Scalia: What rights for women?

January 7, 2011 • 3:38 pm

It’s a damn good thing that there aren’t five Scalias on the Supreme Court (there are 3.5 Scalia-equivalents: Scalia himself, Thomas, Roberts, and 0.5 Alito).  Unlike Scalia, Thomas at least has the virtue of keeping his yap shut (his wife does the dirty work).

This month’s California Lawyer has an interview with Scalia that is surprising even by his stone-age standards.  Remember that Scalia is an “originalist”, who believes that no rights inhere in Americans except those explicitly outlined in the Constitution or obviously intended by its authors.  In the interview, The Great Originalist shows the audacity of a dope, asserting that the Constitution doesn’t protect women against gender discrimination.  Here are a couple questions (in bold) posted to Scalia along with his answers (plain type).

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. 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. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

And what if some states don’t pass laws allowing those rights?  And what about gays?  If the Framers thought anything about the Constitution and the Bill of Rights, it was that they were meant to guarantee certain rights that were universal and could not be touched by state law.

I guess Scalia took seriously the Declaration of Independence’s assertion that “all men are created equal.”  It doesn’t say anything about women.

But it does to me.  Here’s part of the Fourteenth Amendment:

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.

I’m no constitutional lawyer, but to me “equal protection of the laws” implies “no discrimination on the grounds of gender alone.” How can anybody deny that society and its moral standards moves on? That is the big problem with originalism.  Originalism isn’t really a philosophy; it’s a philosophical ploy to infuse right-wing politics into law.

And this (my emphasis in his answer):

What do you do when the original meaning of a constitutional provision is either in doubt or is unknown?

I do not pretend that originalism is perfect. There are some questions you have no easy answer to, and you have to take your best shot. … We don’t have the answer to everything, but by God we have an answer to a lot of stuff … especially the most controversial: whether the death penalty is unconstitutional, whether there’s a constitutional right to abortion, to suicide, and I could go on. All the most controversial stuff. … I don’t even have to read the briefs, for Pete’s sake.

Now there’s a justice who considers all the arguments. What a fine scientist he would make!

On the less important topic of  a certain comestible—one about which I have some knowledge—Scalia’s opinion sucks there, too.

You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?
I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas—it’s not pizza. It’s very good, but … call it tomato pie or something. … I’m a traditionalist, what can I tell you?

Infinitely better than Chicago pizza?  If you’re an originalist, any pizza concocted after the first Ur-pizza is simply not a valid pizza. To my mind, a Chicago deep-dish or stuffed pizza is hands-down better than a greasy triangle of the New York City stuff.

The most infuriating thing about Scalia, Thomas, Alito, and Roberts is that they’re all relatively young.  They and their stinking legal opinions will be with us for decades.

112 thoughts on “Scalia: What rights for women?

  1. Scalia is a total tool who’s unfit to work the counter at a fast-food establishment, and he’s certainly unfit to be a judge.

    Re pizza: Chicago pizza is a class unto itself: it’s not pizza by Italian standards, but it’s very good anyway. I always have some Gino’s or Giordano’s when I visit Chicago.

  2. I’m no constitutional lawyer, but doesn’t “equal protection of the laws” imply, even to an originalist, “no discrimination on the grounds of gender alone”?

    I guess that depends on what you mean by “person”.

    Oh man, now you’re going to start a pizza war. I with you on your opinion, although there are also plenty of good thin crust places in Chicago that still kick the crap out of NY. Washington pizza? WTF?

    1. I guess that depends on what you mean by “person”.

      That’s always been the loop-hole in any legal system. Thou shalt not kill? Well, heathens aren’t really people. Genocide? Well, they were sub-human, don’t you know.

      In Asimov’s stories, eventually even the three laws of robotics could be circumvented by redefining what a “human” is.

  3. Boy, Jerry, you’ve finally gone off the rails with your crazy, biased, unhinged opinions. Chicago pizza better than New York? Chicago deep dish is like tomato soup- fuhgeddaboutit. As for DC, there’s a pizza place in Bowie, in Prince George’s county, run by a family exiled from Jersey– it’s great!

