Tuesday, January 04, 2011

Justice Scalia and I went to different law schools

Supreme Court Justice Antonin Scalia just announced that these words don’t include women:

“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.”

And of course the word women isn’t in the Fourteenth Amendment.  Neither is black, African American, gay, lesbian nor a host of other kinds of people.

Said the Justice when asked if the Amendment prohibited sexual discrimination:

“You do not need the Constitution to reflect the wishes of the current society. 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.”

Callawyer.com (emphasis added).

Now, I’m sure Justice Scalia can argue legal rings around me; but, here goes.

Judges look at statutes and constitutions and interpret them.  To do that they use rules.  Some of them are:

"In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787-88 (Alaska 1996).

“The words of a statute . . . should be given their ordinary meaning, absent clear and express legislative intention to the contrary,” as long as the ordinary meaning does “not render the statute’s application absurd, unreasonable, or unjust.” State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379.

As always, the quotes are from that fountain of legal knowledge, Wikipedia.com.

For a change of pace, here’s one more rule from Ask.com:

“Another maxim of statutory construction is expressio unius est exclusio alterius. Roughly translated, this phrase means that whatever is omitted is understood to be excluded. Thus, if a statute provides for a specific sanction for noncompliance with the statute, other sanctions are excluded and cannot be applied (Sprague v. State, 590 P.2d 410 [Alaska 1979]). The maxim is based on the rationale that if the legislature had intended to accommodate a particular remedy or allowance it would have done so expressly; if the legislature did not provide for such an allowance or event, it should be assumed that it meant not to.”  (Emphasis added.)

You too can be a judge.  If you meant the Fourteenth Amendment to apply only to men, why wouldn’t you use the word men instead of person which includes women, gays and so on?  Expressio unius ya’ll.

Justice Scalia, an adherent of textualism – not reading meaning into the plain words – ignores the plain word person.

He nicely illustrates the problem with his analysis when he gives his opinion of New York City pizza at the end of the interview.

“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?”

“[I]t’s not pizza” he says.  Those other cities’ pizzas are of course pizza in its broad sense.  He’s ascribing a qualitative sense to the word that should be achieved by using an adjective or another word or phrase – his choice, tomato pie.  Though the text of the Fourteenth Amendment clearly says person, as he said in his answer above, “[n]obody ever thought that that's what [person] meant.” 

Maybe he’s right; he’s probably right that Congress, just after the Civil War, wasn’t thinking about women’s rights.  They certainly weren’t thinking of gays and lesbians.  But, until we go back and change the word or put an adjective in front of it “words… are to be construed in accordance with their common usage."  All God’s chilluns are people, persons everyone.

One good thing, he’s telegraphed his vote in the inevitable case dealing with Arizona deporting a van-load of brown babies born in the U.S. of illegal immigrants. 

I do agree with him about the pizza thing though.


Anonymous said...

Doesn't the 9th Amendment say that we've got all kinds of rights, even if they aren't specifically spelled out?

Dave said...

Yep, and he and his colleagues like that one even less than the 14th.

Annie K said...

I was laughing so hard at his interview today, but there was no one around who appreciated the humor in it. That kooky Scalia tells the best jokes. He was kidding, right?

Annie K said...

Oh, and BTW, it doesn't say "men" either, so possibly it applies to noone?

Dave said...

I guess he gets men from his reading of the legislative history. But, if that's the case it can only be black, former slave males, as that was the class that needed the protection. Crackers and Yankees aren't included.

The Curmudgeon said...

You and Justice Scalia are both wrong about the pizza thing. I can't eat deep dish like I used to, but that "New York" stuff that you have to pour the oil or grease off of before you eat it -- I can live without that just fine.

Scalia is... and isn't... wrong on the 14th Amendment: He's right in that the framers of the amendment had only discrimination against Freedmen in mind and would have been aghast at their language being used (for example) to prohibit gender-based discrimination, but as any contract lawyer knows, it isn't so much what the parties meant to say as what they in fact said. Our legal fig-leaf is that the language used by the parties is the best evidence of their intentions. We don't necessarily need to resort to the (very similar) rules that apply to statutory construction to get there.

Wrong as he is about that, I suspect he is right that the ballot box and legislature can be used to remedy a whole host of ills (or create a whole 'nother host) without necessarily implicating the Constitution... either way.

Now... about Scalia giving a "Constitution 101" course to Republican House members... good idea or bad? (I'll telegraph my vote: I think it would have been better if he'd agreed only on condition that he could bring Breyer with him....)

Dave said...

"...[I]t isn't so much what the parties meant to say as what they in fact said." Exactly.