I'm slightly bemused by the brouhaha over Justice Scalia's suggestion that the 14th Amendment doesn't guarantee women's equality.
In case you missed it, Scalia told California Lawyer magazine:
Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.
You can make arguments that Scalia's wrong on the history - that's not hard - but his argument about how to interpret the amendment is not new, and has been his line of argument in a number of sex discrimination cases (such as the "Lily Ledbetter" case about pay discrimination). And his interpretation is not, necessarily, wrong. There's nothing explicitly in the Constitution that says women are equal citizens, and in the orginal document, they weren't.
...and that seems wrong, right?
It's like we need - oh, I don't know - some sort of Amendment to the Constitution that explicitly stated that, oh, something like "Equal rights under the law shall not be abridged on account of sex". I mean, you might say "gender" nowadays, but words to that effect.
The Equal Rights Amendment was part of my feminist upbringing. I grew up with "ERA now" and around all the marches and agitating for its passage. And we'd have it, except for a concerted effort on the part of antifeminists like Phyllis Schlafly to confuse and misrepresent the ERA and block its ratification.
That and a number of "legal experts" - including many well meaning liberal men - telling us that it wasn't necessary, because the 14th Amendment already guaranteed women equality. Except, you know, when Susan B. Anthony tried to use it to win suffrage for women, and lost... and the right of women - you know, as equal citizens - to vote had to be guaranteed in the 19th Amendment.
They read the Consititution yesterday - well, sort of - in the House of Representatives yesterday, and listening to the 14th Amendment again, I was reminded that reading women's rights into it is a matter of interpretation. And, really, that's not a good way to guarantee one's rights. And one way to shut Antonin Scalia up, as he says, is to pass the ERA.
But, you know, who'd do that?