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12/23/2011

Originalism and Sex Discrimination VI: Originalism, Nonoriginalism, and the (Possible) Failure of the Constitution to Protect Against Sex Based Distinctions
Mike Rappaport

In their response to Ed Whelan, Calabresi and Rickert suggest part of their motivation for their article concluding that the original meaning of the 14th Amendment, as modified by the 19th Amendment, prohibits sex discrimination:

One of the principal criticisms of originalism that has been levied in recent years by Richard Posner, Cass Sunstein, and Jack Balkin and many others is that Scalia-style originalism cannot explain the extension in the 1970’s of the Equal Protection Clause to ban sex discrimination.  The best that originalists allegedly can do is to promise not to overrule sex discrimination cases that under originalism were wrongly decided in the first place. 

 (emphasis added).  One question here is what Calabresi and Rickert mean by “explain.”  By explain, they could mean to describe what happened.  But if that were their meaning, originalists might have a simple explanation (assuming originalists believed that the 14th Amendment did not prohibit sex based distinctions): The extension in the 1970s of the Equal Protection Clause was effected by nonoriginalist judges who sought to write their own values into the Constitution.

Rather, Calabresi and Rickert seem to mean that originalists cannot “justify” the extension of the 14th Amendment to sex based distinctions.  Why that is a problem is not entirely clear, but one can guess that Calabresi and Rickert believe that this is a popular and attractive interpretation of the Constitution and therefore it hurts originalism that it cannot justify that interpretation.

I want to argue here that, if Calabresi and Rickert believe this, they have it all wrong.  If the original meaning of the Constitution does not protect against sex discrimination, it is not the fault of originalism.  Instead, it is the fault of nonoriginalism

The reason is that there seems little doubt that an equal rights amendment would have passed in the 1970s if not for nonoriginalism.   In the 1970s, support for a prohibition on sex discrimination grew significantly and it looked like an equal rights amendment was going to pass.  Yet, it didn’t.  Although the Amendment secured the vote of thirty-five of the thirty-eight states required for ratification, it ultimately failed.  At least two factors contributed to its failure. 

First, during the period when the Amendment was being considered, the Supreme Court decided cases that applied a heightened scrutiny standard to gender under the Equal Protection Clause.  These cases, which (by hypothesis) departed from the original meaning, reduced the need for an equal rights amendment, since judges had now judicially amended the Constitution to provide for a similar result.  For more on this, see here.

Second, the willingness of the Warren and Burger Courts to depart from originalism was also an important cause for the failure of the Equal Rights Amendment.  Many feared the Amendment would be interpreted broadly to require unpopular measures and impose a more radical vision of sexual equality than was shared by its enactors.  For instance, many people feared that the Amendment might be twisted to mandate same-sex bathrooms and to eliminate the exclusion of women from combat.  Given the history of the judicial activism prior to the proposed ERA, citizens could not be confident that the Court would have interpreted the Amendment’s general language according to the meaning its enactors claimed to attach to it.  By not enforcing the Constitution according to the original understanding of its terms, the Court reduced the effectiveness of the constitutional amendment process generally.

In short, had the Justices not already updated the Constitution and had it been clear that the Amendment would not be creatively interpreted, it is likely that an equal rights amendment would have been enacted—either the version containing the general language passed by Congress or one with more specific limitations that might have been subsequently enacted.

Thus, the failure of modern values concerning sex discrimination to be placed in the Constitution is the result of nonoriginalism, not of any failing of originalism.  It is nonoriginalists who should be embarrassed by this situation, not originalists.