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Is Justice Scalia a Constitutionally Incorrect Sexist?

Originally published on January 4, 2011.

Justice Antonin Scalia has angered feminists once again.  This time the justice declared in an interview that there are no prohibitions on sex discrimination in the Constitution.  This has feminists on the Left infuriated: Scalia’s words are sexist, chauvinistic, and unconstitutional!   But is the justice correct? Does the Constitution actually prohibit sexual discrimination? Is that what the Founders specified and intended?  Actually, no, the Founders never placed any anti-sexual discrimination or gender equality clauses into the Constitution;  Justice Scalia is correct.

As a traditional conservative feminist, I am against sexual discrimination toward men and women, gay or straight. I fully support women fighting in combat if they pass training and perfect much needed military skills and I don’t care if the best heart surgeon available is a cross-dressing Liza Minelli drag queen.  If one’s job skills are superb, that person deserves the job and best pay.

I do, however, believe in discriminating against pedophiles and rapists.  They are a threat to human life; therefore, they should have no other job than scrubbing prison floors for the rest of their inhuman lives.

Thus, as a true feminist, I reviewed the entire Scalia interview and found nothing sexist or discriminatory about it.

Scalia was asked by UC law professor Calvin Massey:

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 answered:

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.

Scalia is absolutely right. America is not ruled by nine unelected judges.  Their jobs are not to legislate, but to uphold, defend, and protect the Constitution.  Unfortunately, since Chief John Marshall’s Marbury V. Madison ruling, making Judicial Review a Supreme Court right to over-ride Congress’s right to enact laws, Americans assume the court can whimsically interpret the Constitution as they so desire.  The Court cannot and Scalia is correct: the Constitution never mentions sexual discrimination, thus justices cannot assume it exists because they want it to.

Scalia’s comments however are considered repugnant by leftists, who not only have their constitutional facts wrong and their historical dates inaccurate — they placed false words in Scalia’s mouth.

Huffington Post writer Amanda Terkel insists the Fourteenth Amendment does in fact give equal protection to the sexes.  Terkel quoted the National Women’s Law Center’s co-president Marcia Greenberger, who says:

In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them, but what if they want to pass laws that discriminate?  Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them.  And that’s a pretty shocking position to take in 2011.  It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.

Scalia never supported government-sanctioned sexual discrimination during the interview.  Nor did he claim the court cannot, and will not, protect women.  Scalia does his job: he interprets the Constitution; the Congress makes and passes laws.  The court, through Congressional petition, can abolish any law, as they did with segregation laws, which were in violation of the Constitution.

Nowhere in Scalia’s interview does he condone discrimination of any kind.

Terkel further claims that Scalia and Professor Massey disregard Susan B. Anthony and Elizabeth Cady-Stanton, saying they used the Fourteenth Amendment when fighting for women’s rights in a petition for universal suffrage in 1866.  Terkel is referring to Scalia’s statments that the Constitution “does not require discrimination on the basis of sex,” and that no one ever considered the document to be based on such ideas.  Justice Scalia is speaking of the Founders and their framing the Constitution, not the suffragettes and the Fourteenth Amendment, which was not enacted until 1868, two years after the 1866 suffrage petition by Stanton and Anthony.

The Left needs to re-read the Fourteenth Amendment to see who it was actually written for, when, and why. The originalist justice is accurate in everything he said.  Nowhere in the Constitution, or the Fourteenth Amendment, which is used in all discrimination cases, but was written to outlaw segregation against black Americans, is sex discrimination and gender equality provided for.  The amendment was solely written and adopted to provide constitutional rights to black Americans, who had once been slaves and considered non-citizens though born on U.S. soil, and though freed under the Emancipation Proclamation and Thirteenth Amendment, and who were still being segregated from public places.  The states are denied prohibiting black Americans the Equal Protection Clause of the Fourteenth.  But Americans use the Fourteenth as a way to Plessy v. Ferguson their way into desegregating whatever they don’t like.

Despite this, the Fourteenth is used in all discrimination cases, because, specific wording provides lawmakers a line of attack to enact or abolish laws: “…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 claws.”  Though the law was written specifically for black Americans denied Constitutional rights and protection, the amendment leaves open avenues for legislators to decide upon laws concerning citizens.

