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In his own words:
Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.
– Justice Antonin Scalia, September 2010
When Supreme Court Justice Antonin Scalia spoke with law professor Calvin Massey about the 14th Amendment, he was still respected as a Constitutional originalist. The Constitution does not change.
There are other ways to interpret the foundation of American law.
The of idea of a “Living Document” is not new. Abraham Lincoln argued that the Constitution was an instrument of national spirit, that it was a codification of the ideals contained in the Declaration of Independence. He held that the Constitution protected certain rights of all people, even if the founders did not see the implication of what they were ratifying.
The 14th Amendment to the Constitution contains a fairly straightforward prohibition. Government at any level is told that it cannot “deny to any person within its jurisdiction the equal protection of the laws.”
Today, most of us would regard that plainest of plain language to be plainly understandable. “Any person” means … well … any and all individuals. Those who in 1868 thought of women as other than persons were, not to put too fine a point on it, mistaken. History and the arc of the moral universe taught us long ago that equal protection of the law includes, for example, the right to own property, a right occasionally denied to women in the nineteenth century.
Conservatives almost uniformly hate the liberal idea of a “Living Constitution,” a framework for which settled principles are applied to new and modern views.
For many years, conservatives held that applying equal protection to women was a modern construct. You might privately think that “any person” would include women and that “equal protection” would include such liberties as the right to own property. And you might be right by today’s standards. But that can be considered by conservatives as an expansion of those words beyond their original meaning.
Those who believe in “Original Intent” might object to that expansion. According to this strain of conservatism, lawmakers who wrote and passed the 14th Amendment to the Constitution intended the words “any person” to mean “any men,” no more no less. And you could discover that intention by carefully examining old transcripts of legislative debate.
Justice Scalia went even a little beyond that. He was not only an originalist, he was a textual originalist. He was not interested in what those who wrote an amendment, or a law, or the Constitution itself, meant by their own words. He would not consider what those who voted for those documents thought they were ratifying. He was interested only in what the text said, and what the words in that text would mean to a reasonable person at the time the Constitution was ratified and, later, when it was amended, or when a law was passed.
According to this logic, reasonable people in 1868 did not think of equality for women as reasonable, and so “equal protection of the laws” for “any person” did not mean that women were equal under the law. And since it did not mean that then, it does not mean that now. At least not as it pertains to the Constitution and its Amendments.
This is a comfortable way of thinking for conservatives. If words and ideas only mean what they meant in centuries past, the law will never serve as a guiding light for the future. Rather it will remain a strong bulwark against progress.
Thus, Justice Scalia could argue against equal protection for gay people with a simple question.
When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?
But the Scalia standard, how reasonable people at the time of passage would view the text of any law, devolved in his later years.
Women who had suffered blatant discrimination on the orders of the top executives of a large corporation sued as a group. The law allowed a group to sue as a class in cases of corporate discriminatory policies. They were told by Justice Scalia that they could not sue collectively. The corporate discrimination was based on verbal instructions. Since there were no written instructions, there was no policy.
No policy, no suit. Case dismissed.
He rejected voting rights as racial entitlement. He reasoned that voting rights protections had been passed by large majorities in Congress. That passage proved racism was no longer a significant threat to voting rights. Therefore the law was not needed and was unconstitutional.
Passage of the law invalidated the law.
He argued that the 8th Amendment prohibition against cruel and unusual punishment did not prohibit torture itself if it was inflicted on someone who was not actually convicted of a crime. If the victim of cruel and unusual treatment had simply been arrested, detained, then there was no violation.
When he’s hurting you in order to get information from you, you don’t say he’s punishing you. What’s he punishing you for?
– Justice Antonin Scalia, interviewed by Lesley Stahl April 27, 2008
A man who had been falsely accused, then convicted, and who had come within days of execution, was eventually released. He sued the prosecutor for deliberately concealing evidence that would have proven his innocence. If that sort of concealment was a pattern, the prosecutor would be personally liable for his misconduct. In fact, the prosecutor was eventually shown to have concealed evidence in other cases against other innocent people, many people, as well. A lot of innocent folks were sent to prison as a result.
Antonin Scalia voted against the innocent man, and in favor of prosecutor. You see the prosecutor had concealed different kinds of evidence in each case. So the pattern of concealing evidence was not actually a pattern at all.
There was, however, a discernible pattern in the trajectory of Antonin Scalia’s legal reasoning.
He rejected the modern meaning of old texts, even when that meaning seemed clear, since he thought of modern views as a distortion. He rejected efforts to see what those who wrote and ratified the law meant by the law. He preferred to examine how a reasonable person living at the time would see the law.
Over time, the word “reasonable” evolved into a conservative living word, as Justice Scalia’s reasoning became an endless search for misplaced commas and double entendres.
The inevitable legal temptation proved irresistible.
Antonin Scalia was himself the most reasonable person he had ever known. “Reasonable” became, as it had to become, identical with Scalia’s image of a time-transplanted version of himself. How would he have considered the words contained in legal text, had he lived when laws and amendments were passed?
He was generous in his interpretation, as he searched diligently for the most reasonable way to see the law. He eventually discovered the simplest, most effective way of finding that reasonable view.
He simply consulted the darkest corners of his own soul.