Antonin Scalia: The Constitution Does Not Bar Discrimination Against Women

In a new interview, Justice Antonin Scalia says that the 14th Amendment does not bar discrimination against women, whether it's done by public or private entities. He couldn't be more wrong.

Supreme Court Justice Antonin Scalia is once again  stirring up controversy with an interview that he gave to California Lawyer the magazine of the California Bar Association in which he said that there is no Constitutional bar against government discrimination against women, or anyone other than African Americans for that matter:

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.

As Amanda Terkel notes at HuffPo, Justice Scalia’s comments have already started stirring controversy:

Marcia Greenberger, founder and co-president of the National Women’s Law Center, called the justice’s comments “shocking” and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

“In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that’s up to them,” she said. “But what if they want to pass laws that discriminate? Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011. It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

Greenberger added that under Scalia’s doctrine, women could be legally barred from juries, paid less by the government, receive fewer benefits in the armed forces, and be excluded from state-run schools — all things that have happened in the past, before their rights to equal protection were enforced.

Actually, Scalia’s position is worse than that, I think. Without the enforcement provisions of the 14th Amendment it’s unclear that Congress would have any legal basis upon which to make discrimination against women, whether it be public or private, illegal. Moreover, taking Scalia’s position to its logical end, one would have to conclude that the 14th Amendment also doesn’t apply to discrimination on the basis of national origin or original, and that it doesn’t necessarily protect whites against “reverse discrimination” since it was drafted and ratified in the wake of the Civil War in an effort to ensure that newly freed slaves would be treated equally.

The problem is that Scalia’s narrow view of the 14th Amendment doesn’t seem to be supported by its language:

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.

There’s nothing in the language of this provision of the 14th Amendment that limits its application to just matters of race, or just to men as one blogger suggests. If the drafters had wished to limit the  applicability of the Due Process and Equal Protection Clauses in such a manner, they could have easily done so, as their specific reference only to race in the 15th Amendment makes clear.  The whole point of the 14th Amendment was to make it clear that everyone born in the United States, or naturalized as a citizen, was a citizen entitled to equal treatment under the law. This means men and women, black and white, European and Chinese, and, yes, gay and straight.

The problem with Scalia’s overly specific form of originalism is that it seems to concentrate too much on the words of the Founders (or drafters in the case of the 14th Amendment). As libertarian legal scholars like Randy Barnett have argued, it’s also important to recognize the principles that the specific provision of the Constitution was meant to enshrine into law and, in the case of the 14th Amendment, that is a principle of  equality. It’s not an equality has been implemented easily, and it doesn’t always mean perfect equality (the Supreme Court’s case law on gender and age discrimination, for example, recognizes that there may be situations where differentiating between men and women, or based on age,  serves a rational purpose whereas differentiating based on race or ethnicity does not), but 14th Amendment case law still recognizes the basic principle of equality that was placed in the Constitution for the first time ever in 1867.

So yes, in this case, Justice Scalia is wrong.

UPDATE (James Joyner):   I’d argue that Scalia is only partly wrong.

A plain reading of the 14th Amendment tells us that both women, as well as men, are citizens and entitled to all the protections of the Bill of Rights.  There’s no plausible reading of “persons” that would negate female citizenship.   Nor do I think Scalia would disagree.

But he’s right that the 14th Amendment was not intended to give women equal status to men in political and economic matters.  Otherwise, why would it have been necessary to pass the 19th Amendment in 1920 to give women suffrage?  And why was the proposed-but-never-ratified Equal Rights Amendment still being debated during the Reagan Administration?

More-or-less full legal and economic equality for women has come about within my memory, which is to say the last 35 years or so.   Even so, gender discrimination is far more socially acceptable now — a century and a half after the passage of the 14th Amendment — that racial discrimination.  Women weren’t allowed into most law and medical schools half a century ago, on the argument that they’d “waste” the slots by suspending their careers upon marriage and motherhood. We still discriminate against women in the Armed Forces, although much less than we did in the recent past, excluding them from various occupational specialties deemed too dangerous.  Most states define marriage on the basis of sex, denying the right of same-sex couples to wed.

