Monday, January 3, 2011

Women aren't Persons?

Huffington Post is running with an interview that Justice Scalia gave to a legal magazine. 

This doesn't happen all to often, but I kinda got go with HuffPo here. 

In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. 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. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

Here is the wording 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.

Am I not a person because I am female?  Seriously, I would like someone to explain to me what he means by this.  I get the fact that in the 1860's women were not considered equals, but the wording says person.  Wouldn't that include any human?  I am normally inclined to agree with Scalia, but I am thinking he jumped the shark here. 


Catawissa Gazetteer said...

You quoted Section 1 of the Fourteenth Amendment. Section 2 reads as follows:

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, 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, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

As you'll note, men are specifically mentioned while women are excluded. Yes, regardless of how it offends our modern sensibilities, Scalia is right.

In fact, the testimony of history stands on his side. Until passage of the Nineteenth Amendment women were never guaranteed the right to vote or, as far as the U.S. Constitution was concerned, even offered the opportunity to vote. In that respect, just like children in the womb today, women were something, just not persons.

Just a conservative girl said...

I get that. But section one is talking about something different then voting. Section four talks about debt. Section one is talking about citizenship and the rights given by that citizenship.

I agree that women weren't given much, if any, consideration at that time. If anything you prove my point more. Section two uses the word male, section one uses the word person. A woman is person, correct?

Opus #6 said...

Dr. Seuss: A person is a person, no matter how small....

Catawissa Gazetteer said...

I'll have to do more research for particulars but I think Section 2 speaks directly to the issue. If Section 1 states that no person shall be denied, yet Section 2 explicitly excludes women from the exercise of basic rights, I have to assume that, at least as far as the Constitution and the people that wrote and amended it are concerned, women were not considered, for legal purposes, persons.

Further, I think that the history of womens rights in this country bear this out. At different times women were excluded from owning property, inheritance, voting and if I remember right, even some forms of education. This isn't really all that much different than the way slaves were treated. And the treatment and possession of slaves was legal because they lacked personhood. The same reason abortion is legal today. The unborn baby is not considered a person.

There's a difference between the obvious fact that all humans are persons and the legal definition. I'm not an attorney so I'd have to root around to get all this straight in my head again.

By the way, I think Dr. Seuss got it right, which really says all that needs to be said about the value of higher education.

Just a conservative girl said...

I don't disagree with what your saying. But, it would seem to me that they purposely used the word person in section 1 and did the same with male in section 2.

This was done to give freed slaves rights. It would stand to reason that they meant for the freed female slaves to be considered citizens. They then when on to talk about voting rights and then used the word male, because as you said at the time women did not have that right back then.

Women were still considered citizens, even though they didn't have voting rights for another 50 or so years.

Language matters in legal documents and the langauge says person.

Catawissa Gazetteer said...

We need a lawyer to jump in and clarify this. You may be right on the issue of personhood in the absolute sense but I think that in the historical sense, for the intent of legal parity, women did not posses full personhood equal to that possessed by men. And I think that this is the point Scalia addresses. He always looks to original intent. The Fourteenth was narrowly restricted by the Supreme Court in the Slaughterhouse Cases in 1873, leaving the full personhood of blacks intact while protection of basic, fundamental rights was left with the states.

The Fourteenth is also the first time the word male is used in the Constitution. My guess is that this was done purposefully to restrict a broadening of womens rights.

Whether it was intended to be or not, the Constitution was silent on the issue of womens rights, most likely because it was probably considered a settled issue. Women had never had most of the rights of men prior to the Constitution so I suspect it was just a given that they wouldn't have them after it was written, either.

Also, at the time most of these issues were not considered something for the fed to deal with.

Now I've got to try to learn more about this because it's awfully interesting. My thinking is that the legislature and courts have expanded the rights of women over the years, exceeding anything the Founders ever envisioned. That's why the feminist movement was so intent on the Equal Rights Amendment. They wanted those rights codified in the Constitution so they couldn't be undone. The fact that this is considered necessary also supports my contention that women are not accorded full personhood in the Constitution. And I think this is the point Scalia is making.

