If the 14th Amendment guarantees every “person” due process and equal protection, but (per Scalia) does not forbid discrimination against women, then does Scalia believe that women are not persons?

The 14th Amendment guarantees due process and equal protection to every “person.”

Antonin Scalia does not believe that the 14th Amendment requires equal treatment for women.

Therefore, Antonin Scalia does not believe that women are persons. (Unlike corporations, which obviously are persons with First Amendment rights.)

[Still waiting for Scalia’s originalist defense of Bush v. Gore.]

It cannot be said too often: Nutso extremism is at the core, not on the fringe, of the contemporary Republican Party.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

29 thoughts on “Syllogism”

  1. To be precise, Scalia apparently does believe women are persons when they are fetuses, but not after they are born. Go figure.

    BTW, Scalia is also supposed to be in favor of giving constitutional words their unambiguous meaning and against looking beyond the text for context, so how does he get to "persons" only referred to slaves and white men.

    Finally, does this mean that black women are persons, but white women are not? Just askin'.

  2. The students were not allowed to ask questions (even to submit written questions, it appears). The obvious question is: If the provisions of the Constitution are limited to the particular circumstances at the time of their adoption, how many thousands of amendments would be required to keep it current? Would the First Amendment need to be updated every time a new mode of communication is invented (we have moved way beyond “the press” to the telegraph, the radio, TV, and the Internet). The Second Amendment applies to single-shot flintlock muskets, but does it apply to rifles, to semi-automatic weapons, or to 9 mm handguns?

    Good thing the students were only allowed to applaud.

  3. The First Amendment gives me the right to petition the government for the redress of grievances. At the time it was adopted, petitions were written documents delivered to an appropriate agency of the government.

    I want to call my Senator to ask him to vote on an upcoming bill. There was no such thing as a telephone in 1789. I propose amending the Constitution to guarantee my right to use the phone to petition the government. Maybe (to kill several birds with one stone) we could include e-mail and Twitter.

    We could come up with a document that can last for at least four or five years if we are sufficiently attentive to the task that lies before us.

  4. "does this mean that black women are persons, but white women are not?"

    Applying Scalia's reasoning, black women are persons when they are discriminated against on the basis of their race, but not when they are discriminated against on the basis of their sex.

  5. Sorry, Mark, this is not a "nutso" position. It's extreme and evil, but it is based on valid Supreme Court case law. And I'm a card-carrying member of the ACLU, and agree with your conclusion that the Republicans are all about nutso extremism. But it is not legally nuts to argue that the Constitution permits discrimination based on gender.

    "Equal protection" cannot mean "equal for everybody under all circumstances." Should people who commit crimes be treated the same by the criminal justice system as people who don't?

    What the law has done is select certain special categories that cannot be used as the basis for legal discrimination. The choice of categories must be small, or else there would be no such thing as government. Except for race, which is inherent to the history of the 14th Amendment, the choice of categories must also be somewhat arbitrary. It is also often equivocal. Specifically, the Supreme Court has has admitted gender to this list, but on a rather tentative basis. For instance, our government is free to draft only men. The Equal Rights Amendment was intended to give gender a status similar to race, but it failed of enactment.

  6. Nutso extremism is not just at the core and right-fringes of the Republican party but rather encompasses the party in its entirety. If you are a Republican politician, most of your beliefs and basically all of your votes are completely childish and insane. When it comes down to it on a vote that matters, there's little difference between Olympia Snowe and James Inhofe.

  7. "The choice of categories must be small, or else there would be no such thing as government."

    Uh, no.

    The choice who to treat equally and in what circumstances must be limited; it need not necessarily be small.

    Criminals are treated differently on the basis of behavioral choices that are harmful to and which affect the rights of other members of society.

    Requiring equal protection for all those who are discriminated against on the basis of physical characteristics or non-choice behaviors that do not cause harm to or affect the rights of others is a sufficiently limited concept so as to allow effective government.

  8. I might add that we effectively distinguish between a large number of categories of crimes versus equally large number of categories of civil wrongs (torts, etc.) without losing our ability to govern effectively.

