Scalia: Women Don't Have Constitutional Protection Against Discrimination

[kpete]

Source: Huffington Post

Scalia: Women Don't Have Constitutional Protection Against Discrimination

First Posted: 01- 3-11 04:58 PM | Updated: 01- 3-11 05:54 PM

WASHINGTON -- The equal protection clause of the 14th Amendment to the U.S. Constitution does not protect against discrimination on the basis of gender or sexual orientation, according to Supreme Court Justice Antonin Scalia.

In a newly-published interview http://www.callawyer.com/story.cfm?eid=913358&evid=1 with the legal magazine California Lawyer, Scalia said that while the Constitution does not disallow the passage of legislation outlawing such discrimination, it doesn't itself outlaw that behavior:

*****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.


Read more: http://www.huffingtonpost.com/2011/01/03/scalia-women-discrimination-constitution_n_803813.html

[muntrv]

1. Hey Tony! Where the fuck does it say that corporations are people?

[Auggie]

5. +1,000,000

[rosesaylavee]

37. Amen.

[Angry Dragon]

2. Time to impeach the stupid man

[Desertrose]

3. Say what now?

:banghead:

[madrchsod]

4. how many women are on the supreme court?

no wonder his daughter has a drinking problem. she must have had a horrible childhood

[The Backlash Cometh]

6. This is the third time this headline has made it to the Greatest Page.

So, for the third time I will repeat my observation: It does not clearly say in the Constitution that Supreme Court justices can serve for a lifetime. It has only been interpreted that way.

[No Elephants]

12. Very safe bet serving for life, subject to resignation or impeachment was intended, tho.

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.



Not a word about firing them or terms expiring anywhere.

[The Backlash Cometh]

14. I say that we interpret this clause like a strict constructionist would and

start a petition to have him removed.

[No Elephants]

21. Agree. But it would be unfair to omit Thomas from the petition. His decisions so rarely differ

from those of Tony.

Hard to impeach only one of them without violating the Equal Pro. Clause.

[The Backlash Cometh]

22. Oh, Okay. If you insist.

[Canuckistanian]

53. I hear Thomas has a Xerox machine in his office for just that purpose

And his law clerks' only jobs are to white out Scalia's signature.

[tigereye]

62. actually it has been noted by SCOTUS watchers that

Thomas has more of an influence on Scalia, than the other way around.

[AndyTiedye]

36. also subject to hunting trips with dick cheney :)

Scalia and Cheney actually have gone "hunting" together.
Maybe they'll do it again.

I hope they bring lots of :beer:
wouldn't want them to get thirsty in that hot Texas sun.

[JDPriestly]

23. The Federalist Papers strongly suggest that federal judges may

not be mandatorily "retired" due to age. I am tired and not explaining this well. Read for yourself.

The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench.
Publius.

http://federali.st/79

[The Backlash Cometh]

26. Well, here's the thing. It's not in the Constitution.

If a judge, like Scalia, does not respect precedent, why should we?

[JDPriestly]

59. You need to read the Federalist Papers.

Federal judges are appointed for life with few exceptions in order to insure that they will be independent.

[unblock]

7. once upon a time, the right-wing argued that because it DID protect women, the e.r.a. was not needed

[The Backlash Cometh]

11. Exactly.

[gtar100]

41. Why does that not surprise me.

Typical history of the repugs. They simply state what suits their interest of the day. Never any respect for truth, it's just too low a priority in their value system.

[Le Taz Hot]

47. Exactly right.

I was going to post that so I'm glad I read the responses first.

[baldguy]

8. Some people are obviously more equal than others.

[Mister Ed]

9. He's right. The Equal Protection clause is only there for the purpose of...

...providing a pretext for right-wing activist judges to overturn the results of a presidential election.

:sarcasm:

[fascisthunter]

10. but if it were a corporation he'd probably say different

[defendandprotect]

13. Is Scalia bragging about this or threatening women ... or trying to alert them?

[dballance]

15. Maybe We Should Apply the Same Logic to Italians

Go pound sand you ass.

[iamjoy]

16. So, I'm Not A Person

the Fourteenth Amendment says, "all persons born or naturalized..."

