There was a TV show that asked “Are you smarter than a 5th Grader?” I thought of posing a similar question “Are you smarter than at least one U.S. Supreme Court justice? ” and that is what I did in my original post. And it seems in retrospect to be an attempt at cleverness rather than being helpful. It seems disrespectful to Justice Scalia, but I mean no disrespect. I just disagree strongly and a shrill tone does nothing to further the debate.

Justice Scalia is known for his intellect so rather than question it, I will just say I don’t understand his position.

Justice Scalia apparently doesn’t think the 14th Amendment applies to women. In an interview with California Lawyer he says:

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.

Well, looking at the text of the 14th Amendment, I think it is obvious that this does apply to women. Here is the text of the amendment :

14th Amendment
Amendment XIV
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.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Go back and look at Section 1. Never mind, it it so important that I’ll repeat if here.

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.

It clearly says all persons (born or naturalized and subject to jurisdiction) are citizens. No other qualifiers. I suppose one could argue that the legislators of 1868 did not consider women to be people. Seems a bit of a stretch to me but someone could argue that, except that in section 2 they specify that apportionment should be proportional to male citizens. Thus they clearly believed there were non-male citizens and it is not hard to guess who they might be. If section 1 was meant to apply to only males it seems they would have said that rather than “all persons”.

It is also seems to me that the last phrase of this section (“nor deny to any person within its jurisdiction the equal protection of the laws”) clearly indicates the citizenship is not even the critical test. And while the rest of the section looks to me like it applies only to actions of the state or federal government, the last phase has to do with equal protection of the laws without any government qualifier. Since this phrase refers to “any person” with specifying which groups are to be protected it seems that all individuals are protected if any are.

Further indication that legislators believed women to be citizens is the 19th Amendment.

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 sex.

Congress shall have power to enforce this article by appropriate legislation.

Look at the first sentence. If a right of citizens cannot be taken away on account of sex, it suggests to me that Congress believed that citizens were not all of the same sex.

So the text of the 14th Amendment clearly indicated that equal protection applies to all persons. The text further indicated all persons are citizens (not just males). Congress in 1920 (19th Amendment) did not think the Congress of 1868 meant to exclude women from citizenship (just from voting). If they believed the 14th amendment did not apply to women, it seems logical that they would have granted citizenship before the right to vote.

So to those who agree with Justice Scalia, let us have an exchange of ideas here. I know your reasoning on this is different from mine so please expand on your view in my comments section.