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Justice Scalia's 'Originalist' Hypocrisy

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From Consortium News

"In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation," Scalia said in a recent interview with the legal magazine California Lawyer.

"So does that mean that we've gone off in error by applying the 14th Amendment to both? Yes, yes. Sorry, to tell you that."

However, if the "original intent" of the amendment's drafters was so determinative -- that the 14th Amendment supposedly was only meant to apply to black men at the end of slavery -- it might be safe to assume that the drafters weren't thinking about protecting a white man like George W. Bush from possibly losing an election in Florida in 2000.

Yet, the 14th Amendment was precisely what Scalia and four other partisan Republicans on the Supreme Court cited to justify shutting down the Florida recount and handing the White House to Bush, despite the fact that he lost the national popular vote and apparently would have come out on the short end of the Florida recount if all legally cast ballots were counted.

To justify their ruling, the five Republican justices cited the 14th Amendment's "equal protection" clause in claiming that Florida's electoral precincts had failed to apply common standards for counting votes. Then, rather than giving the state time to rectify the situation, the justices set a deadline of two hours, effectively assuring Bush's "victory."

In other words, Scalia and other right-wing justices operate with a situational ethic when it comes to "originalism" and "strict construction." If their partisan and ideological interests require the abandoning of those precepts, the principles are dumped overboard.

That is what most of us would call hypocrisy or dishonesty. But Scalia, like many on the Right, operates with a curious sense of false righteousness, at least when his "principles" match up with his ideology and partisan interests.

In the recent interview, Scalia packaged his assessment of "originalist" intent on the 14th Amendment as a tough-minded recognition of the facts. Scalia claimed that the amendment's provisions should only relate to the "original" intent of extending legal rights to black men.

He framed his argument as an invitation to state legislatures to grant women, gays and other groups equal rights. But that also suggests that the states would be free to deny these Americans their rights, if the legislatures saw fit.

"If indeed the current society has come to different views [regarding equal rights for women and gays], that's fine," Scalia said. "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."

Defending White Plutocrats

Nevertheless, when the power to appoint future Supreme Court justices was at stake -- in Election 2000 -- Scalia signed off on a fully unanticipated application of the "equal protection" language.

In the Bush v. Gore case, Scalia joined in a ruling that blocked the Florida Supreme Court from interpreting statutes passed by the state legislature regarding standards for legally cast votes. Scalia and four other Republican justices stopped Florida's canvassing boards from assessing whether rejected ballots had indeed reflected the clear intent of the voters.

In effect, Scalia and the four other partisan Republicans -- Justices William Rehnquist, Clarence Thomas, Anthony Kennedy and Sandra Day O'Connor -- were citing the 14th Amendment to overturn a state law regarding how elections should be conducted.

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Robert Parry broke many of the Iran-Contra stories in the 1980s for the Associated Press and Newsweek. His latest book, Secrecy & Privilege: Rise of the Bush Dynasty from Watergate to Iraq, can be ordered at secrecyandprivilege.com. It's also available at
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