Thursday, January 6, 2011

Revisiting the Scalia Dust-Up. Because I Can.

So, I stand by my criticism of Justice Scalia and his recent comments about the Equal Protection Clause of the Fourteenth Amendment, but reader Ugarles took issue with the way I characterized the sentence in bold in the following portion of Scalia’s comment:

The only issue is whether [the Constitution] prohibits [sex discrimination]. It doesn’t. Nobody ever thought that that’s what it meant.

I took the statement to mean no one’s ever seriously believed that the intent of the Fourteenth Amendment’s Equal Protection Clause was to bar sex discrimination; whereas Ugarles argues that, in context, Scalia was saying that no member of Congress thought so at the time the Fourteenth Amendment was ratified. You can read Ugarles detailed comments on that point here and here. (Note that that second link takes you to a comment of mine in which I set out, verbatim, a comment Ugarles attempted to post, which, for some reason, Blogger did not publish.)

In any event, while I concede that Ugarles’ interpretation of Jutice Scalia’s comment is reasonable enough, I don’t think it provides Justice Scalia much cover for the reasons I set out in a couple of comments on that thread, which I reproduce with some editing here (you’ll note I’m not setting out Ugarles’ comments in this blog post, but I am linking to them – hey, it’s my blog; I’m not obligated to set out his entire criticism of me here!). Anyway, I’ve refined my argument somewhat, and it goes like this:

Irrespective of what Scalia meant by the statement “[n]obody ever thought that that’s what it meant,” so far as I know the Supreme Court has never said the Equal Protection Clause was only meant to apply to, or prohibit, certain kinds of state discrimination. Although he doesn’t say so explicitly, the implication of Scalia’s comment is that the Equal Protection Clause was only meant to ban official forms of race discrimination – but if that were true Congress would have said so explicitly. Indeed, shortly before the adoption of the Fourteenth Amendment, Congress attempted on two occasions explicitly to outlaw race discrimination by statute: the Second Freedmen’s Bureau Bill and the Civil Rights Bill, both passed in 1866, each of which was vetoed by Pres. Andrew Johnson. See Alfred H. Kelly, Winfred A. Harbison, The American Constitution: Its Origins and Development, pp. 429-33 (W.W. Norton & Co., 5th ed. 1963). Moreover, the Fifteenth Amendment, which dealt with the right to vote, explicitly stated:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

So, if Congress had intended the Fourteenth Amendment to outlaw only discrimination on the basis of race, it knew how to say so; but it chose instead to adopt the more general language that states must guarantee all “person[s] within [their] jurisdiction[s] equal protection of the laws.”

Consequently, a far more logical reading of the Equal Protection Clause is that it meant to ban all forms of irrational discrimination between similarly situated individuals. As I explained in my previous post, the “rational basis” test is the baseline under the Fourteenth Amendment: Anytime the government treats two individuals or two groups of individuals differently, there has to be a rational basis for that distinction. Later cases said that there were certain types of “suspect” classifications – like race, nationality, religion and so forth – that resulted in a higher level of scrutiny; but that didn’t obliterate the rational basis test that applies to all other forms of discrimination. Note that many of the early Equal Protection Clause cases dealt with things like government regulations that discriminated in favor of or against certain businesses, which had nothing to do with race discrimination or other forms of invidious discrimination based on personal characteristics. See, e.g., Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61 (1911). Of course, the states usually won those cases because they usually could come up with a rational basis for the regulatory “discrimination,” but the Court still scrutinized the challenged regulations under the Equal Protection Clause. 

Cases like Reed v. Reed, 404 U.S. 71 (1971), and Craig v. Boren, 429 U.S. 190 (1976), said that sex is also a suspect classification – meaning that state-sponsored sex discrimination was subject to higher scrutiny, like race discrimination – but those cases were not saying that all of the sudden the Fourteenth Amendment applied to sex discrimination where it hadn’t before. The difference was applying stricter scrutiny, rather than the “rational basis” test, to sex discrimination cases.

 So even apart from the question whether members of Congress discussed (or thought about) sex discrimination at the time the Fourteenth Amendment was ratified, it’s hard to imagine that the day after it became law states could nonetheless discriminate irrationally on the basis of sex. If states decided to subject women to higher rates of taxation, for example, or determined that women could only walk on one side of the street whereas men could walk on both sides of the street – sex-based differences without any rational basis – it seems to me those laws would have been stricken down under the Equal Protection Clause right off the bat. And if that’s not the case, I’d love to see some historical evidence of it. 

But so the point is, so far as I can tell the Court has always accepted the “rational basis” test as the baseline test to determine if discriminatory state action passed muster under the Equal Protection Clause. Indeed, my very conservative Constitutional Law professor back in law school described the “rational basis” test as “traditional equal protection analysis,” as opposed to the “strict scrutiny” analysis that came later when the Court began to talk about suspect classifications. See Ronald D. Rotunda, Modern Constitutional Law: Cases and Notes, pp. 457-61 (West Publishing Co., 2d ed. 1985). So, anyway, at a minimum, the rational basis test would have applied to sex discrimination long before the Court determined sex was a suspect classification.

Finally, to the extent that Scalia is saying no one in Congress even contemplated that the Equal Protection Clause could be applied to sex discrimination at the time the Fourteenth Amendment was ratified, he’s most likely wrong. In fact, in the aftermath of the Civil War the women’s suffrage movement, which dates back to the 1830s when Lucretia Mott and Margaret Fuller first began to push for the right to vote, became reinvigorated (see Kelly and Harbison, The American Constitution, pp. 640-41), and members of Congress wouldn’t have been oblivious to that fact. More to the point, Ugarles points me to this analysis of Justice Scalia’s comments by well known legal blogger Jack Balkin of Balkinization. Note, in particular, this comment from Balkin’s post on Judge Scalia and the Equal Protection Clause: 

The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination-- discrimination in basic civil rights against single women.

So, again, Justice Scalia’s broad assertion that “[n]obody ever thought that that’s what it meant,” – i.e., that no one at the time of the Fourteenth Amendment’s ratification thought that it would bar state-sanctioned gender discrimination – is most likely inaccurate, and certainly overstates his case.

But that’s the ultimate point: Justice Scalia often makes what appear to be intentionally provocative statements like that – statements that are seemingly designed to shock and offend, rather than to add anything meaningful to the substantive debate – but all too often, his provocative statements just don’t hold water.

© 2011 David P. von Ebers. All rights reserved.


  1. Dave, come back to this later. It would be a great thing to demonstrate. You'd be doing the court and the American people a favor:

    Justice Scalia often makes what appear to be intentionally provocative statements like that – statements that are seemingly designed to shock and offend, rather than to add anything meaningful to the substantive debate – but all too often, his provocative statements just don’t hold water.

  2. To be simplistic, but sincere: Statements that begin: "Nobody thought yada yada yada", when not intentionally ironic or satirical, have a childish ring to my ears.

    On the occasions when I have made points like that, I have quickly regretted it.

    That's the level of discourse I expect from Sarah P.