Scalia also said he doesn't believe the Constitution bans sex discrimination.Hmm. Let's check the 14th Amendment:
The 14th Amendment, enacted after the Civil War in 1868, guarantees due process and equal protection and in recent years has been interpreted by courts to prohibit sex discrimination as well as racial discrimination.
But Scalia said he believes the amendment doesn't apply to discrimination against women because that use of the measure was not intended in 1868.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.Nope, nothing about "this doesn't apply to women" in there. I call hackery.
To his credit, Scalia said this in the context of saying that "a lot of stupid stuff is constitutional," so we can't say he's pro-sex discrimination. Rather, I think he's using his "originalism" doctrine - which says that the Constitution's meaning should be filtered through the opinions of those who approved it - to basically make stuff up in order to avoid having to address the 14th Amendment implications of a case that will likely be coming before him soon: Perry v. Schwarzenegger, the gay marriage case.
I've written this a million times on this blog in the past few months, but you can't make the Constitution say shit it doesn't say. If the people writing the 14th Amendment wanted to exclude women, they should have written that in there. They didn't. We have to follow the plain meaning of the Amendment as written.
Not that Scalia's the only hack who ignores the full implications of equal protection. It seems like a fairly sizable chunk of the legal profession does as well. The rational basis test is basically an excuse used by jurists to avoid having to address the fact that "equal protection" and "due process" might actually mean "equal protection" and "due process." I'm looking at the text I just quoted, and there's nothing in there that says "this shit doesn't apply if the government can come up with a good reason for why it shouldn't apply."
But Scalia's hackery is more reprehensible. At least the "rational basis" hackery is something of a neutral legal tradition and occasionally works to protect people's due process/equal protection rights. Scalia can basically interpret the Constitution however he wants by imagining that he's in the head of some dead guy 150 years ago. This reasoning has its place, especially when there's some ambiguity in the wording of the document, but one can't directly contradict the plain meaning of the text by invoking the imagined opinions of the text's writers. That's a right that Scalia is claiming for himself here, and that's why he's a genuine problem on the Court.
Speaking of hacks: