Justice Scalia's Warped Idea of Personhood: Not Women, But Corporations?
On a scale of 1 to 10 for loathsome traits and comments, Justice Scalia rated about an 8 on mine. Chief Justice Roberts scored a 9. But two things happened which boosted Scalia to a 10 and come quite close to me thinking he should just be impeached because he's clearly not an objective or clear thinker.
First, let's remember that he will be teaching all the new teabagger freshmen their Constitution 101 course, courtesy of Michele Bachmann. That would be just great if he actually understood the Constitution.
First strike: His most recent interview with California Lawyer, where he restates his position that women do not enjoy protection under the 14th amendment to the Constitution.
Q: 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?
SCALIA: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.
Scalia's comments, to be fair, have to be taken inside his frame, which is that the Constitution is an original document and not a living document. Therefore, if it was not an issue at the time of its writing, the fact that it is an issue now does not mean the 14th amendment applies. If the 14th amendment were to be interpreted in the frame of a living Constitution, then it would surely apply to gender and sexual orientation.
Still, what he's saying here is that women do not enjoy protections under the 14th amendment. He's also quite clearly signalling which way he would rule on the Proposition 8 case and other rulings with regard to same-sex marriage, since they've been declared unconstitutional under the equal protection clause.
I have major difficulties with his interpretation. Exactly who would be considered a "person" under the 14th amendment? If his remarks are to be taken literally, then what he's saying is that women are not to be considered persons or citizens (the two words used in that clause). Who does that leave? Men and corporations, evidently. Does that mean that gay men can marry but lesbians can't? What if someone married a corporation? Would they have spinoffs as children?
Okay, those questions are ridiculous but then, so is Scalia. This man is one vote of NINE deciding whether our democracy lives or dies, and he routinely rules for its death, while bragging that he doesn't even need to read the briefs because the issues are so clear. Yes, really.
That clip at the top was from a forum conducted on March 23, 2010. It will give you a sense of his arrogance and his flippant attitude toward those who dare to challenge his interpretation of the Constitution's meaning, particularly with regard to the 14th amendment.
I know having an opinion isn't grounds for impeachment, but is utter disrespect for the country and over half the population grounds? If so, let's do it.
A postscript directly to Justice Scalia: Thanks for not showing up for the State of the Union address. It's good that you're skipping it, because it proves just how deep your disrespect for the voters of this country really is. Stay away. Far away.
Scalia along with many other highly positioned officials are obviously unbalanced. If they were in the private sector, they'd be fired and perhaps committed. But as long as they are making critical decisions for the entire country, I suppose it's OK.
While "technically", one could argue Scalia is right, the problem is "the big picture view" of how Scalia believes the Constitution... IN ITS ENTIRETY... should be interpreted... in some strict "literal" sense with no room for "intent" or nuance.
This is one of those "living document" arguments. Conservatives see the Constitution as some sort of "rulebook" with ideas that are as exacting as laws. That's a problem.
The Constitution is not a list of "Laws". That's why we have a Congress. If the Constitution was a fixed set of rules, we wouldn't need a Congress... which I'm sure would suit him fine.
* There are two types of Republicans: millionaires and suckers.
"Mugsy's Rap Sheet": Recording history for those who seek to rewrite it.
This makes perfect sense to the Five Fasists' of the Apocolypse who sit on the SCOTUS.
Their next great decision will be: corporations are people, but people are not corporations, therefore people are not people, only corporations are people - meaning people no longer have a right to vote, only corporations do.
And the moron teabaggers will cheer.
If I were a psychopath, I would join the republican party, and get in on the gravy train taking the Teabircher morons to the cleaners.
Having an opinion may not be an impeachable offense but being a hunting buddy of Dick Cheney's might be.
I mean he did go hunting with Cheney and didn't get a face full of birdshot so that alone shows how close they are.
Kind of funny. I typed "birdshot" into Google to see if it was a compound word or two words and the third link it showed was google images with that guy Cheney shot as the second image.
Say what you mean. Mean what you say. But don't say it mean.
good question.
a lot of these issues need to be decided by a constitutional convention.
have to be determined which gender the corporation is. If it's same sex it's a no no.
