Writing for Time, which has apparently become a feminist mouthpiece, Adam Cohen rips into Justice Antonin Scalia for saying that the 14th amendment, which was specifically written to enfranchise former slaves, was never intended to ban sex discrimination. Cohen is disturbed that Scalia refuses to “reimagine” the Constitution, which is supposedly an “organism that was meant to grow.”
Actually, Cohen has it a bit wrong here. The Constitution was not intended to be the growing organism, but rather the people it serves. So, yes, the Constitution is subject to change, but there is a process for doing so. Reinterpreting it from the bench to suit modern trends was not the process the framers had in mind. Scalia correctly points out that the proper procedure for this is through legislation rather than judicial creativity, saying:
If the current society wants to outlaw discrimination by sex, you have legislators.
I’ll take a little bit of liberty in interpreting Scalia, and speculate that what he is really saying is:
“you know you can outlaw discrimination by sex, but you don’t really want to — you just want us judges to pick and choose from the bench in your favor.”
Any Supreme Court Justice knows full well that outlawing sexual discrimination would make a good many of the laws that pertain to the respective sexes technically illegal, and that these laws overwhelmingly favor women. The Equal Rights Amendment didn’t fail ratification because men stood up and put a stop to it — it died because some women clearly saw the implications and didn’t want anything to do with it. Women may often seem nutty and confused from a male perspective, but, just like men, they are rational actors in their own self-interest.
The death gap, the mancession, the glass ceiling and the prison gap are all partly due to legislation that favors women. Child custody and family law imbalances are a result of the same. Women are preferentially given less demanding and more secure jobs in government, they are favored in business loans, and receive more than their fair share in education and health care. All of this and much more could be challenged if sex discrimination were outlawed.
Of course, that doesn’t mean it would change, but the law would still be there, and even if a current court ignores it a future court might pay closer attention.
Unfortunately, too many Americans today are infected with a kind of intellectual laziness — actually, it’s more like a selfish stupidity. When certain groups demand that judges legislate from the bench in their favor, what they are really doing is betraying a desire to have their cake and eat it. Women don’t really want sexual equality — they want to keep their current advantages and use “equality” as a justification for leveraging themselves into an even more privileged position.
If people in black robes do it for them, that suits them fine.