  4. The problem with the “originalist” view of the constitution is the inevitable, vehement resistance to cultural paradigm changes. It also does not account for the very real fact that words have the uncanny ability of changing their meaning over time.

    The “non-originalist” view has it’s problems, I’ll admit that forthright. But what it does account for is the natural cultural evolution of a country. Especially a multicultural nation like America, who owes its existence to immigration and cultural diversity.

    Scalia misses the point of “equal protection” and “due process.”

    1. This, particularly as someone who teaches language and want to study them in Grad school, has always bugged me about this originalist notion.

      Unless Scalia was immersed in 17th Century American English he’s just guessing at the meaning of things.

    2. “The problem with the “originalist” view of the constitution is the inevitable, vehement resistance to cultural paradigm changes.”

      I don’t think they have to be connected at all.

      “It also does not account for the very real fact that words have the uncanny ability of changing their meaning over time.”

      I disagree that that’s a problem. Why should a country have its laws chained to whatever dictionaries, popular culture, etc. change the meaning of words to? If the meaning of “speedy trial” shifted to mean “summary execution” in our language that should not touch the 6th Amendment’s legal application one iota.

      1. Your reply indicates you get it but misunderstood the person you were replying to (and Scalia I think).

        Because words change an originalist like Scalia will inevitably fail to understand the constitution in the same way that someone in his position in the 18th Century would.

        Your own reply suggests that the idea conveyed by the particular amendment is more important than the words written on the paper. Scalia thinks the words are clear and he understands them as they were written over 200 years ago.

    3. It is worse than that. We say equal protection applies to gender differences because we understand that gender is irrelevant to one’s status as a citizen and because government has an obligation to enact and enforce laws that have ethical merit. We understand that people who thought otherwise in the past did so because they endorsed false, negative stereotypes. So his refusal to apply this insight to the law because it wasn’t the consensus in the past is a refusal on his part to take responsibility for the real world ethical consequences of his decisions. Its a basic ethical failure on Scalia’s part.

    4. Only ONE problem? The whole idea is absurd. The Constitution and its amemdments were written by committee and agreed upon by many different people. Trying to determine intent from broad terms that the original authors and implementors couldn’t agree on decades to centuries after the fact is pretty much an inkblot test.

      1. That’s actually more of a criticism of the judicial philosophies opposed to Textualism than it is to Textualism. Textualism *ignores* the intent of the legislature where other legal theories incorporate it. Textualism focuses on the determining the most reasonable effect of the legal language used. More liberal judicial theories focus more on the intent of the legislature or the problem they intended to address.

  5. Is he at least consistent and is against the private ownership of any arms that did not exist at the time of the amendment? And what is his stand on the rights and powers of states that did not exist at the time of the constitution and did not enter the USA as an independent entity?

      1. “You do not need the Constitution to reflect the weapons technology of the current society. Certainly the Constitution does not require discrimination for non-muzzle-loading, non-black-powder weapons. 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. If the current society wants to permit breech-loading weapons, cartridge shells, and semi-automatic fire, hey we have things called legislatures, and they enact things called laws.”

  6. A constitutional deontologist is code for “fearful control freak.” The deep-dish defenders of bigotry require commandments to be indelibly etched because they never looked up the word “expediency” via Merriam-Webster Online.

  7. There’s a C-span video in which Stephen Breyer and Scalia debate their extremely different approaches to the constitution at some lawyer’s gala in D.C. It’s pretty funny to watch Breyer react to Scalia’s allegations that liberal judges “make it up as they go along,” since that’s what Scalia does. He just does it under the banner of “originalism.” He openly admits this, though he doesn’t think of it as making things up, but it most certainly is. He admits it right there in the bit Jerry quoted: “…you take your best shot.” In other words, you interpret. Scalia pretends that he’s doing something radically different from what Breyer and the liberal Justices are doing, but he is not. Not really. At that gala, Breyer actually tells him that, repeatedly—tells him that, hey, it really seems we’re both looking to interpret and apply the values in the constitution to our time and circumstances, but you’re just saying that that’s not what you’re doing [I’m paraphrasing liberally and from memory]—but Scalia would have none of it. He speaks as if he has the most consistent jurisprudence imaginable, but it’s frequently, and often glaringly, inconsistent. (Citizens United was but one example.)

