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There He Goes Again - Scalia

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groovedaddy Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-05-11 12:46 PM
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There He Goes Again - Scalia
Justice Antonin Scalia has a knack for drawing unflattering light to himself and the Supreme Court. Recall, for example, when he refused to recuse himself from a case involving the energy task force run by Dick Cheney, his friend and duck-hunting companion, when Mr. Cheney was vice president.

Justice Scalia is now getting attention for his outlandish view, expressed in an interview in the magazine California Lawyer, that the promise of equal protection in the Constitutions 14th Amendment does not extend to protecting women against sex discrimination. Legislatures may outlaw sex discrimination, Justice Scalia suggested, but if they decided to enact laws sanctioning such unfair treatment, it would not be unconstitutional.

This is not the first time Justice Scalia has espoused this notion, and it generally tracks his jurisprudence in the area. Still, for a sitting member of the nations highest court to be pressing such an antiquated view of womens rights is jarring, to say the least.

No less dismaying is his notion that women, gays and other emerging minorities should be left at the mercy of the prevailing political majority when it comes to ensuring fair treatment. It is an originalist approach wholly antithetical to the framers understanding that vital questions of peoples rights should not be left solely to the political process. It also disrespects the wording of the Equal Protection Clause, which is intentionally broad, and its purpose of ensuring a fairer society.
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hlthe2b Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-05-11 12:51 PM
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1. So, finish the thought, NYT editorial board....
Scalia ought to have his disgusting ass thrown off the court. It is at least 24 years past due.
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groovedaddy Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-05-11 12:54 PM
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2. Amen. Think his religious views influence his decisions? ;-) n.t
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dflprincess Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-05-11 01:25 PM
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3. The 14th Amendment doesn't protect women but he does think it protects corporations

What an incredibly twisted mind.
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The Backlash Cometh Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-05-11 01:46 PM
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4. He doesn't do anything to dismiss the prejudice that people hold
about Italian-Americans. His reasoning is in the realms of arrogant and abusive. If I were an Italian American, I would be embarrassed that this man represents my cultural background.
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happyslug Donating Member (1000+ posts) Send PM | Profile | Ignore Tue Jan-11-11 04:37 PM
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5. Have you ever READ the 14th Amendment?
Edited on Tue Jan-11-11 04:55 PM by happyslug

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Section 2.
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.

(Bold area highlighted by me)

The 14th is the only place in the US Constitution that uses the term "Male". Even the 19th Amendment, which gave women the right to vote, avoids the term male and female (19th reads as follows The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.)

Do to the above language the Women's Rights movement of the 1860s opposed the 14th. The 14th did not prohibit women from voting, but if a state said women could NOT vote, that would NOT be grounds for sanctions, but if a state forbade a man from voting based on race, that state would be sanctioned.

Just pointing out Scala's position has support based on the clear language of the 14th.

While I disagree with Scalia on the 14th and Corporations as persons and his approach to the issue of sexual discrimination under the 14th, the court have long permitted different classes of people to be treated differently under the law provided that the difference in treatment had some basis in fact as opposed to just prejudice. This was made clear in Reed vs Reed, 404 U. S. 71, see

In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. Barbier v. Connolly, 113 U. S. 27 (1885); Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 (1911); Railway Express Agency v. New York, 336 U. S. 106 (1949); McDonald v. Board of Election Commissioners, 394 U. S. 802 (1969). The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." Royster Guano Co. v. Virginia, 253 U. S. 412, 253 U. S. 415 (1920). The question presented by this case, then, is whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state object that is sought to be advanced by the operation of 15-312 and 15-314.

Now in Reed, the Court ruled it violated the 14th Amendment for a State to favor males over females when it came to administrating an estate of a deceased relative UNLESS there is some sound reason for such a preference (And the court could NOT think of any sound reasons and rejected the Idaho's Supreme Court position that avoiding litigation over who should be appointed the Representative of the Estate was enough of a reason). It is a very narrow use of the 14th in sex discrimination cases, but appears to be the case Scalia is looking at when he made his statement.
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