How Antonin Scalia Just Screwed Conservatives & Women

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Did you know that women had the right to vote in a number of colonies in this country?  Our Founding Fathers did not want them to vote so their original intent was to strip women of all rights.

I think he is wrong.  If the 14th Amendment is about equal protection, then don’t women have the same right as men?  Don’t we all have the same rights? In other words, because white men wrote the Constitution then they are the only ones who actually have rights, until further rights are legislated.

1868: The United States formally allows women to study, although several universities had already been open to women earlier.

Do you comprehend that until 1868 women in the United States were not allowed to formally go to school!  The original intent of the Founders was that women did not need to be educated.

1848: The state of New York in the United States : Separate economy and independence allowed for married women.

The world is now hysterically denouncing Justice Antonin Scalia for what he said about the 14th Amendment and discrimination.  The Pink Flamingo will admit to be duly shocked, until I read what he said.   I’m still scratching my head, absolutely shocked.

1792: France : The reformed laws of marriage and divorce greatly favours women’s equal rights in France, but all of these laws are abolished by Napoleon Bonaparte’s Code Napoleon in 1804

Did Justice Scalia just send everyone who isn’t a white, natural born male to the back of the bus?  It sure looks like he did.  If he is for original intent, and the Constitution was written by white men, then women are screwed.

1821: USA : The first Women’s university is founded.

Justice Scalia basically just screwed the far right, blowing them out of the water.  Here we are dealing with the most conservative judge in a heck of a long time, if not forever, and he blows the far right away with both barrels.

1870: Great Britain: Legal majority for unmarried women; this law is improved in 1874, 1882, and in 1893.

If the far right cannot act to make sure we have these rights, then they are pond scum, right?  If they don’t act then we women have no basic human rights.

1895: South Carolina in the United States: Separate economy allowed for married women.

From the WPost:

WPost

My great aunt Mabel Perkins was one of the first women in the state of Minnesota to cast a ballot.  She said that women must vote in all elections.  Her thinking was that if women do not, men gave us the vote and certain rights and can take them away.

1875: Denmark: Women allowed to study.
1876: Great Britain: Women formally allowed to study.
1877: Chile: Women are allowed to study.
1878: Finland: Equality in inheritance Great Britain: Abuse is recognized as grounds for divorce.
1879: Brazil: Women allowed to study.
1880: France: Women are allowed to study. Belgium:Women are allowed to study. Australia : Women are allowed to study. Canada:Women are allowed to study.
1882: Great Britain: Married women are granted separate economy and legal majority (Married Women’s Property Act 1882. USA: Women are granted legal majority in the entire USA. France: Elementary school for both genders.

Did Justice Scalia just do that?

“…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. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. 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. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society….”

In other words, if you don’t like something, have the guts to pass a durn law to prevent it.   On the other hand ….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…this is utterly terrifying.

Huff Post

Also in 1866, Elizabeth Cady Stanton and Susan B. Anthony formed the American Equal Rights Association, an organization for white and black women and men dedicated to the goal of suffrage for all. In 1868 the Fourteenth Amendment was ratified, which extended to all citizens the protections of the Constitution against unjust state laws; however, this Amendment was also the first to define citizens and voters as male.In 1869 the women’s rights movement split into two factions as a result of disagreements over the Fourteenth and soon-to-be-passed Fifteenth Amendments, with the two factions not reuniting until 1890. Elizabeth Cady Stanton and Susan B. Anthony formed the more radical, New York-based National Woman Suffrage Association (NWSA).Lucy Stone, Henry Blackwell, and Julia Ward Howe organized the more conservative American Woman Suffrage Association (AWSA), which was centered in Boston. In 1870 the Fifteenth Amendment enfranchised black men. NWSA refused to work for its ratification, arguing, instead, that it be “scrapped” in favor of a Sixteenth Amendment providing universal suffrage.Frederick Douglass broke with Stanton and Anthony over NWSA’s position.