FILED UNDER: Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Tano says:

    What kind of a bizarre mind could read the unqualified assertions in the Amendment, and somehow read into them qualifications based on his speculation as to what the writers were thinking at the time?

    Scalia would ignore the plain meaning of words and substitute, as the standard for what the Constitution means, the frame of mind (as interpreted by Scalia himself) of the people who wrote the Amendment.

    I guess, by that logic, that we should accept that “all men are created equal” really does refer only to white, propertied males. These ‘originalists” should adopt a slogan (with apologies to Bill Clinton) – :”building a bridge to the eighteenth century”.

  2. PD Shaw says:

    So women gained the right to vote in 1868?

    I won’t cop to Scalia’s views, but he has a legitimate point I think. And I think it’s odd that the SCOTUS first recognized it’s role to scrutinize gender discrimination during the same time period the states were debating passage of the ERA. I think ERA should have passed and we wouldn’t be having any discussion of this particular muddled history of the Fourteenth.

    Jack Balkin’s points are interesting on this:

    “Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That’s not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination– discrimination in basic civil rights against single women.”

  3. sam says:

    I read McCain’s piece, and I have to say I found it flat stupid. On his reading of the 14th Amendment (and maybe Scalia’s), wouldn’t we have to conclude that the 13th Amendment only freed black male slaves? The 13th says:

    Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

    On McCain’s reading of Section 1 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.

    Referring to later sections of the amendment for evidence, he concludes that the “persons” being referred to are exclusively male. On this kind of analysis, for any constitutional provision to include women it must explicitly do so. Since the 13th Amendment does not, on McCain’s logic, how can we escape the conclusion that that amendment only freed male slaves?

    Moreover, and even more bizarrely, on his reading, under Section 1, women born in the United States are not citizens of the United States!

  4. Neo says:

    To assume that the 14th Amendment grants “special protection” for women or gays also assumes that it grants “special protection” to the “rich” that they not be (using their definition) “overtaxed”, and that it grants equal access to all governmental programs regardless of economic status.

    Of course, by the constitutional test, all of these “special protections” do not exist in the Constitution, but protections against discrimination based on gender or sexual orientation do exist by law.
    The Constitution does grant “equal protection” to women and gays, but not based on whether they are a woman or gay.

  5. mantis says:

    I read McCain’s piece, and I have to say I found it flat stupid.

    I think you mean Confederate Yankee (Bob Owens), not Robert Stacy McCain. An easy mistake, as they are both racist lunatics, and between the two have a combined I.Q. of about 50.

    According to Owens’ “interpretation,” basically nothing in the Constitution applies to women, because it uses masculine pronouns.

  6. sam says:

    Yikes. My apologies to McCain.

  7. James says:

    This is actually complete BS. Scalia has written an opinion (Oncale, don’t have the cite off hand) that extends the 1968 civil rights act from protecting only women being discriminated against to also protecting men being discriminated against on the basis of sex. It’s disingenuous to blather on about the Constitution while having upheld a law banning discrimination on the basis of sex as Constitutional.

  8. jpe says:

    I’m usually one to defend Scalia, but he’s just being silly here. Original intent is the least plausible form of originalism, and should be anathema to a self-proclaimed textualist like Scalia. On top of lame jurisprudence, it’s also terrible history: the ratification debates were full of claims (by the detractors, of course) that the 14th would apply to women and therefore upend society. So Scalia’s claim that no one anticipated that it would apply to gender is just bad history.

  9. PD Shaw says:

    The text of the Fourteenth Amendment assumes that states can discriminate against women since it only punishes states for denying the right to vote to “male inhabitants of Such State, being twenty-one years of age, and citizens of the United States.” Feminists were outraged at the time; I think the male lawmakers for the most part didn’t give a rat’s @$$.