Those angry with Scalia need to take a closer look at his words.  He never made declarations agreeing with sexual discrimination, he never said there should be any prohibition placed upon people; Scalia specifically maintains the Constitution does not “require discrimination based on sex.”  Scalia further points out the Constitution never provided an Amendment or clause outlawing discrimination based on gender, because “nobody ever voted for that” during the Constitution Conventions.  This is true; sex discrimination against women and gays was not the Founders worry.  The Founders were concerned with forming a free government under a Constitution, providing equality through liberty to all citizens, thus enabling legislators to enact individual state laws according to their constituents wants and needs.

Justice Scalia has never expressed any disrespect or contempt for the Constitution.  His words never commit such repugnancy.  Scalia’s remarks articulated  facts many do not want to hear, but are true: the Founders never discussed sex discrimination, nor did they ever vote on such laws.  If the Constitution had provided anti-sex discrimination laws, Susan B. Anthony and the ladies of suffrage would never have marched for women’s right to vote and own property. Nothing exists in the Constitution specifying equal rights to men and women or Susan B. Anthony and Elizabeth Cady Stanton would not have petitioned the courts about discrimination against women in 1866, or spent their lives fighting against sexual discrimination to get Congress to vote yes to the Nineteenth Amendment, which the Supreme Court  passed into law in 1920.

When Justice Scalia declares: “You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box,” he is not saying Congress can enact sexual discrimination against women as the Huffington Post insinuates.  The Constitution provides natural rights to all.  As a result, being equal in liberty means Americans can take any case to Congress, demanding laws be enacted to protect specific things.

Scalia  notes this when he brings up the death penalty and abortion.  Neither is specified in the Constitution.  There are no privacy laws—the case used for abortion—in the Constitution; the Founders knew anyone can do anything in private. Yet, radical feminists demanded the right to terminate unwanted pregnancies.  The same goes for the death penalty, according to Scalia: whether it should or should not be law: “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.”

Notice Scalia says “persude your fellow citizens,” meaning we the people decide.  The government is of, by, and for us, not the Supreme Court.  This is what Scalia is explaining. But this is not what leftist feminsts want to hear.  They want an evolving Constitution like Great Britain’s, where laws change on a whim.

Scalia explains that Americans attempting to make the Constitution devolve through evolution is dangerous:

[T]he Constitution tells the current society that it cannot do [whatever] it wants to do.  It is a decision that the society has made that in order to take certain actions; you need the extraordinary effort that it takes to amend the Constitution.  Now if you give to those many provisions of the Constitution that are necessarily broad—such as due process of law, cruel and unusual punishments, equal protection of the laws—if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no limitation on the current society at all.  If the cruel and unusual punishments clause simply means that today’s society should not do anything that it considers cruel and unusual, it means nothing except, ‘To thine own self be true.’

The justice is correct and the Left needs to get its facts straight.  Americans must interpret the document as is, not turn it into a code of individual requests or chaos will erupt.  Enacting laws must take place under legislation brought to the Congress so the people are not harmed.  FemiNazis are not looking at reality when they scream false accusations about sexual discrimination.  Those angry with Scalia need to open their eyes: giving the Constitution an evolving door can open a way for Islam to push to enact Sharia Law—which disavows all rights to women and denies the Constitution as law, thus allowing honor killings to become constitutional by nullifying the Equal Protection Clause to Islamic women in America.

Such a form of government and courts takes away women’s rights.  Scalia, in actuality, defends women’s rights and stands against sexual discrimination when stating the court must not legislate, Congress must or the people will lose rights.

Nowhere in the Scalia interview are sexism and discrimination declared as right, just, and constitutional.  Scalia’s comments have FemiNazis angry: they consider his words unconstitutional and sexist. Yet, the justice simply stated facts: the Constitution never provided for, or discussed, anti-sexual discrimination laws.  The Founders never placed anti-sexual discrimination or gender equality clauses into the Constitution.  That is left up to the Legislative Branch—Congress—to write up, vote on, and enact into law.

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