Antonin Scalia’s twisted view of the Constitution

I’ve been thinking lately about Mrs. Richardson, my eighth-grade Constitution teacher at Fort Miller Junior High School in Fresno. I’ve been wondering what she would have thought of Supreme Court Justice Antonin Scalia’s recent comment that the 14th Amendment’s Equal Protection Clause doesn’t apply to discrimination against women because “Nobody [at the time of its passage] ever thought that’s what it meant.”

By the time I took her class, Mrs. Richardson had been teaching the Constitution to 13-year-olds for 30 years or more without losing any of her passion for the document. She insisted that every one of her students score 100 percent on the Constitution test at the end of the year and worked tirelessly to make sure they did just that.

The Constitution has only about 4,000 words, and, as complex and tricky to parse as they are, a year is sufficient time for any kid to learn what they mean. Mrs. Richardson drilled them into us, insisting all along that understanding the Constitution of the United States of America was nothing less than the most important goal of our entire education.

If memory serves, our lowest grade was 96 percent, and most of us scored 100.

Justice Scalia is a so-called “originalist,” which is to say he believes the Constitution’s meaning is only what its framers thought that meaning was. The 14th Amendment says nothing about discrimination against women, he insisted. If a state legislature wants to pass a law prohibiting that, fine, but don’t look to the 14th Amendment for protection.

Well, women have done exactly that over the years, as Scalia well knows, and the Supreme Court has supported them with precedent-setting decisions establishing that the Equal Protection Clause does apply to them. Besides, the 14th Amendment doesn’t mention race, either. It’s intentionally broad and speaks only generally of rights, due process and equal protection.

Justice Scalia’s notion would have turned Mrs. Richardson’s hair even grayer. She insisted, endlessly and passionately, that the Constitution was a “living document,” as she put it, and always subject to the interpretation required by current conditions. The founding fathers wisely knew the country was going to change over time and wrote it to be open to an ongoing process of interpretation.

Mrs. Richardson is long gone, but I’m confident she would have thought originalism was a lot of hooey. She would have said there’s no way to know what the founding fathers would have thought of, say, wiretapping or corporate campaign donations or, for that matter, equality of all people, a provision added after the Civil War.

She also would have been dismissive of the self-appointed constitutionalists of the Tea Party, whose revisionism masks a political desire to repeal the parts of the Constitution they don’t like, like the 14th Amendment’s provision guaranteeing citizenship to babies born on U.S. soil.

On the other hand, she would have welcomed the new level of attention they’ve brought to the document. If she’d had her way, kids would still be spending the entire eighth-grade year studying the Constitution.