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12/16/2011

Originalism and Sex Discrimination III: More on the Meaning of Caste
Mike Rappaport

In my last post, I noted the importance of the evidence that Calabresi and Rickert uncover about the meaning of caste at the time of the 14th Amendment.  While they decline to employ it, caste may mean an hereditary classification and that would exclude distinctions based on sex from being treated as caste distinction. 

Ed Whelan first noted this in a post.  Calabaresi and Rickert have responded to Whelan:

Let us turn then to Whelan’s first argument which is that sex discrimination is not a form of caste because being a woman does not make one a member of a hereditary caste.  Some children of women will be men and they will not inherit their mother’s lower social status.  This point is true as far as it goes, but it overlooks:  1) the fact that women do literally inherit their sex from their parents;  and 2) the fact that sex is an immutable characteristic.  We would not say that every immutable trait one inherits from one’s parents is, when legislated upon, a sign of the presence of caste, but we think an effort to give greater property, contract, and employment rights to those with blond hair and blue eyes would be quite suspect under the Fourteenth Amendment.  

I don’t think this response is adequate.  Calabresi and Rickert here are suggesting that women would satisfy a different understanding of caste: one that is not purely hereditary but involves immutable, inherited characteristics.  That is true, but the question is whether the drafters and ratifiers of the 14th Amendment enacted that meaning of caste (and equality).  

If the enactors of the 14th Amendment were concerned about race distinctions, but not that much about sex distinctions, and if race was hereditary like the core cases of Indian castes and feudalism, then it makes sense that they would have chosen this definition.  Put differently, if one must choose between two definitions of caste, and one fits better with the evident purposes of the enactors, as reflected in the legal regime and the public debate at the time, one would choose that one.