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

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  •  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.

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