Meaning v. Expectations/Scalia on equal protection and gender

[Malla Pollack]

Sorry-existence of a practice is not proof of the practice being considered
"legitimate," and opposite and cross-pulling practices always exist.
Consider the case in which Scalia said that self-serving political
gerymandering went back to the beginning, so it was ok.  As my class agreed,
murder went back to the beginning. Both existed and both were wrong. Also
consider the case about drug testing of high school athletes.  Using
original practices explication, Scalia said it was ok because original
practice did not give protection to minors from authority figures; O'Connor
said it was wrong because original practice demanded targeting search
warrants or suspicion. 

Not so easy

 

Malla Pollack

Professor, American Justice School of Law

mpollack at ajsl.us

270-744-3300 x 28

articles http://works.bepress.com/malla_pollack/

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of MARK STEIN
Sent: Monday, January 29, 2007 10:12 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Meaning v. Expectations/Scalia on equal protection and gender

 


When an originalist judge decides that the Constitution does not forbid a
practice because the practice existed when the Constitution (or relevant
amendment) was ratified, he determines original meaning by reference to
original expected application.

Scalia has often taken this position.  I infer that in Scalia's view, all
the legal restrictions that were commonly placed on women throughout the
19th Century are consistent with the equal protection clause (precedent
aside).   Am I wrong?  Is there anything in Scalia's opinions or writings
that negates this inference?

Mark



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