Perhaps Paul's supporters should reconsider their criticism of the media. For, if Paul actually received substantial scrutiny, his ideas would undoubtedly frighten most voters.
Paul is charismatic. He also comes across as a straight shooter. Some of his ideas -- like his opposition to militarism and the War on Drugs -- appeal to many voters, including liberals. His arguments about lower government spending and taxation sound good to folks who worry about budget deficits.
Paul's arguments, however, often lack an empirical basis. History has already demonstrated that many of Paul's proposed solutions will never work. Thus, while some of Paul's ideas sound solid in the abstract, they crumble once they are subjected to widely accepted theories about government and society.
Because Paul's ideas are faulty and dangerous, he would make a terrible president. Here are five reasons why Paul should never become president.
1. Paul would restrict abortion based on anecdotal "evidence," rather than science.
Ron Paul is pro-life. He says that he developed his views on abortion during his practice as an OB/GYN. Paul's official website states that: "[D]uring his years in medicine, never once did [Paul] find an abortion necessary to save the life of a pregnant woman." Paul's statement, however, is troubling for two reasons.
First, medical science -- as opposed to Paul's anecdotal "evidence" -- proves that abortions are sometimes necessary to protect the life of the mother. Second, Paul's statement also contradicts the constitutional test articulated by the Supreme Court in Roe v. Wade and many subsequent decisions. According to established Court doctrine, states generally must make abortion available to protect the life and health of the mother. Even if Paul never witnessed a scenario where a woman needed a life-saving abortion, it is not difficult to imagine a situation where a woman needed an abortion to preserve her health.
Furthermore, conservatives have been trying to eliminate the health exception, which they believe amounts to "abortion on demand." According to the Supreme Court, however, a health condition means a psychological or physical condition which the doctor and patient decide warrants an abortion. While many Republicans want to limit abortion to life-saving procedures, Paul believes even this extreme exception is unnecessary based on anecdotes.
2. Paul has dreadful views regarding personal liberty and fundamental rights
Because Paul opposes abortion and everything done by the federal government, he has proposed a bill called the "We the People Act." This bill, if passed, would prohibit federal courts, including the Supreme Court, from deciding whether state or local laws violate the "the right of privacy, including issues of sexual practices, orientation, or reproduction... or... the right to marry without regard to sex or sexual orientation where based upon equal protection of the laws."
Essentially, Paul wants to remove federal courts from the business of deciding whether state laws violate the federal constitution! Contrary to Paul's vision of government, the Constitution secures certain rights enforceable against the national government and states. The Supreme Court has an important role in protecting those rights against invasion.
In the context of fundamental rights, Paul, however, wants to transfer this important federal judicial role to state courts exclusively. Undoubtedly, many state courts would sharply curtail liberties currently recognized by the Supreme Court. Furthermore, this proposal would produce a system where the substance of federal rights varied state-by-state.
In addition Paul wants to "repeal" Roe v. Wade. Since Roe is a judicial opinion, rather than a statute, he really wants a constitutional amendment reversing the ruling. Regardless, Paul's horrific proposals would endanger several personal liberties secured by the Constitution, including the right to terminate a pregnancy.
3. Paul would threaten the independence of the federal judiciary.
Paul's proposals show a striking disregard for the independence of federal courts. Although public opinion and the actions of the political branches influence court decisions, the courts do not operate as representatives of the electorate. Instead, the Framers envisioned a court system that would operate as a check against unlawful action by the government.
Paul, however, would remove a lot of substantive issues from the jurisdiction of the courts (see above). The We the People Act, which Paul has proposed, would also prevent the federal courts from "issuing any ruling that appropriates or expends money [or] imposes taxes. . . ." Supreme Court precedent, however, already prohibits courts from imposing taxes or expending money of the states. So Paul's proposal is unnecessary.
But Paul wants more than this. He also wants to prohibit any court ruling that "otherwise interferes with the legislative functions or administrative discretion of the states." This sweeping passage would virtually negate judicial enforcement of federal law -- including the Constitution (not to worry - this is what makes the proposal unconstitutional).
