Leave it to Supreme Court Justice Antonin Scalia to argue that the Constitution does not, in fact, bar sex discrimination.
Even though the court has said for decades that the equal-protection clause protects women (and, for that matter, men) from sex discrimination, the outspoken, controversial Scalia claimed late last week that women's equality is entirely up to the political branches. "If the current society wants to outlaw discrimination by sex," he told an audience at the University of California's Hastings College of the Law, "you have legislatures."
To anyone who has followed Justice Scalia's career, his latest provocative statement shouldn't come entirely as a surprise. It's been more than four years since he answered a reporter's question about his impartiality in religion cases with an under-the-chin hand gesture that some commentators said was a Sicilian obscenity. (A Supreme Court spokeswoman insisted the gesture was "dismissive" but not obscene.) And it's been about as long since Justice Scalia called his refusal to recuse himself from a case about Vice President Dick Cheney's energy task force after he had just gone on a duck-hunting trip with Cheney the "proudest thing" he has done on the court.
But Justice Scalia's attack on the constitutional rights of women and of gays, whom he also brushed off is not just his usual mouthing off. One of his colleagues on the nation's highest court, Justice Stephen Breyer, has just come out with a book called Making Our Democracy Work: A Judge's View, which rightly argues that the Constitution is a living document one that the founders intended to grow over time, to keep up with new events. Justice Scalia is roaring back in defense of "originalism," his view that the Constitution is stuck in the meaning it had when it was written in the 18th century.
Indeed, Justice Scalia likes to present his views as highly principled he's not against equal rights for women or anyone else; he's just giving the Constitution the strict interpretation it must be given. He focuses on the fact that the 14th Amendment was drafted after the Civil War to help lift up freed slaves to equality. "Nobody thought it was directed against sex discrimination," he told his audience.
Yet, the idea that women are protected by the equal-protection clause is hardly new or controversial. In 1971, the Supreme Court unanimously ruled that they were protected, in an opinion by the conservative then Chief Justice Warren Burger. It is no small thing to talk about writing women out of equal protection or Jews, or Latinos or other groups who would lose their protection by the same logic. It is nice to think that legislatures would protect these minorities from oppression by the majority, but we have a very different country when the Constitution guarantees that it is so.
And the fact that we have a very different country now from the days of the Founding Fathers is why Justice Scalia is on the wrong side of this debate. The drafters could have written the Constitution as a list of specific rules and said, "That's all, folks!" Instead, they wrote a document full of broadly written guarantees: "due process," "freedom of speech" and yes, "equal protection." As Justice Oliver Wendell Holmes explained almost a century ago, the Constitution's framers created an "organism" that was meant to grow and to be interpreted "in the light of our whole national experience," not based on "what was said a hundred years ago."
The Constitution would be a poor set of rights if it were locked in the 1780s. The Eighth Amendment would protect us against only the sort of punishment that was deemed cruel and unusual back then. As Justice Breyer has said, "Flogging as a punishment might have been fine in the 18th century. That doesn't mean that it would be OK ... today." And how could we say that the Fourth Amendment limits government wiretapping when the founders could not have conceived of a telephone, much less a tap?
Justice Scalia doesn't even have consistency on his side. After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 because they said equal protection required it. Is there really any reason to believe that the drafters who, after all, were trying to help black people achieve equality intended to protect President Bush's right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted not on the white President who wanted to stop counting votes.)
Even worse, while Justice Scalia argues for writing women out of the Constitution, there is another group he has been working hard to write in: corporations. The word "corporation" does not appear in the Constitution, and there is considerable evidence that the founders were worried about corporate influence. But in a landmark ruling earlier this year, Justice Scalia joined a narrow majority in striking down longstanding limits on corporate spending in federal elections, insisting that they violated the First Amendment.
It is a strange view of the Constitution to say that when it says every "person" must have "equal protection," it does not protect women, but that freedom of "speech" something only humans were capable of in 1787 and today guarantees corporations the right to spend unlimited amounts of money to influence elections.
Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board. Case Study, his legal column for TIME.com, appears every Wednesday.