Justice Scalia, this is not a difficult one. But you still managed to get it wrong.
19th century men didn’t have women in mind when they wrote that all persons should have equal rights.
Justice Scalia’s comments about the Equal Protection Clause not applying to sex discrimination raises the issue of how literally to read the Constitution. It doesn’t matter to Justice Scalia’s view that the Constitution prohibits states denying “persons” equal legal protection. “Persons” literally would have to include women as well as men. But he still doesn’t think the Equal Protection Clause outlaws sex discrimination – because “nobody ever thought” it did at the time it was written. Here originalism contradicts literalism. The original meaning of the word “persons” in the 14th Amendment did not include women. But the thing is, the correct meaning of the word “persons” does include women.
I can see the potential for harm in allowing current prevailing opinion to supercede original understanding – where there is room for disagreement over what is correct and incorrect. There presumably we should defer to original understanding. But there is no room for disagreement as to whether or not women are persons. That is, where the original understanding was clearly wrong, we can safely ignore it.
Literalist and originalist are not the same thing. Justice Scalia is only the latter. For example, the First Amendment does not actually say the government cannot outlaw flag-burning, but an originalist such as he can still believe that the First Amendment was understood as a right of free expression that would indeed preclude such a law, even though the literal language of the amendment does not. Here, of course, a non-literal reading of the Constitution is welcome to liberals and believers in a strong notion of free expression.
In the case of the 14th Amendment, however, a literal reading of the Constitution would seem to be more suitable for liberals, who are normally associated with a broader and more elastic interpretation of the document. So are liberals being incoherent and opportunistic to interpret the Constitution broadly in one respect but literally in another?
Not necessarily. Perhaps a literal reading is suitable where there can be no reasonable argument about meaning. “Persons” necessarily includes women. So the men who wrote the 14th Amendment didn’t have women’s rights in mind. So what? They were sexist and wrong. Justice Scalia says outlawing sex discrimination is the kind of thing legislatures exist for. (He says the Constitution neither requires nor prohibits sex discrimination.) But if we are faithful to the meaning of the words in the Constitution, we cannot allow states to have laws that discriminate against women. They are persons and the Constitution requires that laws protect all persons equally. Where the words of the Constitution tell us exactly what we have to do (as opposed to using ambiguous and necessarily subjective language such as “reasonable” and “necessary and proper”) then we can read it literally.
When, on the other hand, the Constitution does not tell us exactly what to do (as in the case of a law prohibiting flag burning, about which nothing is said in the Constitution) then we necessarily have to look at context and original understanding. If we find that the 1st Amendment was meant to protect free expression generally and not only the written or spoken word, we have to find a law prohibiting flag burning unconstitutional. So Justice Scalia is right about freedom of expression and wrong about equal protection. Liberals are right about both.
Source
No comments:
Post a Comment