Justice Scalia's Originalist Sins

The Huffington Post
Posted: September 22, 2010 02:41 PM
David Gans

Supreme Court Justice Antonin Scalia is famous for being a stickler about the words of the Constitution, often castigating his colleagues for failing, in his opinion, to honor what the Constitution's text actually provides. But Justice Scalia tends to apply this approach selectively, or not at all, when it comes to the Fourteenth Amendment. Earlier this year, in McDonald v. City of Chicago, he backed away from the text of the Privileges or Immunities Clause, refusing to honor the words of the Fourteenth Amendment that explicitly safeguard substantive fundamental rights. Indeed, before the argument in McDonald, Justice Scalia went so far as to call the Privileges or Immunities Clause, "flotsam," constitutional trash; so much for honoring the Constitution's text. Then, when the Court decided the case, Justice Scalia agreed that the Fourteenth Amendment protects an individual right to bear arms, but relied for that conclusion on substantive due process - the doctrine he loves to hate in other contexts - rather than follow the Fourteenth Amendment's text. Now, Justice Scalia argues we should also disregard the text of the Fourteenth Amendment's broad guarantee of the equal protection of the laws.

Earlier this week, in a widely-reported speech at the University of Hastings Law School, Justice Scalia argued that the Fourteenth Amendment does not proscribe sex discrimination by the states.

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