the one making unsubstantiated claims. The burden is on the one making the claim. For all I know, Scalia has said that the 14th amendment doesn't apply to women, but not in any quote referenced in this thread. That's why I asked Ivan to provide a link to such a statement by Scalia.

If Scalia did say that, I would disagree with him, because such a view contradicts the actual (literal) text of the 14th amendment, since it uses the word "person". And the word person had the same definition then as it does now, so there is no issue with its meaning.

And a claim that it (or any part of the constitution) doesn't mean what it (literally) says, and instead means something different that it doesn't (literally) say, is a very feeble attempt to justify violating the constitution. While such attempts to violate the constitution have succeeded many times, the justification is logically hogwash.

Congress was very careful to make sure the amendment applied to blacks, but not Native Americans.

So if one pointed out that the 14th amendment didn't prohibit racial discrimination, should that be interpreted as a claim that the 14th amendment "doesn't apply to blacks"? That seems to be identical to the claim made by Ivan and in the article he referenced.

 

[Al68]

Not at all. The 2nd Amendment is perfectly clear and is one of the most well written amendments ever written. That's why people argue about it so often.

they argue over the meaning quite a bit, if that's what you mean by clear.

I agree with BobG on this one. When people have an agenda to violate the constitution, no amount of clarity will stop them from arguing over its meaning.

 

[BobG]

Actually, believing the 14th Amendment doesn't apply to women wouldn't have been controversial even 40 years ago. That's why women have campaigned for a Women's Equal Rights Amendment since 1923, and why Congress finally approved an Equal Rights Amendment in 1972 (they came up 3 states short of ratification, however).

1971 was the first time the 14th Amendment was successfully applied to women in a US Supreme Court case (Reed vs Reed). In fact, the court broke with the precedence of past USSC cases in deciding the 14th could be applied to women.

It still doesn't apply 100%, although the exceptions are becoming rather moot. Military women still can't serve in a combat position, although the positions they can legally fill often do result in them fighting in combat. Women can't be drafted, either, but it's also unlikely that males would be drafted in the forseeable future. In other words, it's an exception that's dead in almost everything but name.

So, while Scalia's conclusion about women and the 14th sounds bizarre in 2010, it's really not that bizarre a conclusion at all.

 

[hamster143]

Are children people?

If we were to follow Ivan's argument and to take the Constitution naively and literally, that would imply that, for example, state laws that prohibit children under 15 1/2 from obtaining driving licenses (or drinking alcohol, or doing any number of other things) are invalid, because such law would abridge privileges of underage citizens of the United States.

Are convicted felons people? They are routinely denied privileges to vote and carry firearms.

So what's the catch? The catch is that none of the things listed are really natural "privileges" inherent for U.S. citizens. The Fourteenth Amendment does not apply. State governments can discriminate against children, convicted felons, and women all they want. They have to provide equal protection to their subjects, but they are free to convey privileges in a discriminatory fashion. (Re: Minor v. Happersett, 1874) The only exception is the INTENT of the framers of the amendment, which was to prohibit discrimination specifically by race and color, in which case the concept of "discrimination" can be treated more broadly.(Yick Wo v. Hopkins, 1886).

 

[Ivan Seeking]

So what's the catch? The catch is that none of the things listed are really natural "privileges" inherent for U.S. citizens. The Fourteenth Amendment does not apply. State governments can discriminate against children, convicted felons, and women all they want. They have to provide equal protection to their subjects, but they are free to convey privileges in a discriminatory fashion. (Re: Minor v. Happersett, 1874) The only exception is the INTENT of the framers of the amendment, which was to prohibit discrimination specifically by race and color, in which case the concept of "discrimination" can be treated more broadly.(Yick Wo v. Hopkins, 1886).

Your statement is inconsistent. First you argue that the 14th does not protect privileges, but conclude that the actual protections that are specified cannot be taken literally. The first statement in no way implies the second.

