Currie Lecture 2016 | Guido Calabresi, Equality in the American Constitution [55:42-57:52]

I think one of the reasons that Justice Scalia reads the 14th Amendment very formalistically is because he is afraid that if we allow substantive equality into the constitution it will swallow up the formal equality and we see that debatably with issues like I know perfectly well I think I do why Scalia did that for many reasons he wanted to link himself to a gold standard because he was afraid of human reason and like anybody who is afraid of human reason he prefers gold to monetary policy because we can do that the only problem that I have so I have no objection of that my only problem with Scalia is that he was like somebody who adapts the gold standard for that reason and then owns the coal mines that is he had enough control of language because he was brilliant in his control of language so that he could make the language do whatever he wanted so that there was his little restraint in what he could do is any that's my only objection of course he was saying that and there's a good reason for saying that if you are serious about it I don't ultimately agree it but there is a good reason but if you do that whatever the good reason then it cannot protect you from the liberty infringement then you are stuck with something which is every bit is dangerous which is to say then what infringements when the Constitution does not specifically speak because I'm just as much a libertarian when you have a First Amendment or when you have a specific thing in the Constitution I'm talking about situations where the Constitution is not that clearly libertarian but it's our generic libertarian background and then you have nothing that says why not go all the way and that's a problem and that's a problem that unfortunately you never face okay but you're right of course that's what he was doing rest is so