If a state passes a statute that mandated racial segregation in its public schools, a decision by the Supreme Court that enjoined enforcement of that law would interfere with the "legislative" and "administrative" function of the state. It does not take much analysis to discover the danger in this proposal.
4. Paul wants to repeal historic legislation that was responsible for curtailing racial and sex discrimination in the workplace and for prohibiting racial discrimination in places of public accommodation.
Ron Paul opposes the Civil Rights Act of 1964. The legislation prohibits employers from discriminating on the basis of race, color, religion, sex and national origin. Paul believes that the legislation violates the Constitution. Specifically, he argues that Congress lacks the power to pass the law and that the law violates the rights of employers.
The Supreme Court disagrees with Paul; so does the public. Americans have decided that they want a society in which employers cannot use race and sex as a basis for exclusion. Contrary to Paul's assertion, this vision is absolutely consistent with the Constitution, via both the Commerce Clause and the Fourteenth Amendment.
Furthermore, Paul is simply rehashing the same arguments that Dixiecrats made as they struggled to maintain Jim Crow and white supremacy. People who lack knowledge of history might find Paul's statements about freedom to contract and association appealing, but they are simply a contemporary version of arguments that prevented women and persons of color from having economic opportunities. Paul would seek to reverse over five decades of social progress.
History proves that the Civil Rights Act of 1964 was instrumental in achieving racial integration in southern schools. Until that act was passed, only about 1% of southern blacks went to school with whites -- despite the fact that the Supreme Court had decided Brown v. Board of Education ten years earlier. The legislation, however, tied federal funding for schools to antidiscrimination principles. The southern states sluggishly chose to integrate, rather than lose vital federal education assistance.
On the one hand, Paul opposes federal court enforcement of constitutional rights. At the same time, however, he opposes congressional remedies for racial and sex discrimination and enforcement of equal protection. Paul essentially wants to turn racial and gender equality over to the whims of the private sector and states. His ideas regarding civil rights are unsound, and they would undermine the nation's unfinished project of social justice.
5. Paul wants to erode the power of voters by repealing the Seventeenth Amendment.
Over the course of history, the American people have amended the Constitution to provide greater power to voters and to enhance democratic participation. The Fifteenth Amendment allows people to vote regardless of race (although it took nearly a century to make this a reality). The Nineteenth Amendment allows people to vote regardless of sex. The Twenty-Sixth Amendment allows persons who have reached the age of eighteen to vote. Furthermore, the Seventeenth Amendment allows individual voters of each state to elect US Senators directly. Previously, the Constitution delegated this authority to state legislatures.
Paul and many other conservatives want to repeal the Seventeenth Amendment. Although their arguments are not entirely coherent, most conservatives in this camp claim that repealing the Seventeenth Amendment would help protect the states against the national government. Others blame the growth of the national government on the inability of state legislatures to elect senators.
This position is flawed for several reasons. First, the Seventeenth Amendment is an important tool of individual liberty and democracy. Repealing it would contradict important values of American political life.
Second, the connection between the Seventeenth Amendment and growth of the federal government is sheer speculation; it is also incorrect. The government has grown because voters have decided that they need the government to deliver important services that states alone cannot secure.
Furthermore, most of the spending programs that Congress creates for the nation are voluntary. If states do not want to comply with federal regulations tied to spending programs, they can refuse the money. But state lawmakers do not want to anger voters by depriving them of important benefits, like school funding, healthcare, and safe roads.
Repealing the Seventeenth Amendment would undo a major element of America's move toward democracy. For this reason alone, Paul is unfit for president.
Final Thought
I applaud the efforts of Paul's fans to attract media attention for the candidate they support. This attention could lead to greater awareness of Paul's views among the electorate. If people actually hear the policies that Paul supports along with critical analysis, they will undoubtedly disapprove of his candidacy.
An earlier version of this article appeared on the blog, Dissenting Justice.]]>
Although LGBT workers remain vulnerable to discrimination across the nation, ENDA has not received much attention from the media and from many groups that advocate for LGBT rights. Instead, same-sex marriage and the repeal of Don't Ask, Don't Tell have occupied most of the recent headlines and have dominated the contemporary advocacy of many LGBT social movement organizations.