    Distinguishing between a large number of categories of persons entitled to equal protection of the laws remedies and those not so entitled should be no more difficult.

  9. Over at Volokh, commenters were insisting that in 1868 "person" did not include "female person," but they were kinda quiet when I asked for case law to that effect.

  10. That's funny, because from (at least) the other half of the country's perspective it cannot be said too often that nutso extremism is at the core, not on the fringe, of the contemporary Democratic Party. Everyone is entitled to their own opinion…

  11. . . . but nobody is entitled to their own facts. There is no symmetry between the 98% of the right, and 98% of the left. (I'll give Bux the other 2% of reality-based right wing, and fever-swamp left. But that's not enough for symmetry.)

  12. The First Amendment doesn't say anything about "persons". The amendment guarantees the right "to petition", a verb. The old meaning of petition as a noun is irrelevant. Television & radio are more ambiguous. They have been regarded as "speech" but are arguably more analogous to "press".

    Joe S, determining what positions are "nutso extremism" seems inherently subjective to me, not in the realm of "facts". What is the falsifiable sense in which that status can be proved?

  13. For virtually all purposes, the courts treat "speech" and "press" identically when they apply the First Amendment, so there is no need to label a particular communications medium as one or the other.

  14. Interestingly, the court case in Canada that gave women the vote hinged exactly on whether or not women were persons under the law. The court ruled that they were and that, therefore, every place where the law specified "person" that also meant women.

  15. Wonks Anonymous and Henry:

    I agree with you that TV and radio are analogous to the press, and are also regarded as speech. Also that the courts have treated particular communications media iin the way you describe.

    That is because the courts are treating the Constitution as a living document, flexibly enough to keep up with the times and to adapt to new kinds of interpretive challenges.

  16. An exception is that the Supreme Court still allows Congress and the FCC to prohibit, on broadcast radio and tv (not on cable or satellite), the words that the RBC also prohibits, as well as nudity, including even a wardrobe malfunction that results in the exposure of a female breast for a fraction of a second. The Court did not cite the framers' intent or the "plain meaning" of the First Amendment when they made that decision.

  17. For those who might be interested, let me explain the quotation marks around "plain meaning." There is no such thing. The language of the Constitution, statutes, and language generally, has meaning only in its context; if the meaning of a statement is plain to all, that means that all agree on its context. The language of the First Amendment — "Congress shall make no law … abridging the freedom of speech, or of the press" — is not plain. No one understands "no law" to apply to perjury, false advertising, treason, threats of violence against individuals, copyright infringements, and a few other types of speech. There are no free-speech absolutists, and the question, "what part of 'no law' don't you understand?" does not constitute an argument against a law restricting speech.

  18. Dear Originalist Tony: Who was it who said, "Because of me, the word 'male' has been written into the constitution", and how long after the founders had settled that original document did she say it?

  19. He has ample precedence for this. There is a long string of pathetic court cases all over the British Empire, including England, Canada, and South Africa, at the turn of the 20th Century of women applying to be admitted to legal colleges, or to the bar, which were all resolved in the same way — by the determination that the word person did not apply to women.

    It's this sort of thing that makes me amazed that there is as much reverence, limited though it may be, for the law today. I don't know how one can read these sorts of legal opinions and NOT conclude that, in FACT, the law is simply a tool of those in power, and can mean whatever they choose it to mean, no matter how nonsensical the results.

  20. "Interestingly, the court case in Canada that gave women the vote hinged exactly on whether or not women were persons under the law. The court ruled that they were and that, therefore, every place where the law specified “person” that also meant women."

    Eventually. Not the first go round.

  21. @Wonks Anon: You asked me about the connection between "nutso extremists" and facts.

    I can disagree with somebody and share pretty much the same facts. I can say that the person has bad judgment, but I can't call them "nutso." Similarly they can say I have bad judgment. This is symmetrical. Or I can disagree with somebody because I have a very different set of underlying facts that I bring into the argument. I can verify my facts, or show that their facts have no support. If I can, I can often call my opponent "nutso." And the situation is not symmetric. Facts are sometimes disputable, but often not.