So, if he doesn't think the 14th Amendment protects women, etc. is that because he doesn't consider us people?

[No Elephants]

27. No, because in 1863 (or whenever), women were not persons as defined by

the Constitution itself (or most state laws).

Therefore, the original intent, not of Tony (supposedly), but of the folks who voted to adopt the 14th amend., was never about equal rights for women, only for men of all races.

[justabob]

28. that is my question too

It also mentions "citizens", am I a citizen, or not? This is all very disturbing.

[Demeter]

48. If all the "non-citizen" women stopped paying taxes....

because no taxation without representation, equal protection, and other hoary chestnuts, that would be a preity pickle, now, wouldn't it?

[justabob]

49. indeed

They wouldn't miss me not paying taxes though. I am a "lucky ducky" that gets back more than I pay in. I have kinda gotten used to having no representation.... I am in Texas with horrid senators and an ethics challenged rep. <Sigh>

[The Second Stone]

17. So it meant corporations are persons but not women?

Certainly Scalia is a judicial activist and quite dishonest about it.

[No Elephants]

29. Please see Reply 27. However, I agree he is dishonest about it.

Supposedly, he and Ginsburg are best friends. Shows you what a very lovely woman she must be, bless her.

[The Second Stone]

46. Yet the amendment does not limit itself to men

and then that argument is completely demolished by the enactment of the amendment allowing women to vote,certainly they were women then, and that is exactly what was argued against the ERA (among other things too) by the very people opposing it.

Under the Scalia type analysis everybody but women are persons, including corporations and by reasonable extension, foreign corporations. And in Bush v. Gore he did not seem to think that only the menfolk were being deprived of equal protection.

The fact is that Scalia's jurisprudence utterly and completely changes in 100 percent correlation to depriving people of rights in accord with his political preferences, which also happen to correlate 100 percent with the Republican party's flavor of the month. He is an utter hack.

[No Elephants]

18. Reed it and weep:

http://www.oyez.org/cases/1970-1979/1971/1971_70_4

[daleo]

19. The Constitution - it's a guy thing

According to the fossil Scalia.

[MsPithy]

20. How did Scalia get the reputation of being smart?

This interview is laugh-out-loud stupid.

[demwing]

40. He is smart. He is also evil

And evil things sound ridiculous when spoken openly

[BladesOfAiur]

24. I don't know what to say

[droidamus2]

25. Scalia has always been an idiot

I used to watch him on a show called RoundTable on PBS where they would get politicians, lawyers, scholars together and the moderator would posit different questions and they would go around the table and get each persons input. This was long before Scalia became a Supreme Court justice and even at that time he came up with some of the most convoluted, self-centered bullshit I had ever heard. It is interested that 'strict constructionism' always seems to mean the conservatives are right. The idea that basically the Constitution of the United States is stuck in the 18th century and each amendment is stuck in the time that it was passed is ridiculous on its face. He is basically saying that if a particular subject was not in the conscience of the people writing the Constitution at the writing then the Constitution doesn't apply to that idea. As I pointed out this means that to apply the 14th amendment, in Scalia's view, you can only look at what people thought in 1868 and presumably not before and by his opinion absolutely not after. As far as I'm concerned this man should be impeached (don't care what the excuse is just get this crazy sob of the court).

[UpInArms]

30. We couldn't get the ERA (Equal Rights Amendment) passed in 1980

before RayGun took office.

It didn't happen.

I hate these people.

[Art_from_Ark]

42. Yeah, and Raygun came out against it

and it came up 3 states short of being ratified in Raygun's 2nd year

[marias23]

31. Republican Women....

....the Democratic Party awaits you!

[Jester Messiah]

34. Ye flipping gods no!!!

Bachmann, Palin, Coulter, Ingraham... not just no, HELL NO.

[Odin2005]

32. I hope that fuck has a heart attack and dies.

[Jester Messiah]

33. We should set up a fund to provide him with Bacon Double Cheeseburgers

Every day for the rest of his life.

[Crunchy Frog]

35. I hope to God he does it before the next election.

Or Clarence Thomas, or one of those old fossils.

