If you’ve been reading this blog for any length of time, you’ll know that we really like Scalia. We really do. We like the way he thinks, we like the way he writes, and we like that he’s not a phony. His law clerks may moan and groan that he’s hard on them, but they’ve actually got it pretty easy, because he knows what he thinks and (more importantly) he knows why he thinks it. He doesn’t need them to do the heavy lifting for him.
At the same time, we’ve had to take issue with some pretty boneheaded things he’s written or said. In his attempts to discern what the authors of a given law were talking about, he often misses the underlying policy. The job of a top jurist or legal scholar is to figure out what the underlying principle is that explains, not only the law as written, but also the jurisprudence and related laws that have flowed from it. Do the deep thinking to figure out what value our society happens to have, which the authors of the laws and court opinions may not have had the insight to notice themselves, but which nevertheless explains why this particular area of law is the way it is. Once that root principle is known, it is easy not only to understand what the framers were saying, but also what has been said since, and even predict what is going to be said next.
Take, for example, his interview just published in this month’s California Lawyer. Near the beginning of the interview, he had the following exchange:
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.
He’s right about what a Constitution is for. The Constitution is not there to detail particular laws, but instead to set the philosophical framework under which laws can be made, and to define and limit the roles of government. (Most other countries in the world don’t seem to get this, and what they call “constitutions” are really nothing more than statutes. There really is a difference.)
And he’s even right about the role of the courts in deciding things that are properly left to legislatures. He cites abortion, for example, which — if it had been left up to the legislatures — would probably have been legal in most or all states by the end of the 1970s, and the country would have moved on. Opponents would have had their say, they’d have been outvoted, and the legitimacy of the process would have given the law legitimacy, and they’d have moved on. Instead, it was imposed by judicial fiat, in a horribly-reasoned opinion, with the result that it’s become a wedge issue for nearly forty years. The Court created law — something courts are not supposed to do, something courts never do well, and something that only de-legitimizes the result.
But he’s wrong when he says the Constitution doesn’t prohibit discrimination on the basis of sex. It does. It really does.
Nobody thought that’s what the Fourteenth Amendment meant when it was passed. Granted. But that only means they didn’t have the insight to recognize the very principle they were upholding.
The relevant portion of the Fourteenth Amendment reads, very simply:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The upshot is, the law cannot discriminate against a person so as to deny them the equal protection of the law that is afforded to other people. That doesn’t mean that discrimination is never permissible. It just means that the government cannot do it when doing so would deny the basic rights and liberties of Americans.
Clearly, the government can discriminate against those fairly convicted of felonies, for example, by taking away their liberty and limiting various rights. Just as clearly, the government cannot do the same thing to people just because they happen to have been born to people of African descent.
The underlying policy behind discrimination law in American society is quite simple: It’s not okay to discriminate against someone simply because of something totally beyond their control. If they had no say in the matter, it’s simply unfair to afford them fewer rights than anyone else.
The law here is still evolving. It’s taking forever, because we were bogged down in the race issue for nearly a hundred years after the Civil War. It took the courts all those years from Plessy to Brown to figure out this basic rule of fairness only as it applied to race. But even back in the bad old days some people got the concept. Take Justice Harlan’s great dissent in Plessy, for example, where he said Americans don’t have different classes or castes of people. Everyone has the same fundamental rights as anyone else.
So the law is still evolving, and the law still hasn’t fully come to grips with this underlying principle. But this principle explains the way the law has developed, and is a useful predictor of where the law is going to go next.
So racial discrimination has to survive strict scrutiny to be permissible. Infringing on any person’s fundamental rights also has to survive strict scrutiny. Strict scrutiny means the reason has to be compelling, and this has to be the only way to deal with it. But sexual discrimination only gets intermediate scrutiny. The reason doesn’t have to be compelling, only important. And the law doesn’t have to be necessary and narrowly-tailored, but instead only has to be substantially related to the need.
It’s a safe bet, however, that as our jurisprudence catches up to our innate values, we’re going to recognize that the Equal Protection clause means exactly what it says: that no person — no person — can be born into a caste with fewer rights than any other citizen. Rights can be taken away because of things they’ve done themselves, but never just because of an accident of birth. (So we predict that sex discrimination will get strict scrutiny at some point. As well as any other classification that is a mere accident of birth, such as sexual orientation or national origin or religion.)
This is not creating new rights where none existed before. It is recognizing a fundamental principle that has always been there, and finally getting around to applying it.
One would think that Scalia, of all people, would get this.