Not a Fainthearted Originalist

by Ed Whelan

New York magazine features a long and interesting interview with Justice Scalia. The interview is very wide-ranging.

On matters in the Bench Memos portfolio, I’ll highlight Scalia’s repudiation of his one-time description of himself as a “fainthearted originalist.” He’s still an originalist, just not a fainthearted one: he doesn’t reserve an escape hatch to avoid deferring to democratic enactments (e.g., a law permitting flogging) merely because they strike him as “immensely stupid” or morally repugnant.

This Q&A on the 14th Amendment and sex discrimination is also noteworthy:

What about sex discrimination? Do you think the Fourteenth Amendment covers it?
Of course it covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not.

A couple of years ago, I think you told California Lawyer something different.
What I was referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, “What is discrimination?”

If there’s a reasonable basis for not ­letting women do something—like going into combat or whatnot …

Let’s put it this way: Do you think the same level of scrutiny that applies to race should apply to sex?
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.

But there are some intelligent reasons to treat women differently. I don’t think anybody would deny that. And there really is no, virtually no, intelligent reason to treat people differently on the basis of their skin.

Given the imprecisions of an oral interview, it may not be entirely clear to the reader what Scalia means here. It’s clear, I think, that he is saying that some things that we moderns would include within the umbrella category of sex discrimination—such as higher criminal sentences for women—violate the Equal Protection Clause. What’s less clear within the four corners of the interview is whether his standard for distinguishing between what counts as (prohibited) discrimination and what doesn’t—whether “there’s a reasonable basis for not letting women do something”—is an evolving standard or is instead to be informed by the original expected applications of the public at the time that the 14th Amendment was adopted. In light of Scalia’s broader principles of originalism, and his specific observation that the 19th Amendment was necessary to guarantee women the right to vote, the latter is surely his position.

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