Gender Equality and the Constitution
I typically don’t agree with the line of reasoning Scalia describes in response to this question:
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’s answer is basically that, no, the Fourteenth Amendment did not go so far as to guarantee equal protection to women, or homosexuals for that matter:
[I]f 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.
Scalia may be right that gender is not what Congress had in mind when it drafted the Fourteenth Amendment. He may be right it’s not what the people subjectively believed it to mean at the time the states ratified it. But to say it’s not what a reasonable person would have understood those words to mean? That’s hard to believe.
But perhaps I’ve been thinking about it all wrong, and this isn’t a “philosophy of language” question, as Matt Yglesias suggests. Instead, it’s a political/legal question. And this makes a big difference, because the validity of a law in a majoritarian regime depends on the publicly understood meaning not just as those words appear on a blank piece of paper, but to the extent they constitute law.
To explain by way of a thought experiment, imagine you were working on an anthropological excavation of an unknown people in an exotic land, and you unearthed a scrap of paper that happened to set out the words of the Fourteenth Amendment. Upon reading them and making some assessments about what sort of people you’re dealing with, you’d have to assume they belonged to a system of government that gave equal protection to “all persons,” just as that scrap of paper says. Without knowing more about their culture or laws, you’d have to assume that the words “all people” meant just that: all people, irrespective of race or gender.
However, when we look at the words of the Fourteenth Amendment in the context of 19th century American law, society, and politics, it becomes a bit harder to insist the people understood those words in their strict linguistic sense. That is, because we know something about the sort of people who ratified those words and what sort of effect they believed it to have, this informs the meaning those words have qua law, rather than simply qua words. And, since the people are the source of political authority, that public meaning has to stand for something.
Then again, I’m a bit timid about where that line of reasoning might lead, and thus I still hold to the presumption that people are bound to the meaning of the words they enact—subjective beliefs be damned. But having worked through the mental experiment above, there may be some legitimacy to Scalia’s view.