Scalia, Originalism and the Ladder of Abstraction

Adam Cohen notes Antonin Scalia once again asserting that the Constitution does not protect gender equality. His reasoning is superficially “originalist”:

Indeed, Justice Scalia likes to present his views as highly principled — he’s not against equal rights for women or anyone else; he’s just giving the Constitution the strict interpretation it must be given. He focuses on the fact that the 14th Amendment was drafted after the Civil War to help lift up freed slaves to equality. “Nobody thought it was directed against sex discrimination,” he told his audience.

Far from being convincing, this just illustrates some of the obvious problems with originalism:

• As Scalia himself has argued many times, to the extent that originalism is defensible at all, it must be concerned with the constitutional text, not the subjective intentions of the framers and ratifiers of the text.    But that leads us to an obvious problem: the text of the 14th Amendment’s equal protection clause is not confined to race.    As you can see by scrolling down to the subsequent amendment, the equal protection clause could have been confined to race; it just wasn’t.    So, from a textualist originalist standpoint, what people thought it was “directed at” in 1868 is beside the point.    We’re bound by what they wrote, not by what they expected.
• If we accept that the expectations of the framers and ratifiers have some relevance, then Scalia runs into a different problem: Brown v. Board. Scalia believes that Brown was right — but the vast majority of the 14th Amendment’s framers and ratifiers did not believe it was directed at segregated schools.   And Scalia also believes that the 14th (and 5th!) Amendments prevent any racial classifications, although very few people would have thought in 1868 that the 14th Amendment was directed at programs intended to help African Americans, and absolutely nobody would have thought in 1789 that the 5th Amendment forbade racial classifications of any kind.    The way he solves these problems is to climb originalism’s ladder: that is, to define the specific questions of “school segregation” and “affirmative action” at a higher level of abstraction, “racial equality.”   The problem is, once you’re on this ladder, there’s no principled reason to stop at any particular rung.   Why not climb one step further to incorporate “gender inequality,” which is obviously analogous in many respects and is not foreclosed by the text?
• And, finally, Scalia’s belief that the Constitution provides no protection whatsoever against gender discrimination reminds us that originalism is very normatively unattractive.   Since originalism 1)leads to grossly unjust results that are not remotely compelled by constitutional texts, and 2)as we’ve seen does very little to constrain judicial discretion, who needs it?

[X-Posted at TAPPED.]