While supporters of same-sex marriage often point to the economic benefits associated with marriage, ENDA would also potentially improve the economic situation of LGBT individuals by reducing their exposure to workplace discrimination. Furthermore, DADT is a classic example of employment discrimination. But, while DADT only focuses on military service members, ENDA would end discrimination on the basis of sexual orientation and gender identity among employers nationwide. Logically, if same-sex marriage and the repeal of DADT are valuable elements of LGBT rights, then ENDA is equally (or even possibly more) valuable. Nevertheless, it remains on the back burner.
LGBT People and Employment
Two recent studies demonstrate the importance of ENDA to LGBT rights. Both of these studies report the workplace experiences of LGBT persons. The first study, released by the Center for Work Life Policy, shows that 48% of self-identified LGBT college educated professionals remain closeted in the workplace. During an interview with NPR, Karen Sumberg, an economist who conducted the research, stated that most of the closeted individuals expressed fear of career reprisals as the reason why they hid their sexual orientation and gender identity.
In addition, the Williams Institute, a research center on sexual orientation and gender identity at UCLA, recently released a study which concludes that about one-fourth of LGB (not "T") workers report experiencing job discrimination or harassment based on sexual orientation in the past year. Among transgender individuals, the number was a staggering 78%. The Williams Institute, like the Center for Work Life Policy, also concludes that significant numbers of LGBT individuals remain closeted at work. Furthermore, the study states that LGBT individuals tend to earn less income and face greater rates of unemployment than similarly situated heterosexual and gender-conforming individuals.(on this issue, the work of Lee Badgett is well regarded).
Why So Little Attention on ENDA?
Despite this research, most of the nation's discussion of LGBT rights has focused on DADT and same-sex marriage. The impact of workplace discrimination, however, is very wide ranging, and it undoubtedly affects poor individuals, women and persons of color in the LGBT population even more dramatically. With all of this evidence, the lack of attention to ENDA is both perplexing and disturbing.
If employment issues are so important to LGBT individuals, why do social movement organizations that advocate LGBT rights spend so much of their time on marriage and military concerns? If workers are afraid of being openly gay or lesbian, then a formal same-sex marriage might not look attractive to them.
It is hard to document the reasons why ENDA has received only minimal attention recently. The following arguments, however, potentially explain the situation.
First, marriage and the military provide symbolic value in US culture. If LGBT people obtain access to these institutions, advocates believe (rightfully or wrongfully) that they will have shifted the very terrain of LGBT rights discourse. Some commentators, like Andrew Sullivan, have argued that this would complete the entire mission of LGBT equality (in his book Virtually Normal).
The lack of attention to employment discrimination could also result because many of the people who run mainstream LGBT social movement organizations live in jurisdictions that prohibit sexual orientation and gender identity discrimination by employers. Because they are not vulnerable in their own workplaces, this issue may seem less important to them.
Furthermore, as LGBT critics have long observed, many of the people who direct the advocacy of LGBT social movement organizations have relative privilege in society (based on gender, race and class). Consequently, they might not have to worry about job losses as much as more vulnerable persons within the population of LGBT individuals.
Although the foregoing arguments might explain the relatively lower priority given to ENDA among some LGBT social movement organizations, they cannot excuse reducing ENDA to obscurity. Class issues matter for LGBT individuals. Economic concerns exist outside of marriage. And job security is a concern for civilian LGBT workers. Based on the most recent research and the unprotected status of LGBT workers in most states, the passage of ENDA should receive far more attention from the media and from LGBT social movement organizations.
A version of this article first appeared on the blog Dissenting Justice.]]>
Why should Obama support this particular issue? McGehee says that Obama should support same-sex marriage for two reasons: 1. in order to lead and 2. to fulfill a campaign promise:
Presidents lead. They take principled stands, based on their values and convictions, and then they work to create a better world. And this president promised his LGBT supporters on the campaign trail that he would be their "fierce advocate." We took him at his word.
Sadly, he isn't living up to his promises...
This argument is not entirely true. Obama certainly promised to be a "fierce advocate" for LGBT rights. And when he fell short of that promise in the past, he received a great deal of criticism (see, e.g., here).
