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Justice Scalia Writes Women Out of the Constitution

The Constitution does not outlaw sex discrimination, Justice Scalia recently stated. (He also reiterated his long opposition to Roe v. Wade, calling the right of privacy a “total absurdity.”) The good news is that he said these things in the context of an interview with a law professor, rather than in a Supreme Court opinion. The bad news is that as a Supreme Court Justice, his opinion regarding the meaning of the Constitution is currently one of the nine in the world that matter most.

Justice Scalia’s reading of the Constitution is not only inconsistent with decades of precedent joined by both conservative and liberal justices finding that the Constitution prohibits governments from discriminating against women; it is also difficult to reconcile with the text of the Equal Protection Clause itself, which provides that “no state shall ... deny to any person within its jurisdiction the equal protection of the laws.” But perhaps he does not understand women to be persons.

Justice Scalia explained that the framers of the Fourteenth Amendment to the Constitution did not intend to prohibit discrimination against women, and thus the Equal Protection Clause has nothing to say about it. Of course, the Fourteenth Amendment’s framers also did not understand themselves to be prohibiting racially segregated schools: if the Constitution’s meaning is measured purely by the understandings of its framers, Brown v. Board of Education was wrongly decided.

Indeed, Justice Scalia refuses to take seriously the ideals that the Constitution itself sets out. Rather than acknowledging that our understanding of the principles enshrined in the Constitution grows and deepens over time, he would freeze its meaning in the nineteenth century. Under his theory, if legislators in 1868 thought that separate was equal, then segregation is completely consistent with the Constitution’s promise of equality.  If the (male) legislators of 1868 believed that women were not denied the equal protection of the laws when they were legally prohibited from entering a variety of professions, serving on juries, owning property in their own names, and a host of other rights, then according to Justice Scalia, the Constitution’s own broad promise of equality must forever be similarly cramped.

Judicial philosophies like this one have real world implications in hundreds of cases, for thousands of women’s lives. Justice Scalia’s remarks are yet another reminder that judicial nominations matter and that it remains vitally important to ensure that federal judges are appointed to the bench who understand that the law protects the interests of not only the powerful, but also the many who rely on the Constitution’s promise that the law shall treat all persons equally.