Wednesday, January 5, 2011

Scalia and the Constitution: 'Handmaid's Tale'?

Posted By on Wed, Jan 5, 2011 at 2:40 PM

I suppose, if one wanted to be kind, it would be easy to look at Justice Antonin Scalia's recent comments in California Lawyer on the U.S. Constitution and women, and compare his sentiment to how people of different religious groups interpret the Bible — word for word absolute Book of Revelations truth, vs. stories that teach lessons on laws and charity (yeah, yeah, there's other stuff, I know).

Still, I couldn't help but think of the Margaret Atwood book The Handmaid's Tale (which was made into a pretty good movie), about Offred, a handmaid in the Republic of Gilead, a totalitarian and theocratic state that's replaced the U.S. In this world, women have no protections. The Gilead regime cracked down on women’s rights; women could no longer have jobs, bank accounts or own property.

From the Scalia interview:

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?

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.

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