From the Archive: The death of U.S. Supreme Court Justice Scalia has prompted fawning eulogies about his legal brilliance and his heart-felt faith in constitutional “originalism,” but the reality is that he twisted the Framers’ thoughts into whatever was political convenient, as Robert Parry noted in 2011.
By Robert Parry (Originally published on Jan. 5, 2011)
U.S. Supreme Court Justice Antonin Scalia unintentionally revealed the hypocrisy of the Right’s rhetoric about “originalist” interpretations of the U.S. Constitution with his comments about how the Fourteenth Amendment’s guarantee of “equal protection under the law” doesn’t mean equal rights for women.
“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 an interview with the legal magazine California Lawyer.
U.S. Supreme Court Justice Antonin Scalia on CNN, July 18, 2012. (Photo credit: CNN.com)
“So does that mean that we’ve gone off in error by applying the Fourteenth 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 Fourteenth 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 Fourteenth 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 Fourteenth 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…