New Study Shows Why Justice Scalia Is Wrong – and Ted Olson Is Right – On Constitutional Equality
Study illuminates road to equal protection from Declaration of Independence to marriage equality
CAC Civil Rights Director David Gans: “‘We the People’ took the principle of equality first stated in the Declaration, perfected it in the Equal Protection Clause by using the term ‘person,’ not ‘men’, and illuminated it further in the Nineteenth Amendment and other voting rights Amendments. Text and history are the best answers to Justice Scalia’s flawed view of the Equal Protection Clause, a fact that conservative advocates such as Ted Olson have been demonstrating forcefully in court.”
WASHINGTON – There are few areas of the law as deeply polarizing and emotionally heated as the application of the Constitution’s guarantee to all persons of the “equal protection of the laws.” Over the past year alone, U.S. Supreme Court Justice Antonin Scalia has roiled the legal world with his unequivocal claim that the Equal Protection Clause does not prohibit discrimination on the basis of sex and sexual orientation. At the same time, conservative luminary Theodore Olson, a former George W. Bush Solicitor General, surprised both the left and the right by going to court in support of marriage equality for gay men and lesbians. Now, a new study released today by Constitutional Accountability Center – Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment – analyzes the text and history of the Equal Protection Clause and shows why Justice Scalia is wrong and Ted Olson is right.
Read Perfecting the Declaration here.
“The modern debate over the Constitution’s Equal Protection Clause is largely a battle over sound bites, such as conservatives’ claim that the Constitution is colorblind and primarily concerned with racial classifications,” said David Gans, Director of CAC’s Human Rights, Civil Rights, and Citizenship Program. “What is lost all too often in this heated and polarized discussion is the text and history of the Constitution’s Equal Protection Clause itself, along with the full sweep of our constitutional history. ‘We the People’ took the principle of equality first stated in the Declaration,” Gans continued, “perfected it in the Equal Protection Clause by using the term ‘person,’ not ‘men’, and illuminated it further in the Nineteenth Amendment and other voting rights Amendments. Text and history are the best answers to Justice Scalia’s flawed view of the Equal Protection Clause, a fact that conservative advocates such as Ted Olson have been demonstrating forcefully in court.”
Perfecting the Declaration begins its examination with a careful study of the text and history of the Equal Protection Clause, and then explores the meaning of the Clause in the context of modern disputes regarding racial equality, gender equality, and marriage equality for gay men and lesbians.
CAC President Doug Kendall added, “Perfecting the Declaration is an important new study that enters the national conversation at the perfect time. As a bitterly-divided Supreme Court debates critical questions of civil rights, women’s rights and equality for gay men and lesbians, the text and history chronicled in this study support the simple, but profoundly important, conclusion that the Constitution demands equal protection for every American.”
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Resources:
“Justice Scalia’s Flip-Flop,” CAC’s David Gans, October 7, 2011
“Justice Scalia’s Originalist Sins,” CAC’s David Gans, September 22, 2010
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Constitutional Accountability Center (www.theusconstitution.org) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history.