14th Amendment (1868)
“Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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 laws.”
Scalia said on a recent interview that this part of the amendment [as applied in over 100 years of precedent] has been misinterpreted to mean that the Constitution prohibits the discrimination of women. Or more recently, sexual orientation based discrimination. These equal rights are what shaped women’s rights to vote, right over reproduction and family planning, civil rights, right to due process, right to serve openly in the military, etc. This the Amendment cited in those decisions.
Yet can Scalia be right? In looking at more of the language of the Amendment, isn’t it clear that the intention was that the discrimination of ALL PERSONS was prohibited and that women are persons. As are gay men. Or Irish men. Or is this really a misreading?
Reading the next part of this Amendment, section 2 specifically addresses persons like the Indians as not to be counted as citizens for the purpose of voting and they are not to pay taxes, and another voting provision mentions 21-year-old males:
“Section. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
So that bit of text shows that the writers of this Amendment knew to use specific words to convey their intent when they were writing these sections. Intent is what Scalia said we have to look at in interpreting the Constitution. His stance though goes more like this: women were not considered persons then so this cannot have applied to women. Interesting. Going back the first section, here is the definition of a citizen: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Then the section continues with prohibiting abridging the right of citizens and providing the equal protection of the law to any person when it comes to their right to pursue life, liberty and property. So why is Scalia convinced that women are not covered here? Are women not born? Are they bought at a store? Sure they were considered property (chattel) and had no agency (right of making legal decisions). However, this very close reading misses the larger picture.
Scalia says in that interview that it’s up to the legislature to pass or not pass these laws. True enough, however, this is a Congressional right is given to Congress in the 14th Amendment:
“Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
So, the Civil Rights Act of 1964 is not just what a modern legislature (most of it anyway) saw as a necessary tool to enforce the words of this Amendment that imbue these rights to all persons. Perhaps then one reason this applies to women is that 1920′s 19th Amendment finally articulated women’s right to vote. These discussions raise all types of possibilities of making new decisions. Kind of like what happened with Citizen v. United. To add to the intrigue of Scalia’s ideas, where does that put into perspective the status of a corporation’s Constitutional protection versus a woman’s?
Are Scalia’s words code or signal to some Tea Partiers that he and other members of the Supreme Court, notably the husband of major Tea Party participant and fundraiser Mrs. Thomas, are hearing their cries of appeal of the 14th Amendment. This I believe is going to be another blown out of proportion, though very earnest, discussion which a sane Chief Justice Roberts will have to get into line and prevent such this kind of interpretation to take away women’s rights.
As a pragmatic matter, and a way to make official America’s advancement into modernity, should we try to pass an Equal Rights Amendment to put to rest this type of second guessing? After Citizen v. United, is there really a voice of moderation on that side of the bench?