    Frankly, I think Scalia is just being provocative, but from an originalist perspective how can you say the 14th Amendment was intended to specifically address gender discrimination when for over 100 years, the court upheld laws discriminating against women gaining business licenses, serving on juries, and on issues of contracting, filing lawsuits, holding property, etc, not to mention not being able to vote for about half that time.

  10. MarkedMan says:

    Over the years, Scalia in particular has made me more sympathetic to conservatives that decried the liberal courts of the 60’s and 70’s. To me it seems obvious he is abusing his position to force his religious and personal viewpoints on everyone else (not to mention his presidential choice). Here is a guy who is saying there is no constitutional protection for women, because it hasn’t been specifically called out, but who has also uniformly ‘found’ a constitutional basis for the idea that corporations have the same free speech rights as people. Whether or not you think the latter is a good idea, it sure as hell isn’t in a plain text interpretation as the constitution, and it sure as hell wasn’t part of the founders discussions.

  11. sam says:

    I don’t think from an originalist — or any other — perspective you can say the amendment specifically, etc. I’d argue that the amendment is general in its scope, the provisions re male voting notwithstanding. If you don’t take the generalist view, then wouldn’t you end up where I said Owens would have us end up: that the word ‘person’ in Section 1 means only ‘male person’?

  12. PD Shaw says:

    Having looked at the Oncale case I think it’s safe to say that Scalia has no problem enforcing anti-gender-discrimination statutes passed by Congress; his problem is with the courts doing so.

    This would be another exhibit for those who think Scalia will vote to uphold the insurance mandate — he believes in broad Congressional power.

  13. An Interested Party says:

    “Here is a guy who is saying there is no constitutional protection for women, because it hasn’t been specifically called out, but who has also uniformly ‘found’ a constitutional basis for the idea that corporations have the same free speech rights as people. Whether or not you think the latter is a good idea, it sure as hell isn’t in a plain text interpretation as the constitution, and it sure as hell wasn’t part of the founders discussions.”

    Exactly right…once again, we see how one person’s supposed “correct” reading of the Constitution is just someone else’s judicial activism…

  14. PD Shaw says:

    I can’t vouch for this quote, but I believe it to be accurate, based upon what else I know Ruth Bader Ginsberg has written:

    “[T]he framers of the fourteenth amendment did not contemplat­e sex equality.”

    Ruth Ginsberg, “Sexual Equality Under the Fourteenth and Equal Rights Amendments­, 1979 Washington University Law Quarterly page 161.

  15. michael reynolds says:

    The problem here is that if, as PD believes, this is a reasonable originalist position to take, it points out the inherent idiocy of originalism.

    Either this is a perversion of originalism, or originalism is as intellectually bankrupt and practically useless as I always thought it was. If his is the law, then the law is an ass.

  16. mantis says:

    Either this is a perversion of originalism, or originalism is as intellectually bankrupt and practically useless as I always thought it was

    The latter is true. The idea that these geniuses can not only clearly peer into the minds of the founders and writers of amendments to determine exactly what they attempted the document to do (instead of just what it says), but that they can do so in such a way that distills a bunch of compromises among the pretty broad range of ideologies and attitudes that the founders and amendment writers represent into singular, unambiguous purposes that are absolutely inarguable is completely absurd. They can’t, and thus originalism is meaningless on its face. All originalism really means is “the way I want it to be.”

  17. MarkedMan says:

    I’m not sure this is even about originalism. Say there is a basic civil right enshrined in the constitution, but the definition of “person” has become more inclusive over time. The idea that this right should apply to everyone encompassed in the new definition is not really about originalism. I would contend that it is about not being a pig-headed j*ckass.

    If Scalia really believed what he said, he could never vote to accept a case on wire-taps or computer crime, since the framers absolutely did not have those things in mind when they wrote the document.

  18. michael reynolds says:

    If Scalia really believed what he said

    If Scalia believed what he said George W. Bush would never have been president. The purpose of all political theory is to conceal naked self- interest.

