January 4, 2011

Somehow Scalia gets people talking about him again...

... by saying the same thing he always does.

HuffPo headlines: "Women Don't Have Constitutional Protection Against Discrimination." The writer, Amanda Terkel, quotes the 14th Amendment, and concludes, with unironic textualism: "That would seem to include protection against exactly the kind of discrimination to which Scalia referred." Thanks for the analysis, Amanda.

Terkel also called up Marcia Greenberger, founder and co-president of the National Women's Law Center, who professed to find Scalia's opinion "shocking" — even though he's been saying it for at least 15 years.

ADDED: Here's the interview with Scalia. From this lawprof's perspective, the most interesting thing he says is about pizza:
You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?

I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas—it's not pizza. It's very good, but ... call it tomato pie or something. ... I'm a traditionalist, what can I tell you?
He's applying his legalistic language fussiness to food, but then what's with "infinitely"? What happened to verbal precision all of a sudden? He's gushing like... a girl.

50 comments:

former law student said...

Putting on my original public meaning hat, Fourteenth Amendment doesn't protect Chinese people either, as far as I can tell. Or American Indians, or Latinos. Only slaves and descendents of slaves.

Mark O said...

For over 30 years, women, a majority in this country, have been able to present themselves as a minority deserving of Constitutional protection.

You go, girls.

Bob Ellison said...

I'm with Scalia on deep-dish pizza. But it's not a Sicilian thing. Pizza was probably invented in New Haven, CT.

DADvocate said...

I've had pizza that was infinitely better than other pizzas. So much better there's no comparison.

shoutingthomas said...

Since women are favored, and receive quotas and set-asides as a matter of course in almost every arena...

What's the bitch?

Women are getting too much, not too little.

The greed of women is endless. Men seem helpless to respond in any sensible way, dragged down by their own stupid chivalry.

Lincolntf said...

Most importantly, there's been a man-in-shorts sighting on the Drudge Report.

former law student said...

But [pizza's] not a Sicilian thing. Pizza was probably invented in New Haven, CT.

Only if "New Haven, CT" is a slang term for Naples:

In 1889, Rafaele Esposito of the Pizzeria di Pietro e Basta Cosi (now called Pizzeria Brandi) baked pizza especially for the visit of King Umberto I and Queen Margherita. To make the pizza a little more patriotic-looking, Esposito used red tomato sauce, white mozzarella cheese and green basil leaves as toppings.

Queen Margherita loved the pizza, and what eventually became Pizza Margherita has since become an international standard. Pizzeria Brandi, now more than 200 years old, still proudly displays a royal thank-you note signed by Galli Camillo, "head of the table of the royal household", dated June 1889.


www.foodmuseum.com

lyssalovelyredhead said...

Hey, remember when ShoutingT was going to leave and never come back? That was awesome.

rhhardin said...

He's talking like a philosopher.

Infinite doesn't mean big.

It means without boundaries; so it's impossible to calculate with.

Hence we say that the value of human life is infinite, meaning only that you can't calculate with it. Hence the objection to one size fits all health care death panels.

That human life doesn't have necessarily hugely big value is why individuals make the decisions they do in individual cases.

Other considerations apply.

Verbs without tense are also called infinite.

Fred4Pres said...

Are people just wilfully stupid? The 14th amendment applies to race, specifically to address slavery. Freed African male who were slaves got to vote (in theory) from the change. Freed African female slaves did not. That took the 19th amendment. What Scalia is saying is not the least bit shocking, it is obvious.

And oh btw. Women have a majority of votes. So they are not a minority. And they need not be protected like delicate flowers.

And Scalia is also right on Chicago's deep dish things. They are not pizza.

And Ann is right, these folks are just looking for outrage.

tim maguire said...

Scalia is an endless source of agita for people who think Supreme Court Justices have a completely free hand to decide what the constitution means. Sadly, some of the agitated are themselves Supreme Court Justices.

lyssalovelyredhead said...

I'm not sure that I follow Justice Scalia's argument here (as reported by the HuffPost). Is he arguing that the "person" in the 14th Amendment doesn't include women, or that "equal protection" doesn't encompass sex discrimination? Or something else entirely? I'd like to know more before I pass judgment.

Has anyone read Lawrence Tribe's "The Invisible Constitution"? It's a book arguing for the standard liberal, read everything that you want to see into the Constitution, thought process. Basically, each and every one of his arguments break down to "this would be wrong, so it must be unconstitutional." (I bought it knowing that I wouldn't agree, but at least hoping that it would be interesting and challeging. I was very disappointed.)

Anyway, Scalia certainly rejects Professor Tribe's thinking on that topic, and I certainly agree with him on that. I'm not sure that I agree with him here, though.

- Lyssa

TWM said...

"And Ann is right, these folks are just looking for outrage."

They have no lives beyond that . . . it feeds them.

It's interesting that Asians have been taken off the endangered minority list due to their doing so well, but that women haven't been removed, despite their doing just as well (pay, college enrollment, employment in a high unemployment time).

I blame it on the fact that they got hooters and everyone likes a nice set of hooters.

lyssalovelyredhead said...

DADvocate said: Are people just wilfully stupid? The 14th amendment applies to race, specifically to address slavery.

Does it? Certainly, that was it's intent, but, from a textualist point of view, it says "any person," and doesn't limit its protections to racially based issues. Scalia has previously rejected "original intent" as a constitutional theory.

(As I'm sure that you know from my past statements on this blog, of course, I completely agree with you that women should not be treated as delicate, protected flowers. Heck, I would include fetuses as "persons" under that amendment, were it up to me.)

- Lyssa

phx said...

I don't get the snarkiness towards Terkel.
Is that like "No defense for Scalia. Abuse the reporter."

TWM said...

"I blame it on the fact that they got hooters and everyone likes a nice set of hooters."

Actually, I should have said, "I credit it on the fact . . . ." I don't blame hooters for anything, but I credit them for many wonderful things.

Bob Ellison said...

fls, the pseudo-originalists who claim a Sicilian birth of pizza have been thuggishly forcing their notion for years, praying upon the Italian origins of the food while supressing the facts. The New York school has largely bowed out, claiming lately only that pizza first arrived in America via Manhattan. The out-of-New-Haven theorists are all but defeated, even though their evidence is strong. Your Sicilian story reeks of Parson Weems.

Seriously, though, the origin of pizza is complex and not certain.

former law student said...

Scalia has previously rejected "original intent" as a constitutional theory.

Scalia doesn't think intent matters; what matters is what reasonable people at the time understood the document to mean.

Women of course have an long history of discrimination in this country, being once forced to sit instead of stand on public transportation, and having had to go to segregated schools like Vassar and Wellesley. Luckily Hillary Clinton is from the last generation of those oppressed women.

David said...

Pizza is like sex: when it's good, it's very good; when it's bad, it's still pretty good.

mariner said...

Women of course have an long history of discrimination in this country, ...

... such as being expected to put children first. Wasn't that just like slavery or something? It's great that we're past that and women can dispose of unwanted children as they please.

(Of course, men are still expected to put women AND children first. But, they're just men.)

mariner said...

And, Scalia's right about pizza. Whatever it is, and however good it is, it's not pizza.

G Joubert said...

The legislative history of the 14th Amendment surely supports Scalia's position. But the problem is the actual language of Section 1 nowhere specifies limiting its scope to slaves or former slaves. If that's what the drafters and Congress wanted to do they could have or would have, but instead the text they chose to adopt refers open-endedly to "all persons" and "any person", it was thereafter ratified by the states in that form.

Charlie Martin said...

Maybe... he knows the difference between a legal opinion and a culinary one?

Triangle Man said...

... such as being expected to put children first. Wasn't that just like slavery or something?

Such as not being able to own property in their own names or make a contract.

Triangle Man said...

Agreeing also with Scalia and Fred4Pres. Chicago style pizza is much closer to lasagna or a polenta pie.

edutcher said...

