legal splicing

Antonin Scalia Must Not Believe Constitution Protects Heterosexuals, Either

Supreme Court Justice Antonin Scalia, whose singular job is to interpret the Constitution, does not believe this document protects the innate rights of women or gays. Well thank god, because that means it doesn’t protect men or heterosexuals either.

We’ve heard directly from Scalia before about how the gays are not some specially protected group the Founding Fathers wanted to be free from discrimination. In September, he told A LIBERAL COLLEGE AUDIENCE, “If the current society wants to outlaw discrimination by sex, you have legislatures.”

Nothing’s changed, BTW! Speaking with California Lawyer, Scalia says, “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.”

And you don’t need the Fourteenth Amendment to protect the rights and liberties of society, either! Why don’t we just do away with the whole thing? I mean, what’s the point of having a document that reads “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,” if it was written in crayon?

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  • David Ehrenstein

    Well the Constitution doesn’t offer protection to greasey WOPS like you either, Tony.

  • ChicagoJimmy

    Like many old, white, straight men Scalia thinks that the law only applies to other old, white, straigt men. Look at the way he says, “Nobody ever thought that that’s what it meant. Nobody ever voted for that.” He is only capable of considering topics through his own priviledged viewpoint.

    This is the group of people that endangers our great Union. Selfish, old, white, straight men will be the ruin of us all with their lack of progressive and inclusive thinking.

  • Adam

    Then what do we have the damn thing for?

  • Schteve

    @ChicagoJimmy: He doesn’t think it protects against age or wealth either.

    You might disagree with him, but he’s not sitting there making up arbitrary points of view merely to advantage himself like you’re suggesting.

  • Schteve

    Yeah, no.

    Look, I don’t know anyone who actually agrees with his judicial philosophy. But really it isn’t a complicated one to understand. How you could mistake him when he’s been consistent on that for decades is beyond me.

  • jackieohboy

    I don’t agree with the philosophy of always following the constitution to the exact intent of those who wrote it. But He does and his logical argument isn’t incorrect.

  • GayGOP

    Schteve is right, and of course I expect flack for defending Justice Scalia, because I actually DO agree with him. That is why I have been such a strong supporter of an enhanced ERA for so long, because I DON’T think the Constitution protects people based on anything but Race or national origin, both based on the Fourteenth Amendment, or religion, because of the First Amendment, but I do think it SHOULD.

    All Justice Scalia is saying is that he does not view the Constitution as evolving. It is flexible, based on the public meaning of the words as they were used at the time of the ratification. At the time of Ratification, the 14th Amendment protected people based solely on race.

    One of the most liberal Justices to serve on the Supreme Court in the 20th Century, and perhaps the most liberal before FDR became President was a man by the name of Louis Dembitz Brandeis. Justice Brandeis refused to extend the 14th Amendment to protect women, despite supporting the protection of women. He argued, as would Justice Scalia now, that the 14th Amendment does not protect women, or else we would not have needed to grant women the right to vote via constitutional amendment. The 14th Amendment would have taken care of that, because voting is a fundamental, and protected right.

    Let us not ascribe ill motives to people when we do not know them. Those on the Supreme Court, including his dear friends, and incredibly left-wing Justices like William Brennan, and Ruth Bader Ginsburg, do not ascribe bad motives to him.

  • David Ehrenstein

    @GayGOP: ”
    Let us not ascribe ill motives to people when we do not know them.”

    Oh so you know him? Is he a Top or a Greedy Manipulative Bottom?

  • DR

    I wonder how many of you went to law school and have studied the Constitution like Scalia has? How many of you have studied the history of the 14th Amendment? If you had any real knowledge, you’d know that it was ratified for three reasons: to stop the Reconstruction Era lynching of African-Americans, to Constitutionally address the passage of laws in the South which would have recreated a slave caste of African-Americans (the laws were even known as “the Black Codes”), and to Congressionally overrule the Dred Scott decision (which held that African-Americans could not become citizens).