    To my mind, a Chicago deep-dish or stuffed pizza is hands-down better than a greasy triangle of New York City pizza.

    Oh boy. I concur, but you realize you’ll probably start more arguments with that remark than you will with anything about the Supreme Court!

    1. If Scalia doesn’t feel the need to read, what makes you think he’d be up to listening?

      I took two things from this excerpt: Scalia’s opinions are carved in the stone of his preuppositions, and Dr. Coyne really needs to check out New Haven pizza.

  8. The tail end of the SCOTUS RATS.


    As for which pizza’s better? Depends on what I’m in the mood for. Sometimes deep dish is fine. The best in the world used to be made at a place called Rosanne’s in the Riverwest neighborhood of Milwaukee. Alas, they’ve been gone for many years.

  9. If women want to be seen as equals in Scalia’s eyes, they need to file Articles of Incorporation.

    And I’m not sure if Alito is only a .5, some people call him Scalito…

  10. Well,his crimes against democracy are legion-stealing the 200 election,citizens united,this whole worshiping the constitution as something biblical,when it was writ by rich,slave-holding white men,who didnt know what a gene was(or jeans)thought animals never went extinct.I could go on all night.The whole bruhaha withe these so-called conservatives is just one distraction after another to keep the masses minds off the prize so they dont see the wizard behind the screen.Who runs this country-who runs it around?

    1. Hey, don’t sell the Founding Fathers too short. They were some pretty sharp guys for their time- yes, most of them owned slaves, that was a black mark. They may not have known what a gene was, but neither did Charles Darwin. And as a rule, they didn’t think that the bible was literal fact and made it a point not to set up a state religion. And, of course, Thomas Jefferson was one of the few presidents who showed an interest in advancing science for its own sake.

      1. They were ok for their time.The point is,what Tea party folks are doing with it.They are using it as a tool to distract the people from talking in a serious way about real issues that matter to them ,their children,and the future of this blue jewel floating in space.

  11. My contempt for Scalia cannot be properly expressed in polite company.

    As for pizza, I will concede the theory that Chicago-style pizzas have evolved significantly from the ancient Neapolitan dish. And I do enjoy pizzas made according to tradition.

    But though the Chicago-style pizza has evolved sufficiently that some question whether speciation has occurred, one cannot escape the fact that the Chicago-style pizza is far better adapted to gastronomic ecstasy than any of its cousins.

    That floppy New York pizza never got me excited. Yeah, I’ve had some good New York pizza, but I’ll take Chicago-style any day of the week.

    If you really want the best pizza, make your own. You get to make it exactly how you want, whatever style, with whatever toppings.

    But don’t buy the sauce or the dough. Both are easy to make, and the results are far superior to anything you’ll get at the store.

    Of course, you need to use fresh, not canned, tomatoes for the sauce. Grocery store tomatoes are generally pretty sad, but, even still, the sauce they make is superior to canned. When I get my garden going, I’ll be planting lots of tomatoes.

    As with all breads, start by grinding the wheat — just dump it in the hopper of a modern electric flour mill and less than a minute later you’ve got fresh-ground flour that’ll blow you away.

    If you have a good source of ground pork, make your own sausage, too. That’s as easy as mixing the ingredients, forming into small balls, and frying in a skillet.

    Mozzarella can be made at home, too, but I’ve yet to experiment with cheese making. It’s on my to-do list, though.

    Bon appetit!


    1. Scalia apparently thinks the Chicago-style pizzas have developed enough of an adaptive signature to warrant a different species and genus name– Tomato pie. ;-))

      And the rest of us are now drooling all over our keyboards, Mr. Goren–can we come eat at *your* house? :-))

    2. For that matter, the spousal unit and & spent a couple of years trying to find pizza in Chicago like we had in Italy. Even with many fine Italian neighborhoods, we finally had to give up.

      Geez, it’s so much work to make your own, and I don’t even do it all from scratch. It’s been years since I’ve made it, but I was floored the other week when my parents asked us about the best pizza and the spousal unit said that I make one of the best pizzas she’s ever had. I guess I’m obligated to give it a go again.

