Supreme Court's Scalia Says Discrimination Is Constitutional

In other words, if he doesn't approve, you don't have rights--the definition of discrimination.

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LAKEWOOD, COLO.--Antonin Scalia is now officially the Archie Bunker of the Supreme Court. I can hear it now: "If broads had wanted Constitutional protection, they shoulda asked for it!"

In an interview with the online publication California Lawyer this past week, Scalia declared that the 14th Amendment doesn't protect women (or gays) from discrimination: 

Q. 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?

A. 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.

So in Antonin Scalia's world, according to the Citizens United decision, corporations deserve Constitutional protection. Women don’t. Talk about second class citizens--apparently I have less constitutional protection than Halliburton. Should all female lawyers addressing the court take off their shoes? Or perhaps come in through the back door?

[Read the U.S. News op-ed debate: Is the Supreme Court's Citizens United Decision Hurting Democracy?]

But there's a bigger argument here. It's the difference between believing the Constitution is a living document or a dead one.

Scalia prides himself on being a strict constructionist, which is kind of like being a biblical literalist. There is no interpretation or intent to be read into the Constitution. It is a dead letter document.

A living Constitution adapts the deliberate vagueness written into it by the Founding Fathers to the modern era. It embraces a United States of America that looks nothing like it did 240 years ago--a United States of America in which the great-great granddaughter of what was once three fifths of a person is now our first lady. A living Constitution embraces the mosaic that America has become.

As Thomas Jefferson put it, "…laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

[See a slide show of the members of the Supreme Court.]

Revolutions are made of dead constitutions. You throw them out and start over.

But worse than his philosophical and practical threat to civil rights, Scalia is a cafeteria constructionist. He reads interpretation into the Constitution when it comes to extending rights to corporations, but not when it comes to prohibiting discrimination against women or gays.

In other words, if he doesn't approve, you don't have rights--the definition of discrimination.