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View Diary: On Constitutional Interpretation: Originalism v. A Living Constitution? (286 comments)

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  •  The 14th Amendment (none)
    does not prohibit gender discrimination.  A federal law, referring to a particular enumerated set of activities, does, because a nameable (southern white conservative gentleman) Senator inserted discrimination on grounds of sex in a list of other reasons that were not acceptable bases for discrimination.  He had a daughter, you see.

    I find the notion that Scalia would claim that the 14th amendment prohibits gender discrimination in hiring bizarre.  The asserted claim about the Supreme Court rulings is I beleive incorrect.  The Supreme Court upheld the Constitutionality of several Civil Rights Acts, which made gender discrimination in hiring illegal, based on the Interstate Commerce Clause. I'm old enough to have read the debates and reports in the newspapers, back when newspapers carried news rather than trash.

    So I would say that your analysis seems to have some difficulties that need patching, which is not to say that they cannot be patched.

    Of course, if you believe that the Constitution is subject to interpretation as time goes on, then as a political matter people will seek to appoint jurists who support their interpretation, whether the interpretation be unrestricted abortion rights or the unrestricted right of the unorganized militia (that's adult citizens) to own such arms or recreational pharmaceuticals or erotic photographs as they see fit.  

    I could have enumerated for a while at the end of the last paragraph, but I was trying to make sure that there was something that each reader would not want.

    •  You are incorrect (none)
      The 14th Amendment, as interpreted by the Supreme Court, prohibits gender discrimination.

      A different scruitny was even created for the purpose, intermediate scrutiny.

      The SCOTUS is Extraordinary.

      by Armando on Sat Jul 23, 2005 at 12:39:01 PM PDT

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      •  Armando is correct (none)
        14th Amendment Section 1

        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.

        The text is gender neutral. Hence Scalia's contorted view as reported in the main post. Would we need the 19th amendment today to determine that women cannot constitutionally be denied the right to vote- no. We only get discriminated against in the application of the 14th amendment in determining the constitutionality of laws which discriminate based upon gender. Do we need an ERA? Well not as the 14th amendment text is written, but as it has been applied...

        "Once in a while you get shown the light In the strangest of places if you look at it right"

        by molly bloom on Sat Jul 23, 2005 at 04:41:14 PM PDT

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    •  public vs. private (none)
      The Equal Protection Clause of the 14th Amendment only protects individuals from state action, not acts by private individuals.  That is why the Civil Rights Act, which outlawed discrimination by private parties, was not based on the Equal Protection Clause, but instead the Commerce Clause.
      •  Correct (none)

        The SCOTUS is Extraordinary.

        by Armando on Sat Jul 23, 2005 at 12:48:11 PM PDT

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        •  Armando? (none)
          The point that you said was correct appeared to be identical to mine.  Perhaps I should have answered at greater length.
          •  the point (none)
            I think that the point is that today, most would interpret the 14th Amendment as prohibiting sex discrimination by the federal/state governments, whereas if Scalia were true to his theory of interpretation, the 14th Amendment would be read not to bar them from so discriminating (so that a state could pass a law that only men are allowed to hold public office, for example).  The Civil Rights Act is sort of besides the point in that regard, since it only regulates private conduct - whom a business may hire or serve, etc.  While Congress could always repeal the Civil Rights Act and thereby allow private actors to discriminate, it cannot pass a law overriding its constitutional duty to treat everyone equally (the Commerce Clause power is constrained by the other provisions of the Constitution).  That is, of course, unless an originalist court finds that the Equal Protection Clause never applied to women in the first place.
    •  Scalia may be (none)
      extrapolating from the part of the 14th Amendment in which gender enters the Constitution for the first time, in providing equal protection for black men.

      And then the 15th Amendment made clear that included black male suffrage.

      And then, more than half a century later, the 19th Amendment enacted full federal female suffrage (i.e., most women already had partial suffrage then in their municipalities, states, or certain races, i.e., school suffrage, presidential suffrage, etc.).

      And then, more than half a century later than that, this country refused to ratify the Equal Rights Amendment.

      So Scalia would extrapolate that women have equal suffrage but no more than that under the Constitution.

      Y'know, if we had passed the ERA, so much of this mess today might be moot. . . .

      "Let all the dreamers wake the nation." -- Carly Simon

      by Cream City on Sat Jul 23, 2005 at 05:50:10 PM PDT

      [ Parent ]

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