[applegrove]

38. What a vile human being Scalia is.

[DeSwiss]

39. What a useless sack 'o skin.

- Feel free to copy and stick with pins at your leisure.....

K&R

[robcon]

43. I agree with Scalia. A legislative fix was the only way.

n/t

[alp227]

44. intellectually lazy right there. no wonder he's packed all those pounds

it's like Rand Paul saying that private businesses should be allowed to discriminate (contra the public accommodations section in the civil rights act)

[2Design]

45. nope the ERA never made it with all the bogus boogie man ads against it

[w4rma]

50. But the 14th amendment was written to overrule federal elections? This guy is a BS artist.

Instead this guy has ruled that the 14th Amendment was written to stop the counting of ballots in federal elections and protect Republican politicians against public relations problems.

[ehrnst]

51. So, apparently, corporations are male - and straight. (nt)

[BrklynLiberal]

52. In case there was any doubt that he is a misogynist. And see #5.

FASCISM ANYONE?
http://www.secularhumanism.org/library/fi/britt_23_2.htm

Analysis of these seven regimes reveals fourteen common threads that link them in recognizable patterns of national behavior and abuse of power. These basic characteristics are more prevalent and intense in some regimes than in others, but they all share at least some level of similarity.

1. Powerful and continuing expressions of nationalism. From the prominent displays of flags and bunting to the ubiquitous lapel pins, the fervor to show patriotic nationalism, both on the part of the regime itself and of citizens caught up in its frenzy, was always obvious. Catchy slogans, pride in the military, and demands for unity were common themes in expressing this nationalism. It was usually coupled with a suspicion of things foreign that often bordered on xenophobia.

2. Disdain for the importance of human rights. The regimes themselves viewed human rights as of little value and a hindrance to realizing the objectives of the ruling elite. Through clever use of propaganda, the population was brought to accept these human rights abuses by marginalizing, even demonizing, those being targeted. When abuse was egregious, the tactic was to use secrecy, denial, and disinformation.

3. Identification of enemies/scapegoats as a unifying cause. The most significant common thread among these regimes was the use of scapegoating as a means to divert the people’s attention from other problems, to shift blame for failures, and to channel frustration in controlled directions. The methods of choice—relentless propaganda and disinformation—were usually effective. Often the regimes would incite “spontaneous” acts against the target scapegoats, usually communists, socialists, liberals, Jews, ethnic and racial minorities, traditional national enemies, members of other religions, secularists, homosexuals, and “terrorists.” Active opponents of these regimes were inevitably labeled as terrorists and dealt with accordingly.

4. The supremacy of the military/avid militarism. Ruling elites always identified closely with the military and the industrial infrastructure that supported it. A disproportionate share of national resources was allocated to the military, even when domestic needs were acute. The military was seen as an expression of nationalism, and was used whenever possible to assert national goals, intimidate other nations, and increase the power and prestige of the ruling elite.

5. Rampant sexism. Beyond the simple fact that the political elite and the national culture were male-dominated, these regimes inevitably viewed women as second-class citizens. They were adamantly anti-abortion and also homophobic. These attitudes were usually codified in Draconian laws that enjoyed strong support by the orthodox religion of the country, thus lending the regime cover for its abuses.

6. A controlled mass media. Under some of the regimes, the mass media were under strict direct control and could be relied upon never to stray from the party line. Other regimes exercised more subtle power to ensure media orthodoxy. Methods included the control of licensing and access to resources, economic pressure, appeals to patriotism, and implied threats. The leaders of the mass media were often politically compatible with the power elite. The result was usually success in keeping the general public unaware of the regimes’ excesses.

7. Obsession with national security. Inevitably, a national security apparatus was under direct control of the ruling elite. It was usually an instrument of oppression, operating in secret and beyond any constraints. Its actions were justified under the rubric of protecting “national security,” and questioning its activities was portrayed as unpatriotic or even treasonous.

