Originalist sin

Antonin Scala was interviewed by Calvin Massey with the main topic being Scalia’s originalist belief in an enduring constitution rather than an evolving constitution in that “the Constitution tells the current society that it cannot do [whatever] it wants to do” (“The Orginalist”,California Lawyer, January 2011) – however not everybody agreed with the original constitution (and Thomas Jefferson thought it would be short-lived). Massey wondered whether, when the 39th Congress was proposing the 14th Amendment, anybody would have thought that equal protection applied to sex discrimination, or to sexual orientation, and Scalia replied that “the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't.”
Scalia seems somewhat disingenuous, because the 14th Amendment (adopted in 1868) has many sections not all of which are about so-called equal protection:
  1. Anybody born in the USA is automatically a US citizen – the most famous provision.
  2. All persons (except Indians not taxed) were to be counted in apportioning numbers of Representatives (removing the 3/5 rule for slaves), and when the right to vote “is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged” the count should be reduced in proportion to the number of male citizens denied the vote – the denial of voting rights was routine in segregationist states, and the reduction of representation was never enforced.
  3. People who were to hold public office in the USA could not “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
  4. The US public debt incurred in suppressing insurrection or rebellion is completely valid, but the USA and its states are not liable for debts incurred in aid of any insurrection or rebellion against the USA, nor any claim for the loss or emancipation of slaves.
Two years later, the 15th Amendment was very explicit: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” – so segregationist states introduced ways of abridging or denying the vote that did not ostensively involve race or colour, such as literacy rules. In 1920, the 19th Amendment introduced right of women to vote: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” – a clear case of the constitution banning sex discrimination.
A sin (slavery and the status of those who were not white males) in the original US constitution was slowly remedied, but – as many anti-federalists noted in debates about the constitution – the document did not guarantee rights for all, rather it preserved the rights of an elite who were worried about the tyranny of a majority. For example:
Read the said constitution, and consider it well before you act. I have done so, and can find that we are to receive but little good, and a great deal of evil. Aristocracy, or government in the hands of a very few nobles, or RICH MEN, is therein concealed in the most artful wrote plan that ever was formed to entrap a free people. — Antifederalist No. 26 (April 1, 1788)
Scalia worried about a different type of elite, so he said, in a case before the US Supreme court concerning an amendment to the Colorado state constitution. The amendment precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.”
Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected. — Antonin Scalia, Dissent to ROMER v. EVANS (US Supreme Court, 1996) [My emphasis]
Scalia seems to prefer an elite of “a very few nobles, or RICH MEN” writing in 1787 to those justices approved by a contemporary elected Senate.

No comments: