Originalism in the Blogs: Ed Whelan and Gerard Magliocca on Calabresi and Sex Discrimination
At NRO, Ed Whelan critiques Originalism and Sex Discrimination by Steven Calabresi and Julia Rickert: “In a series of posts, I will explain why I find Calabresi’s argument unpersuasive and, indeed, bewildering” (here and here).
Meanwhile, Gerard Magliocca at Balkinization comments: Sigh . . . Originalism. He writes:
I'd like to propose a simple test for originalism--an argument is originalist only if the application of the text under consideration was contemplated by somebody at the time the provision was ratified.
I disagree with that test, on at least two grounds. First, an issue that wasn't contemplated one way or the other by anyone at the time of ratification may arise later because of changes in technology or circumstances. That shouldn't preclude applying the original meaning of the text to the new circumstance, if the language permits it. For example, whether the first sentence of the Fourteenth Amendment grants birthright citizenship to U.S.-born children of illegal aliens wasn't discussed (so far as I know) at the time of ratification because restrictive immigration laws had yet to be passed. Nonetheless, I think the original meaning of the text ("All persons born ... in the United States and subject to the jurisdiction thereof") would have been understood to include those children, had the issue arisen (see here). And I think that's an originalist argument.
Second, even with respect to specific application issues that may have existed at the time of ratification, it's quite possible that no one commented on them (or that comments, if made, have not been preserved). An originalist could still use the original meaning of the language to find the best resolution of those issues, even without specific ratification-era commentary in support.
The bigger problem is how to deal with situations where comments at the time of ratification all (or mostly) seem to state or assume a particular application, but someone today contends that the original meaning of the text nonetheless means the opposite. I think that's still an originalist argument (though perhaps not a persuasive one), so long as it's actually based on a plausible original meaning of the text rather than an evolving meaning.