In my first post, I summarized Calabresi and Rickert’s argument. In this post, I want to criticize their interpretation of my own work and to suggest a meaning of the 14th Amendment that they appear to have overlooked.
Calabresi and Rickert argue in favor of an original public meaning approach. They reject the original expected applications of the enactors as not being binding. Thus, they conclude that the original public meaning of section 1 of the 14th Amendment prohibited caste legislation. The fact that most people at the time expected section 1 not to prohibit sex discrimination (which we now understand is a form of caste legislation) does not control section 1’s original meaning.
Calabresi and Rickert contrast their position with my position, adopted with John McGinnis. See here, which they cite, and here. Unfortunately, Calabresi and Rickert have misunderstood our position. They write: “On this point we diverge from Professors McGinnis and Rappaport, who argue that expected applications are fairly conclusive of original public meaning” (emphasis added).
But we do not believe expected applications are binding or “fairly conclusive of original public meaning.” Instead, we believe that the semantic meaning of the Constitution is binding. We merely believe that expected applications provide significant evidence of the semantic meaning. The enactors of a constitutional provision would normally have a good understanding of its meaning and those applications should be consulted by interpreters and taken very seriously. That does not mean they could not be wrong. It just means we shouldn’t be that quick to reject the understandings reflected by their expected applications.
As we stated in the article that Calabresi and Rickert cite:
The original meaning of the words would not normally be defined by the expected applications, but instead by the meaning that people at the time would understand the words to have. But some of the best evidence of that meaning would be the expected applications, especially when widely held. Words are slippery things and dictionary definitions do not pin down their political meanings any more than they pin down the meaning they would have in recipes, technical manuals, or haute couture. Context is important and the recovery of context can be greatly enhanced by considering how the words would have been applied in the sociopolitical usage of the day. . . .
Using expected applications is particularly important for modern interpreters, because usage may have changed in dramatic or subtle ways since the Framers’ day. Expected applications are especially useful because they caution modern interpreters against substituting their own preferred glosses on meaning for those that would have been widely held at the Framing. . . .
Reliance on expected applications is even appropriate in cases when a constitutional provision is best understood as adopting a general understanding or principle. The language of a provision may appear to adopt a general principle, but verbal formulations often do not tell us which particular variation of a principle was intended. For example, the meaning of the Equal Protection Clause might suggest an anticaste principle, but it may not clearly indicate the version of the principle that was adopted – to what extent, and under what circumstances, the principle allowed distinctions between different groups. The expected applications will help us determine which version of the principle was adopted.
(emphasis added). While we penned these words before Calabresi and Rickert’s article was written, we believe they have significant application to their article.
Calabaresi and Rickert propose an interpretation of section 1 of the 14th Amendment that is often informally defended. It takes the following form:
1. Section 1 prohibits caste legislation
2. Caste legislation refers to legislation that makes arbitrary distinctions
3. While the 14th Amendment enactors did not believe sex discrimination was arbitrary, their understanding of the facts (or of morality, in a version different than Calabresi and Rickert’s) was mistaken
4. These enactors understanding of the facts is not binding.
5. Therefore, section 1 prohibits sex discrimination.
This argument may be correct, but it is not the only way to understand the text and history. The original expected applications that section 1 did not prohibit sex discrimination may be evidence that the framers were using a different understanding of equality or caste. As Ed Whelan argues in a post on Calabresi and Rickert, there is some evidence that this is true. Caste at the time, as now, often refers to a system of hereditary privileges. In fact, Calabresi and Rickert cite to discussions that understand caste in hereditary terms. In fact, the examples of caste that Calabresi and Rickert highlight – the castes of India, the classes of feudal Europe, and race in the United States – are all hereditary. Sex, however, is not a caste in this hereditary sense in that women give birth to both males and females.
Many modern interpreters have been quick to discard the evidence of expected applications. But these applications may not be erroneous understandings of the provisions enacted. Instead, they may point us towards an original meaning that we might have overlooked.