What Justice Scalia Got Right — and What He Got Wrong — About the Equal Protection Clause

 

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.

>

More On This Topic:

YOO > Does the Constitution Protect Against Sex Discrimination?

There are 7 comments.

  1. John Yoo Contributor

    I just want to add a hear! hear! to Richard’s comment, on two grounds.

    1. Richard is right, it seems to me, that the cause of outlawing gender discrimination is a good example of my point that the expansion of rights such as these should take place in the political process. Congress was well ahead of the courts here. There are some very good scholars who argue that this is really what happened with racial discrimination too — that it was really Congress in the 1964 Act and the Johnson administration that pushed through desegregation, not Brown v. Board.

    2. I think the whole question is better analyzed as a privileges and immunities issue. Our thinking about the matter is warped by the weight that the Equal Protection Clause is given. My reading of the history is that the equal protection clause was about ensuring that state law enforcement did not under-protect the freedmen in the South — for example, not prosecuting the murderers of newly freed slaves in the South. The question of equal civil rights is not about enforcing the laws already on the books equally, but about whether they fall within the privileges and immunities that all citizens should enjoy throughout the country. That would, in fact, be a better ground for a gay right to marry than Judge Vaughn Walker’s finding, under the Equal Protection Clause, that the millions of Californians who voted for Prop 8 are, essentially, bigoted.

    • #1
    • January 6, 2011, at 2:37 AM PDT
    • Like
  2. Profile Photo Member

    I don’t understand why this is a salient issue in the first place.

    The Constitution doesn’t ban sexual discrimination. But it also doesn’t prohibit Congress from passing laws that ban sexual discrimination.

    • #2
    • January 6, 2011, at 2:49 AM PDT
    • Like
  3. AmishDude Member

    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.

    How is this “certain”? Just because the courts got it wrong once, doesn’t mean they were right in getting it wrong.

    I think it is clear that the courts ruled wrongly in the above-mentioned cases. I never studied Latin but I don’t think the phrase stare decisis translates to “perpetuating stupidity.”

    • #3
    • January 6, 2011, at 2:57 AM PDT
    • Like
  4. Profile Photo Member
    Richard Epstein: 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.

    If Scalia’s entire argument rests upon this interpretive premise, then how shall an originalist rebut one who simply rejects Scalia’s originalist approach? It seems to me to be alarmingly easily to simply deny the truth of Scalia’s originalist interpretive premise and to suggest that other kinds of discrimination should be prohibited as well. It then becomes merely a matter of whether such an interpretation is good economic policy or not, to be debated by analysts and economists.

    • #4
    • January 6, 2011, at 3:12 AM PDT
    • Like
  5. KC Mulville Inactive

    If we consent to a law for a specific reason, but the law’s language is general enough that it applies to other cases, can we philosophically say that (like it or not) we consented to the general principle? My reflex is to say, yes, because you agree to the text. But I’m not so sure.

    Consider the distinction in language between

    • Promoting “equal protection,” which is a general principle espoused by the 14th amendment
    • Prohibiting specific forms of discrimination (i.e., race) in the 15th amendment.
    If the general principle of “equal protection” already covers all specific forms of discrimination, one wonders, then, why the same legislators (the 14th and 15th amendments were passed less than two years apart) felt that they had to specifically address race discrimination. It seems obvious that they didn’t assume that the general principle covered everything. Remember, the specific case came after the general principle.
    • #5
    • January 6, 2011, at 4:54 AM PDT
    • Like
  6. Good Berean Inactive

    This confusion is in no small part due to the fact that the 14th Ammendment was extraconstitutional in the first place. Most conservative legal scholars I have read have opined that the objectives of the 14th would have been better met through legislation. I find the whole of the 14th incompatible with the “organic” Constitution (the original, unammended text). Another aspect of confusion is related to the understanding of rights as opposed to liberties. In a nation now dominated by statist humanism, the rights of man have become transcendant over the liberties of the individual.

    • #6
    • January 6, 2011, at 7:52 AM PDT
    • Like
  7. Matthew Osborn Inactive

    From the point of view of the layman, the constitution established the powers that the government could exercise. Discrimination is not one of those powers; therefore the government itself may not deny its services to any citizen except those who transgress the laws of the land.

    We have somehow managed to transfer governmental restrictions into restrictions upon citizens and given the government full reign to discriminate. As a result, groups of citizens now use the power of government to discriminate against other citizens on the basis of race, ethnicity, wealth, sex, marital status, personal habits and so forth.

    Religion, in its broader sense, has permeated our laws to the detriment of all. Morality should be assumed by the government, not enforced by it. When immoral citizens (as judged by his fellow citizens) transgress morality, discrimination becomes the only just means to maintain morality. Instead, our government has now assumed the role of ‘Chief Moralizer’ and discriminates with wild abandon.

    This does not bode well for civilization.

    • #7
    • January 6, 2011, at 10:35 AM PDT
    • Like