  12. Sounds like Scalia is right here. I mean, how do we really know that women are people? Obviously, we can’t ever know that, and anyone who says otherwise is just fooling himself. Besides, we have even more Original documents that clearly demonstrate women don’t have souls, because Eve was made from Adam’s rib. Case closed, Q.E.D.

    1. I generally find sarcasm funny, but in this case I am still trying to get over the fact that a supreme court judge probably wouldn’t get the joke.

  13. As a neurosurgeon, I would call Scalia a glioblastoma multiforme – the worst cancer in the body. Problem is: that tumor usually is dead and gone within six months. No such luck here!

  14. The problem with that view is it doesn’t accept the possibility that somebody could have enshrined rights that they did not fully understand.

    For instance, the 13th ammendment assures equal protection for all persons born or naturalized. That meant that you couldn’t keep someone from voting, even Elizabeth B. Anthony. Just because the people who wrote the clause didn’t stop to think “all persons includes gay people and women” doesn’t mean that it doesn’t. It just means that it didn’t come up in conversation or in their thoughts.

    I’m also sure that nobody stopped and thought “Hey, everybody includes fat, hairy idiots in robes”.

    1. “That meant that you couldn’t keep someone from voting, even Elizabeth B. Anthony”.

      Did Elizabeth Cady Stanton and Susan B. Anthony meld into one person?

  15. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    I have never quite understood — what does Scalia think the Ninth Amendment means? Does he think James Madison was on peyote when he wrote that amendment (but not the others), and the legislatures of all the states were incoherently drunk when they ratified it (but not the others)?

    1. My usual response when debating conservative admirers of Scalia is also to remind them of the Ninth Amendment. The closest thing I’ve ever heard to a substantive response is something along the lines of Bork’s famous comparison of the amendment to an inkblot, covering some meaningful text, the details of which the reader can only guess at. As far as it goes, this is a reasonable statement; the amendment gives no guidance to the courts of how to determine what the non-enumerated rights are. But the usual “originalist” argument (which Scalia has made on numerous occasions) is that since the meaning is so opaque, there must be no additional enforceable rights conferred by the amendment, which is the exact opposite(!) of what the text says.

      I actually agree with the principle that the law should be interpreted only on the basis of what it says. Thus, I find myself sometimes in agreement with Scalia’s legal judgments, even when I think the result is bad public policy. (For example, I think Ledbetter v. Goodyear was rightly decided, on the basis of the law.) Since I sometimes pay attention to these issues, it makes it all the more jarring when Scalia throws his purported philosophy out the window when it would yield a result at variance with his current political outlook.

      1. It has always amazed me that ‘Originalists’ simply ignore the 9th Amendment, when the sentiments of the Founders which engendered the amendment are so easily discovered in the most ‘original’ source there is – the Federalist Papers.

    2. I too think that this amendment is the key here. To me, it makes it absolutely clear that the writers of the constitution did not believe that the constitution gives rights to people, but only guarantees them. People have rights *inherently*, and the constitution and laws are there to protect them.

  16. I have to get this off my chest!


    Were Italian-Americans being enslaved at the time the 14th Amendment was being written?


    The the framers of the 14th Amendment think they were freeing Italian-Americans from slavery?

    No, since it wasn’t happening.

    Does Scalia have a right not to be enslaved?


    He’s an evil moron.


  17. I’m staunchly with Ben in saying that if you want really good pizza, make your own (and invest in a pizza stone.)

    But I’ve been around some, and I will assert that some of the very best restaurant pizza to be had anywhere is made in New Haven, on Wooster Square, at Pepe’s or Sally’s. Really.

  18. Sorry to be the curmudgeon here, but this is so appalling I can’t find any humor in the pizza nonsense. What Scalia believes is truly frightening, and morally and intellectually outrageous. He’s evil.

  19. Second on the Chicago pizza. I live in N.C., but I was born in Chicago. Last year, a Chicago-style pizza restaurant set up a shop in my town. I’ll never have to eat floppy thin pizza again.

    And these native Southerners get all excited about Domino’s putting a few herbs on the edge of their crust…

  20. How is pizza like religion?:)

    Re: Scalia. To paraphrase Mark Twain: “I wouldn’t wish for anyone’s death, but his obituary would be cause for great satisfaction.”