  19. tom p says:

    All… Let me get this straight… Scalia thinks women have ZERO Constitutional protection and a fair number of you agree…

    Boy, am I glad I am not married to YOUR wives.

  20. tom p says:

    >>>>”If Scalia believed what he said George W. Bush would never have been president. The purpose of all political theory is to conceal naked self- interest.”<<<<<

    Word.

  21. PD Shaw says:

    tom p, that’s certainly not what he is saying. He is saying the Fourteenth Amendment as originally drafted was not intended to provide special, heightened equal protection rights based upon gender. Everybody is entitled to equal protection under the law.

  22. steve says:

    “Frankly, I think Scalia is just being provocative, but from an originalist perspective how can you say the 14th Amendment was intended to specifically address gender discrimination when for over 100 years, the court upheld laws discriminating against women gaining business licenses, serving on juries, and on issues of contracting, filing lawsuits, holding property, etc, not to mention not being able to vote for about half that time.”

    The court changes its mind? See Citizens United.

    Steve

  23. Drew says:

    Doug –

    If all “citizens” are to be given “equal protection under the law” then why can tax legislation be enacted and enforced that differentiates between citizens? Does income somehow confer an inherent differentiating trait to a citizen – as opposed to race or, say, gender, – that makes unequal treatment between citizens acceptable?

    Or to take the opposite tac, if laws can be enacted that treat citizens of different income differently with respect to their right to retain their property, cannot laws be enacted that treat citizens differently wrt some other aspect of their life?

  24. Zelsdorf Ragshaft III says:

    Comment in violation of site policies deleted.

  25. sam says:

    @Drew

    “If all “citizens” are to be given “equal protection under the law” then why can tax legislation be enacted and enforced that differentiates between citizens?”

    Probably because the scheme would pass the rational basis test, Drew.

  26. superdestroyer says:

    It is humorous that the same progressives and leftist who now say that the 14th amendment bans all forms of discrimination were standing in front of the Supreme Court a few years ago arguing in the Gratz and Grutter cases that the state could discriminate if it had a compelling reason to discriminate.

    Of course the 14th amendment does not mention compelling interest and does not give the government the ability to exempt itself (or others) from discriminations.

    Of course, if the government is free to discriminate against white firefighters, white contractors, or white students, then it should be free to discriminate against anyone else.

  27. sam says:

    @PD
    “Having looked at the Oncale case I think it’s safe to say that Scalia has no problem enforcing anti-gender-discrimination statutes passed by Congress; his problem is with the courts doing so.”

    You’re right about that. And it’s also apparent that he’s generally loathe to strike down legislation on equal protection grounds. You can see his attitude on full display in United States v. Virginia (518 U.S. 515), the decision the ruled that the Virginia Military Institute’s policy (under Virginia state law) of not admitting women is unconstitutional:

    Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were-as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: they left us free to change. The same cannot be said of this most illiberal Court, which has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society’s law-trained elite) into our Basic Law. Today it enshrines the notion that no substantial educational value is to be served by an all-men’s military academy-so that the decision by the people of Virginia to maintain such an institution denies equal protection to women who cannot attend that institution but can attend others. Since it is entirely clear that the Constitution of the United States-the old one-takes no sides in this educational debate, I dissent.

  28. sam says:

    @SD

    “It is humorous that the same progressives and leftist who now say that the 14th amendment bans all forms of discrimination were standing in front of the Supreme Court a few years ago arguing in the Gratz and Grutter cases that the state could discriminate if it had a compelling reason to discriminate.

    Of course the 14th amendment does not mention compelling interest and does not give the government the ability to exempt itself (or others) from discriminations.”

    Who is saying that? Who is saying that the 14th Amendment bans all forms of discrimination? The Court has held that you can discriminate between classes of people if there is a rational basis for doing so. And the rational basis test is as old as the constitution itself. See, McCulloch v. Maryland:

    Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.

