January 4, 2011

Destructive constructionist

The primary problem a strict constructionist has when viewing the Constitution is one of speculative time travel. In a recent interview, Justice Antonin Scalia (for whom I have very little respect) said that the 14th Amendment does not prohibit discrimination based on gender or sexual orientation because at the time it was written (1868) Congress didn't mean female or gay citizens in the use of the term "citizens"
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.

According to Scalia, the persons and citizens described herein are not female and/or gay. It is not possible to apply this amendment because he imagines that in 1868 no one really meant all citizens. They just meant the white male ones. Or maybe the black ones too, since they'd just been emancipated in that nasty war we had just fought. I'm not sure they meant Chinese or Jewish citizens either, but we're apparently giving them the benefit of the doubt provided they are male. And straight. And since we have time-traveled back to 1868 to ascertain that Congress really only meant straight men, that means the amendment is really only for straight men.

While the Justice carefully points out that the Constitution doesn't allow for discrimination based on gender, neither does it prohibit it based on the assumption that the Congress meant STRAIGHT MALE CITIZEN when it actually said "citizen." The rebuttal from Marcia Greenberger points out that "he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse."

You would think that a "strict constructionist" would look at the exact wording of the Constitution and rule on that. Person and citizen seem to be all-inclusive terms to me and to nearly all other Supreme Courts in the past. Instead, a strict constructionist bases all his (they are almost always men) decisions on what the writers' intentions were. So when Jefferson, a slave-holder, wrote the Bill of Rights, all references to person do not apply to blacks (or women or homosexuals or foreign-nationals).
Conversely, by definition, the only arms that the 2nd amendment allows to be borne are muskets. Wonder why that amendment is never interpreted in 1791 parlance?

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