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Now That’s Restraint

[ 65 ] January 5, 2011 |

In pointing out that it’s hard to square Antonin Scalia’s assertions that the 14th Amendment provides no protection for gender equality with the rest of his jurisprudence, I didn’t even haul out the heaviest artillery. I think it’s safe to say that none of the framers or ratifers of the 14th Amendment thought they were voting for the principle that “states have to have uniform standards for vote counts and recounts,” let alone “states have to have uniform recounts if non-uniform ones might lead to the defeat of the candidate favored by a majority of the Supreme Court, but not in any other case.”

…on a somewhat realted note, Scalia’s originalist take on pizza reminds me of Sherry and Faber on latkes and constitutional theory. Of course, the Scalia entry should be modified to read “unless the election of George W. Bush requires making latkes, in which case any recipe will work.”

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  1. Law Prof says:

    I would just clarify one point in your TAPPED post:

    You refer to his support for Brown as [w]hen the originalist principles outlined above clash with (rather than reinforce) his political preferences… I don’t believe racial segregation actually clashes with Scalia’s political preferences, if “political” means finding segregation abhorrent. Perhaps “political”, to the extent that he acknowledges the prevailing winds. If we were in 1956, I feel confident that he would be arguing that the Brown court had ignored Original Intent. However, Scalia simply realizes that rejecting Brown would make his general position unpalatably regressive, and has thus modified/ignored his view to permit Brown.

    • Scott Lemieux says:

      Well, given that Brown is settled law, the primary effect of Scalia’s non-orignalist “color-blind” Constitution is to permit (and, in some cases, require) school boards to segregate their schools.

      • David Nieporent says:

        Sure. Where “segregate” actually means the exact opposite of segregation; instead of assigning people to schools based on race, we… don’t assign people to schools based on race.

        A school being mostly or all black or white due to residential demographics is not “segregated.” It is just homogeneous.

        • Malaclypse says:

          A school being mostly or all black or white due to residential demographics is not “segregated.” It is just homogeneous.

          Bantustans were homogeneous as well. They even used that word in the article. So it must be okay.

        • Scott Lemieux says:

          A school being mostly or all black or white due to residential demographics is not “segregated.” It is just homogeneous.

          In some alternative universe where government entities don’t draw school boundary lines, this distinction would be meaningful.

          • David M. Nieporent says:

            This is, as usual, a non sequitur. If the government draws a school district in order to create racially homogeneous schools, then Scalia’s jurisprudence would neither “require” nor “permit” this; it would forbid it.

  2. c u n d gulag says:

    Well, we should all thank goodness that there are no activist judges on the Supreme Court!

    Scott,
    I’m not an attorney, and I have a question. Does this mean that a state could decide that not only does a woman not have to rate equal pay with a man, but may not have to have the same rights to vote as a man? Could a Republican State Legislature create a law that designates, since more women tend to lean Democratic than men, that married women are then allowed only 3/5th’s of a mans vote, and single ones (since they really do tend to be Democrats) only 2/5th’s, and that Scalia thinks that there’s no protection for women in The Constitution in this case?
    Maybe this is an extreme or stupid example/question, but I’m curious.
    I mean where does his thinking lead to, if carried to the extreme (which is not beyond the realm of possiblity with these people)?

    • Scott Lemieux says:

      Well, the ability of women to vote at both the federal and state level is protected by the 19th amendment, but otherwise if you take Scalia seriously than virtually any other discrimination against women would be constitutional.

      • c u n d gulag says:

        Thanks, Scott.
        And I should have known that about the 19th.

      • Joe says:

        Does this apply to funding of Michelle Bachman? Or, can campaign finance laws only apply to male politicians?

        • Joe says:

          Maybe that has something to do with the right to vote. Who knows. Maybe a better example is limits on book purchases by gender.

        • L2P says:

          Campaign finance is a First Amendment right (according to this Supreme Court, at least). Discrimination with respect to the First Amendment is subject to strict scrutiny. Current doctrine would say that denying a mule the right to make campaign contributions would also be subject to strict scrutiny, as the restriction on the right of speech, not the speaker, is the violation.

          Not that I necessarily agree.

          • Joe says:

            So some run of the mill “liberty,” the Ninth Amendment not one of Scalia’s favorites, would be subject to rational basis review in respect to gender. Note though that assembly and petition reference “people,” which don’t include mules.