Agree with fls on the 14th - that's why it's one of the Civil War amendments, after all - and Scalia on pizza. If it isn't made between Baaston and Baltimore and on the East Coast, it ain't pizza. Pizza in NE OH is like eating a piece of cake.

Scalia seems to be someone who understands that, if a law can be "interpreted" anyway a given judge wants to, it has no meaning.

ricpic said...

Althouse, a feminist, writes that women gush?! A reeducation camp beckons.

chickelit said...

Scalia wrote: I think it is infinitely better than Washington pizza,..

Washington DC has been divided by the Zero.

paul a'barge said...

Eating NY Pizza (and even better: New Haven, CT pizza) is exactly the commodity that will make anyone gush like a girl.

Shanna said...

I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas—it's not pizza.

Word!!!

mishu said...

I like deep dish pizza. Of course being from Chicago, I'm a little biased. There's also a place for thin crust too. Having said all that, NY pizza is too greasy.

AlphaLiberal said...

Well, then, it's time to bring back the Equal Rights Amendment.

AlphaLiberal said...

Marcia Greenberger, founder and co-president of the National Women's Law Center:

. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."

Ann Althouse ducked this point.

AlphaLiberal said...

Uh, Fred4Pres?

Please show us where and how the 14th Amendment is limited to race.

http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html

Good luck with that.

AlphaLiberal said...

For the resentful males among us who feel discriminated against, you would have protection under an ERA.

Belkys said...

Former law student is right about pizza but Ellison is not off target.
Pizza ,napolitians have been looking for a while for the denomination of origin is made of tomatoes grown in lava soil , mozarella ( made with bufalla´s latte )and in a stove with a wood fire. But inmigrants to CN and NY created the american varieties of pizza

Salamandyr said...

I don't care what you call it, Chicago style "pizza" is damned tasty.

Roux said...

Why would women want to be on the level as men? sheesh...

My only hope is that one day they'll leave us alone. "Sorry honey I can't hear you I'm mowing the grass."

former law student said...

Please show us where and how the 14th Amendment is limited to race.

Let's apply the canons of statutory interpretation:

Using noscitur a sociis the location of the 14th Amendment between an amendment outlawing slavery and an amendment saying the right to vote will not be denied based on race, color, or previous servitude clarifies the word "person" to mean former slaves and those people who resemble them. This further means that women are not included under the 14th Amendment because they are not granted the right to vote under the 15th Amendment.

Conservatives 4 Better Dental Hygiene said...

So is the old buzzard saying that the definition of the word "person" doesn't/didn't include women or is his gripe against applying the provision at the federal level instead of simply what any "state" may do?

Conservatives 4 Better Dental Hygiene said...

Whatever the merits of Scalia's philosophy his approach is like that of an ancient Roman patrician toward the lower classes. Knowledge of the laws was generally restricted to the nobles and used against the plebs to patrician advantage. Scalia's interest in stripping away the common understanding of the Constitution to restrict liberty, progress and fairness (when convenient; when it's inconvenient he does the opposite) is a lot like this approach.

Conservatives 4 Better Dental Hygiene said...

Men seem helpless to respond in any sensible way, dragged down by their own stupid chivalry.

Except of course yours, ShoutingT. If it weren't for your own acute rudeness, I'm sure you wouldn't have gotten anywhere in life. We are all in awe of how much of a success being such an intemperate (and barely literate) asshole has made you.

And if your jealousy of women is severe enough, I'm sure it's not too late for a sex change. You've already got the nagging and vindictive part down, in any event. (I kid, I kid - the ladies of course, not ShoutingTestosterone).

Conservatives 4 Better Dental Hygiene said...

Deep dish is definitely an interesting variation, but exotic enough to warrant a different term. I don't agree with that.

Although, the idea of it ever catching on beyond the confines of a city as bone-chillingly cold as Chicago is crazy. As evidenced by Chris Farley's need to pound his chest with his fist at the table of fellow Bears' fans on SNL while pretending to casually suffer yet another heart attack, no other city requires its residents to metabolize fat as desperately as that place does.

alwaysfiredup said...

