Justice Antonin Scalia’s recent pronouncement that women are not entitled to constitutional protection on grounds of sex has engendered a huge backlash from much of the constitutional establishment. John commented on it here, focusing on originalism, I will focus on the language of the 14th amendment’s Equal Protection Clause.
Justice Scalia’s position rests on a form of historical originalism that regards the collective intentions of the parties who passed the amendment as the best evidence of its scope and meaning. All the pressure at that point was on discrimination on grounds of race, so that it would be difficult, if not impossible to find a single scrap of evidence that indicated sex discrimination was ever a target of the Amendment.
The Justice could strengthen his case by noting, not coincidentally, that the first decision to find that the Equal Protection Clause was the 1971 decision in Reed v. Reed which was decided only seven years after the Civil Rights Act of 1964 banned sex discrimination in employment. There is much to be said for the position that the constitutional determination followed the political Zeitgeist.
Yet, then again, there is a good deal that can be said, at least within limits for the other side of the proposition. The equal protection clause reads quite simply that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.’
There is within that provision absolutely nothing that refers to race as the sole ground of distinction. Indeed many modern cases are prepared to allow all sorts of challenges to legal distinctions between any two groups for any reason. Thus the current law allows partnerships to challenge laws that apply to them but not to corporations, even though the Equal Protection Clause does not contain a syllable about either type of business, neither of which is self-evidently a (natural) person to begin with. So there is certainly some elasticity in the joints of the Clause.
At this point, however, it becomes critical to ask just what kinds of action the Equal Protection Clause covers. The modern defenders of the Clause insist that it extends to two situations. First, that it applies to the federal government, when by its terms it is limited to the states. Second, they assume that “equal protection” is synonymous with “equality of the law”.
The first of these assertions comes out of the racial desegregation case of Bolling v. Sharp, where the point was just asserted and not argued for. Justice Scalia should have to dissent from that view, and for good textual reasons.
The second point is more subtle. The Equal Protection Clause has to be read in context of both the Privileges or Immunities Clause and the Due Process Clause of the Fourteenth Amendment. In general, I believe that it was meant to cover equality of treatment under the criminal law, so that black defendants could not be treated, for example, more harshly than white ones. So confined to the criminal processes, the extension of equal protection on grounds of sex makes sense, both ways. Neither women nor men should be subject to conviction by a preponderance of evidence if the other group is not.
So in a sense the difficulty is this: Justice Scalia is wrong if the clause is limited to the cases that it was intended to cover. But the modern feminists are wrong if they think that the Clause has sufficient bite that it can force, for example, the state of Virginia to integrate by sex its military academy, as Justice Ruth Ginsburg held in United States v. Virginia in 1996.
There is a real moral here. Originalism may be a fine judicial philosophy but it requires a great attention to detail that in this instance was supplied neither by Justice Scalia on the one hand or his numerous constitutional critics on the other.