            But, Scalia also thinks the 1A depends on historical meanings, which is how he treats obscenity or the like. So, if historically, women were treated differently even in regard to speech, which I’m sure they were in some respect back in the day, he would accept it.

            Maybe.

      • Anonymous says:

        Wait so Scalia is going even further than mid-70s Rehnquist (see his dissent on the creation of intermediate scrutiny in the OK drinking age case the name of which escapes me) man I love the whole “reverence for precedent only when it suits our ends” deal.

      • Bloix says:

        This is the key point. The 14th A has never barred unequal treatment of people who are in fact unequal (children and people with mental disabilities). In the 19th century women were considered mentally incompetent to handle their own affairs and therefore there was no violation of the equal protection clause in treating them differently from men. But that viewpoint has radically changed and it is now accepted as a fact that women fully as competent as men. Therefore, the full protections of the 14th Amendment must apply to them.

        There’s been no change at all in the understanding of the 14th Amendment. There’s a change in an understanding of the facts in the world outside the constitution.

      • David Nieporent says:

        if you take Scalia seriously than virtually any other discrimination against women would be constitutional.

        Or men.

        But I wonder how you square the notion that Scalia’s position isn’t to be taken seriously with liberal support for the ERA. I mean, if Scalia’s wrong and modern interpretations of the 14th amendment with respect to sex are correct, then the ERA was totally pointless; it was already in there.

        • Scott Lemieux says:

          The explanation would be that the 14th Amendment is ambiguous on the question, and the ERA would have removed the ambiguity. Gee, that was easy! It’s nice that the Supreme Court has largely rejected Scalia’s silly views and made the ERA largely superfluous, but it wasn’t obvious that this would happen in 1971.

  3. mark f says:

    I know nothing of Washington pizza, but definitely side with Scalia on NY vs Chicago. That being said, New Haven “apizza” is the best kind I’ve ever tasted. He’s a Harvard guy so I suppose he hasn’t spent much time there, but next time he gives a talk at Yale he should make his way to Wooster St. and give it a try. As should all persons and citizens who find themselves in that jurisdiction, women included.

    • Scott Lemieux says:

      To get on my hobbyhorse, allow me to note that 1)there are many different kinds of pizza served in NYC, and 2)if you walk into a NYC slice joint at random, the pizza is likely to be terrible.

      • mark f says:

        Fair enough. I took him to mean what’s called “New York-style pizza” done well, not something chosen at random from the NYC phone book.

      • c u n d gulag says:

        Even horrible pizza made in a Mom & Pop shop is far better than fast food pizza. Papa Johns is hands down the very worst, IMO.
        Let me qualify my first sentence. In a M&P shop in a major Northern city, where there are a lot of NY and 2nd City people with an Italian heritage. You can’t believe what they consider to be pizza in NC and SC. GACK!!! It makes Papa Johns seem haute cuisine. Some people blame it on the water. But it’s a pizza, folks, not a f’in’ snowcone. I’m sure that water has something to do with it, but come on…

        Also, a pet peeve of mine: No fruit on pizza!
        It’s one of the few things I’m conservative and purist about. An Originalist!
        You can have almost any veggie, and I’m ok with it. And almost any meat, including Yak. BUT NO FRUIT! You put fruit on it, it ain’t a pizza. Call it something else. Frizza.

    • Malaclypse says:

      That being said, New Haven “apizza” is the best kind I’ve ever tasted.

      Unless it has radically improved since 2003, I found the pizza there to be completely unmemorable, good or bad.

      • mark f says:

        I don’t have a ton of experience with it, to be honest with you. I remembered visiting family friends in the area probably 15+ years ago and eating at a place with lines around the block. I suggested we grab dinner there when my wife and I drove down to get her sister at the train station. We all thought it was great, and I was happy to see my memory confirmed, since I think going out for pizza was considered an annoyance when I first mentioned it.

        And that’s my boring story for today.

        • Malaclypse says:

          I’m baffled, then. My brother lived about a block away for 6 years, and I ate there maybe half-a-dozen times. I don’t remember lines, just generic pizza.

          Either way, deep dish > other, lesser pizzas.