    Let me give you two examples of how this works. "Bill Clinton has a bad character because he lied in the Lewinsky deposition." I can't call the proponent of this proposition nutso. The argument is based on a reasonably verifiable fact, and a reasonable inference from the fact. I can argue with the judgment, or say that it doesn't take context into account. But I can't argue with the fact, and can't say that the inference is that of a loon. Compare this statement to: "Bill Clinton has a bad character because he smuggled drugs into Mena Airport." This person is nutso. The person's facts are not verifiable by any means this side of divine revelation, and yet the person relies on them.

    @Maynard Handley: I'll agree with you only so far. The law is capable of tremendous injustice, and is generally a tool of those in power. But language is constraining, if not determinative.

  22. Ed Whitney: ¨The Second Amendment applies to single-shot flintlock muskets …¨ Carried by militia members wearing gaiters and tricorn hats.

    Like you, I´m puzzled about how on Scalia´s view the 14th applies to black women. Something like their being entitled to equal discrimination with white women.

    If the draftsmen of the 14th meant it to apply only to ex-slaves, why didn´t they say so? They could have just confirmed and generalized the Emancipation Proclamation, but chose not to do so. Note also that the terms ¨men¨ and ¨women¨ were not unknown at the time.

  23. Scalia: "I interpret it the way it was understood by society at the time."

    How can Scalia pretend that he knows "How it was understood by society?" Who is this "society" anyway? The all-male legislatures, elected by only male voters? That badly tilts the playing field, I think.

    I guess if you think society didn't include women, or anyone who might think that "all persons" meant "all persons" you have a case. But of course there were women, and probably men as well, who did think the Amendment protected women's rights.

  24. Bernard Yomtov;

    Good point; Scalia can't tell you if he means "as it was understood" by James Madison, by Thomas Jefferson, or by Alexander Hamilton.

  25. Scalia's position here is contradictory. He says that he believes in "original intent", but because these documents were often drafted by committee and often in conflict, they have multiple intents. For example, the 3/5 compromise didn't really have an original intent. For some of the authors it reflected their view that slaves weren't persons. For others it was the view that slaves were persons of lesser value.

    So how exactly does Scalia come to interpret the way it was understood by society at the time? Ouija board? Seance? Don't historians bitterly disagree about these things? Technically the 13th, 14th, and 15th amendments would have made Natives into voting citizens, but that didn't happen until the 20th century. Should we go by intent, or simply the letter of the law? Can we disregard the words as they actually appear on the page?

    Also, this bit made me lose all respect for him "Early U.S. leaders intended religion to play a major part in the government, Scalia said." That's a total lie, and Scalia knows it.

  26. In their 1991 paper, "Dialogue – A proposal," David Bohm, Donald Factor, and Peter Garrett described, in the first paragraph, how people's "ability to talk together about subjects that matter deeply to them seems invariable to lead to dispute, division and often to violence. In our view this condition points to a deep and pervasive defect in the process of human thought."

    That paper is easily found on the Internet and I deem it well worth careful reading and study. To me, if to no one else, Scalia's espoused view is profoundly and tragically characteristic of "a deep and pervasive defect in the process of human thought."

    As I observe, this deep and pervasive defect has been eloquently and amply described by neurologist Robert Scaer, in "The Trauma Spectrum" (W. W. Norton, 2005) and "The Body Bears the Burden, Second Edition" (Haworth Medical Press, 2007), and by Robert Feldman, "The Liar in Your Life"(Twelve, Hachette Book Group, 2009) and much earlier, by Abraham A. Low, in "Mental Health Through Will Training" (originally published in 1950, Third Edition, 1997, Willett Publishing Co, Glencoe, IL).