From 1870 to 1875 several women, including Virginia Louisa Minor, Victoria Woodhull, and Myra Bradwell, attempted to use the Fourteenth Amendment in the courts to secure the vote (Minor and Woodhull) or the right to practice law (Bradwell), but they were all unsuccessful. In 1872 Susan B. Anthony was arrested and brought to trial in Rochester, New York, for attempting to vote for Ulysses S. Grant in the presidential election; she was convicted and fined $100 and the costs of her prosecution but refused to pay. At the same time, Sojourner Truth appeared at a polling booth in Battle Creek, Michigan, demanding a ballot; she was turned away. Also in 1872, Victoria Woodhull became the first woman to run for President, although she could not vote and only received a few votes, losing to Ulysses S. Grant.She was nominated to run by the Equal Rights Party, and advocated the 8-hour work day, graduated income tax, social welfare programs, and profit sharing, among other positions. In 1874 The Woman’s Christian Temperance Union (WCTU) was founded by Annie Wittenmyer to work for the prohibition of alcohol; with Frances Willard at its head (starting in 1876), the WCTU also became an important force in the fight for women’s suffrage. In 1878 a woman suffrage amendment was first introduced in the United States Congress, but it did not pass.

If the tea party type men who scratch, spit, belch, and don’t care for intellectual enlightenment decide women should be kept barefoot and pregnant, all they need to do is pass a law.  Even more frightening is the following:

“…It is this man — with his intimate knowledge of the Constitution and What It Officially Means For Real — who will teach our incoming Republican lawmakers how to discharge their functions. Rep. Michele Bachmann invited Scalia to explain how our founding document works last month, and his first “lecture” is scheduled for tomorrow. The event will be closed to the press, sadly, but we can all imagine what sort of seminar Professor Scalia will give, in which the Founding Fathers meant for the First Amendment to turn corporations into people, because they never specifically said they didn’t mean that….”

If this is what it means to have conservatives on the Supreme Court, I’m afraid I’d rather have a liberal.  I think women are safer that way.

In 1777 women lost the right to vote in New York, in 1780 women lost the right to vote in Massachusetts, and in 1784 women lost the right to vote in New Hampshire. Furthermore, women in all states except New Jersey lost the right to vote in 1787 when the Constitutional Convention placed voting qualifications in the hands of the states. From 1775 until 1807, the state constitution in New Jersey permitted all persons worth over fifty pounds to vote; free black people and single women therefore had the vote until 1807, but not married women, who could have no independent claim to ownership of fifty pounds (anything they owned or earned belonged to their husbands by law).

Think Progress

I don’t know about you, but I find this quite embarrassing.  It is also utterly terrifying.  Doug Mataconis notes that Scalia is wrong.

“…There’s nothing in the language of this provision of the 14th Amendment that limits its application to just matters of race, or just to men as one blogger suggests. If the drafters had wished to limit the  applicability of the Due Process and Equal Protection Clauses in such a manner, they could have easily done so, as their specific reference only to race in the 15th Amendment makes clear.  The whole point of the 14th Amendment was to make it clear that everyone born in the United States, or naturalized as a citizen, was a citizen entitled to equal treatment under the law. This means men and women, black and white, European and Chinese, and, yes, gay and straight.

The problem with Scalia’s overly specific form of originalism is that it seems to concentrate too much on the words of the Founders (or drafters in the case of the 14th Amendment). As libertarian legal scholars like Randy Barnett have argued, it’s also important to recognize the principles that the specific provision of the Constitution was meant to enshrine into law and, in the case of the 14th Amendment, that is a principle of  equality. It’s not an equality has been implemented easily, and it doesn’t always mean perfect equality (the Supreme Court’s case law on gender and age discrimination, for example, recognizes that there may be situations where differentiating between men and women, or based on age,  serves a rational purpose whereas differentiating based on race or ethnicity does not), but 14th Amendment case law still recognizes the basic principle of equality that was placed in the Constitution for the first time ever in 1867….”

The laws of Athelstan contained a peculiarly brutal provision for the punishment of a female slave convicted of theft: She was to be burned alive by eighty other female slaves. Other laws were directed against the practice of witchcraft by women. Burning was the punishment specially appropriated to women convicted of treason or witchcraft. A case of sentence to execution by burning for treason occurred as late as 1784.

Mataconis points out that there are Neanderthals who are basically ready to strip we women of our rights.

