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
My delusion detector also pointed me toward checking Book Finder for “The Standard Dictionary of Permanently Plain Meanings.”
My delusion detector must be delusional, no such book found.
Not even a dictionary of plain meanings of any sort; found one with plain, permanent pronunciations, though. Is “pronunciation” a synonym for “meaning”?
What would it mean to be pronounced woman and husband?
Perhaps I need a replacement delusion detector. Can’t afford a new one. Checked eBay for a used one, did not find any. Pity.
I wonder if I am the only one looking for a replacement delusion detector…
What makes me think I have the right to die?
My delusion detector does.
BBB,
Here ya go point by point.
point 1: “The Court has held on numerous occasions that laws that discriminate on sexual grounds are subject to higher scrutiny, but if they serve a legitimate government interest, they can be permitted.
The gender preference in Schlesinger v. Ballard certainly served a legitimate government interest, and women were the beneficiary.”
point 2:
“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.”
point 3: “The purpose of the law that makes it a crime to incite a riot {me: Which limits speech, even though the first amendment prohibits the government from abridging the right to free speech} is intended to protect the rights of others. It’s not the speech, but the imminent lawless acts that accompany the speech that are the focus of the law.”
Brian,
What makes you so sure you have the right to die? 🙂
As I cannot find “autism” or “autistic person” anywhere mentioned in the Constitution, perhaps this thread will help clarify why I live my life in accord with the view in mind that, under law, I have no rights or privileges.
That Colbert clip makes this clearer to me than any words I can imagine ever finding.
If I have neither rights nor privileges, perhaps I will live longer than I would were to believe I were entitled to rights or privileges and so live as though I have them.
In this society, I find I have only one right, the right to die; I prefer instead to cry.
If my sense of law is based on “let right be done,” surely Scalia is my proper guide to right living without my having rights.
Gyges,
“You offer as proof that the Constitution doesn’t prohibit state legislated discrimination the fact that there has been a judgment that allows it when there’s a legitimate state interest.”
What judgment? What case are you talking about? A federal law has been created and is assumed to be constitutional until ruled otherwise, but I don’t know of a case challenging that law. (18 USC 2102)
rafflaw,
Is the Nineteenth Amendment surplusage? Your interpretation of the Fourteenth would indicate that it must be. Why is it that over 50 years later an Amendment to the Constitution was required to ensure women the right of suffrage?
See Minor v Happersett (1874)
BBB,
O.k. so let’s see if I’m following you then:
You offer as proof that the Constitution doesn’t prohibit state legislated discrimination the fact that there has been a judgment that allows it when there’s a legitimate state interest.
As proof that this isn’t the exception proving the rule, you say that if it was prohibited there would be no way around that prohibition, even if there’s a legitimate state interest.
You concede that sometimes even a blanket prohibition by the Constitution (No law abridging the right to free speech) can have exceptions for legitimate state interests.
Right?
Gyges,
“Doesn’t it?”
Yes. As I said, it becomes a balancing act of protecting rights.
mahtso,
Whether you like it or not, they often do mean their “ordinary” meaning. It’s not as if there is a huge debate in the English speaking world about the meaning of the word “all”. If you want to back that asshat Scalia, that’s your business, but you’re not too bright if you think there is wiggle room on the meaning of “all”.
all \ˈȯl\, adj.,
1 a : the whole amount, quantity, or extent of (needed all the courage they had)(sat up all night) b : as much as possible (spoke in all seriousness)
2: every member or individual component of (all men will go) (all five children were present)
3: the whole number or sum of (all the angles of a triangle are equal to two right angles)
4: every (all manner of hardship)
5: any whatever (beyond all doubt)
6: nothing but : only: a : completely taken up with, given to, or absorbed by (became all attention) b : having or seeming to have (some physical feature) in conspicuous excess or prominence (all legs) c : paying full attention with (all ears)
7 dialect : used up : entirely consumed —used especially of food and drink
8: being more than one person or thing (who all is coming)
By the construction of the sentence – “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.” – the only appropriate meaning of the word “all” among all of its possible usages is 2: every member or individual component of.
Whether you agree or not is irrelevant to the logic of the linguistic construction and the plain meaning of the word.
What’s next? You want to argue about the meaning of “born”?
BBB,
That is my point exactly. State legislatures could discriminate against women according to Scalia. Are women not persons under the Constitution? It the language of the 14th said citizens or persons who have the right to vote, Scalia might have a point, but it says persons.
Buddha Is Laughing,
So, as the give and take between Gyges and BBB illustrates, a federal law that prohibits yelling fire in a crowded theater or one that makes it a crime to incite a riot, is unconstitutional? After all, “no law” means “no law.” And are 17 year-old citizens not part of “all persons?”
Whether you (or I) like it or not, words used in laws and the Constitution are not always given their ordinary meanings.
BBB,
You’re saying that Speech can be limited for legitimate government interests, even though it’s Constitutionally protected.
Which sort of stands in contrast to “If it was prohibited by the Constitution, not even a legitimitate government interest could penetrate that prohibition.”
Doesn’t it?
Gyges,
Thanks for taking the time to clarify your post.
The short answer is that it’s a balancing act. The purpose of the law that makes it a crime to incite a riot is intended to protect the rights of others. It’s not the speech, but the imminent lawless acts that accompany the speech that are the focus of the law.
Would you choose to have it be any other way?
I wish the Supreme Court would not have denied cert in Rice v Palladin Press.
BBB,
You don’t see the connection between the First Amendment, the fact that inciting a riot is a federal crime, and your statement that “If it was prohibited by the Constitution, not even a legitimitate government interest could penetrate that prohibition?”
Let me help. Once more, with feeling
““Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; ”
http://codes.lp.findlaw.com/uscode/18/I/102/2101
Gyges,
“You mean like “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;”
Exaclty. Congress is prohibited from making a law that would establish a national religion or give preferential treatment to one. It also prohibits them from creating a law that would prohibit the free exercise thereof. (To me, that would mean that they could not prohibit people from practicing their religion on public lands, as long as that practice did not interfere with the free practice of others.)
“Which is why you can incite to riot.”
I’m not sure what you intended by that statement.
Scalia is probably the finest legal mind on the court today with the exception of Roberts and Alito. Thomas rounds out the top 4.
BBB,
“If it was prohibited by the Constitution, not even a legitimitate government interest could penetrate that prohibition.”
You mean like “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;”
Which is why you can incite to riot.
Gyges,
“How is prohibiting discrimination based on gender different than protecting a gender from discrimination?”
Read Schlesinger v. Ballard.
http://supreme.justia.com/us/419/498/case.html
“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.”
That’s exactly why no blanket prohibition exists. If it was prohibited by the Constitution, not even a legitimitate government interest could penetrate that prohibition.
By the way, does anyone remember the fancy Latin phrase for “The exception that proves the rule?”