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Corporations Are Persons, But Women Are Not?

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In Citizens United v. Federal Election Commission (2010), the corporation was elevated to the highest level of democratic citizenship and endowed with the right to free speech under the First Amendment as the equal of human beings (arguably including women).

U.S. Supreme Court Associate Justice Antonin Scalia joined the majority in Citizens United; and in a recent interview said the equal protection clause of the Fourteenth Amendment does not protect women against discrimination. "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't," Scalia said.

The Fourteenth Amendment to the U.S. Constitution provides in relevant part, "No State shall make or enforce any law which den(ies) to any person within its jurisdiction the equal protection of the laws." This Civil War amendment was principally aimed at enfranchising the African slaves who were neither citizens, persons nor people within the meaning of the Constitution. They were chattel, no different than cattle. Though the constitutional historical context of the amendment reflects the evils of slavery, the sweeping language of the amendment admits of no limitations based on conditions of servitude or gender. It aims to prohibit discrimination (denial of equal protection of the law) against "any person within the jurisdiction" of the state (within the geographical boundaries of the applicable state law).

Justice Scalia appears to believe that the phrase "any person" in the 14th Amendment includes all males and corporations but not women. It is true that women did not get the constitutional right to vote until the ratification of the 19th Amendment in 1920. A "person" who does not have the right to vote cannot be considered a first-class citizen. The African slaves in the Constitution were considered not "free persons," "citizens" or "people," but "three-fifths of other persons."

But how does Scalia reason that an amendment designed to make "three-fifths of other persons" the equal of "free persons," "citizens" or "people" by prohibiting discrimination against them does not apply to women "persons"? Does Scalia mean to suggest women are fractionally lesser than "the three-fifths of other persons" and intentionally omitted from constitutional protection?

Following Scalia's analysis, the state of California could pass a law and mandate that women be paid one-half of the compensation that men receive in a particular state job or prohibit them from becoming police officers, firefighters, lawyers and even judges. It would be up to Congress and the state legislatures to protect women from discrimination; they shall have no refuge in the majestic words of the U.S. Constitution. Their refuge will be in the kitchen or the bedroom as the plantations gave refuge to the slaves.

In 1996, in United States v. Virginia, Scalia was the lone dissenter arguing that " the tradition of having government funded military schools for men (which excludes women) is as well rooted in the traditions of this country. The people may decide to change the one tradition through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics smuggled into law." Obviously, the "people" referred to by Scalia does not include women "people" who are incapable of making changes to tradition or law unless permitted by their menfolk.

For the average person (including the woman person), it is all confusing. Fictional persons such as "corporations and other associations, like individuals" are entitled to the highest constitutional protection to engage in "discussion, debate, and the dissemination of information and ideas" without discrimination. But women could have equality before the law only if their menfolk approve in the legislature?

Scalia says, "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."

No, that is not democracy. It is superannuated judicial hypocrisy smuggled into the Constitution.