Women's Rights and the Decline of Democracy, Part Two

In yesterday’s blog I argued that the attitude that the rights of women’s were negotiable should be viewed as the crack in the apparently solid wall of democracy into which the wedge of the anti-democratic movement was being inserted. 

It may have appeared to the reader that I was engaged in hyperbole in order to make my point. Unfortunately I was, if anything, underplaying the lack of support for the basic rights of women that can be found among many in the political chattering class of America.

Consider, for example, Justice Antonin Scalia's statement:

  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. [California Lawyer]

 Scalia was arguing that since the rights of women not to be discriminated against were not specifically mentioned in the text of the 14th Amendment and since it is doubtful that those who framed that the amendment envisioned it as forbidding sexual discrimination then the amendment itself should not be read as constitutionally prohibiting sexual discrimination.

For those who are not familiar with the amendment in question the relevant text is

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Notice that the words used in this amendment are "persons" and "citizens" rather than the sometimes contentious word "man." One might argue as to whether the word "man" actually means "person" but not whether the word "person" means "person."

Would I argue against Scalia's claim that those who wrote, and voted for, this amendment did not envision it as an effort to prevent laws discriminating against women? 

No. 

But neither would I claim that when the founding fathers referred to "inalienable rights" they considered those rights to apply to people who happened to be female or African-American. That political thinkers in the past were incapable (or unwilling) to consider women and African-Americans people should not give a modern politician latitude to call into question the personhood of members of either group.

How fragile are the rights of women of women in the United States? Scalia's comments did not result in a firestorm of criticism and demands that he be impeached and removed from the bench. A member of the Supreme Court of the United States publicly stated that his reading of the 14th amendment allowed him not to consider women people unless it was clear that the original framers of that amendment considered its protections to extend to women and he is not publicly excoriated by politicians across the political spectrum.

Given Scalia's method of constitutional interpretation nothing short of a constitutional amendment clarifying that women will henceforward be considered "people" will prevent Scalia, other judges and politicians from chipping away at women's rights. Given the realities of American political life that passage of such an amendment both needs to happen to ensure the rights of American women and will not happen because so few powerful political figures consider those rights important.

Some insight into the legal importance of the argument as whether the writers of a constitutional document meant the word "person" to include women can be seen in a series of court cases and rulings in Canada. These give some idea as to the importance for the women's rights movement of arguments about legislative intent and strict constructionism.

In the British North America Act (the act of British Parliament that created the Dominion of Canada) the word "he" is used when referring to an individual and "person" when referring to more than one individual. The question was whether the word "he" was generic and if "persons" included women. In 1917 the Supreme Court of Alberta held that the word "person" did include women but that court's rulings only applied to the province of Alberta.

Prime Minister Robert Borden actually stated that a woman could not be named to the Canadian Senate since she did not fulfill the legal requirement of being a person. In 1927 five women appealed to the Supreme Court of Canada whether women were, for legal purposes, persons. In 1928 the Supreme Court of Canada ruled that women were not legally persons. The court's reasons, that at the time the  BNA Act was written women could not vote and would not have been considered for political office, sound very like Scalia's argument about  the 14th Amendment.

With the support of Mackenzie King, then Prime Minister of Canada, the women appealed the Supreme Court's ruling to the Judicial Committee of the Privy Council in England which was at the time the highest court of appeal for Canada. In 1929 the Lord Chancellor of the Privy Council announced that "yes, women are person." Lord Sankey further wrote, 

that the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word "persons" should include females, the obvious answer is, why should it not?"

The idea that Lord Sankey's question still needs to be asked almost a century later indicates just how fragile are the rights women have won in the intervening years.