Equal protection under the law: for men only

The 14th amendment provides for equal protection under the law. It is a fundamental component of our constitutional republic that prevents simple majoritarian abuse of any group.

Here's what it says:

"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."


But according to Supreme Court Justice Antonin Scalia, "citizens" and "persons" do not include women. Quite remarkably finds that the 14th amendment, which doesn't mention race, is about race and only protects on the basis of race.

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. Nobody ever voted for that….Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about.

Writing at the blog Hunter of Justice, lawyer Nan Hunter responds,

But let's get real - the bottom line import of this approach to constitutional interpretation (shared by many in addition to Justice Scalia) is that it eviscerates constitutional protection for marginalized and unpopular minorities, allowing (often temporary) majorities to scapegoat them for evils real and imagined and to impose legal disabilities unrelated to any legitimate, much less proportional, public goal.

Under Scalia's originalism, the only recourse for ending even the most oppressive law would be for a legislative reversal, ie, for a new majority rule….the point of a constitution as a charter of government is that some principles are structural, not merely that we the people have agreed that a few mostly 18th and 19-century practices are now off the table….

Who benefits from this mode of constitutional interpretation? Well, to ask the question is truly to answer it, wouldn't you say?

And from the HuffPo:

Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

What this also does is telegraph how Scalia would view Prop8, should the case come to the SCOTUS. A majority of voters in CA decided to marginalize an unpopular minority. That's perfectly fine with Scalia. It enshrines a remarkable power in the mob. As discussed by Robert Cruickshank, whom I also quoted in the previous post:

One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.

In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected. The right clearly wants to undo that convention, and give the people the power to trump the Constitution by mob rule.

I think Scalia's is quite a dangerous viewpoint that undermines the integrity of our republic.