Yet, Obama never promised to support same-sex marriage. Instead, he has always stated his opposition to it. During the Democratic primaries, each of the leading Democratic contenders -- including Hillary Clinton and Obama -- opposed same-sex marriage. Accordingly, the fact that Obama refuses to do so now should not surprise people who actually listened during his campaign.
Also, it is unclear what LGBT rights movements would gain if Obama suddenly shifted course and supported same-sex marriage. A sudden change in position might look contrived. Also, it would not translate into any immediate policy gains. Marital law is still subject to state control. Federal law could overturn state law on this issue, but this would require a ruling by the Supreme Court. Many LGBT legal advocates, however, do not want the Supreme Court involved with such a decision because it could backfire. No one is exactly sure how Justice Kennedy, the swing vote, will swing.
McGehee also notes that several conservatives, including Dick Cheney and Laura Bush, have recently expressed support for same-sex marriage. There is one major distinction between Obama, Bush and Cheney: Only Obama is seeking national office. Many former politicians have embraced same-sex marriage and other controversial positions now that they no longer depend upon voters for their professional lives. Thus, the comparison falls quite short. Yes -- this position acknowledges that Obama makes political calculations, but all politicians do this. Rather than seeing Obama as some fierce messianic figure descending from above to unshackle the downtrodden of the Earth, savvy voters must view him as a politician seeking votes and reelection. Clearly, Obama has decided that opposing same-sex marriage will not cost him too many votes.
Finally, LGBT groups could probably get more mileage if they pressed Obama on issues for which he has direct influence. Marriage is regulated by state law. Federal law takes marriage into account in many entitlement and other programs, but Obama has stopped defending DOMA. Federal constitutional law can trump any contrary state law, but the Supreme Court has not held that denying same-sex marriage violates the Constitution.
Although the president could state a belief that same-sex marriage prohibitions violate the Constitution, he could not enjoin the operation of contrary state law. Furthermore, his opinion would not necessarily cause any particular judge to rule congruently with his beliefs. In other words, any gains from pushing Obama on this issue seem speculative at best.
Recently, LGBT groups have engaged in highly effective advocacy by pushing Obama on issues over which he has control. Marital policy is not one of those concerns. ENDA, a proposed statute that would ban employment discrimination on the basis of sexual orientation and gender identity, however, could use presidential support. Rather than pushing Obama to move on an issue in a way that no other serious Democratic contender has done, perhaps LGBT groups would gain a lot more if they pushed Obama and Congress on ENDA.
If Congress passed ENDA, LGBT individuals in all states would receive formal protection against employment discrimination. LGBT folks who are economically vulnerable would likely benefit more from the passage of ENDA than wealthier gays and lesbians, whose wealth provides some cushion against discrimination -- and allows them to relocate to gay friendly jurisdictions.
The marriage debate raises the issue of class stratification within LGBT communities. Symbolism does very little for people struggling financially. In many ways, however, the arguments for same-sex marriage have a lot to do with symbolic, rather than material, change. ENDA on the other hand would provide at least formal protection to LGBT people with respect to their livelihoods. It is unclear why marital rights should have so much more prominence than basic protections for LGBT workers.
A version of this essay appears on Dissenting Justice.]]>
Weiner's conduct was reckless for a politician. He risked getting caught and subjected to a political scandal. This observation, however, does not indict the underlying behavior itself. It only means that he was not politically savvy. With respect to Weiner' conduct, however, there are no allegations (at least credible ones) that he violated any criminal laws, committed a tort, or violated any statutory rights held by any of the women with whom he communicated. In fact, it seems that several of them willingly engaged in sexual banter with Weiner. In other words, Weiner resigned because he engaged in noncriminal sexual conduct that appears to have been consensual or otherwise nonabusive.
Puritanical Values
The United States has a long and tired history of suppressing consensual sexual conduct. Historically, white women have been viewed as "sexually pure"; they should not engage in or be exposed to sex outside of marriage. Weiner crossed this socially constructed boundary. Dignified male politicians should act like "gentleman." Their sex should remain private and restrained. Weiner crossed this boundary as well. And teenagers, LGBT persons and persons of color have all been stigmatized due to sexual conduct and stereotypes. The reaction to Weiner implicates this long puritanical history that seeks to strip away sexuality in very racial and gendered terms.
