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Justice Scalia's Constitutional Nostalgia

Justice Antonin Scalia says the's 14th Amendment doesn't protect women against sex discrimination. Is nostalgia to blame for this inflexible, incorrect view?
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I had the opportunity to meet United States Supreme Court Justice Antonin Scalia when he came to DePaul University College of Law, where I have the privilege to teach. He spoke about originalism, and he has spoken again this week about his views in an interview with the California Lawyer. According to Scalia, the Constitution's 14th Amendment equal protection clause doesn't extend to protecting women against sex discrimination. Now, if a legislature wants to outlaw that, there is nothing in the constitution that says they can't, he opines. But the constitution doesn't require it. Wow.

When Justice Scalia explained his position about originalism, one of his justifications is that it makes things so much easier. Just look at the words, he said, and that's all one need do. Never mind that the framers of our constitution wanted the courts to be a check on power and to protect people, which at the time meant only white male landowners. No one has to protect women, gays or other minorities, according to Justice Scalia's thinking, and such categories of people can be left to the mercy of the prevailing political majority when it comes to ensuring fair treatment. As The New York Times wrote, it "is an 'originalist' approach wholly antithetical to the framers' understanding that vital questions of people's rights should not be left solely to the political process. It also disrespects the wording of the Equal Protection Clause, which is intentionally broad, and its purpose of ensuring a fairer society." This view of a sitting justice becomes even more disturbing in light of his acceptance of a speaking engagement at the behest of the right wing tea party, which sends a disturbing political and politicizing message.

Besides the obvious, Justice Scalia's ideas bring to mind a song by the musician and poet Gil Scott Heron called "B Movie" which Mr. Heron penned right after the election of President Reagan. Mr. Heron spoke about how many Americans were nostalgic -- perhaps for something that never existed -- and that was Reagan's appeal: "The idea concerns the fact that this country wants nostalgia. They want to go back as far as they can even if it's only as far as last week. Not to face now or tomorrow, but to face backwards. And yesterday was the day of our cinema heroes riding to the rescue at the last possible moment. The day of the man in the white hat or the man on the white horse -- or the man who always came to save America at the last moment, someone always came to save America at the last moment, especially in B movies. And when America found itself having a hard time facing the future, they looked for people like John Wayne... Nostalgia, that's what we want, the good ol' days when we gave 'em hell. When the buck stopped somewhere and you could still buy something with it. To a time when movies were in black and white and so was everything else."

It appears that nostalgia and an almost religious belief that everything we need is in (and only in) the precise words of the constitution (and those of the Bible, for many) is animating the tea party and Justice Scalia's inflexible and incorrect view of what the Supreme Court is here to do. The Court is the guardian of us all, and "us" includes those who may be discriminated against -- because of an immutable characteristic like gender or race, or choices about religion or lifestyle, or opinions we might hold. As Justice Douglas once said, "As nightfall does not come at once, neither does oppression. In both instances, there's a twilight where everything remains seemingly unchanged, and it is in such twilight that we must be aware of change in the air, however slight, lest we become unwitting victims of the darkness."

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