    1. I was trying to figure out, if not a “nice”– a legal way to express that sentiment. Thanks for doing that for me.

    2. On another comments forum, I expressed the following sentiment with regard to Michele Bachmann: “The world will be a safer, nicer place when her obituary gets published.” This reaulted in an accusation of “wishing her dead”. The Twain paraphrase is a more elegant way of saying it. What is the original you used for that?

      1. But wishing some people dead, sometimes, is completely legal and natural.

        You are a good person by resisting doing anything to these people (or ensuring fair trial), but thought crime and opinion is *not* punishable or unethical.

      2. Oops, wrong person quoted. It should be Clarence Darrow, “I never wanted to see anybody die, but there are a few obituary notices I’ve read with pleasure”. Sorry, I don’t know the source.

  21. …and I cannot even think of NY pizza without getting bilious. Recipe for red greasy, messy heartburn. The good thing is that the grease makes vomiting it up easier.

    A NY-style place just tried to have a go of it here in Colo Springs. Thankfully, they went belly-up within a few months.

    And Italian pizza? Americans (including American Italians, of which I am one) reinvented the stuff. The old world has great pizza, but it’s a different bird entirely… like pesto on a saltine.

  22. “That is the big problem with originalism. Originalism isn’t really a philosophy; it’s a philosophical ploy to infuse right-wing politics into law.”

    I have to quibble with you there, I would say that originalism has a lot stronger philosophical foundation than say an instrumentalist approach; it just does not work in a practical sense. When you allow the constitution to evolve even keeping within the spirit of the amendments you are essentially changing the constitution without going through the process for doing so. In reality you need to do that so that the constitution is rigid enough to prevent a tyranny of the majority and still flexible enough to keep pace with changes in society. In practice originalism becomes a way to attempt to ensure the constitution offers no protection against the most disgusting excesses of modern conservatism but at least as a philosophical theory it is fairly sound.

    1. I have a problem with saying that originalism is a philisophically sound theory but not very good in practice. If you can’t translate a theory into practice, it isn’t sound.

      Practically speaking, reinterpreting the Constitution is done because it works best in practice. Sure, the concepts of interstate commerce and general welfare may be different today but if the writers had wanted to limit them, they would have. Of course, they also would have had no concept of the modern world. Amendments are slow and create clutter. Just take a look at the difference between the Constitutions at the federal and state level. In any case, this battle was pretty much lost in the early 19th century (originalism lost).

  23. I don’t happen to agree with originalists, but their position is certainly not moronic nor evil as many here attest. We know the 14th Amendment was intended to grant gender equality, because it didn’t. There were many successful court cases over former slaves voting, but none about women voting. That didn’t happen until the 19th Amendment.

    Just because an orginalist says that the constitution doesn’t grant gender equality, doesn’t mean that that person is sexist or is against gender equality. They are just stating the facts as they see it. Remember the ERA? To be consistent, non-originalists should have opposed it, since it would have been unnecessary and undercut their position. Originalists would see it as part of the normal process and if they supported women’s rights, absolutely necessary.

  24. 1. The 14th Amendment was not intended to offer gender equality. Historically, you can look that up — the suffragettes were around at the time and deeply disappointed at being told it “wasn’t their time”.
    2. Scalia is making it up as he goes along.
    3. We should send him lots of Chicago deep-dish pizzas, and other fatty foods. He doesn’t appear to take care of himself at all, so is prime candidate for being the first of the RATS to succumb to a heart attack or stroke.
    4. When I was in college (back when Jesus rode dinosaurs), the dorm cafeteria would monthly offer a night with either liver or mystery meatloaf. That was the night we went out for pizza. Amazing, cracker-thin crust, slightly salted on the bottom. I forget the name of the place, but it’s probably long gone by now.
    5. The best pizza I ever had was in Hamburg, Germany, of all places.

    1. No comments on the pizza wars, but “suffragists” is preferred by many over “suffragettes”, which is a diminutive and can have the unwanted effect of belittling the movement.

  25. Well whoever asked the question got it completely wrong –

    In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination…

    Oh yes anybody certainly did. There was an active feminist movement at the time, partly inspired by abolitionism itself.

