The Problem With Antonin Scalia

Mr. Injustice Scalia recently, and notoriously, commented that in his opinion women are not entitled to equal protection of the laws under the 14th Amendment's Equal Protection Clause. The argument, such as it is, runs thusly: the framers of that Amendment in 1868 did not consider women people within the scope of that phrase; therefore it does not include them. This attitude has clued me in to the problem with Antonin Scalia.

In my introductory Constitutional Law class, we were told, and/or we decided, that there are five proper sources of interpretation in constitutional law: text, structure, original intent, precedent, and policy. And these five sources are ordered. The idea is, you look to the text; if the text isn't conclusive, you look to structure and relationship; if the structure doesn't clear things up, you check on the original intent; if the original intent is murky, you look at subsequent precedent and interpretations; and if there are no compelling precedents, then at this point you take crude policy considerations into account.

But consider Scalia's argument: the text of the Equal Protection Clause says that "No state shall...deny to any person the equal protection of the laws." Women are human beings, and therefore typically considered people. So the clear text seems to say that women get equal protection just as much as anyone else. And if that weren't enough, it's also clear that the document knows how to discriminate against women when it wants: a later section of the very same Amendment only penalized states for disenfranchising men, explicitly allowing them to disenfranchise women. Indeed, the suffragists objected to that bit. So text is clear, and structure is clear.

But Scalia says, wait! The people who framed this amendment were a bunch of sexist prigs, so despite the fact that the text of the Amendment which is in the U.S. Constitution clearly seems to prohibit denial of equal protection to women, we must bow to their (supposed) sexism. He is placing original intent above the text of the Constitution. He's got the order wrong. Perhaps the Reconstruction Congress did think women weren't worthy of equal protection, but they still enacted a law, an Amendment, saying that they would receive equal protection. To use original intent as a guide to interpreting the open-ended parts of the document is one thing; to claim that original intent should take precedence over subsequent precedent is one thing; but to claim that original intent trumps the clear text of the document is entirely another. It is to destroy the written character of the Constitution: the whole point is that nothing trumps the clear text of the document. You can't plead sloppy lawmaking, if meaning to enact Law X you instead enact Law Y. If you then realize your mistake and have the votes to repeal your error, fine, go ahead, but don't claim that black is white because you meant to paint the room white instead.