Slippery Justice Scalia Says Women’s Rights Are Not Guaranteed by the Constitution

The longest-serving Supreme Court Justice doesn’t believe women’s rights are necessarily protected by the Constitution.

In a recent interview with California Lawyer (via the Huffington Post), Justice Scalia was asked for his stance on the landmark 14th Amendment, which overruled Dred Scott in 1868 and allowed blacks to become citizens of the United States. In a typically slippery response, his interpretation defers to the legislature, but leans way right — so right that he doesn’t appear to advocate equal rights for both genders. The interview:

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.

It’s a convenient time for Scalia to get loose on the 14th Amendment, as the new, super-right-wing, “constitutionalist” Congress floods into Washington with the intent of revising the document our country was founded upon in their own image. In particular, right-wingers have a particular disdain for the landmark amendment, which did away with many racist and guarantees birthright citizenship — last summer, Senators John Kyl and Lindsay Graham proposed we do away with it altogether, and the passion for repeal is already bleeding into super-conservative states like Arizona, Texas and Utah. In his passive, wishy-washy stance, Scalia is essentially deflecting interpreting the Constitution — erm, his job — back to Congress.

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