While the legal profession debates the propriety of his decision to participate in the educational sessions for conservative new members of Congress, Associate Justice Antonin Scalia is also causing a stir over his public statement that the 14th Amendment does not prohibit discrimination against women or gays.
Scalia’s statement came in an interview with California Lawyer magazine. Scalia stated “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.”
Once again, this statement is not a violation of judicial ethics but rather a violation of a core principle of judicial self-restraint. In the past, justices avoided public appearances beyond occasional law school commencements and ceremonial appearances. That was before the advent of the celebrity justice where members increasingly appear in high profile events. I take a highly conservative view of such appearances. I believe it undermines the integrity of the court for justices to be holding forth on their personal views in interviews and conferences. They are given one of nine unique positions that require a degree personal discipline in public appearance and, yes, insularity. As noted in this column, I admired John Paul Stevens for his practice of having his opinions speak for themselves. Scalia has helped inspire a new model of the celebrity justice that appears to appeal to many of his colleagues. These interviews and speeches tend to be self-aggrandizing exercises and not only do not do justice to the Court but to Scalia himself. He is certainly not alone in yielding to the temptation to appear in public. Both liberal and conservative justices have increasingly made controversial appearances.
Scalia’s views on gender discrimination are well-known. However, such arguments should be precedent not personality driven. Scalia is rightfully viewed as an intellectual leader of the conservative wing of the Court. If there is anyone who could allow his opinions to speak well for himself, it is Justice Scalia. He clearly enjoys exchanges with students and lawyers. He is also one of the most entertaining and dynamic members of the Court. I truly like that about him. However, this is a job that requires the small sacrifice in one’s public persona. Scalia’s legacy would be better served with less of the justice in the public arena.
Source: Politics Daily
Jonathan Turley
mahtso,
Only because some people are too stupid or too ideologically bound to understand the meaning of the word “all”. They have to have it forced upon them.
BBB,
I wasn’t looking for anything. I was speaking to Tootie’s “take” on Justice Scalia’s understanding of the word “punishment.”
BBB,
How is prohibiting discrimination based on gender different than protecting a gender from discrimination?
Also, this is the perfect example of “the exception proves the rule.” If you have to make an exception for “legitimate government interest,” that means that in all other cases it’s prohibited.
If the Constitution was to prohibit any discrimination by gender, and that prohibition was incorporated into the states, any law that would prevent men from entering the ladies restroom (on public property) would be unconstitutional.
Gyges,
Scalia didn’t say the Constitution does not protect women from discrimination, he said it doesn’t prohibit it. He is correct.
rafflaw,
“Those words are plain and clear. If the legislature can decide that women should not be discrimated against, they can also decide to authorize discrimation, according to Justice Scalia’s logic.”
The statement is correct, and supported as evidenced by Court opinions. The important factor is that such discrimination is subject to heightened scrutiny and must serve a legitimate government interest.
I fail to see why that concept is so difficult to understand given the identified restrictions placed on the discrimination.
Quoting the 14th A and saying “all persons” means “all,” is not persuasive to me. Consider that the 19th A was required to allow women to vote and the 26th A to allow 18, 19, and 20 year olds to vote. Were these groups not part of “all persons” before 1920 and 1971?
BBB,
Alternately: If he’s saying the Constitution doesn’t protect women from being discriminated against that includes the idea that there’s nothing in the Constitution that protects women from being discriminated against by the states.
One presumes if he thought the Constitution protected against state initiated discrimination he would have said something like “The Constitution protects women against discrimination from governments, but not private entities…” and then done his bit about legislation.
BBB,
Here are Scalia’s words, ‘ “”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,” he said. “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.” ‘http://www.rawstory.com/rs/2011/01/scalia-no-protection-women-constitution/ Those words are plain and clear. If the legislature can decide that women should not be discrimated against, they can also decide to authorize discrimation, according to Justice Scalia’s logic.
At least Scalia is keeping us questioning authority and thinking critically about the constitution.
He is keeping constitutional law alive & people like Professor Turley in business.
Elaine M.,
I think you’re looking for the protections against excessive use of force under the Forth Amendment.
Here’s a good article on the Supreme Court’s decision in Brosseau v. Haugen (2005) http://findarticles.com/p/articles/mi_m2194/is_9_74/ai_n15966348/?tag=content;col1
Less a jester and more a buffoon, I can’t believe his arguments on this topic are even entertained. Colbert’s satire directly speaks to the man’s idiocy and lack of internally consistent logic.
Tootie,
The word punishment has more than one definition. The word doesn’t just refer to a “sentence” given to someone. Punishment can mean rough handling or mistreatment.
Tootie,
My apologies. You do seem to understand what I stated in my last paragraph.
Tootie,
What part of the Supremacy Clause are you having trouble with?
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
Is the Geneva Convention a treaty?
Is the UCMJ part of the laws created in pursuance of the Constitution?
The place where Scalia was toying with the interviewer had to do with the difference between punishment meted out by the court (cruel and unusual punishment) vs. the actions of someone taken into custody by law enforcement or the military.
rafflaw,
“Scalia stated that if the States want to discriminate against women, that is ok.”
I should have taken the time to point this out before. That is not what Scalia said in the interview. That is what you interpreted him to have said. As BIL pointed out above “Words have meaning”. I think it would be a good idea to quote what he actually said in the interview.
Would that make me a textualist? 🙂
RE: Elaine’s video clip.
Ms. Stahl asked the wrong questions and he let her be confused. LOL
Very funny stuff.
The question about Abu Ghraib is one about the Geneva Conventions and the UCMJ, not the US constitution (8th amendment). The Judge shouldn’t expect a leftist talking head to understand this.
The judge also appears to be quite right.
Punishment is about the sentence given, or how the sentence is structured. It is not about abuse and assualt by cops, guards, or wardens (these are already illegal). The illegal acts by officials holding prisoners is not a part of the punishment. Capture of “soldiers” is not a sentence (punishment) given by a court. It is a result of war.
Lyndie English was not exacting a lawful (but cruel) sentence on the Iraqi prisoners. She was being cruel OUTSIDE of any lawful military actions such as detainment, holding, restrictions on liberty, etc.).
And this, I believe, is what Scalia was pointing out. But Ms. Stahl is not so bright and being a leftist, likely not so up on the Constitution. He needs to stay off of TV news shows. These people tend to be imbeciles. Attractive, but dense. Mild mannered and polite, but shallow thinkers.
The judge should have some fun in his later years. I say go for it judge. Get an Xtra Normal account and let ‘er rip.
You don’t need the imbecilic middlemen in the media to get your ideas out. Go viral and drive them nuts.
http://www.xtranormal.com/index
The older he gets, the worse he gets.
Buddha,
Surely you’re not saying that women are people?
“Amendment 14 – Citizenship Rights
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.”
Note that the Amendment in questions says “All persons”.
That means “all persons” – including women, people of color and homosexuals – not just whomever Scalia deems fit for the equal protection of law. Which to be clear – Scalia would only extend that right to white Christian men who are property owners. If that’s what the adopters of the 14th Amendment had meant, they wouldn’t have used the words “all persons” and “citizens of the United States”.
Words have meaning.
The relevant meaning of the word “all” is “every member or individual component of”.
Not just who that evil bastard selects.
“All” is the ultimate inclusive modifier.