Scalia to TSA Gropers: Women are not protected by the Constitution, so Grope Away!

[bananas]

link: http://www.cbsnews.com/8301-503544_162-20027240-503544.html

[Syrinx]

1. text of section one of the 14th amendment

I don't understand how this does not apply to women.

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.

[jberryhill]

2. Fat Tony looks at it this way

1. When was the 14th Amendment rarified?

2. When and how did women get the national right to vote?

3. If the 14th Amendment granted women equal rights, why did it require another Amendment decades later to guarantee women the right to vote?

[BadgerKid]

4. So...historical context trumps the sum of laws up to today?

I assume most people believe the laws in effect today are the sum of the laws prior to today. I understand Tony's job is to interpret the Constitution, but is there such a large difference between law and Constitutional logic?

I guess this presumed logic of Tony's gives us permission to interpret, e.g., the Bible, in historical context, too, rather than what is literally stated?

[jberryhill]

5. Yes, that's pretty much it

What's interesting about the "original intent" gang is that they are selective in how they apply their own rules of interpretation.

But, to Scalia, every word in the Constitution is frozen in its historical context. It is a silly approach on many levels, since the point of amending the Constitution IS to change things in a particular direction. That this change may have met resistance or not been fully appreciated at the time, is beside the point for the strict constructionist gang.

They will also argue that it is inconsistent to promote an Equal Rights Amendment while at the same time arguing the 14th Amendment already does the same thing. The problem with that argument is that an ERA is needed to prevent them from reading the 14th Amendment the way they do.

But on things like the 8th Amendment (cruel and unusual punishment), these folks will look to whatever was usual at the time it was written instead of what is "cruel and unusual" because, again, each word is fixed in its historical context.

That's why a lot of his opinions consist of historical surveys instead of legal analysis to date.

[badtoworse]

6. You have raised an interesting point

Unless Fat Tony's point has some validity, why was the 19th Amendment necessary? Couldn't the Suffragettes have just sued for the right to vote under the 14th Amendment?

[jberryhill]

8. The answer is...

...in Section 2 of the 14th Amendment.

The fact that the 19th Amendment was required in order to guarantee the right to vote is an indication that, at that time, the 14th Amendment was not understood to confer equal rights on the basis of gender.

That observation is trivially true. Scalia simply uses that type of observation as a guide to application of the 14th Amendment.

Another way of putting it is there is a difference between observing:

1. "The 14th Amendment was not understood to cover women for a long time"

and then concluding

2. "The 14th Amendment should not be understood to cover women"

Drawing that conclusion is really kind of an odd thing for a judicial mind to do since even at common law, concepts will evolve with context. It is a judge saying "jurisprudence is bad".

Intent and historical context can be useful tools, but they are not the only tools in the box.

[badtoworse]

15. Thanks for pointing this out

I reread what Scalia said and I did not see where he said it should or should not cover women. I would interpret his statements to mean that the 14th Amendment is silent about women. If that is true, then the current view that 14th Adment does indeed cover women actually evolved from subsequent jurisprudence.

[Unvanguard]

12. That doesn't work even accepting the methodology.

The problem is that everyone agrees that the Fourteenth Amendment applied to African-Americans, but they didn't get the right to vote until later, with the Fifteenth Amendment, either (and Section 2 of the Fourteenth clearly contemplates them being denied it.)

The reason, in both cases, is that the Framers of the Fourteenth Amendment didn't think political rights like voting (or, for that matter, the structure of social institutions like marriage, which was extremely sexist in most places in the US) were covered under the "equal protection of the laws."

[jberryhill]

16. Right, but that's all part of the "historical context" for these nitwits

The morning after an amendment is ratified is a frozen moment in time for them.

When 18 year olds were given the right to vote, it ONLY meant people who were 18 that year.

So, of course, nobody under around 56 years old should be voting today.

[dr.strangelove]

7. Sadly, he may be correct

We made this very same argument when pushing for the ERA to be ratified. If the 14th grants equal protection status to women, why did we need the 19th amendment to grant suffrage. The simple answer is, the 14th does not do it. In fact, the next section of the 14th actually limits voting in terms of districting, to only men. How can an amendment do something in part 1, yet violate part 1 in part 2. It probably can't. I think this is one of the many reasons why the failure to pass the ERA was a travesty. We were all told the reasons the conservatives did not want the ERA was because it was not needed, that it only said something that was already true. But we knew these same conservatives were thinking what Scalia was saying. Maybe now we can trot the ERA back out and use a sitting SCOTUS justice was the main reason it needs to be ratified.

[jberryhill]

9. Text of another section of the 14th Amendment

"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."


The 14th Amendment embodies unequal rights for women.

[Unvanguard]

13. It embodies equal rights for women at the same time.

That is the irony of Sec. 1 and Sec. 2. The Framers of the Fourteenth Amendment were genuinely committed to some notion of legal equality for all people, including women: they could have been excluded from Sec. 1 simply by saying "any male person" instead of "any person", but they weren't. The trouble is that what for them constituted "legal equality" was substantially narrower than what it constitutes for us. Hence their tolerance of, e.g., anti-miscegenation laws, which even Scalia thinks are unconstitutional. (Note also that children and non-citizens, as well as women, are excluded in the provision you mention, but are included implicitly under the protections of Sec. 1.)

It is simply false to state that the Fourteenth Amendment "only" covers discrimination on the basis of race. The Framers were not idiots and could have narrowed the scope of people it protected had they wanted; the fact that they do, as you point out, in Sec. 2 only underlies this point.

[jberryhill]

14. Actually, you hit on a key point of Scalia's idiocy

You are right. While Scalia says, "Why don't you all just settle these issues with appropriate legislation?" he wouldn't find such legislation to be Constitutional for a variety of reasons.

Taking him at his word is a fool's errand.

[Enthusiast]

3. Dick Cheney's duck hunting buddy.

That is all.

[lumberjack_jeff]

10. The link isn't about TSA. n/t

[badtoworse]

11. The 14th Amendment doesn't specifically protect anyone's junk

The 4th Amendment, however, does.