Confederate Yankee

By Magna Carta a woman could not accuse a man of murder except of that of her husband. This disability no doubt arose from the fact that in trial by battle she naturally did not appear in person but through a champion. She was not admitted as a witness. She could not appoint a testamentary guardian, and could only be a guardian of her own children to a limited extent. Her will was revoked by marriage, that of a man only by marriage and the subsequent birth of a child.

Our Neanderthal is referring William A. Jacobson, of the Cornell Law School.  Somehow, though I don’t think this person would agree to an Equal Rights Amendment.

Legal Insurrection

As my title says, Scalia just screwed Conservatives.  I suspect we women are going to need to demand an Equal Rights Amendment.  The far right is not going to want it.  Rush will belittle it.  FOX will campaign against it, and the usual source Ron Paul Bot, Glenn Beck, Tea Party “Patriot” John Birchers will not want it.  Neither will the Cato Institute.

In 1911, under English law, the earliest age at which a girl could contract a valid marriage was 12; boys had to be 14. Under the lnfants Settlement Act 1855, a valid settlement could be made by a woman at 17 with the approval of the court, while the age for a man was 20; by the Married Women’s Property Act 1907, any settlement by a husband of his wife’s property was not valid unless executed by her if she was of full age, or confirmed by her after she attained full age.

Aunt Mabel was right.

The whole idea of Original Intent when it comes to equal rights is terrifying.  For those ignorant wretches who don’t know our history, women in the South, even wealthy women, at the time of the writing of the Constitution, were discouraged from learning all but the basics of reading and writing.  They could read the Bible, and their books on manners, but that was about it.  Women who demanded the slaves be taught to read could be almost as severely punished as the slaves they were teaching.

The most remarkable disabilities under which women were still placed in 1910 were the exclusion of female heirs from succession to real estate, except in the absence of a male heir; and the fact that a husband could obtain a divorce for the adultery of his wife, while a wife could obtain it only for her husband’s adultery if coupled with some other cause, such as cruelty or desertion.

Women were chattel.   They had no property rights.  At the time of the penning of the Constitution a woman was forced to marry who her father, brother or guardian demanded.  It did not matter if she was abused.

A Vindication of the Rights of Woman: with Strictures on Political and Moral Subjects (1792), written by the eighteenth-century British feminist Mary Wollstonecraft, is one of the earliest works of feminist philosophy. In it, Wollstonecraft responds to those educational and political theorists of the eighteenth century who did not believe women should have an education. She argues that women ought to have an education commensurate with their position in society, claiming that women are essential to the nation because they educate its children and because they could be “companions” to their husbands, rather than mere wives. Instead of viewing women as ornaments to society or property to be traded in marriage, Wollstonecraft maintains that they are human beings deserving of the same fundamental rights as men.

A woman could not own property if she was married.  Once she married everything went to her husband, to be used as HE willed.  Unless a woman  had no male family member to “protect her” if she earned money she had to give it to him.  The only exception were prostitutes.  It may explain why so many woman chose prostitution to get around the property laws.

In 1756, Lydia Chapin Taft became the first legal woman voter in colonial America. This occurred under British rule in the Massachusetts Colony. This was in a New England town meeting and she voted on at least three occasions in Uxbridge, Massachusetts. Women in New Jersey could vote (with the same property qualifications as for men, although, since married women did not own property in their own right, only unmarried women and widows qualified) under the state constitution of 1776, where the word “inhabitants” was used without qualification of sex or race. New Jersey women, along with “aliens…persons of color, or negroes,” lost the vote in 1807, when the franchise was restricted to white males, ostensibly, to combat electoral fraud by simplifying the conditions for eligibility.

Our Founders took the vote away from women.  That was their original intent.