You also left out the part about "without due process" - a glaring oversight.

How can one possibly justify ignoring the actual words used? It opens the door to endless and unresolvable debate. Don't do what we said, do what we meant? The Constitution is really just a pointer, and not the law? Nonsense! That is a sucker's game. If we want to repeal the 14th because it is flawed, fine, but we can't allow the position to be that the actual words have no meaning. To argue about intent when the meaning isn't clear, is one thing, but to argue that the Constitution doesn't say what it says, is Orwellian. That would be the definition of naive. It is also the sort of double-talk that slowly erodes our protections.

All of the dispute about the right to own a gun, comes down to a comma. How much more literal can it get? We pay attention to commas but not the actual words?

 

[G037H3]

I personally interpret the Constitution based on the opinions and intent of the Founders, a literal interpretation is not reasonable or rational.

 

[Al68]

So, while Scalia's conclusion about women and the 14th sounds bizarre in 2010, it's really not that bizarre a conclusion at all.

You mean his conclusion that the 14th amendment doesn't apply to men? I just got rejected for a job as a Hooters Girl based on my gender. And last week I couldn't get hired as a stripper at the local Gentlemen's Club, all just because I'm male.

And Scalia says the 14th amendment doesn't protect me from such discrimination, equivalent to saying it doesn't apply to men according to the logic in that article. Well, since based on the same logic that it doesn't apply to men or women, who does it apply to?

Fallacious logic has its consequences.

 

[hamster143]

Your statement is inconsistent. First you argue that the 14th does not protect privileges, but conclude that the actual protections that are specified cannot be taken literally. The first statement in no way implies the second.

It does protect privileges. But we may have a disagreement about what the word "privileges" really means. It is a fairly narrow list. Generally speaking, these "privileges" have been held to include the right to travel, the right of access to the courts, the right to acquire and possesses property, and the right of pursuit of happiness (which has been normally understood to mean the economic right to pursue a livelihood). They don't include the right to vote or the right to buy alcohol, or many other things that States may do that may be discriminatory.

It's been explicitly found by the Supreme Court once that "access ... to recreational big game hunting in Montana" is not a privilege protected by the Fourteenth Amendment. Ergo the States may choose to grant hunting licenses only to males if they wish, and that would be constitutional (hhough in violation of the Civil Rights Act of 1964).

Theoretically speaking, pre-1964, what would happen if some state decided to grant hunting licenses only to whites?

A literalist judge would say: "Fourteenth Amendment does not apply. End of story."
Antonin Scalia would say: "Technically it does not apply. But the intent of the framers was to prevent discrimination against people on the basis of race and color."
A liberal judicial activist would start with the desired conclusion, namely, the liberal maxim that it is wrong to discriminate against people, and try to shuffle facts and opinions to justify it.

You also left out the part about "without due process" - a glaring oversight.

What does due process have to do with discrimination?

How can one possibly justify ignoring the actual words used?

It's not me who ignores the actual words used. It's you who tries to find meaning in the words that just isn't there. The Fourteenth Amendment does NOT say or imply "it is illegal for states to discriminate, i.e. to treat any group of people differently from any other group of people" - for example, that it is illegal to ban women from voting or gays from marrying, regardless of the definition of "people". That is pretty much the literal finding of the Supreme Court dating back to 1875.

 

[hamster143]

Did the authors of the customs laws really intend that New Orleans police officers should be allowed to loot stores while on duty without the store owner being compensated? Did they intend that the meter maid should be able to write you a parking ticket, and just to add insult to injury, take your Carl's junior from you and eat it in front of you? Did they really intend to protect prisons to be able to lose your luggage without compensating you? (Ali vs Federal Bureau of Prisons)

There's absolutely no problem with ilteralism vs. originalism here.

The federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. The government and its agents are supposed to act in accordance with the Constitution. In particular, they are not supposed to take private property for public use without just compensation.