    The most compact account of this deep and pervasive defect which I have yet come upon is in Current Directions in Psychological Science, Vol. 19, No. 4, Aug. 2010, page 244, under the heading, "Theory of mind." In my work in bioengineering, I observe that "Theory of mind" is the nearly ubiquitous delusion that one person can accurately infer the intentions of another person without using dialogue in successive approximations leading to plausibly accurate shared understanding of intentions.

    On reviewing the 71-plus years of my life to date, I note that no one, using any sort of theory of mind, has ever inferred any of my actual intentions with even a hint of a trace of any semblance of actual accuracy.

    What sort of brain trauma (as in the work of Dr. Scaer) is required for a (sincere?) person to believe that anyone now living can accurately infer the intentions of people who have been dead for something like 200 years?

    In my work, I named that defect, before I read Bohm, et al., "The Fundamental Error of Social Reality," and I find it to be the likely sociological-psychological-biological-illogical basis of so-called "religious fundamentalism."

    Instead of innocent labels such as "conservative" and "liberal," my understanding of brain biology suggests to me that more accurate labels might be "regressive" and "progressive."

    It seems to me that "regressives" believe in some magical past which never existed except as delusional fantasy of some time in the past when everything was perfectly-okay and peachy-keen until some basic flaw in personhood ruined everything, and, if we can only get back to that peachy-keen time, all problems will be solved. This is, to me, illogical to the point of absolute indecency, for the simple reason that, if such a time really did exist in the past, it would have been such as to prevent the supposed human error (Pandora's box or original sin?) which led to the difficulties of today.

    Methinks, were it possible to go back to antiquity, everything learned since then would need to be learned again.

    Yet "progressives" predominantly hold that any solution to the human enigma must lie in the future, because it obviously is not to be found in the past, or we would already have it. The problem I have with a purely progressive view is my observation that the difficulties of today have prior causes, and ignoring the past unduly precludes understanding adequately what we need to be changing about society now in order to get to a decent future in a timely way.

    To me, it is a little like that glass, half filled with water. The pessimist observes that the glass is half-empty while the optimist observes that it is half full. Take your pick as to whether progressives are optimistic or pessimistic and as to whether regressives are pessimistic or optimistic, both see only half of the contents of the glass.

    I commonly need air to breathe sooner than I need water to drink. To me, that glass is always full, no matter what the proportion is air and what is water. No matter whether it is all air, all water, or some of each, it always contains something I need to continue to live. And it is always full.

    Methinks I am a regressive progressive; to the extent that I am ignorant of history, I am likely to replicate harmful behaviors already discovered in the past; thereby impeding progress toward the kindness of simple, direct, truthful decency.

  27. Thinking more about this, it seems to me that Scalia's logic here is just awful, for another reason.

    At various times in US history, certain people – blacks, women – were simply not seen as persons by the law, as Scalia himself admits. Indeed, this is the very core of his point. Was the Bill of Rights, for example, was thought to apply to blacks? By Scalia's logic these prejudices are enshrined in the Constitution by virtue of the very blindness that prevented drafters from being aware of them. If women were not "persons" in 1868, then they are not "persons" today. If blacks had no right to due process (at the federal level) in 1792, then they don't have it today. And of course it seems that women could be denied due process by the states, since that guarantee is part of the same sentence that talks about equal protection.

  28. The "Persons Case" in Canada was about the meaning of the provision in the Constitution of 1867 saying that 'persons' might be appointed to the Senate. (The Canadian Senate is appointed not elected.) The Supreme Court of Canada held that 'persons' must be read as it would have been understood in 1867, when women did not vote etc etc. The Judicial Council of the Privy Council in England, then and until 1949 the final court of appeal for Canada, disagreed (fortunately).

    Postage stamps, statutes and books have been created in praise of this decision and of the 'famous five' women who carried on the litigation.

    Note the second achievement of the case, according to this article (and most others): the Canadian constitution is 'a living tree', not fixed in the understanding of the people who wrote it. Canadian law has prospered by that understanding, which no one disputes. The country has not had to deal with blinkered and retrograde arguments like those of Justice Scalia, thank God (or equivalent source of benefits).

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