Despite the ways in which the reaction to Weiner implicates a troubling slice of U.S. history, many self-proclaimed liberal critics refuse to defend Weiner. Instead, they continually make the observation that his behavior was stupid, that he was asking to get caught. Not too long ago, people routinely made this same argument when gays and lesbians who came out of the closet experienced employment discrimination. Although Weiner's situation is not completely analogous to the struggle for LGBT rights, the reaction to his conduct sounds eerily familiar. Rather than focusing on his right to engage in consensual sexual conduct, many people are simply arguing that he should not have done so. But this does not explain why the country treats sexual expression as immoral.
Hypocritical Values
The United States ranks among the world's largest markets for pornography and prostitution. Nevertheless, it retains relatively puritanical views about sex. Until recently, federal law shielded the supposedly strong and heroic members of the armed forces from the presumed threat of homosexuality. States have rushed to ban same-sex marriage. A significant portion of the country opposes teaching teenagers about birth control -- even though teenage pregnancy remains a serious problem.
Down in the Bible Belt, residents of Dallas, Texas often joke that the city has more churches and strip joints than any city in the nation. In Texas, however, state law bans the sale of "sex toys," unless they are necessary for medical purposes. Texas treats sex toys as obscenity -- unless you need them for medical purposes.
These are just a few examples of the hypocritical stance towards sexuality in the U.S. Weiner's resignation brings that hypocritical history to the surface.
Weakness
Rather than treating Weiner's conduct as politically unwise -- but generally harmless -- Democrats rushed to kick him out of office. Predictably, the party caved when it could have resisted a silly scandal.
Ironically, the weak party has now kicked out one of its most passionate and fearless members. But this is typical of Democrats -- very typical and disappointing. Several other politicians on both sides of the aisle have suffered political scandal, but they kept fighting (remember Clinton). Today, the Democrats cannot fight at all. They have the spines of slugs.]]>
Opponents of LGBT rights frequently point to these so-called privileges in order to advocate against progress on questions of sexual orientation and gender identity. For example, during the campaign to pass an amendment to the Colorado constitution that banned the implementation of laws protecting gays and lesbians from discrimination, the group Coloradans for Family Values circulated the film "Gay Rights/Special Rights." The video depicts gays and lesbians as white, upper-class and sexually debauched. The narrator questions the need for LGBT rights measures on the grounds that gays and lesbians have not suffered discrimination to the same extent as Blacks and Latinos.
Supreme Court Justice Antonin Scalia echoed this sentiment in his dissenting opinion in the case Romer v. Evans. In Romer, the Supreme Court invalidated the Colorado constitutional amendment because it denied gays and lesbians of Equal Protection. In protest, Justice Scalia argued that "those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities. . .have high disposable income. . .[and] possess political power much greater than their numbers, both locally and statewide." Accordingly, extending them civil rights protection would amount to "special rights."
The gay-as-wealthy stereotype is patently false. The notion of LGBT wealth often rests on statistical data that uses very skewed samples of "out" persons who make contributions to political organizations and who subscribe to LGBT-related periodicals. Using the stereotype as a way of comparing Blacks and LGBT persons is also bankrupt. Social groups can have different experiences, but they can each suffer from unjustifiable mistreatment. Furthermore, many Blacks are also LGBT individuals. Thus, the comparative approach falsely assumes a separability of the two groups.
Two Recent Reminders of the Intersection of Race, Poverty and LGBT Status
Vicious Attack on Damian Furtch
The intersection of race, poverty and LGBT status has very tangible effects. Several studies have indicated that LGBT persons of color are more vulnerable to hate crimes than whites. This is likely due to them lacking adequate safe spaces to express their identities openly. Also, poor LGBT people cannot afford to move to low-crime neighborhoods, thus, exacerbating their susceptibility to violence.
Despite their greater vulnerability to antigay violence, the national media typically does not make connections between race and homophobic violence. For example, Damian Furtch, a 26-year-old black gay male was recently severely beaten in New York City. His attackers called him a "faggot." Police have labeled the incident a hate crime. As of today, the only detailed news about this crime appears on another blog. Although the media has given antigay "bullying" massive amounts of attention in recent months, the type of street violence that disproportionately impacts poor LGBT persons of color remains virtually unexamined and uncriticized in the general media.
