All persons
In an interview with California Lawyer magazine, Supreme Court Justice Antonin Scalia seemed to suggest that the Constitution does not protect women from gender-based discrimination. “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,” said the famously conservative justice, adding, “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”
What does the 14th Amendment say?
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.
It’s a Reconstruction amendment, which made enslavement a violation of the Constitution.
The Atlantic quoted some reactions:
“The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons,” Legal blogger Jack Balkin argues. “It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate. Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That’s not entirely true.”
The two forms of discrimination were often linked at the time. Frederick Douglass was a feminist; the Grimké sisters were abolitionists.
Time for women to engage in some Legitimate Political Discourse.
Now that I have that mini rant off my chest, I think the likely end of Roe gets us closer to the need for a long campaign of disciplined nonviolent direct action and civil disobedience not seen since the civil rights and Vietnam era. If the Republicans take over and begin implementing their antidemocratic authoritarian projects, everyone from the center left to Antifa and beyond need to bury their hatchets and unite in the fight as much as their circumstances permit.
Just in case there’s any doubt left about where all this is ultimately going.
Freemage – oh, yes, original intent. When they can’t find it in the founders, they go back to the Puritans. I see it happening all the time. “Oh, the founders of our country were deeply devout and created a religious government.” Ask for details, you find out they were settlers, not “founders of our country”, who were mostly men of the enlightenment. Flawed, yes, but not so flawed they would execute women for being witches.
Not to mention, something that was said or done more than 100 years before the Constitution was written would only have bearing on the Constitution if it influenced in any way or was included in the Constitution, which this shit by Matthew Hale certainly was not.
This sort of thing is yet more grist for the mill that is the argument for frequent amendments.