"former law student said...
Please show us where and how the 14th Amendment is limited to race.

Let's apply the canons of statutory interpretation:

Using noscitur a sociis the location of the 14th Amendment between an amendment outlawing slavery and an amendment saying the right to vote will not be denied based on race, color, or previous servitude clarifies the word "person" to mean former slaves and those people who resemble them. This further means that women are not included under the 14th Amendment because they are not granted the right to vote under the 15th Amendment.

1/4/11 4:29 PM"

You really can get anywhere with those canons, can't you? How about the "four-corners" doctrine: The meaning of a text should be determined by reading the words of the text, which clearly include "citizen" and "person". These not being ambiguous terms, there is no need to look to outside documents such as other amendments.

chickelit said...

Can we take the "rude" out of erudite?

shoutingthomas said...

And if your jealousy of women is severe enough, I'm sure it's not too late for a sex change. You've already got the nagging and vindictive part down, in any event. (I kid, I kid - the ladies of course, not ShoutingTestosterone).

You knew, fool, didn't you, that I was talking about you when I talked about idiot men dragged down by their stupid chivalry.

So, we know now, that you are one of the idiots. Can't stop stabbing other men in the back to prove your chivalry, can you?

Meanwhile, clever women like Althouse know how to play a damned fool like you like a violin. I've seen it so many times.

And, you're such a fucking idiot that you think this stupidity of yours is gentlemanly virtue. The Althouse's of this world make hash out of jerks like you.

shoutingthomas said...

I wasn't talking about you in particular, C4BDH, but apparently you knew that what I had to say applied specifically to you.

Yes, you are just the sort of dumb asshole I was talking about.

The Althouses of this world long ago learned how to make mincemeat out of chivalrous assholes like you. And, after... what?... 50 years of this game, you're still too fucking stupid to know that you're being gamed.

The chivalry makes you incredible, stark raving stupid, and the women have learned how to play you for it.

Thanks for the demonstration, fool.

former law student said...

These not being ambiguous terms

Oh, really? Define "person" Explain why the amendment distinguishes between persons and citizens. Was immigration on the minds of the Congressmen when they drafted the Amendment? What does "jurisdiction" mean in this amendment? This is still being debated today, so don't give me this "four corners" jazz.

Four corners or not, you can't ignore that at the same period Congress was using the word "citizen" in the 14th Amendment, they were using "citizen" to mean "voter" in the 15th Amendment. And because women were not yet allowed to vote, the citizen in the 15th Amendment must be male. Would Congress have changed the definition of citizen from the 14th to the 15th Amendments? Doubtful.

AlphaLiberal said...

Really good point by Joan Walsh:

What's most preposterous is that Scalia was part of the most shameful and flagrantly political use – it was abuse, really -- of the 14th Amendment in Supreme Court history, when he joined the majority in the Bush vs. Gore decision and stopped the Florida recount, brazenly using "equal protection" as one of the cornerstones. The pro-Bush SCOTUS majority argued that the white, wealthy George W. Bush would have his rights violated if if Florida counties used different procedures to recount votes and, in cases of some ballots, divine voter intent. Now, if Scalia really thought the 14th amendment only intended to make former slaves full citizens, he should have applied it to make sure black voters and black votes were treated fairly in Florida (and in fact, we know they were not.) What a joke.

http://www.salon.com/news/the_supreme_court/index.html?story=/opinion/walsh/politics/2011/01/04/scalia_on_women_and_rights

Andi said...

The Scalia defenders are a bit off base on this one. The Equal Protection clause is not seen (even by Scalia)as applying only to the Slavery issue that surrounded the fourteenth.

At issue with sexual discrimination is the admitted 'differences' between the sexes. There is an interest, at times, in treating the genders differently under the law. Such treatment is not used in issues of race or nationality - since there is no inherent difference between two men or two women (as there is between one man and one woman).

The difference between Scalia and most other Justices is how much rational Justification Legislatures must demonstrate before the discrimination is Constitutional. Scalia basically says, 'none'.

fwiw