What Antonin Scalia should have said

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When Supreme Court Justice Antonin Scalia was interviewed by the publication California Lawyer he simply restated what everyone should know that he believes:

‘The U.S. Constitution is not a living document, it’s a legal document. The democratic process is supposed to fill in the gaps that the Constitution doesn’t specifically address; but when judges make interpretations contrary to what’s expressly included in the Constitution, they are making policy decisions that should be left to Congress and the people.’

The current brouhaha is about his poorly worded blanket statement in that interview:

“Neither women nor gays are promised protection against discrimination under the Constitution,”

Scalia has a reputation for being blunt and he apparently has little regard for diplomacy; if he did he might have made his point by first emphasizing the protections afforded to ALL citizens under the 14th Amendment by quoting it verbatim:

“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.”

. . . and then make the obvious point that something like an equal rights amendment is completely unnecessary — discrimination is already unconstitutional.

It’s true, as Scalia pointed out,that the Constitution does not specifically mention women or gays . . . but then if we assume citizenship and assume both women and gays are considered “persons” it really doesn’t need to.

References:

CBS News: Scalia: Constitution Doesn’t Protect Women or Gays from Discrimination

Law.com: Scalia Says ‘Living Constitution’ Reduces Democracy

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