    It wasn’t ratified because men were concerned about the legal status if women in the 1860s, and they certainly were not concerned about the legal status of GLBs in the 1860s. While the 14th Amendment, in the minds of some jurists, has evolved to protect various classes of people with various levels of scrutiny, the 14th Amendment was passed for the sole purpose of addressing race in Reconstruction Era America.

    I don’t agree with his originalist interpretation of the Constitution (I am an evolutionist when it comes to Con Law), but it’s legally sound. Calling him names ad wishing him dead won’t change that.

  • PatrickB

    @DR: So if that’s the case, why didn’t Congress specify race in the equal protection clause of the 14th amendment?

    “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.”

    I don’t see race. Maybe they had the foresight to make equal protection general.

  • adman

    @Schteve: That’s exactly what he’s doing. What is it that you thought lying racketeers did for a living? Here’s a hint, if I trash the jacket you’re wearing enough times, there’s a chance I might get you to dislike your jacket. I then ask, can I have it since you don’t want it then? Presto, me:new jacket, you:assed out mark. Get it? I doubt it, since you’re probably some kind of neo-con lame.

  • jason

    Queerty makes a good point. Surely Scalia must now issue a statement that the Constitution does not protect heterosexuality either.

    Don’t expect one, however. This idiot bows to the Vatican before America. He hates America in my view.

  • jason

    Patrick B,

    Excellent point.

    The writers of the Constitution knew that they couldn’t write a clause for every single act of humans. Therefore, they wrote in general terms so as to cover all. The part you quoted is pretty straightforward and relates to the equal application of the law in a non-discriminatory fashion. This means everyone.

    Any attempt by Scalia to reduce its meaning to the “intent” is an exercise in right-wing mind-reading.

  • Daez

    @ChicagoJimmy: Hate to be the one that points this out, but he is absolutely right. The only reason the 14th Amendment was passed was to protect the rights of blacks. It was never designed to cover any other minority.

    Rather a justice wants to apply it to any other minority or not depends completely on their judicial philosophy.

  • DR


    We went through this before, and you’re wrong. Sodomy was still illegal in the 1860s, men couldn’t marry men, women couldn’t marry women, and women had no rights whatsoever. You’re imposing 21st century values on an amendment written in the 1860s, which is not logically sound. It’s the one big mistake evolutionists tend to make, which creates problems.

    I know any Con Law professor worth his or her degree would agree that the Amendment was specifically directed at African-Americans. When you see phrases like “all men are created equal” (the Declaration of Independence), it only applied to the white, heterosexual men who wrote the document. It’s a turn of phrase, nothing more.

    Citing the plain text without understanding the historical and legal background of the amendment in utterly meaningless.

  • PatrickB

    @DR: No one disputes that the 14th amendment was motivated by Southerners’ attempts to create a quasi-slavery tier of citizenship.

    The relevant point is that Thaddeus Stevens and company addressed this by creating an amendment that explicitly forbids the federal and state governments from creating classes of citizens, period. I suspect that Stevens, in his suspicions of the traitorous South, knew that if he specified, for example, race, color, or national origin, Southerners would find a creative work-around, like the pencil test. In any case, if they wanted to write an amendment that guaranteed full citizenship on the basis of race, they could have, but they chose not to.

    Aside, aren’t you applying an 21st century American conception of race? It’s the one big mistake constructionists tend to make, which creates problems.

  • DR


    This Amendment, regardless of how future Supreme Court Justices have interpreted it (that’s their job, after all), was originally written in regards solely to race, with a bit about making sure the former Confederate legislators couldn’t hold office or demand reparations for lost slaves. Your attempts to place some sort of desire that there be “all-inclusiveness” into this Amendment simply don’t hold up when you put the Amendment in the proper legal and historical context.

    Regarding your comments about “race” and 21st century notions… since you’ve not expanded upon it, I can only assume you take some sort of issue with my focus on “African-Americans”. Either way, case holdings by the USSCt after the ratification of the 14th Amendment specifically denied due process and equal protection to Native Americans on the grounds that they weren’t citizens (1884, Elk v Wilkins), and since the Amendments were written during the Reconstruction Era, it’s pretty obvious they were designed to protect former slaves and their descendants.

