Patters

Do you agree with Scalia? Scalia's argument is that the 14th amendment was not written to address sexism, therefore does not apply to gender (or sexual orientation). Thus, many minorities can only achieve equality by appealing to the majority. The counter argument to Scalia's point-of-view is that the Constitution is governed by timeless principles, thus the 14th amendment needs to be interpreted in light of current times.

This is the key text in 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."

This is what Scalia said, according to the SF Chronicle:

Constitution does not ban sex bias, Scalia says

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law. He said the same was true of discrimination against gays and lesbians.

...

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said.

Patsfanin Philly

Whether you agree with him or not, it is consistent with his view as a strict constructionalist, that it that the U.S. Constitution is to be interpreted as it is written and was written at the time, not "for the times" currently.
Strict constructionism - Wikipedia, the free encyclopedia
Most courts will look at the text, history, structure and precedent in deciding a case or whether a law is constitutional where a strict constructionalist will look at the text only.
He's not saying that there should be discrimination versus homosexuals and women, just that the correct remedy is through legislatures and not judges making law. I think the solution lies somewhere in the middle....between strict constructionalism and judges making law...To be clear, "making law" refers to judicial activism that can lead to inconsistencies and conflicting laws.

apple strudel

Scalia is an originalist, not a strict constructionist. Though originalism is about as stupid as strict constructionism. Legal texts are not sacred.

patsfan13

Scalia is correctly pointing out that many issues where courts legislate should be handeled through legislation not through courts making things up as they go along. Very sound thinking.

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apple strudel

It is only sound if you want a weakened judiciary that is handcuffed into not being able to apply reason to silly laws. "Do what you're told" tends to annoy people who can think for themselves.

Real World

I need a lot more information to properly grasp his point, and the counter point being presented. When it comes to law, I've learned that the more specifics that are introduced into a discussion, the better understanding you'll have of all perspectives. There simply isn't enough here for me.

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"The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him."
Leo Tolstoy, 1897

TBradyOwnsYou

I agree with apple, mark your calanders!

The Brandon Five

I think "due process of law" and "equality before the law" are fundamental rights. Why would we need to put that to a vote? Is he arguing this point on the basis of preserving "freedom of association", or is he simply arguing against "special" protections for a particular class? I am with RW: need more info.

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apple strudel

LOL! It'll never happen again, I promise.