12/08/2010
Via Megan McArdle, I see that Todd Zywicki at the Volokh Conspiracy writes, in a discussion about amending the Constitution, that
Justice Scalia notes (in a Matter of Interpretationif I recall correctly) that what is striking about the 19th Amendment is how quaint it seems that in order to give women the right to vote it was thought that you actually had to amend the Constitution in order to bring that result about. Today, of course, someone would just file a lawsuit and have the judges order that result.
It’s on Page 47 of A Matter Of Interpretation. See it in Google Books here. Scalia wrote:
It seems to me that that is where we are heading, or perhaps even where we have arrived. Seventy-five years ago, we believed firmly enough in a rock-solid, unchanging Constitution that we felt it necessary to adopt the Nineteenth Amendment to give women the vote. The battle was not fought in the courts, and few thought that it could be, despite the constitutional guarantee of Equal Protection of the Laws; that provision did not, when it was adopted, and hence did not in 1920, guarantee equal access to the ballot but permitted distinctions on the basis not only of age but of property and of sex. Who can doubt that if the issue had been deferred until today, the Constitution would be (formally) unamended, and the courts would be the chosen instrumentality of change? The American people have been converted to belief in The Living Constitution, a "morphing" document that means, from age to age, what it ought to mean. And with that conversion has inevitably come the new phenomenon of selecting and confirming federal judges, at all levels, on the basis of their views regarding a whole series of proposals for constitutional evolution. If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that. This, of course, is the end of the Bill of Rights, whose meaning will be committed to the very body it was meant to protect against: the majority. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.
It’s all one paragraph in the original. Scalia has a point — the Equal Rights Amendment failed to pass, largely because Phylis Schlafly stood like a stone wall in its way, but we frequently see "equal protection"decisions that read as if it had passed.
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