  26. Scalia:

    Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.

    But the 14th amendment also doesn’t specifically mention race as a prohibited basis of discrimination.

    It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

    If he doesn’t like his job, he should quite. Oh, I’m sure he’ll argue that he’s not imposing his demands on society, but he is imposing his own originalism on the people, right?

    The biggest problem I have with originalism is that it makes justice no longer about people, but about adherence to an old text, no matter what effect that text has for people. It turns justice into religion, with the supreme court as its high priests.

  27. I’m not an American citizen, and I’d be very very left of center in US politics.

    But it seems to me he’s right. You have a constitution drafted in an original form. You have a mechanism to amend it. And you have a legislature.

    Trying to read modern sensibilties and morality into the constitution seems just as batshit as trying to read modern morality into the bible. And it seems like the same kind of issue: the constitution is a sacred document – it wasn’t intended to mean what we want it to mean, so the approach is hermeneutics: interpret it differently.

    I realise there’s the practical problem: it isn’t easy to get an amendment passed. But surely assuming that the drafters of the bill of rights would have been just fine with gay marriage is naive in the extreme. Any more than claiming that the biblical authors would have any clue whatsoever on the morality of stem cell research.

    1. He’s right in theory. In practice in breaks down.

      First, the Constitution establishes a court to interpret the document. Or at least the Supreme Court established by the Constitution established that right. Once you go there, originalism is toast.

      Second, the Constitution was written by committee. It was by definition a compromise and many areas left undefined and vague, probably on purpose. How exactly do you determine original intent when the writers disagree?

      An example would be President Madison vetoing a road and canal bill passed by Congress. He believed you needed a Constitutional amendment in order for the federal government to build internal improvements. Congress didn’t. How could we possibly determine original intent now when they disagreed while the writers were still alive?

    2. “Trying to read modern sensibilties and morality into the constitution seems just as batshit as trying to read modern morality into the bible. And it seems like the same kind of issue: the constitution is a sacred document”

      I strongly protest. It is a political document. It’s purpose was to form “a more perfect union”. In other words it’s purpose was to form a government ” of the people, by the people and for the people”.

      There was no revelation from any gods to set out the, never to be challenged or changed, dogma. Likewise there no gods promising heaven or threatening hell for changing it or interpreting it to fit modern times.

      It was formed by fallible men and meant to be used or abused as we modern fallible persons choose.

      Infallible sacred documents are the attempt of the religious to justify themselves and their dogma.

        1. Ian; I am uncertain what your point is. If you mean the bible shares some of the same properties as the constitution, please enlighten me as to those shared properties. If not what do you mean.

          I still see one as a religious compilation claiming divine composition, and the other a political act forming a secular government.

    3. It seems to me that the constitution is sometimes *intentionally* vague. Example:

      “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

      What’s excessive? What’s cruel and unusual? Does a punishment have to be “cruel *and* unusual” or “cruel *or* unusual” to be disqualified? What’s cruel? Clearly those words and phrases are meant to be interpreted, meant to be interpreted by courts, and meant to be interpreted according to prevailing standards.

      1. It’s not clear that the relevant standards are the contemporary, prevailing ones. It’s clear that tasering people to death for internet stalking is unconstitutional despite the absence of relevant technologies in the 18th century. The technology evolves, but even if every single person in 2011 endorsed that punishment as justified and usual, it would still be unconstitutional because the moral standards relevant are those prevailing at the time of ratification. So it seems to me.

  28. I may be wrong and would happily stand corrected if so, but I believe that “originalism” was first proposed by Hugo Black who was upset with his Supreme Court colleagues who, he opined, had given way too many rights to corporations which are not even mentioned in the Constitution and he did not want them to be considered to be persons. Ironic.

  29. 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.

    Then why does it say “persons” rather than (like the Declaration of Independence) “men”?

    And does he even know that? I don’t think he can know that, not least because it’s not true. At least some people thought that’s what it meant. It could be that some of the legislators thought that’s what it meant. (I’m rusty on the history of it.)

    It was passed by a radical Congress, after all. They really did intend a strong and radical law.