8. Religion and ruling elite tied together. Unlike communist regimes, the fascist and protofascist regimes were never proclaimed as godless by their opponents. In fact, most of the regimes attached themselves to the predominant religion of the country and chose to portray themselves as militant defenders of that religion. The fact that the ruling elite’s behavior was incompatible with the precepts of the religion was generally swept under the rug. Propaganda kept up the illusion that the ruling elites were defenders of the faith and opponents of the “godless.” A perception was manufactured that opposing the power elite was tantamount to an attack on religion.

9. Power of corporations protected. Although the personal life of ordinary citizens was under strict control, the ability of large corporations to operate in relative freedom was not compromised. The ruling elite saw the corporate structure as a way to not only ensure military production (in developed states), but also as an additional means of social control. Members of the economic elite were often pampered by the political elite to ensure a continued mutuality of interests, especially in the repression of “have-not” citizens.

10. Power of labor suppressed or eliminated. Since organized labor was seen as the one power center that could challenge the political hegemony of the ruling elite and its corporate allies, it was inevitably crushed or made powerless. The poor formed an underclass, viewed with suspicion or outright contempt. Under some regimes, being poor was considered akin to a vice.

11. Disdain and suppression of intellectuals and the arts. Intellectuals and the inherent freedom of ideas and expression associated with them were anathema to these regimes. Intellectual and academic freedom were considered subversive to national security and the patriotic ideal. Universities were tightly controlled; politically unreliable faculty harassed or eliminated. Unorthodox ideas or expressions of dissent were strongly attacked, silenced, or crushed. To these regimes, art and literature should serve the national interest or they had no right to exist.

12. Obsession with crime and punishment. Most of these regimes maintained Draconian systems of criminal justice with huge prison populations. The police were often glorified and had almost unchecked power, leading to rampant abuse. “Normal” and political crime were often merged into trumped-up criminal charges and sometimes used against political opponents of the regime. Fear, and hatred, of criminals or “traitors” was often promoted among the population as an excuse for more police power.

13. Rampant cronyism and corruption. Those in business circles and close to the power elite often used their position to enrich themselves. This corruption worked both ways; the power elite would receive financial gifts and property from the economic elite, who in turn would gain the benefit of government favoritism. Members of the power elite were in a position to obtain vast wealth from other sources as well: for example, by stealing national resources. With the national security apparatus under control and the media muzzled, this corruption was largely unconstrained and not well understood by the general population.

14. Fraudulent elections. Elections in the form of plebiscites or public opinion polls were usually bogus. When actual elections with candidates were held, they would usually be perverted by the power elite to get the desired result. Common methods included maintaining control of the election machinery, intimidating and disenfranchising opposition voters, destroying or disallowing legal votes, and, as a last resort, turning to a judiciary beholden to the power elite.

Does any of this ring alarm bells? Of course not. After all, this is America, officially a democracy with the rule of law, a constitution, a free press, honest elections, and a well-informed public constantly being put on guard against evils. Historical comparisons like these are just exercises in verbal gymnastics. Maybe, maybe not.

<snip>

[Blue Owl]

54. What a pompous, puffed-up shitball that Scalia is

:mad:

[femrap]

55. what a little boy....

whining over women being on The Court.

[treestar]

56. There is case law on it.

Tony should know about that.

[spooky3]

57. A unanimous 1971 US Supreme Ct decision says he's wrong.

And so does Stephen Colbert.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=439x116482

[Volaris]

58. I think that its not that Justice Scalia thinks

that WOMEN don't have a Constitutional protection against discrimination, I think that Justice Scalia doesn't think ANYONE possesses such a right. Which doesn't make him any less of an ass, it just means he dislikes everyone Equally, which is, in His mind, is exactly what the Constitution calls him to do. He thinks that because, as mentioned above, He's an ass.

[One_Life_To_Give]

60. ERA supporters have said so for years. nt

[robcon]

61. For 150 years women couldn't vote.

The constitution was silent on this, which we consider to be an outrage. I think Scalia is right.

[Marthe48]

63. SO the Second Amendment is flexible

but the 19th isn't? We can have guns beyond the wildest dreams of the founding fathers, but we can't have personal rights also beyond the thinking of the time? Scalia is backward-looking cretin.