  29. sam says:

    @JJ

    “But he’s right that the 14th Amendment was not intended to give women equal status to men in political and economic matters”

    You know, debates about originalism are fun, because you can find yourself asking questions like: Is the Air Force constitutional? Article 1, section 8 says the Congress shall have the power:

    To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

    To provide and maintain a navy;

    To make rules for the government and regulation of the land and naval forces;

    Nary a mention of an air force, and I’m pretty sure that the Framers didn’t contemplate air war at all when they wrote the constitution. So, on originalist grounds, was the creation of, and appropriation of funds for, the Air Force constitutional under Article 1?

  30. James Joyner says:

    @Sam:

    I’m not making an “originalist” argument. Airplanes didn’t exist at the time of the Constitution was written, so it’s understandable that the Framers didn’t mention an air force. But it’s a perfectly reasonable interpretation that the Framers intended Congress to have control over certain aspects of national defense and that adding an air force is within that prerogative.

    Conversely, women did exist at the time the 14th Amendment was passed! Those who wrote and ratified it were fully aware that there were two sexes! And, yet, it was several more decades before women were allowed to vote. And it took a Constitutional amendment to do that, rather than mere statute. And we still make some distinctions on the basis of sex even today. QED: The 14th Amendment didn’t and was not intended to grant full equality to women.

  31. sam says:

    “I’m not making an “originalist” argument. ”

    Ah, but I think you are, JJ, at least as regards the original understanding of the meaning of the 14th, of the original intention:

    “But he’s right that the 14th Amendment was not intended to give women equal status to men in political and economic matters”

    The point about the Air Force question is that a strict adherence to an orginalist textual interpretation of the constitution can lead to some pretty surprising questions. (See, Ilya Somin,
    The Air Force and the Constitution.
    FWIW, I think the Air Force is perfectly constitutional, because the meaning of the words ‘army’ and ‘war’, the concepts of ‘army’ and ‘war’, have changed over time. This, of course, is anathema to strict orginialists, but that’s my feeling.

  32. James Joyner says:

    @Sam,

    I’m not an originalist or even, like Scalia, a pure textualist. But I do think judicial rulings on the basis of the Constitution should be strongly informed by the intent of those who wrote the Constitution or Amendment in question and the historical treatment of those provisions in the years and decades subsequent to ratification.

    I think, for example, that a reading of the US Constitution that makes gay marriage a “right” would be absurd. But, once states enact legislation permitting gays to marry, the Constitution would clearly apply to married gays and require equal treatment. Which is why, say, DOMA was defensible: Marriage has traditionally been a matter for states and localities and it’s reasonable to not want judicial rulings or even changing practices in one state to undermine the laws of all the others.

  33. MarkedMan says:

    James Joyner said “QED: The 14th Amendment didn’t and was not intended to grant full equality to women.”

    James, you certainly win that argument. But I don’t think anyone here is contesting that (anyone?) The much more interesting question is: if a group of people the original framers thought of as less-than-complete-citizens have in the intervening years come to be regarded as complete citizens, then does a) the Supreme Court have the authority to so rule, or b) does it require an amendment of the constitution for each and every such group?

    My opinion is that history has shown that “a” is a better answer, but I’d be interested in other opinions.

  34. James Joyner says:

    @MarkedMan: ” if a group of people the original framers thought of as less-than-complete-citizens have in the intervening years come to be regarded as complete citizens, then does a) the Supreme Court have the authority to so rule, or b) does it require an amendment of the constitution for each and every such group?”

    Neither. Simple legislation, not Constitutional amendment, almost always suffices. As Scalia notes, the Constitution doesn’t preclude treating women equally, or legislation demanding same; it simply doesn’t require it.

    Furthermore, the fact that our society by and large now considers men and women equal before the law and has over the last few decades enshrined that belief into law would seem to lend credence to the fact that, in areas where we’ve declined to do so, the requisite cultural consensus for SCOTUS action is absent.