How do you tell what the gender of a corporation is? Can we have a look at their private parts?
Only when the last tree has died
and the last river has been poisoned and the last fish has been caught
will we realize we cannot eat money.
you'd have to be on the board at a late night christmas party to do that...!
wem
You mean, like, if Dolce and Gabbana married Halliburton?
I'd say we'd end with with really well-dressed war-monger offspring.
far left loon >.<
I guess that the war dead will be really fashionably dressed.
Only when the last tree has died
and the last river has been poisoned and the last fish has been caught
will we realize we cannot eat money.
To be specific, white, land owning men.
Does the Constitution say anything about marriage?
Is there a law about marriage? (You know, how it's done or who does it?)
Or has it just been around so long no one questions it?
(I'm being serious. I'd like to know.)
far left loon >.<
Scalia seems like a real grunter. That's the nicest thing I can find to say about him.
He seems to want to take America backward. And, he must detest women. I don't care for his sophistry paraded as wisdom.
far left loon >.<
I admit that Scalia has never been my favorite or even close to my favorite SC judge. But I never thought that he would be so arrogant as to say that he was above reading the briefs. In my mind, that either makes him intellectually lazy and/or morally superior to the Constitution. Either way, that makes him unfit to sit on the court.
Only when the last tree has died
and the last river has been poisoned and the last fish has been caught
will we realize we cannot eat money.
…lead to absurd conclusions.
Corporations are persons under Amendment XIV.
Persons have rights.
Ergo: Corporations have rights.
Corporations are persons under Amendment XIV.
Persons have gender.
Ergo: Corporations have gender.
Persons of gender female have no rights under Amendment XIV.
Corporations have gender.
Corporations of gender female have no rights.
One wonders what the approved method for determining a corporation's gender might be in Scaliaville. It certainly cannot be derived from the gender of any so-called "natural" person (CEO, Chairperson, majority of shares held by one gender or another.)
The mind reels.
I'm 30 minutes in and it is a great interview. To suggest that Scalia is not well educated in law and a clear thinker is absurd. Although I do not agree with his positions or judicial philosophy I do believe he has coherence in his thought and use of textualism. When it comes to the 14th Amendment and it not applying to women it is not a question of whether or not women aught to have protection, but a question of whether it was originally intended. Scalia tries not to legislate, and does so by relying on stare decisis and textualism. If you watch the entirety of the interview that you link to you will realize this.
As for the "I don't even need to read the briefs" comment if you watch the video you realize it is a comment made in humor.
http://www.callawyer.com/story.cfm?eid=913358...
Wrong link: http://www.callawyer.com/legallyspeaking.cfm
Additionally I do like his criticism of allowing cameras in the courts for his fear that everything will be taken out of context in a 30 second sound byte which would be a disservice to educating our population and accurately portraying our courts. Basically that is exactly what this blog post has done to the interview.
Agreed
Sort of agreed. His methodology is coherent, but he doesn't always follow it. And he's not quite the Textualist he claims to be. His method is called "Text and Tradition." The tradition part allows him to sneak in Original Intent, even though he says Original Intent is not really a viable methodology. I like the textualism part. (Sometimes, his textualist instincts are what protects criminal defendants' rights more than anything in important Court rulings!) But the tradition part is nonsense.
Which is just stupid. The words have objective meanings regardless of what was intended. If you write that no person shall be denied the equal protection of the laws, you can't say, "Well, but we didn't mean women."
Just imagine that your city council outlaws owning ferrets, and then proceeds to arrest everyone who owns dogs. "What the hell?" cry your arrested neighbors, "This barking animal is clearly not a ferret!" "Yes," comes the response, "We wrote ferrets, but we originally intended dogs."
He tries. And fails. And often, he doesn't try.
Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?
That was not the argument he made.
He declared that since women were not legal persons at the time (due to coverture laws) they cannot be considered persons now.
He loves this sort of public wanking. He does it all the time because he thinks he is untouchable. Given the Republicans in control of the House you can expect to see plenty more ethical violations by Scalia in the next two years.
Scalia is deliberately provocative. He's such a crank.