Sorry for rambling on so much. Writing helps me to think things through.

hometown guy said...

Would this not be an argument against a strict constructionist interpretation of the Constitution?

Just a conservative girl said...

Nice try, but no. A contract is a contract; the constitution is a contract. If we want to make changes to it, we have a way to do that.

I am not questioning the validity of the contract, I am questioning if this is correct way to look at it. I went and read something written by an attorney and made sense to me. Basically what Scalia is saying that legally speaking it doesn't speak to discrimination. That also includes men. That is a matter for the states to decide. It just so happens to be that interviewer used women. He would have answered the same way had they said men.

I honestly don't get why people want to say a legal document is "living and breathing". If that were true wouldn't it mean that I could do the same thing with say my mortgage? It isn't any different, as much as liberals like to try.

Catawissa Gazetteer said...

This link that I'm posting has some pretty interesting quotes from the Founders on it regarding women and their rights and place in society. Just like everything else at the time, there's a wide range of opinion.

Just a conservative girl said...

Thanks Catawissa.

That was very informative. I didn't like it all, but that were the times.

hometown guy said...

which is why it is important that it's a "living, breathing document." if it weren't, we wouldn't be able to amend it to do things such as give women the right to vote.
our legal system allows for a way to make changes to the constitution, and yes, in fact, to your mortgage as well.
and i did make a small mistake. instead of "constructionist" i should have said "originalist," which is a more accurate term for the interpretation commonly favored by conservatives.

Catawissa Gazetteer said...

Hometown Guy,

Because the Constitution includes a mechanism for amendment you can clearly say that it is changeable. But that is far different from the "living, breathing" document the progressives seem to think it is. The words mean what the meant at the time it was written and the understanding of the authors is clearly discernible through extra-constitutional documents such as the Federalist Papers and the personal correspondence of the framers. The progressives would really like this document to have no concrete meaning so they can read into it whatever suits their particular agenda. If it had no real, concrete and unfailing meaning there would've been no point in the document in the first place. Instead of weeks of debate and rancor it would have been easier to say, "Here's a blank sheet of paper; do what you want." But since the framers went to all the trouble to develop a set of rules the least we can do is follow them. And if you want to change 'em, you know how. If this is an "originalist" point of view then I'll gladly accept that sobriquet as a badge of honor.

Just a conservative girl said...

Living and breathing from a liberal point of view is not the amendment process. No conservative has ever said that we can't make ammendments to it. What we don't want is the judges deciding for themselves that times of have changed and since the founders couldn't possibly forsee this or that, so we must make allowances. Allowances that were never intended. That is what is meant by living and breathing. The ammendment process is difficult and messy. They want it done through the courts instead of the legislature as it should be.
Making ammendments to the a contract through a legal process is not making it "living". There is a reason why it is difficult to change it. Before we start making changes to it we need to have a robust debate.

hometown guy said...

I agree with much of what you both say and the distinction between changing a law through judicial interpretation and legislation is a good one.
Obviously we all agree the judicial branch exists to serve the purpose of interpreting what was written, and the disagreement comes over to what degree that should be done. if that branch of government's job was not to interpret the laws in light of the times, we could simply have legal clerks check the "rulebook" and issue a ruling not based on any interpretation whatsoever.
When modern society creates a situation that did not exist at the time of the constitution's writing (such as the internet for example), we can modify law or our understanding of law through either legislation or legal interpretation at the highest level (supreme court). If legislation were the only method of accomplishing this, the justices would be little more than legal clerks poring over reference materials, and their judgment, temperament, etc would be non-issues in confirmation proceedings.
Not really disagreeing with any of the above comments, just adding my perspective, which is typically from a slightly different direction as others' here.

Just a conservative girl said...

There real difference between you and I is in what you said. Modifying a law to include the internet is not the same thing as modifying the constitution. There is a huge difference between the two. Do you see the difference?

Also, to say we could use clerks I find that more than a little odd. Justices need to be well educated and have a great deal of experience to understand what the constitution is and why is written in the way it was. They should be experts in not just what the consitution says, they also need to understand the federalist papers. The information is there.

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