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Women aren’t people under Scalia’s Constitution

Perhaps if Antonin Scalia had been born Antonia his position on the 14th Amendment would be different.Bloomberg News file photo

I tend to think of myself as a person. I’d hazard a guess that most, maybe all, American women consider themselves to be actual human beings, too.

The U.S. Supreme Court said that’s what we are, although it took the court until 1971 to say so.

Justice Antonin Scalia still doesn’t believe it. In an interview in this month’s California Lawyer magazine, he said that the 14th Amendment means only men when it says states can’t deny “any person” equal protection under the law.

And where it says states can’t “deprive any person of life, liberty, or property without due process of law,” it actually means “any man,” according to Scalia.

As for women, the amendment doesn’t care, he said.

“Certainly the Constitution does not require discrimination on the basis of sex,” he said. “The only issue is whether it prohibits it. It doesn’t.”

When the amendment was written, “nobody ever thought that that’s what it meant,” Scalia said.

Here we have a perfect example of what’s so very wrong about so-called originalism, the theory Scalia claims to follow. The idea is that the Constitution should be interpreted according to its authors’ original intent, no changes allowed.

The 14th Amendment wasn’t meant to protect women, religious minorities, ethnic groups, and certainly not homosexuals. Written after the Civil War, its single aim was legal rights for newly freed slaves.

Newly freed male slaves, that is.

That women should have rights equal to men was a radical idea in 1868 when the Reconstruction Amendments passed. (Women didn’t get the federal right to vote for another 52 years.)

At the time, state laws prevented women from owning property, signing contracts, serving on juries. Unmarried women were freer than their married sisters due to notions dating back to English common law.

The “very being and legal existence of the woman is suspended during the marriage,” explained William Blackstone, the definitive British legal commentator of the 18th century.

It is “consolidated into that of her husband under whose wing and protection she performs everything,” he wrote.

No wonder my mother got divorced.

For its first 200 years, the U.S. Supreme Court saw nothing unconstitutional about states drawing limits around what women could do.

It was just fine, for example, that Illinois refused to let them practice law. When the state originally set standards for lawyers, “it was with not the slightest expectation that this privilege would be extended to women,” eight out of nine Illinois Supreme Court justices said in refusing Myra Bradwell a law license in 1872.

“That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth,” the state’s high court wrote before Bradwell took her case to Washington.

No problem

The U.S. Supreme Court found no problem with the state court’s ruling, although it based its decision on other grounds. But three justices specifically agreed with the concept of women’s divinely limited role when they wrote a separate, concurring opinion.

“The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life,” Justice Joseph P. Bradley wrote.

He said that proper family organization, as ordained by the Creator, is “repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.”

State and federal legislatures began passing laws barring sex discrimination. The U.S. Supreme Court didn’t get around to finding that women are people, too, until 1971.

That happened when Sally Reed, who wanted to administer the estate of her dead son, challenged an Idaho law that gave automatic preference to her ex-husband.

Finally, a unanimous Supreme Court said in a ruling written by a court conservative that the 14th Amendment means that gender can’t be used to deny equal protection and due process.

“To give a mandatory preference to members of either sex,” Chief Justice Warren Burger wrote, “is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the 14th Amendment.”

By then there could be no doubt that the 14th Amendment bars sex discrimination. It took more than 100 years to make that clear, but clear it is, whether Scalia says so or not.

Invite to Scalia

He’ll have another chance to say so, and soon. The founder of the congressional Tea Party Caucus, Minnesota Republican Michele Bachmann, has invited Scalia to speak at the first of the weekly classes on the Constitution she is offering House members.

Maybe he will explain that because he thinks the Constitution is stuck in the era when it was written, married women have no legal existence. Perhaps he will tell Bachmann that the Constitution offers no protection against laws that would keep her at home under her husband’s wing.

He might repeat what he told an audience in 2005: “When I find it, the original meaning of the Constitution, I am handcuffed.”

Or, he could tell the women gathered that with more Scalias on the high court, they too would be handcuffed.

Ann Woolner is a Bloomberg News columnist.