A judicial philosophy that yearns for the good old days

It’s a new year, but the longest serving member of the Supreme Court of the United States, Antonin Scalia, is in the familiar role of judicial bomb thrower.

The latest issue of California Lawyer rolled off the presses with an interview in which Scalia explained his view of what equal protection under the 14th Amendment means to women and and homosexuals.

The magazine asked: “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?”

Scalia replied: “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.”

What it says

This is the clear language of the 14th Amendment that Scalia is interpreting to protect only male heterosexuals:

“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.”

“Citizen” and “person” have no assigned gender. And yet under Scalia’s “originalist” reading, a state is free to make or enforce laws that abridge the privileges of women or gays. For that matter, since the law was passed in the post Civil War era to protect the newly established rights of Negroes, presumably it would be all right to abridge the freedoms of members of any race or ethnicity that wasn’t present in sufficiently large numbers to merit notice in 1868 America.

Frozen in time

There is no question that Scalia is a bright man and an accomplished legal scholar, but he is also a slave to a judicial philosophy that defies common sense, and has the potential for defying decency. By Scalia’s reading of a Constitution that is frozen in time, the Eighth Amendment’s prohibition against cruel and unusual punishment would be locked to 1791, when it was ratified and when the stocks or the rack or mutilation were commonly practiced forms of punishment.

Scalia says originalism gives “easy, easy answers” to constitutional questions, while the constitutional “evolutionists” have to assess the changing circumstances. “Every day is a new day for evolutionists,” he said.

For most of us, every day is a new day. Almost anyone over a certain age remembers behaviors that were accepted in their youth but are embarrassing to even remember today. The jokes, the slights, the outright discrimination against people of a different race, creed or lifestyle are less today then they were 50 years ago, much less 143 years ago or 220 years ago. And most of us see that as a good thing. It’s too bad someone who has been molding the interpretation of the Constitution for a quarter century and continues to do so in matters of race, gender and sexual preference remains stuck in another century.