    The choice of watered-down language compared to the 13th and 15th Amendments may have been chosen in order to avoid citizenship being subject to political capriciousness, but that doesn’t change the context of the Amendment. Women and gays were not remotely contemplated by the legislators who ratified this amendment. Just because future Justices have found that it *should* apply to gays and women does not mean that, at its inception, it was meant to do so.

  • PatrickB

    @DR: The congressmen who wrote the fourteen amendment were not illiterate. The framers abolished legal class as a means to permanently get rid of slavery: the problem is rooted in race, but the legal remedy transcends it. People in the 1860’s didn’t understand women or gays as people that are entitled to uni-citizenship, but that doesn’t change the fact that the amendment abolishes legal class.

    Moreover, it’s not fair to cite cases twenty years later to refer to the framer’s intent (which you don’t even need to do b/c it’s perfectly clear that legal class has been abolished.) The Congress (and Union states) of 1865 was uniquely radicalized by (1) the Civil War, which, relative to the population and economy, was singularly destructive and (2) the exclusion of the Southerners, who favored legal classes. The proponents of the amendment were fierce abolitionists who probably didn’t care about the consequences of abolishing legal class so long as slavery was gone forever. Fast-forward 20 years, and you have Southerners back in Congress, the Northern working class divided along ethnic lines, and the Northern elite more concerned with making money than punishing the South, and you get a completely different view. Also, the Supreme Court was always hostile to the idea of abolishing legal class. It’s no surprise that they interpreted the amendment narrowly, considering they overturned the Civil Rights Act of 1871.

    I mentioned race because, if we buy Scalia’s view that the 14th amendment only applies to ex-slaves, then the government is free to discriminate against Italians, who, like Slavs and Jews, were not considered white in 1865.

  • DR


    I’m going to say we have to agree to disagree. Scalia is absolutely correct regarding the intent of the Amendment, but is absolutely wrong, in my opinion, when it comes to how the Constitution ought to be interpreted. As I said earlier, I’m an evolutionist.

    In law, by the way, it’s absolutely fair to cite later cases to determine the intent of the Amendment, we do it all the time. When the US Supreme Court is called upon to interpret the 14th Amendment’s definition of “citizen” within twenty years of the passage of the Amendment, that’s important law being made.

    I think you’re imposing modern progressive values into your interpretation of the first section of the 14th Amendment, and I simply don’t agree with your analysis. I find it too modern and far-reaching. I think the intent is much narrower when you read the Amendment in full.

  • justiceontherocks

    Justice Scalia would be the first to admit that people interpret the law and everything else from their own personal vantage point.

    He has been very clear and consistent about the “original intent” of the 14th amendment for at least 35 years, long before he took the bench. many times I believe he looks to “intent” when the clear language of the Constitution requires a different, broader reading. That is the case with the 14th amendment.

    Notice to that he is not a fan of original intent with respect to the second amendment, and takes a sometimes expansive view of the first amendment.

    Finally, Scalia is a lot of things, including an intellectual bully, but he’s not a malicious person. I should know. He was my faculty advisor in law school.

  • PatrickB

    @DR: I don’t understand, from a constructionist point of view, whose ‘intent’ matters more: the amendment’s original proponents or the supreme court 20 years later.

    [email protected]justiceontherocks:
    “But I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even “animus” toward such conduct. Surely that is the only sort of “animus” at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional in Bowers” — Scalia
    WTF this malicious… this man clearly hates the gays!
    He even goes beyond polygamy to include murder. That’s pretty bad…

  • redball

    He is a disgusting, filthy piggy. [img],r:19,s:0&tx=70&ty=68&biw=1408&bih=669[/img]

  • Queer Supremacist

    @David Ehrenstein: Most Italian men are hot. Scalia is not. He is an example of why heterosexuals of any race, religion, or gender have no place in the ruling class in this country. They have no place in Western Civilization, period.

    Oh, and nuke the Vatican.

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