Notes From Babel

Gender Equality and the Constitution

with 8 comments

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.


Written by Tim Kowal

January 10, 2011 at 8:26 pm

8 Responses

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  1. I think while the current SCOTUS clearly believes that gender equality/discrimination is within the prevue of the EPC, it seems to me that there is an acknowledgement that the drafters were not (at least) primarily concerned with gender equality when the court applies the different scrutiny tests. Although it may not play out in reality, theoretically there are instances when gender discrimination would be permissible (under intermediate scrutiny) and racial discrimination would be prohibited (under strict scrutiny).
    Interestingly, the drafters rejected language that would have expressly included gender discrimination. At the same time, however, they could have very easily used the would “race” or “minority” (or some equally historically relevant term) instead of using the all-encompassing “person.”


    January 10, 2011 at 8:43 pm

  2. …used the WORD “race”… I’ve been drinking. Don’t hold it against me.


    January 10, 2011 at 8:46 pm

  3. More drunken rambling… what do you think of this quote? “A man in power like Antonin Scalia insists the word ‘person’ does not apply to half of the population of the United States.”


    January 10, 2011 at 8:50 pm

    • Consider the original meaning of the equal protection clause. It merely required that the states equally enforce its laws that protect existing rights—most commonly, property rights. If a state did not permit women to own property, the equal protection clause would have no application: no woman would have any property rights to protect, thus the clause would be a nonstarter. Provided the law did allow women and minorities to own property, the clause should apply to “all” such “persons.”

      In this way, I think this whole discussion winds up with everyone talking past each other. In reality, there’s two different reasons the equal protection clause might be said not to guarantee equal laws for women. The correct reason is that the equal protection clause didn’t guarantee equal laws for anybody. It only provided for equal protection of the laws. The second way, which I find a little troubling and irrelevant besides, is that “all people” perhaps was not widely understood to mean women. But if the first reason is true, then the second is a non-issue.

      Tim Kowal

      January 10, 2011 at 11:28 pm

  4. There seems to be an inherent tension between the Constitution/amendments as they were originally intended and how they might be interpreted later by society. In this particular case, how might the Nineteenth Amendment, even though it mostly deals with women’s suffrage, affect our interpretation of ‘person’ in regards to the 14th Amendment?

    Aaron W

    January 10, 2011 at 10:10 pm

    • I wouldn’t suppose that later amendments affect the meaning of earlier ones at all. The legitimacy of a law is the people’s act of ratifying it, which happens ceremoniously and instantaneously pursuant to adopted rules guaranteeing notice and hearing and majority consent. The law is at that point fixed, and cannot be changed else by later amendment or repeal pursuant to the same lawmaking process. The Nineteenth Amendment did not “amend” the Fourteenth, however. Thus, whatever the meaning of the Fourteenth when ratified remains until such time it is expressly amended or repealed.

      Tim Kowal

      January 10, 2011 at 11:34 pm

      • This is what I was trying to get at, but Jason did a much better job than I could: “The Fourteenth Amendment extended rights not to men, but to “persons.” It excluded women from voting, of course, and in our constitutional history it was the first such explicit exclusion. The act of excluding women from voting was profoundly unfortunate, it was corrected later, but it remains highly instructive today. Here’s why.

        Had the Amendment’s authors wanted to exclude women from due process, from privileges and immunities, and from equal citizenship, the language to do it was very obviously available to them — why, they used just those exclusionary terms when it came to voting! But they did not use them for the other clauses. This can’t possibly be an insignificant choice.”

        I’m sure you’ve read this, but:

        Aaron W

        January 12, 2011 at 9:25 am

        • I generally agree with the points in Jason’s post, though I feel uncomfortable signing on to the latent contempt for the Framers that he typically seems to expend great effort to hold back in his writing. At any rate, I also find Barnett’s argument compelling, that the Constitution’s force lies in its moral claims on our collective conscience. Thus, if our understanding of the natural law evolves and the language used by the Framers allows us to fairly read the Constitution to reflect that understanding, that’s a pretty fair justification.

          Yet, I also find Scalia’s rationale a compelling one—by no means as clearly wrong as Jason suggests. I think this for the reason outlined in my post, and for the reasons in my post yesterday about continuity and the law as an extension of the social order. Perhaps I’ll try to flesh it out more soon.

          Tim Kowal

          January 12, 2011 at 9:57 am

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