  35. MarkedMan says:

    James Joyner says:
    “Neither. Simple legislation, not Constitutional amendment, almost always suffices. ”

    If you take this route, the rights are subject to majority vote, religious and interest group lobbying, etc. Your answer was “neither” but it seems to me that your example really points to “b”. Because what you’re saying is that although there is no constitutional discrimination for such groups, there isn’t any constitutional protection either.

  36. James Joyner says:

    @MarkedMan: “what you’re saying is that although there is no constitutional discrimination for such groups, there isn’t any constitutional protection either.”

    Not quite. They have all manner of Constitutional protections as persons but none as members of of a protected class. In practice, that just means that governmental discrimination would have to stand up to a rational basis test rather than strict scrutiny.

    The Equal Protection Clauses of the 6th and 14th Amendments offer all manner of protections to women. Equality under the law is the default position. Discrimination on account of sex would stand up only if there’s a rational, legally permissible public interest at stake. Discrimination on account of race, however, requires a much higher standard.

  37. Rick DeMent says:

    “But he’s right that the 14th Amendment was not intended to give women equal status to men in political and economic matters”

    It also never intended to give corporations the status of “legal persons”, but until I see Tony reversing that little bit of judicial activism, his originalist nonsense is just that.

  38. James Joyner says:

    @Rick:

    Corporate personhood dates from 1819 , long before the 14th Amendment , although an 1886 case did incorporate it via the 14th. So, it had rather long provenance before Scalia’s arrival on the scene.

    http://en.wikipedia.org/wiki/Corporate_personhood

  39. MarkedMan says:

    James Joyner says:
    “Not quite. They have all manner of Constitutional protections as persons but none as members of of a protected class. ”

    I think I understand where you are coming from. Let me test with a hypothetical. Say in 1885 a state law existed stating that all of a woman’s property automatically became her husband’s when they were married. It was brought before the SCOTUS but they declined to hear it. Gradually, this law became superseded by other laws. In 2011 Tennessee passes a new law stating that husbands had ultimate authority over all joint property.

    Do you feel that a) SCOTUS should hear the case and most likely overturn because there is no longer a rational basis despite its tacit acceptance of such a basis 120 years ago or, b) refuse to hear the case and let it stand because the record indicates that was not the framers/writers intentions, leaving women to seek recourse in the state courts?

    If “b”, should a federal law that attempted to overrule the state law be struck down by SCOTUS as unconstitutional?

  40. James Joyner says:

    @MarkedMan:

    A pretty strained hypothetical, since such a law wouldn’t get through a legislature nor pass muster with state courts.

    I’m not sure on what basis Congress would legislate on state marriage laws, though.

  41. MarkedMan says:

    OK, I concede it is pretty strained, but let’s assume a takeover of Tennessee legislature by religious fundamentalists, similar to a school board takeover. Throw in a state constitutional amendment if need be.

    I’m not trying to be a smart*ss here, I’m truly trying to understand, as I had exactly one constitutional law liberal arts class way (wwwaayyy) back in college days.

    On what grounds would the state courts rule against it?

  42. PD Shaw says:

    MarkedMan, there is a property rights issue there, as well as an equal protection issue. Scalia has indicated that he believes the job of the courts is not to discover/create new rights, but to keep the legislature from backsliding on the rights it creates. Having cut off the support of tradition and history, it is no longer _rational_ for one equal partner to be given dominion over the other.

  43. sam says:

    @JJ

    “Corporate personhood dates from 1819 , long before the 14th Amendment , although an 1886 case did incorporate it via the 14th”

    Actually, that’s not accurate. The case I think you’re referring to isSanta Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). The issue of personhood is not adjudicated there, and in fact, the reference to corporate personhood is contained in a very odd piece of dicta. See the wiki page.

    (Picky, picky, picky, I know, but the question intrigued me and I went looking.)

  44. Drew says:

    Thanks for biting, sam. That is what I’m sure Scalia was getting at.

  45. sam says:

    You lost me, bro.