Federal Tort Claims Act lists a number of exceptions to sovereign immunity, but it retains sovereign immunity against tort claims brought when private property is lost or destroyed by a law enforcement officer acting as an agent for the government.

Police officers looting stores, meter maids eating private individuals' burgers and wardens losing prisoners' possessions do not act as agents of the government. They should be sued by property owners directly, and they don't enjoy any protection from the FTCA. Even if they were instructed to eat people's burgers by some unconstitutional state law, you could, first, sue the person who ate your burger (under the Stripping Doctrine), then, sue the governor of your state and challenge that law (which is a common way to sidestep sovereign immunity and allow the court to decide whether the law is unconstitutional).

 

[BobG]

How can one possibly justify ignoring the actual words used? It opens the door to endless and unresolvable debate. Don't do what we said, do what we meant? The Constitution is really just a pointer, and not the law? Nonsense! That is a sucker's game. If we want to repeal the 14th because it is flawed, fine, but we can't allow the position to be that the actual words have no meaning. To argue about intent when the meaning isn't clear, is one thing, but to argue that the Constitution doesn't say what it says, is Orwellian. That would be the definition of naive. It is also the sort of double-talk that slowly erodes our protections.

All of the dispute about the right to own a gun, comes down to a comma. How much more literal can it get? We pay attention to commas but not the actual words?

A liberal judicial activist would start with the desired conclusion, namely, the liberal maxim that it is wrong to discriminate against people, and try to shuffle facts and opinions to justify it.

There are no strictly constructionist judges (literalists). There are no strictly originalism judges (original meaning). There are no strictly liberal activist judges.

Saying a judge would shuffle facts to support their conclusion would be an exaggeration, but all start with a desired conclusion and shift their judicial philosophy between all three as necessary. There's only conservative judges and liberal judges, based on their overall tendencies. Roberts is wrong about Supreme Court justices being like an umpire in baseball. They're more like soccer referees (they know the law inside and out so they can figure out a way to justify the call they know in their gut is right from the very beginning).

But, the history of the 14th shows how interpretations change over time (even if the original interpretation seems bizarre today). I don't think it was coincidence that the first time the 14th was applied to women in a USSC case and a Women's Equal Rights Amendment passed Congress less than a year apart. Neither influenced the other, but the country's general attitude about women had changed, causing both to happen.

And the USSC seemed to switch between a literal interpretation of the 14th and an original meaning of the 14th as they saw fit at the time. In the U.S. v. WONG KIM ARK case, the USSC decided to take a literal interpretation for children of foreigners that were born in the US. When a husband sued on behalf of his wife that her 14th Amendment rights had been violated when Illinois refused to grant her a license to practice law (she couldn't sue on her own - she was a woman!), the original intent line of logic was used (Myra Bradwell v Illinois Supreme Court).

 

[hamster143]

I don't think it was coincidence that the first time the 14th was applied to women in a USSC case and a Women's Equal Rights Amendment passed Congress less than a year apart.

It depends on what you mean by "applied". I mentioned Minor v Happersett before. It acknowledged that women are persons and they can be citizens, and yet concluded that the right to vote was not one of the Fourteenth Amendment protected privileges (and pointed to the existence of the Fifteenth as further proof of that).

 

[mugaliens]

You said the Constitution must be taken literally. The 14th amendment literally says "All Persons".

Scalia specifically says this does not apply to women. Which is it?

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.

The literal interpretation of the way it was written, however, taken in the modern contextual understanding that women are people too, it applies to women today. It was written, however, before that "modern contextual understanding," as clearly evidenced by the fact that another amendment was required to grant women the right to vote, and this came after the 15th amendment, which granted men of all race, color, or previous condition of servitude the right to vote.

It wasn't until the 19th amendment, approximately 50 years later, that women were granted the right to vote. It was this amendment which established equal rights for women in the eyes of the courts.

 

[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.