Originalism and Sex Discrimination I: Introduction
Mike Rappaport
Steven Calabresi and Julia Rickert have written a provocative piece that has generated significant attention arguing that the 14th Amendment, as modified by the 19th Amendment, prohibits sex discrimination. Steve is both my friend and a former classmate. Steve has also made very significant contributions in a variety of areas to the Originalist Renaissance.
The Calabresi and Rickert paper raises a host of questions. Initially, at least, I want to discuss some methodological questions raised by the paper in a series of posts. In addition, Jack Balkin has written an interesting criticism of the paper, which also raises some interesting question. I will address Balkin’s post as well.
I should start out this series of posts by saying that I don’t have a firm position on whether the original meaning of the 14th Amendment covers sex discrimination. Having such a position would require a clearer understanding of the Amendment than I think the current scholarship generates. See here. For what it is worth, I believe that if the 14th Amendment did not prohibit sex discrimination, then some type of Equal Rights Amendment would have passed in the 1970s had it not been for nonoriginalism. See here.
Let me start by briefly summarizing Calabresi and Rickert’s argument.
1. Calabresi and Rickert argue that section 1 of the 14th Amendment protects against caste legislation. While most people at the time of the 14th Amendment would not have regarded legislative distinctions between men and women as caste legislation, those expected applications are not binding. Under modern understandings of the facts, these distinctions are in fact caste distinctions.
2. The problem with reading section 1 of the 14th Amendment to restrict sex discrimination is that section 2 expressly draws a sex based distinction, stating that abridgements of the right to vote of male citizens will lead to a reduction in the representation of states that do so. If section 2 draws a distinction between males and females, then perhaps section 1 should not be read to prohibit sex discrimination as to civil rights.
3. The passage of the 19th Amendment changes the meaning of the 14th Amendment. First, the 19th Amendment eliminates the textual discrimination between men and women in section 2. Moreover, rights stand in a hierarchy, with political rights at the apex. If the 19th Amendment forbids discrimination on the basis of the primary political right – voting – that implies that discrimination on the basis of civil rights should also be prohibited.
In my next post, I will begin my discussion of the originalist methodology of this argument by discussing the role of expected applications.
