A Justice And His Enemies


Supreme Court Justice Antonin Scalia has offended the cultural guardians again. In an interview with California Lawyer, Scalia denies that the 14th Amendment forbids discrimination against women and homosexuals.

“Certainly the Constitution does not require discrimination on the basis of sex,”replied the justice to a query on the subject. “The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey, we have things called legislatures, and they enact things called laws.”

Stern lectures by MSNBC’s Ed Schultz and’s Joan Walsh inevitably followed. “Scalia might need to take a refresher course on the Constitution he’s sworn to uphold,” inveighed Schultz. “It’s ridiculous,” Walsh told Schultz. “He’s writing more than half of the country out of this protection.” She continued, “This is a minority crackpot position. I’m sorry. He is said to be respected on the bench. He’s an ideologue and he’s a bully. This will not stand.”

But the conservative jurist isn’t the only one to have held this opinion on the 14th Amendment. Many of Joan Walsh’s presumed heroes did, too.

“The suffragists disagreed among themselves as to how they ought to view the 14th Amendment, which inserted the word male into the United States Constitution for the first time,” historian Aileen Kraditor explained in “The Ideas of the Woman Suffrage Movement.” “Some of them, including [Susan B.] Anthony and [Elizabeth Cady] Stanton, thought it would be better if the amendment were defeated, while others, including [Lucy] Stone, argued that if women could not win their political freedom, it was well that Negro men could win theirs.”

It’s crucial that no 19th-century feminists took Joan Walsh’s position that the 14th Amendment banned sex discrimination. Some were grateful that black men had won political rights; others condemned the amendment for excluding women. But there wasn’t a third contingent telling other feminists that they had gotten it all wrong, that abolitionist women hadn’t been betrayed, that the amendment had really addressed women’s political rights. Put another way, the feminists’ cotemporaneous interpretation of the 14th Amendment is identical to Justice Scalia’s interpretation nearly 150 years later.

Is Joan Walsh ready to call them crackpots, too?

Evidence suggests that succeeding generations of feminists, if not Joan Walsh, reached the same conclusion as Elizabeth Cady Stanton, Lucy Stone, Susan B. Anthony, and Antonin Scalia. The 19th Amendment was itself an effort to insert into the Constitution the language that feminists felt missing from the 14th Amendment. Women’s clubs, scholarships, schools, and job preferences indicate that sex discrimination is alive, well, and not the business of the federal government. And anyone buying the idea that the 14th Amendment forbade discrimination against women would have found the provisions regarding sex within the Civil Rights Act of 1964, Title IX, and the proposed Equal Rights Amendment wholly superfluous.

Why such fervor to pass laws and constitutional amendments supposedly redundant to what is already in the Constitution?

The formula for ends-justifies-the-means fanatics is clear. If you don’t like a law’s wording, amend it by wish. This is so much easier than such arcane processes as repeal or amendment. Even Stanton and Anthony, staunch opponents of the 14th Amendment, claimed within a few years of its passage that it included the very protections that they had originally condemned it for excluding.

When pesky literalists object to wishful constitutional law by reciting text, remind them that laws written more than 100 years ago are necessarily incomprehensible. Who’s to say the Reconstruction Senate didn’t intend the 14th Amendment as a proto-Equal Rights Amendment — just as who’s to say Mark Twain wouldn’t want us to redact the bad words from Huckleberry Finn? Pretend the Constitution says what you want it to say and call someone a hater when they say otherwise.

Shame, not reason, is the more effective method of persuasion. Fanciful legal interpretation, not the legislative process, is the easiest manner of reform. Loudness beats logic.

Scalia’s controversial interview provides the ultimate verdict on projecting one’s desires onto the ancient document. “[T]he Constitution tells the current society that it cannot do [whatever] it wants to,” the justice explained. This includes, presumably, changing the Constitution by socialization rather than amendment.