    1. Then why does it say “persons” rather than (like the Declaration of Independence) “men”?

      Or even in section two of the same amendment:

      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 (…) is denied to any of the male inhabitants of such State…

      Emphasis mine. Clearly, they were perfectly capable of distinguishing “persons” and “males”.

  30. Scalia’s judicial approach focuses much, much, much less on the intent of the lawmakers than others’ do, particularly those held by liberals. Within his broader philosophy I don’t think it is clear at all that the equal protection clause doesn’t apply to require equal treatment under laws for women.

    I also don’t think his statement about not having to read the briefs at all noteworthy, particularly from someone like Coyne, who doesn’t even have to read the arguments he gets about god from nuts. Coyne is someone who takes a strident position, which is only reasonable when confident enough about one’s total understanding and rebuttal of the relevant counterarguments that one needn’t read them.

    1. Well, I mean, it’s Scalia’s job to read the briefs. Coyne has no special obligation (to the public, or to our system of government) to read every argument written by a nut. Moreover, he did not take an oath to faithfully execute a job that heavily entails reading the arguments of nuts. Apples, oranges.

      1. Scalia didn’t say he didn’t. He said he didn’t have to. That’s an idiom. It means the other side never comes up with new arguments.

        1. Not that it matters, but that’s not quite what an idiom is. For it to be an idiom, Scalia would have to have meant something altogether different from what his literal words were. When he says “I don’t even have to read the briefs, for Pete’s sake” it’s pretty clear he means exactly that, no? “Briefs” means briefs, “read” means read, etc. A true idiomatic expression would be “You’re just kicking the can down the road” or “I’ve got to tie up some loose ends.” (Again, not that it matters.)

  31. As another non-American, I have to agree with Ian that Scalia’s views on interpretation don’t seem unreasonable. I don’t understand all the nuances of his position, but jurists in most countries would take roughly the following approach to interpreting any legal enactment (including a Constitution):

    a) first look at the standard everyday meaning of the words. If they are clear, unambiguous, and not obviously unreasonable, look no further.

    b) if there is a problem, next look at the context of the disputed provision, e.g. whether it is consistent with other provisions of the same enactment.

    c) if there is still uncertainty, try to identify the underlying purpose of the enactment. In the old Common Law terminology, what is the ‘mischief’ it is intended to remedy? If the purpose is clear from the contents of the enactment itself (including any preamble or integral interpretative provisions), look no further.

    These three principles resolve most cases. Where they do not, opinions differ on the next step. Some jurists think it is legitimate, as a last resort, to examine the historical evidence for what the legislators intended. English Common Law judges used to do this fairly freely down to the 18th century, but from the mid 19th century to the late 20th century they effectively banned the use of extraneous historical evidence, such as Parliamentary debates. But since about 1990 they have cautiously allowed evidence to be introduced about the legislators’ intentions, and the sky has not fallen.

  32. I like the idea of Ur-Pizza –

    Might be a bit dusty!

    I think it is a bit tricky writing a document & projecting the effects far forward into the future – we cannot seriously expect those who wrote the US constitution to have forseen the modern world where slavery is abolished & women can vote, can we, any more than we can seriously see what our world will be like in two centuries? These documents have to either be very general, have to be adjusted with time, or have to be very detailed.

    For the latter witness the Treaty Establishing a Constitution for Europe which ran to 485 pages!!!

    Thank goodness it was not passed – it would have been a field day for lawyers.

  33. Scalia is an “originalist”, who believes that no rights inhere in Americans except those explicitly outlined in the Constitution or obviously intended by its authors.

    You can drive a truck through the qualification “obviously intended.” Either it’s explicit or it isn’t.

    It’s flipping obvious to me that the writers and approvers of the US Constitution intended that it would change with time; and that it was open to interpretation (which is why they set up the Federal courts system).

    WTF does Scalia say about this part of the original document (and there was no question about who this was intended for):

    Representatives and direct Taxes shall be apportioned among the several States
    which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

    Does he grind his teeth that black folk have full civil rights now? Clearly NOT intended by the founders.

    Does he grind his teeth that women can vote? Clearly NOT intended by the founders.

    Does he grind his teeth that senators are now popularly elected? Clearly NOT intended by the founders.