  46. MarkedMan says:

    PD Shaw, not sure what you mean by: “Having cut off support for tradition, etc”. Scalia did not cut off support for tradition and history, he says they are paramount. And since there were laws in the 19th century that gave posession of a woman’s property to her husband, and there has been no constitutional amendment granting women equal rights to men, then I don’t see why Scalia would find a constitutional protection for women in this regard. He wouldn’t, I assume, if he follows his own logic. So I wasn’t wondering what Scalia would do but rather what James thought of the matter.

  47. sam says:

    The wheels of justice grind slowly, or sumthin…

    A Walk, and a Wait

    Among the more popular locations in the Capitol sought out by confused House freshmen on Wednesday were the bathrooms. But one particularly newsworthy restroom — a women’s room that Mr. Boehner has promised to open just steps from the House floor — has not yet been built.

    Currently, only male representatives have access to a restroom near the floor. A women’s restroom was built near the Senate chamber in 1993.

    The 71 women in the new House will have to continue taking longer walks until a room now occupied by the Office of the Parliamentarian can be converted into the new women’s room.

  48. James Joyner says:

    @sam:

    You were expecting major structural improvements on Day 1? Boehner hasn’t been Speaker 24 hours.

  49. Rick DeMent says:

    @JJ
    Sure but in Dartmouth College v. Woodward and in Santa Clara County v. Southern Pacific Railroad (where the phrase is first used), the right is not specifically granted in the constitution. It is literally derived from the judiciary whole cloth. further it would be hard to argue that person-hood for non living entities are something that the founders had in mind when the constitution was written. So the position that Scala takes WRT sex discrimination he somehow overlooks when the subject turns to the notion of corporate person-hood. You can say the same thing about freedom of association and the grand-daddy of judicial activism, Money = speech.

    In the case of corporate person-hood, you simply cannot argue that it was explicit or implied by the founders or the writers of the 14th, nor can you point to any legislation that explicitly made it so. Thus any support of corporate person-hood, by Scalia’s reasoning, fails. Except when he is ruling on them of course then he retreats to some judicial gymnastics about not upsetting historical something or other by overturning long held judicial positions.

    Also corporations 1819 where not anything like they are today having specific charters which expired after set periods of time and for specific projects and where controlled very tightly by the states of the federal government respectively. so going back that far is suspect on it’s face.

    This is why Santa Clara County v. Southern Pacific Railroad was more important in the creation of what we know know as a corporation since the opinion that spawned the corporate person-hood language was latched onto by lawyers to expand the power and scope of corporate entities in ways that the founders or the writers of the 14th never even dreamed possible. All by judicial fiat no less.

  50. sam says:

    Nah, I wasn’t meaning to jab at Boehner, JJ…the story just struck me as somewhat on point, is all.

  51. James Joyner says:

    @Rick:

    Interesting. It’s not an area of Con Law with which I’m particularly familiar, and I don’t know to what extent, if any, the concept is enshrined in legislative and regulatory doctrine.

  52. PD Shaw says:

    Under English Common Law, corporations were persons, or more specifically artificial persons. Blackstone’s Commentaries on the Laws of England (1765-1769), stated that persons natural and artificial have the same rights, except where it wouldn’t make sense and these differences are listed.

    In other words, in the legal language of the time “person,” included corporations. The term “citizen” did not refer to a corporation, so corporations don’t have rights given only to citizens. And of course the First Amendment, and other provisions, are restrictions on government power without reference to the object.

  53. sam says:

    ” Santa Clara County v. Southern Pacific Railroad (where the phrase is first used)” — But bear in mind that the phrase was not used anywhere in the opinion proper, but only in the headnote. In fact, the defendants raised the 14th amendment defense, but the Court never addressed it, deciding the case on other grounds. In fact, as I read, but for that headnote, the case would have been nothing more than a simple tax case (if anything before the Court is ever simple). But with the headnote, the corporate personhood genie was out of the constitutional bottle.