New York State Budget Cuts Imperil Homeless LGBT Youth
Carl Siciliano, the Executive Director of the Ali Forney Center, has written an "open letter" to New York Governor Andrew Cuomo asking him not to slash state funding of emergency shelters for homeless youth in New York. The Ali Forney Center provides shelter to homeless LGBT youth in New York City. Most of these kids have been kicked out of their homes because they are LGBT. Most of them are also very poor and typically persons of color.
These youths are statistically quite vulnerable to suicide and abuse. While the media has devoted a lot of attention on the issue of suicides among LGBT individuals, it has focused attention primarily upon suicides resulting from bullying -- rather than examining the massive difficulties that poor LGBT youth face when their parents refuse to accept their identities.
Moving Forward
There are many reasons why poor LGBT persons of color are invisible in the media. The media rarely produces serious journalistic accounts of the personal effects of discrimination upon the most vulnerable persons in society. Also, homophobia within communities of color and racism within LGBT populations compounds the discrimination LGBT persons of color already face. Placing these issues on the forefront of social justice movements, however, is necessary for real progress to occur.
This article originally appeared on the blog Dissenting Justice]]>
In January, the lone manufacturer of sodium thiopental abandoned making the product. Ohio has now decided to utilize pentobarbital, a drug that is commonly used to euthanize animals.
Ohio's use of pentobarbital has sparked a debate. Death penalty opponents contend that Ohio should seek more information regarding the use of the drug in humans. Death penalty advocates, however, argue that opponents are simply seizing upon this issue in order to wage their broader campaign against the death penalty.
Behind this warfare, however, is a more critical story. This story concerns Johnnie Baston, the man who was executed. The Toledo Blade, a local Ohio newspaper, focuses on more important issue surrounding the execution in article analyzing Baston's execution. The TB article discusses the emotions the deceased and his family expressed at the moment of execution. It also reports that the family members of the victim pleaded with the state not to execute Baston.
This article places emphasis on more central issues concerning the death penalty, rather than on the search for a more "humane" way for state governments to murder people. The humanity of the people impacted by the state's killing are central to, but often ignored, in debates regarding the death penalty. The TB article, however, fills this void and even includes a long excerpt of Baston's last words:
I would like to say to my family I am very sorry. I know this is not what they wanted to have happen. I hope they won't be too bothered by what is taking place today.
It is not their doing. Just the way things go.
I hope my execution, that it will be the last, that people will open up. The victims in my case didn't want me to be executed. They wanted life without parole. That should have been respected. That should have been respected by our governor ...
I made a bad decision and I hope my family can move on and find some comfort and peace. I would like to say I'm sorry to my family. I made a bad decision.
I want you to reach out to my children. I love them so much. I want you to tell them stories about me. I want them to know the good things about me, even through my time in prison I wanted to better myself, encourage others. Remind them of that. My daughter, she's quiet, a lot like me. Just like me.
I want you to watch her. If she talks, listen.
I want to thank all the members of my church, my friends who petitioned, letters, faxed, Twittered, hopefully, to the governor, to show mercy.
For a long time I didn't see a lot of value in myself. It wasn't until this moment till I had to go through this ordeal that I have seen so much love from so many people. Letters from people all over the world, and even Ohio.
I appreciate every last letter, I appreciate every last card, every last prayer, every last encouragement.
I was hoping I didn't cry.
Dear heavenly father, I have sinned, and I repent of my sins, I pray for forgiveness. As I close my eyes on the light of this world, I hope to open my eyes to the light in heaven.
Too often, people in the US try to sanitize the use of the death penalty. It is an execution, not murder. The events are not televised. Usually, little, if anything, about the inmate's or the family's emotions are revealed. This article provides a necessary human side to this terrible process.]]>
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?
Justice Scalia said the following in response:
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 (italics added).