          • mark f says:

            Your brother, living there, probably knew when to go to avoid the lines. At least two places had them when I went back (this was Thanksgiving 2008 or 2009). But if you prefer deep dish it wouldn’t be your thing. I like it thin (I’d rather have Papa Gino’s than a good deep dish), and what we had was no thicker than a notebook cover and blackened on the bottom.

    • rea says:

      If you find you’re on the same side as Scalia, even about pizza–rethink your position.

  4. Halloween Jack says:

    It’s not that I haven’t had good pizza in NYC–Two Boots in Park Slope was pretty good–but anyone who doesn’t like Chicago pizza leads a meager, reduced life, IMO.

  5. Joe says:

    Pizza in NYC is pretty good. The chain places aren’t where to go though some like Two Boots can have pretty good pizza, if you are lucky.

  6. bob mcmanus says:

    I should leave this alone on this blog, but I have been perusing the history at Wikipedia, and apparently Anthony, Stanton and the rest of the feminists at the time did not believe the post-CW Amendments provided protection for women as women.

  7. Emily says:

    Does Scalia think that since the writers of the 2nd amendment didn’t have assault rifles in mind, that it’s OK to ban them?

    • Holden Pattern says:

      One notes as well that “arms” could mean almost anything, and “keep and bear” is a pretty clear inclusive statement. So why can’t I have a tank? Or a nuke?

      Either all the 2nd amendment means by “keep and bear arms” is black powder rifles and pistols, such as they had at the time, or it means all arms — just stopping the sliding scale at a certain place is arbitrary. In other words, originalist.

  8. rea says:

    I’m not going to spend a lot of time looking up Scalia quotes, but my recollection was that he has said that what is important is not the intent of the drafters, but the contemporary meaning of the words they used. Under that analysis, it wouldn’t matter whether the drafters of the 14th Amendment thought it prevented discrimination against women, because no one in the late 1860′s thought that women didn’t qualify as “persons.”

    • Scott Lemieux says:

      I will have a long post on this later tonight or tomorrow, but basically as far as I can tell the original “meaning” (as opposed to “intent”) distinction is basically meaningless. The same sources of evidence seem to be considered either way, and it doesn’t really solve any of the problems associated with originalism. I don’t see how there can be any “public meaning” of equal protection specific enough to compel outcomes in any interesting case.

      • Anderson says:

        The same sources of evidence seem to be considered either way

        I think you are *mostly* right about that, but I’d thought that “intent” could bring in stuff like legislative history, and focused more on what happens in Congress, whereas “meaning” has more to do with a supposed public understanding.

        So for instance “intent” might lead you to look at Madison’s notes on the Convention, whereas “meaning” might look more to the state ratification conventions that Maier’s new book covers.

        Of course I could be off-base — I’m a lawyer, but like 99.9% of lawyers, all I know of con law is (half-remembered crap from law school) + (random reading for amusement).

        • Scott Lemieux says:

          But that’s it — basically, the main source of “public meaning” is the writings of prominent public officials, just like “original intent.” The statements of ratifiers seem equally relevant to both. “Public meaning” just makes it easier to ignore these statements altogether and climb the latter of abstraction.

        • hv says:

          I think the “intent” vs. “meaning” thing is thrown in there so you get to look at the writings of people who didn’t vote for the legislation, too. (Which is quite useful if you wish to circumvent it.)

  9. S.D. Warren v. Maine BEP is a recent case where Scalia (and the entire court) approved an expansive definition of the word ‘discharge’ in the U.S. Clean Water Act so that it would apply to hydroelectric dams as well as more conventional waste discharges, ie. point-source pollution. Plaintiff Warren argued for a narrower definition, ie. that Congress intended ‘discharge’ to only mean ‘discharge of pollutants.’ I think this example supports Scott’s contention of how Scalia flip-flops when it suits his purpose.

  10. DrDick says:

    The only instance where “Antonin Scalia” and “judicial restraint” should ever appear together in an affirmative statement is one involving a restraining order against him.

  11. Homer says:

    The problem with NY pizza is that the crust is too floppy. IF you are going to have a thin crust, it must be crispy; conversely a soft crust must be thick.

    Quick rule of thumb: You should be able to pick up a slice by the edge alone and not have any toppings fall off the pizza.

