During debate on the 1964 Civil Rights Act, Hubert Humphrey, the Minnesota Democrat who was one of the principal sponsors of the legislation, denounced the ``wholesale distortions'' and ``nightmarish propaganda'' that the law would permit preferential treatment of an individual or group because of race or a racial ``imbalance'' in employment. Humphrey stressed that under the act no employer would be permitted to ``take into consideration race'' because it would ``prohibit preferential treatment for any particular group.'' Tom Kuchel, a California Republican and another leading sponsor, said the legislation was ``colorblind'' and would prevent discrimination ``in favor of or against a person because of his race.'' Are such assurances germane to judging the legality of what are called ``race-conscious remedies''?
In 1868, when the 14th Amendment was enacted with its guarantee of ``due process'' under the laws, 32 of the 37 states had laws criminalizing sodomy. If you agree with the Supreme Court's 2003 ruling that such laws violate the due process guarantee, do you think the Amendment's framers and ratifiers meant for it to overturn the 32 states' laws? Or do you think the meaning of the Amendment's words somehow changed? If so, how did that happen?
Eighty-five years ago, a consensus having formed in favor of female suffrage, the 19th Amendment was added to the Constitution by democratic processes. Justice Antonin Scalia has written:
``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?''
Do you agree with Scalia's use of the word ``hence''?
Do you think female suffrage could properly have been conferred by courts construing the Equal Protection Clause?
If so -- if you think the Constitution is a ``living document,'' the meaning of which changes with the sentiments of society's changing majority -- in what sense is it still a constitution?
Scalia says, ``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.'' Is he wrong?
On another matter, in Roe v. Wade the court said that a privacy right -- an ``emanation'' of a ``penumbra'' of other rights -- guarantees a right to abortion, but also said that right changes with each trimester of a pregnancy. Does it seem at all odd to you that the meaning of the Constitution, or at least of its emanating penumbras, would be different if the number of months in the gestation of a human infant were a prime number?