Justice Scalia: The Constitution Doesn’t Protect WomenJanuary 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.