He might be interested to read Minor v. Happersett, in which Chief Justice Waite confirmed that women were indeed persons and citizens under the Fourteenth Amendment. (They just didn't have the right to vote by virtue of being so.)
Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?
his madness is clear; downrite scary, kids!
wem
The constitution was written by privileged white men - and the the more we can anchor the constitution in the past, the more we can bring progress in this country to a grinding halt. Funny Scalia should refer to himself as a judge, because he is unwilling to use judgement, deferring it to the judgement of people centuries ago.
It's a trademark of an authoritarian personality. They use it just like the bible. Its the sacred authority and it means what I say it does. No arguing. It's the Constitution, It's the Bible, I win.
Scalia's an ass. And he knows it. He has fun with that image. He also thinks he's smarter than everyone else in the world. He's not. But, I do give him credit for outlining a methodology of interpretation. I don't agree with it in its entirety, but it is a coherent method, which most judges don't have. He doesn't follow it, but that's just another reason he's an ass.
In any case, a false dichotomy has been established regarding the interpretation and construction of the Constitution: Should it be a Living Constitution? Or should we interpret it as Originally Intended.
My answer: Neither.
We are supposed to be a nation of laws, not
menpeople. To that extent, we should agree that we are governed by words written into law, not the intent of the people who wrote the words. And those words should be interpreted objectively. Their meanings cannot change over time. This approach is called Textualism, and it is the proper one.First, read the words. Find their objective meaning. If there are ambiguities that require consulting dictionaries or the legislative history, that's fine, but resolving the ambiguities means finding objective meaning, not discerning the intent of the people who wrote the words. And if there is vagueness (where the meaning is clear, but the scope is not), judges should fashion principles that make the objective meaning of the words operative for their time period.
Under this approach, it doesn't much matter what any of the Fourteenth Amendment's authors were thinking about how it would work. We are governed by their words, which are so simple, a high schooler could tell you what they mean.
Everything else about Original Intent of the framers and how the meaning of the words should change to fit the times is legal gobbledygook, and the product of minds that have been softened by living in a bubble of academia.
Everyone is equally entitled to the pursuit of happiness. Wasn't that once self evident?
Although theimage of Scalia running down the street ala Charlton Heston is mighty disturbing in its own right...
According to this thug Supreme Court Justice, corporation have rights granted by our constitution - but not women. He is so full of it.....
Scalia errs here in conflating laws which discriminate with the suspect classification of the target of the laws. In short, the issue is not whether the classification was widely recognized and accepted at the time of the adoption of the Fourteenth Amendment. The text of the Amendment makes it clear that it applies to all "persons":
"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 last time I checked, women were persons. This is the start and the end of the matter.
If Scalia is right, then women do not have a right to due process either. Or are they persons as to one and not persons as to the other?
If "citizen" only applies to what a citizen was then, does "arms" only apply to muskets and flint locks?
Abigail Adams famously wrote to her husband imploring him to include women in the Constitution which the Founding Fathers intentionally did not. They were not citizens, they were property. The 19th amendment granted them the right to vote. Only citizens can vote. Ergo women were granted citizenship and thus were included in the Constitution. The 14th amendment applies to women because of the 19th amendment.
I think the most important question that should be asked of a prospective judge is his/her view of the Constitution as a living document or a finite document.
"The witness stand is a lonely place to lie." David Boies
And then ask them what kind of drugs they're on and when was the last time they beat their wife.
far left loon >.<
I guess you ladies will just have to incorporate.
Hasa Diga Eebowai
Imagine, if all the females in this country did just that?
I have a feeling that would have some pretty significant repercussions. :)
What is your conceptual, continuity?
Sounds fabulous!!
far left loon >.<
I would settle for a re-ratification of the Equal Rights Amendment.
Only when the last tree has died
and the last river has been poisoned and the last fish has been caught
will we realize we cannot eat money.
When Phyliss Schlafly and her ilk were shotting down the Equal Rights Amendment they were using the argument that women were already covered, now it looks like she was wrong thanks to Scalia, so I guess it is time to revisit it.
corporations personhood, but women should be denied that right.
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