Tuesday, January 04, 2011

Scalia Is A Double-Edged Sword

I recently praised Justice Scalia for his vigorous defense of free speech, but now I must criticize him for his less-than-consistent interpretation of the 14th Amendment. Via tristero comes the revelation that Scalia believes that it provides no protection against discrimination on the basis of gender or sexual orientation.

Scalia, the father of "original public meaning" originalism, has somehow convinced himself that the following doesn't cover women:

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.

His rationale?

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. Nobody ever thought that that's what it meant. Nobody ever voted for that

Which seems to be a pretty clear example of intentionalism, a doctrine which Scalia allegedly rejects... except when its inconvenient. Boo hiss.

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