In June 1848, Gerrit Smith made woman suffrage a plank in the Liberty Party platform. In July, at the Seneca Falls Convention in Upstate New York, activists including Elizabeth Cady Stanton and Lucretia Mott began a seventy-year struggle by women to secure the right to vote. In 1850, Lucy Stone organized a larger assembly with a wider focus, the National Women’s Rights Convention in Worcester, Massachusetts. Susan B. Anthony, a native of Rochester, New York, joined the cause in 1852 after reading Stone’s 1850 speech. Women’s suffrage activists pointed out that blacks had been granted the franchise and had not been included in the language of the United States Constitution’s Fourteenth and Fifteenth amendments (which gave people equal protection under the law and the right to vote regardless of their race, respectively). This, they contended, had been unjust. Early victories were won in the territories of Wyoming (1869)and Utah (1870), although Utah women were disenfranchised by provisions of the federal Edmunds–Tucker Act enacted by the U.S. Congress in 1887. The push to grant Utah women’s suffrage was at least partially fueled by the belief that, given the right to vote, Utah women would dispose of polygamy. It was only after Utah women exercised their suffrage rights in favor of polygamy that the U.S. Congress disenfranchised Utah women.By the end of the nineteenth century, Idaho, Colorado, Utah, and Wyoming had enfranchised women after effort by the suffrage associations at the state level…”

“…In his 1869 essay The Subjection of Women the English philosopher and political theorist John Stuart Mill described the situation for women in Britain as follows:

We are continually told that civilization and Christianity have restored to the woman her just rights. Meanwhile the wife is the actual bondservant of her husband; no less so, as far as the legal obligation goes, than slaves commonly so called.”

During the 19th century women in the United States and Britain began to challenge laws that denied them the right to their property once they married. Under the common law doctrine of coverture husbands gained control of their wives’ real estate and wages. Beginning in the 1840s, state legislatures in the United States and the British Parliament began passing statutes that protected women’s property from their husbands and their husbands’ creditors. These laws were known as the Married Women’s Property Acts. Courts in the 19th-century United States also continued to require privy examinations of married women who sold their property. A privy examination was a practice in which a married woman who wished to sell her property had to be separately examined by a judge or justice of the peace outside of the presence of her husband and asked if her husband was pressuring her into signing the document…”

The Founders did not intend for women to have rights or to vote.  Abigail Adams demanded the right to vote.  Her husband laughed at her.

“...This threat of a Ladies Rebellion seems a curious addition to her request until one considers its timing. It came just months before the Declaration of Independence, so her demands parallel those made by male patriots who felt wronged by the British government. Like them, she wanted representation; like them, she knew she did not have it. Indeed, her demands demonstrate a clear understanding of popularity sovereignty and the ideological justification for revolution. She saw clearly the irony in revolutionaries demanding the same liberties from the British government that they themselves denied to their wives.

Either John failed to see the logic of Abigail’s point or he refused to acknowledge it, because his reply was somewhat harsh. In the very next paragraph after he discussed the forthcoming Declarations of Indepdency in his reply letter, he rebuked her quite harshly. He said, As to your extraordinary Code of Laws, I cannot but laugh..Depend upon it, We know better than to repeal our Masculine systems.and rather than give up this, which would completely subject Us to the Despotism of the Petticoat, I hope General Washington and all our brave Heroes would fight

He argued that giving in to women when they rebel would open the door for a whole host of minorities including Tories, Landjobbers, Trimmers, Bigots, Canadians, Indians, Negroes, Hanoverians, Hessians, Russians, Irish Roman Catholicks, and Scotch Renegadoes to demand concessions as well….”

Thomas Jefferson thought women should have no rights.

“...Since women were not called upon even to discuss politics, Jefferson saw no reason to give them the vote. Enfranchised women might take it into their heads to run for office. “The appointment of a woman to office is an innovation for which the public is not prepared, nor I.” (As cited in Miller, 1995, p. 184)….

Women thus excluded from public affairs, no effort need be made to educate them in any subjects which did not seem likely to be useful in their place as wives and mothers. Their duties being so incomplex, and the grasp of it needing so little brains, the education of women was correspondingly simple. He wished to encourage the development of the artistic talents of women and generally those aspects that made them worthy companions for their husbands and satisfactory tutors of their children.

Jefferson found that a great obstacle to good education for women was their inordinate passion for novels. In those who seek this release for the pent desire for romance. “the result is a bloated imagination, sickly judgment and disgust towards all real business of life.” “For a like reason, much poetry should not be indulged. Some is useful for forming taste and style.” French is indispensable. Music is “invalu- able where a person has an ear.” Drawing is an innocent and engaging amusement, often useful and “a qualification not to be neglected in one who is to become a mother and instructor.” Dancing is a healthy and elegant exercise, a specific against social awkwardness, but an accomplishment of short use, “for the French rule is wise, that no lady dances after marriage…gestation and nursing leaving little time to married lady when this exercise can be either safe or innocent.” (Nock, 1966, p. 58).

