Justice Scalia: The Constitution Doesn’t Protect Women

January 10, 2011

Supreme Court Justice Antonin Scalia made quite a stir last week when he told a California magazine that the 14th Amendment’s equal protection clause doesn’t apply to women. Under Scalia’s “originialist” interpretation, the 1868 amendment was meant to protect the rights of newly freed male slaves, so it doesn’t protect women and other groups.

To Scalia, the Constitution doesn’t prohibit discrimination against anyone the amendment writers didn’t have in mind. If the United States wants to outlaw discrimination by sex or sexual orientation, well, then “all you need is a legislature and a ballot box.” One has to wonder how receptive voters would have been to granting rights to others in Kansas in 1954, in Mississippi in 1965, or in Texas in 1973. To Scalia, if you want rights, you need to persuade voters to give them to you.

Scalia would bind America to his interpretation of the amendment writers’ original intentions, but this ignores the true strength of our Constitution: It doesn’t reflect the views of any one American, but the compromises reached while creating “a more perfect union.” As Supreme Court Justice Stephen Breyer put it, we are not bound by the “dead hand” of history. Our understanding of the Constitution and its protections changes as our nation changes.

Rights that men in 1780s New England couldn’t envision have become vital for women and men in 2011 America, and it’s critical that we fight to protect them. AAUW supports constitutional protection for the civil rights of all individuals — including the right to privacy — and actively champions a fair, balanced, and independent judiciary to protect these rights.

And since the 14th Amendment and other laws do currently help women fight back against inequality, AAUW’s Legal Advocacy Fund provides support to lawsuits that combat sex discrimination in education and the workplace. To find more information, including legal resources on sex discrimination topics, visit the LAF website.

Beth Scott By:   |   January 10, 2011


  1. Avatar anita taylor says:

    By Scalia’s reasoning, citizens would only be guaranteed the right to own guns that the founders knew about. Wonder how consistently he applies his “originalist” views to all amendments?

  2. Avatar Julie Harrison Kleszczewski says:

    This is a shocking revelation about a supreme court justice in the highest court of our land.
    Obviously, he thinks that discrimination against anyone is legal. It is not only not pragmatic but certainly not fair minded.
    Each and every woman or ethnic person who has ever been discriminated against has suffered discrimination against their families, financially and emotionally.
    I was told unceremoniously in 1972 that “You cannot apply for that job because you are not a man.” even though I had the educational requirements. The EEOC does not protect women and their families.
    I was supporting my family at the time with 2/3 of our family income and we lost approximately 40 percent income because of the discrimination. Not only that, Governor Ronald Reagan’s law prevented me from continuing my graduate school education because I was married and my husband was also a graduate student as well.
    People like that are detrimental to families everywhere who are struggling to improve their family’s standard of living.

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