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Mike Rappaport
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01/13/2011

Originalism in the Blogs
Mike Rappaport

In Scalia on Sex Equality, Jack Balkin criticizes Justice Scalia's view that the original meaning of the 14th Amendment does not protect against gender discrimination.  Balkin makes at least two points that I question.  First, he argues:

The Constitution was subsequently amended [after the 14th Amendment]. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment's guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children's Hospital, decided immediately after the ratification of the Nineteenth Amendment.

Although various commentators make this argument -- that somehow the 19th Amendment changes the meaning of the 14th -- it seems rather undeveloped.  If we assume that the 14th Amendment did not protect women (or married women) against discrimination,then it is not clear how the 19th Amendment changes that.  The 19th Amendment could have easily included a general gender nondiscrimination provision, but it did not -- it was limited to voting.  How it somehow amends the 14th Amendment needs to be explained.

Second, Balkin writes:

Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution's framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964's ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia's arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today's world (emphasis added by Mike Rappaport).

Balkin is being unfair to Scalia here.  Scalia did not say there is "nothing in the original understanding" to forbid Title VII.  He said:

You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

All Scalia meant was that the Constitution did not forbid legislation to protect women.  Balkin's version makes it sound like Scalia is saying more.  After all, Scalia could simply be saying that state laws could protect women. 

If we assume that Scalia is talking about federal legislation, Balkin's point is more correct but still misleading.  It is true that the full scope of Title VII could not be enacted under the original meaning of the Constitution.  But if the Constitution had not been expanded during the New Deal and the Warren Court, there is little doubt that it would have been amended to expand federal power.  (In fact, if originalism had been followed, it is extremely likely that some version of the Equal Rights Amendment would have passed, but that is a subject for a separate post.  See here at page 30.)  Scalia accepts the New Deal revolution (as do virtually all of the justices), and so these amendments do not occur because the Court has already done the amending.  But in an original meaning world, the Constitution would likely allow federal legislation to protect against sex dicrimination.  On this question of judicial updating superseding the constitutional amendment process, see here.

In the end, then, it is misleading to criticize originalism for not updating the Constitution when it is nonoriginalism that has made it so difficult to do so.

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