Jefferson had worked on a plan for white, male universal education for nearly fifty years, yet at the age of seventy, he stated that “a plan for female education has never been a subject of systematic contemplation with me. It has occupied my attention so far as only the education of my own daughters occasionally required.” (As cited in Padover, 1956, p. 297). His daughters were instructed “to play the harpsichord, to draw, to dance, to read and talk French and such things as will make you worthy of the love of your friends…” (Elllis, 1997, p. 92). Also the more mundane tasks of cooking, cleaning, and needlework were taught…..”

In other words, with the exception of Benjamin Franklin, the original intent with the Declaration of Independence and the Constitution was to strip women of all rights including the right to own property and to vote. If this is the original intent to which Justice Scalia refers, the man is a fool, a dangerous fool.  Any conservative who embraces his radical and dangerous thinking which allows only white, Protestant, men full rights and equal protection under the Constitution is equally as foolish and as dangerous.

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5 thoughts on “How Antonin Scalia Just Screwed Conservatives & Women

  1. Now, now calm down. As you are fond of saying: “I told you” And I just did, a few comments ago.

    THIS is why I have a huge problem with “Constitutionalist” who treat the constitution like it’s the Holy Bible, etched in stone.

    The world of the Founders WAS a world where women and children HAD NO RIGHTS. Where humans could be owned because of the color of their skin and where education was afforded only to the very wealthy because everyone else was busy working to survive. To demand adherence to a strict interpretation of their “desires” and “intent” and ignore the world they came from is to place an almost god-like vision in very human creatures. They may have hoped for a better world but their idea of “better” that included equality and human dignity for someone NOT white, male, and adult is to expect an entire rewiring of their culture and their beliefs.

    That is why the GOP HAS to resist all attempts by conservatives to demand adherence to the “intent” of men long dead. Those men, understood that their wisdom was only as good as the next “enlightment” and placed in future generations the ability to use their wisdom to ammend and yes, even change, their precious document thru legislation.

    Scalia is correct. The Founding Fathers probably never envisioned rights for women…fortunately for us, they DID envision a time when their sons would be smart enough to give women, Blacks, children their due.

  2. Scalia is quite correct that the constitution nowhere mentions that women or homosexuals should have special privileges in the name of “equality”, which is what it’s all about.
    At the moment women, homosexuals, and ethnic minority groups have so many special privileges that white heterosexual men are a downtrodden group.

    There are laws requiring minimum percentages of this or that special group as employees when you run a company, schools have to ensure that kids from special groups don’t get (on average) lower grades than those not from special groups, members of special groups can create clubs, bars, anything from which those not of that group are excluded.
    This is highly discriminatory to those not belonging to any special interest group, meaning white men.
    And THAT’s not constitutional, in fact under equal opportunities laws, if properly applied, all such special privileges should be immediately scrapped (and most of them may in fact be unconstitutional).

  3. I don’t think they ever envisioned a time with anyone but white, protestant, men would be in office. The more I research their intentions, the more terrifying the implications become!

    SJR

  4. JTW…ah now that’s another kettle of fish. I am not White…ok, I’ve got some white blood some ancestor of my maternal great grandmother but it is so little; it’s almost non-existent. And there are some relatives–Hawaiians who are still upset about the overthrow of the Hawaiian kingdom and Japanese who are still angry about the internment camps during WW2–that have told me all about the horrible Haoles (Whites).

    But I tell them this: “Look, I am an American. I grew up in a world where they tell me that ALL people are equal. I don’t consider it equal when one race and one gender gets special privileges. In fact, I find it down right insulting to imply that we need a leg up, that we cannot make it on our own. As I don’t want to be blamed for the sins of MY fathers, I refuse to hold anyone for the sins of theirs.”

    Fact is that “equality” can never happen until that political correct card and the privileges they afford is RETIRED. The truly sad part is that they (those who use it) don’t realize that when they do use it; it only tells others how inadequate they really are.

  5. A few years ago Ann Coulter had something to say about the effect that ‘the woman vote’ has had on America. Like usual (like it or not) Ann was correct!

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