    The whole idea is moronic.

    1. Notice that when the “Constitution” was read in Congress last week, that 3/5ths clause was omitted, as was the 18th & 21st Amendments?

      1. Of course! The nit-wits.

        Some representatives such as Jesse Jackson Jr. challenged the Rethuglicans to read the original form, including the 3/5 clause. Of course, they didn’t. Gutless shites.

    2. “…three fifths of all other Persons.”

      It still applies. Black people are citizens, and there are no other persons to count as 3/5ths.

      In general, the people here should bear in mind why they despise liberal religions’ approach to the bible (if they do so despise them).
      ‘It’s all open to interpretation…that means when God says “abomination” he means equal rights to gays are mandated!’

  34. Regarding pizza:

    OK, I’m not a huge fan of pizza. Mainly, it’s just food, 95+% of the time when it’s set in front of me. It’s usually nothin’ special, to me.

    Now, good pizza:

    Mainly, skip the tomato sauce! Real pizza uses garlic and olive oil, not tomato sauce!

    All that said: I do enjoy a well-made pizza of almost any genre, as long as it has really good, flavorful cheese (mozarella? gag me!) and tasty toppings (mainly cured and/or spiced meats, thank you very much.) I like it thick or thin, just put the toppings all the way to the edge.

    The best pizza I’ve ever had was in Paris; but made by Italians, not French (I am a great lover of proper French food; but they aren’t the best pizza makers.) The crust was thin and had that perfect texture and flavor that only great chefs can achieve in breads. It had highly-garliced olive oil and then charcouterie and various flavorful cheeses: Such as Asiago, pecorino, Parmagiana, maybe even a little Gorgonzola. The overall pizza was quite thin, perfectly cooked in a very hot brick oven. Whoo-baby!

    1. I should amend my mozarella comment: Real bufalo mozza from Italia is a wonderful cheese and I would welcome it on a pizza (though I’d much prefer Gruyere, hard sheeps cheese, Gorgonzola, Pecorino Romano, or an Iberian sheeps cheese like “P’tit Basque”.)

      I was referring to the typical “da white” (ad oipposed to “da orange” – the two types of industrial cheese food-like product factory-produced in the US) type mozarella facsimile put on pizzas in the US.

  35. I agreed with the previous beer post, and sure, minorities should have their rights protected, I guess… but Jerry, this pizza stuff is just crazy talk. Next thing I know you’re going to post that you like cats over dogs!

  36. When the 14th amendment was being debated, people absolutely had sex discrimination on their minds. The suffrage movement tried to use the language of the 13th and 14th amendments to vote. Susan B. Anthony was actually arrested in 1872 for trying to vote under the 14th amendment (she was fined $10, which she never paid). Prominent abolitionists were also suffragists, including Frederick Douglass. So to say that sex discrimination wasn’t on their minds is a false take on history.

    Later, the 13th and 14th amendments would be used to help pass the Civil Rights laws in the 1960s. The Equal Rights Amendment, which STILL hasn’t been passed, also used the 14th amendment as justification.

    And Chicago-style is simply the best.

    1. That’s the point. The whole point in this discussion is that when the 14th amendment was passed, it wasn’t expected to end gender discrimination. Some people may have wanted it to be read that way, but it didn’t grant women the right to vote or anything else. Non-originalists are happy to re-interpret the Constitution as we expand the listed freedoms to wider groups of people, and add new freedoms, but remember, there is nothing that guarantees that all new interpretations will expand freedoms. At least originalists have a basis to guide their reinterpretations, rather than the vague “WWtFFD?” Scalia is all for expanding basic rights, he just wants congress to to it.

      1. Scalia is all for expanding basic rights, he just wants congress to to it.

        I agree: that’s what he says his judicial philosophy is. There are cases (like Citizen’s United) in which he was totally content to expand the rights himself, the congress be damned. What he says and what he does are not always the same.

        Scalia’s brand of originalism is about being true to what the original meaning of the constitution was for the people who adopted it. But Scalia openly admits that there are gaps in that knowledge, and when those gaps come up you “give it your best shot.” That means you, to one extent or another, make stuff up—precisely what he arrogantly accuses liberal judges of doing.

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