Calabresi and Rickert Respond to Balkin
Balkin argues that the idea that the Fourteenth Amendment’s ban on caste or class legislation is only an original expected application of the Fourteenth Amendment and is not part of its core semantic meaning. Since Balkin does not believe that original expected applications are law—a claim we agree with—Balkin also does not think the Fourteenth Amendment’s ban on caste or class legislation is constitutionalized. This is a surprising criticism from Balkin, who wrote in his article Abortion and Original Meaning that “laws criminalizing abortion violate the Fourteenth Amendment’s principle of equal citizenship and its prohibition against class legislation” and “[f]idelity to the Constitution as law means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.” But we will respond to his more recent claim that our anti-caste/anti-class legislation reading of the Fourteenth Amendment is merely a construction that can be altered by future generations engaged in constitutional politics. Balkin thus believes that the States could constitutionally go back to the era of Jim Crow segregation or of widespread violation of the civil rights of women without violating the semantic meaning of the Fourteenth Amendment. This is a chilling and breath-taking claim. All that stands between us and Jim Crow or widespread sex discrimination is the opinion of contemporary political elites.
(Emphasis added). I will be continuing my posts on Calabresi and Rickert (and will also discuss Balkin) next week.