    • c u n d gulag says:

      homer,
      You’re not going to the right NY places then. The ones I used to go to when I lived there had thin and crispy crusts. When you fold the pizza in half, the crust should crack.

      One other thing you have to remember is that if you take the pizza home, the crust steams while it’s in the box. If that happens, and you don’t have a pizza stone, tear the top off the box and stick it in a preheated oven for a few minutes. Or, ask the restaurant NOT to slice it and just put the pie right on a metal rack.
      Don’t forget it, though!

      • Malaclypse says:

        When you fold the pizza in half, the crust should crack. you are a heathen, and eating pizza in the wrong manner. If you need to fold the pizza, then either the crust is underdone, the topping too greasy, or both.

        I do appreciate that the discussion of pizza is at least as involved as the discussion of Scalia.

        • c u n d gulag says:

          Nah, I look for a crisp, blackened crust. And that’s where that crack in the crust comes in when you fold it. If it doesn’t crack, it ain’t crisp. It’s either too thick, or it’s underdone.

          I’m a native NYer, and everyone I know folds their pizza. I don’t even know why – maybe ’cause you can shake some oil off that way, or it’s easier to handle, or it stays warmer longer, which is all true.
          When I moved down to NC, people would look at me like I was from Mars. I can’t eat it any other way.

          Best pizza – I had two fav’s, back in the ’80′s and early ’90′s. Marie’s, in Queens at the end of the 7 line, and Stromboli’s on 7th St and 1st Ave in Manhattan. Also, there was this GREAT place in Staten Island, but I’ll be damned if I can remember the name. WOW!
          I don’t even know if these places are still open. I moved upstate in NY a long time ago, then moved to NC for a decade, and if I get a chance to go to NYC to eat, I tend to go for something I can’t get Upstate NY. We have some great places in the Mid-Hudson Valley.

          And yeah, I like that you can go from SCOTUS discussions to pizza to baseball here.

  12. gocart mozart says:

    Peppy’s Pizza, Wooster Street, New Haven, CT end of story.

    • Bloix says:

      You mean Pepe’s? You’re quite a fan. Seriously, I have no patience with the Pepe’s! No, Sally’s! No, Pepe’s! debate. It’s about as interesting as tastes great, less filling, and the only point of it is to imply you went to Yale without actually saying so.

  13. Murc says:

    You know, I have a certain amount of sympathy for the ‘this isn’t a right; it isn’t enshrined anywhere in the Constitution. If you want to give it to people, you need to write a law that does so, and if it isn’t an area under the purview of Congress, you need to write FIFTY laws’ viewpoint.

    I don’t often agree with it in specific cases, because typically the people making it are transparent hypocrites who are looking for ways to cripple the ability of the legislature or judiciary to advance opposing policy initiatives while ignoring their professed principles when it comes to things they FAVOR, but its a legal formulation that as an abstract I can support myself.

    Scalia is simply batshit insane.

    The 14th Amendment is a constitutional literalists WET DREAM. And what does he do? He falls back on the legislative record and on what people ‘thought’ they were voting for? And he doesn’t even manage to get THAT right? Good lord.

    • hv says:

      He falls back on the legislative record and on what people ‘thought’ they were voting for?

      Do you believe he is restricting himself to those who voted for it? I thought that’s what the “contemporary meaning” dodge was about — he can cite to opponents, too!

    • Scott de B. says:

      Just to play devil’s advocate, the progressives who fought for years to pass the Equal Rights Amendment also seem to have shared a narrow interpretation of the 14th. Was the ERA completely superfluous, then?

      • Joe says:

        No. The ERA would explicitly announce that sex was an illegitimate means of classification. It would be treated as race currently is today. This would be an important symbolic point and push the law further than it was at the time.

        Even today, sex is not treated as strictly as race. But, it is not required to be an either/or. Race is an easy case, but the Equal Protection Clause bars illegitimate classifications of all kinds. W/o an ERA, the test for sex might be weaker. But, it’s not non-existent.

        I think the ERA in fact is a bit dangerous in that respect. It would imply that an amendment was necessary to give the EPC strong effect for matters other than race.

  14. [...] women’s equality thing is just a fad that will pass soon enough.  At the link above, and at this one, Scott Lemieux conclusively demonstrates that Scalia’s ability to read the minds of the [...]

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