Scalia and Original Intent
Justice Scalia's statements in this interview will not surprise individuals who are familiar with his body of jurisprudence. Scalia adheres to a narrow version of originalism. He believes that any interpretation of the Constitution that strays from the "original intent" of the Framers is invalid. Accordingly, he is very critical of interpretive approaches that read the Constitution in light of legal changes that have occurred since the document was written.
While originalism sounds appealing, people who praise this form of constitutional interpretation incorrectly assume that the Framers' intent on any particular issue is readily discoverable or that the Framers always spoke with one accord. There are many other critiques of originalism that exceed the scope of the topic of this blog post. Needless to say, originalism is a controversial and problematic theory of Constitutional interpretation.
Scalia and Sex Discrimination
In terms of sex discrimination and the Constitution, it is generally the case that most of the members of the 39th Congress (that voted on the 14th Amendment) did not believe that they were voting to ban sex discrimination generally. Some more radical elements of the Republican Party probably envisioned the Constitution providing some protection to women, but their views reflected the minority position. Accordingly, a strict originalist view would lead to the conclusion that the Constitution does not generally prohibit sex discrimination.
Although Scalia explicitly embraces this view in the California Lawyer article, he alluded to it earlier in his dissenting opinion in the 1996 case United States v. Virginia. In United States v. Virginia, the Supreme Court held that the Virginia Military Institute violated the Equal Protection Clause by excluding women. Justice Scalia dissented and criticized the majority for applying what he viewed as a tougher standard than prior caselaw required.
In a passage that many scholars overlook, Justice Scalia argued that if the Court wanted to reevaluate the test used in sex discrimination cases, the better argument would lead to the lowering of the standard, not the toughening of it. Scalia implied that the Court should apply only rational basis review -- the Court's most deferential standard of review -- to sex discrimination cases.
When the Court applies rational basis review, it treats the type of discrimination at issue as presumptively constitutional. Most policies survive rational basis review. This is indeed the level of review the Court historically applied in sex discrimination cases and which led the Court to rule against all sex discrimination plaintiffs until the 1970s. Scalia would advocate a return to this earlier view of the Constitution.
Scalia and Hypocrisy
Although Scalia prides himself on being an originalist, his rulings on questions of equal protection do not always strictly follow the intent of the Framers. Consider the question of affirmative action. Justice Scalia is one of the most passionate judicial critics of affirmative action. Scalia argues that the Framers of the Fourteenth Amendment wanted generally to ban race-based discrimination. In one opinion, Scalia said that the only scenario that he could imagine a legitimate use of race was by prison officials trying to quell a race riot among inmates.
But as many legal historians have demonstrated, members of the 39th Congress did not see all forms of race discrimination as inconsistent with equal protection. For example, the 39th Congress passed laws the helped blacks and former slaves explicitly (by providing protection, essential services, etc.). Furthermore, this same Congress left in place a statute that mandated racial segregation in public schools in the District of Columbia. This history conflicts with Scalia's sweeping description of the Constitution as a bar to race-based public policy.
Scalia's opposition to affirmative action is even more complicated with respect to policies implemented by Congress. The Equal Protection Clause only applies literally to state governments. By drafting the 14th Amendment, Congress was trying to protect blacks in the South from further oppression by southern states. Nothing in the Constitution explicitly prohibits Congress from denying Equal Protection.
The Supreme Court, however, has held that the Due Process Clause of the Fifth Amendment -- which applies to the federal government -- operates as a guarantee of equal protection. Although this analysis seems justifiable, it is not something that is implicit in the text of the Constitution or in the intent of the members of the 39th Congress. Also, the liberal Warren Court most famously applied this standard in the 1954 decision in Bolling v. Sharpe, a companion case to Brown v. Board of Education, that invalidated racial segregation in Washington, DC public schools. That Scalia applies nonoriginalist standards from the Warren Court might shock readers who view him as the exemplar of judicial restraint.
Analyzing Scalia's jurisprudence comprehensively, it becomes clear that he embraces a narrow originalism to justify sex discrimination. On the other hand, he departs from originalsim in order to vote against policies designed to ameliorate the conditions of racial discrimination. This hypocritical approach is more shocking and troubling than his general embrace of originalism.
This post was originally published at Dissenting Justice.]]>