Not a Fainthearted Originalist

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.

Most Popular

Politics & Policy

Students’ Anti-Gun Views

Are children innocents or are they leaders? Are teenagers fully autonomous decision-makers, or are they lumps of mental clay, still being molded by unfolding brain development? The Left seems to have a particularly hard time deciding these days. Take, for example, the high-school students from Parkland, ... Read More
Elections

Romney Is a Misfit for America

Mitt’s back. The former governor of Massachusetts and occasional native son of Michigan has a new persona: Mr. Utah. He’s going to bring Utah conservatism to the whole Republican party and to the country at large. Wholesome, efficient, industrious, faithful. “Utah has a lot to teach the politicians in ... Read More
Law & the Courts

What the Second Amendment Means Today

The horrifying school massacre in Parkland, Fla., has prompted another national debate about guns. Unfortunately, it seems that these conversations are never terribly constructive — they are too often dominated by screeching extremists on both sides of the aisle and armchair pundits who offer sweeping opinions ... Read More
U.S.

Fire the FBI Chief

American government is supposed to look and sound like George Washington. What it actually looks and sounds like is Henry Hill from Goodfellas: bad suit, hand out, intoning the eternal mantra: “F*** you, pay me.” American government mostly works by interposition, standing between us, the free people at ... Read More
Film & TV

Black Panther’s Circle of Hype

The Marvel Cinematic Universe (MCU) first infantilizes its audience, then banalizes it, and, finally, controls it through marketing. This commercial strategy, geared toward adolescents of all ages, resembles the Democratic party’s political manipulation of black Americans, targeting that audience through its ... Read More