See Part 1 and Part 2
Now let’s turn to law professor Steven Calabresi’s claim that “the adoption of the Nineteenth Amendment in 1920 affected how we should read the Fourteenth Amendment’s equality guarantee” (p. 2)—specifically, that “[o]nce women were given equal political rights by the Nineteenth Amendment, a reading of the general ban on caste systems in the Fourteenth Amendment that did not encompass sex discrimination became implausible” (pp. 10-11; see pp. 66-98).
As I summarized in point 3 of my opening post, Calabresi makes three separate arguments about the Nineteenth Amendment. Before turning to address them, I would simply like to highlight how odd it is that the constitutional conferral of voting rights on women would bolster the case that laws making classifications based on sex subjected women to a forbidden caste system. In other words, under Calabresi’s reasoning (if I’m understanding it correctly), the argument that women were subjected to a caste system was markedly weaker before the Nineteenth Amendment gave them voting rights than after it did. That strikes me as quite peculiar.
For ease of presentation, I will address Calabresi’s three Nineteenth Amendment arguments in a different order than he makes them:
1. Let’s start with Calabresi’s sweeping argument that “a guarantee of political rights implicitly guarantees full civil rights.” (P. 67; see 70-86.) By “political rights,” Calabresi refers to those rights “thought to be … concerned with governance: voting, jury service, and holding office,” and by “civil rights” to the “natural rights to which every person, or at least every citizen including even children, was entitled.” (P. 72.)
I find Calabresi’s argument very puzzling in multiple respects, including:
First, Calabresi contends that the Nineteenth Amendment, which provides simply that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex,” was “understood to guarantee full political rights, not simply the right to vote in elections.” (P. 77 (emphasis in original).) That’s a decidedly non-textualist reading of the Nineteenth Amendment, and I don’t see a serious case that that was its original public meaning. (I will leave it to the interested reader to review Calabresi’s evidence.)
Second, if Calabresi were right, then the Fourteenth Amendment would be superfluous to his argument. He might as well maintain that it is the Nineteenth Amendment that “guarantees full civil rights” to women. But that was surely not the original public meaning of the Nineteenth Amendment (as amply attested by the fact that, as Calabresi notes, “the push for the Equal Rights Amendment … came hot on the heels of the Nineteenth Amendment’s adoption” (p. 68 n. 314)).
Third, the axiom that Calabresi posits—that “a guarantee of political rights implicitly guarantees full civil rights”—strikes me as highly dubious, all the more so as the category of “civil rights” is, as Calabresi concedes, ill-defined and nebulous. Under Calabresi’s view, the straightforward language of the Nineteenth Amendment would somehow confer on the courts the power to define the “full civil rights” that women enjoy, including on many hotly contested matters on which women are sharply divided. An alternative view—one, I submit, that is much more suited to our constitutional system of representative government—would maintain that the Nineteenth Amendment ensured that the views of women, as one-half of the voting populace, would be fully taken into account in the political processes and that those processes, flawed as they inevitably are, would be the vehicle for working out which interests should be protected as rights.
[12/1 addendum:] Indeed, Calabresi undermines his own proposition that “a guarantee of political rights implicitly guarantees full civil rights” by declining to apply it to the 26th Amendment’s guarantee of voting rights to 18-year-olds. (See p. 99.)
Fourth, I don’t see how Calabresi’s argument has any genuine connection to his claim (which I dispute in my Part 2 post) that “legislation that discriminates on the basis of sex violates the anticaste rule of the Fourteenth Amendment as that rule was originally understood.” To repeat the puzzle I opened with, how does conferral of constitutional voting rights on members of a group strengthen the claim that the group is subject to a caste system?
2. Calabresi also argues that “the Nineteenth Amendment’s legislative history shows that those who debated it understood it to make women equal to men under the law.” (Pp. 67-68; see pp. 86-98.) But setting aside the question of what bearing the legislative history of the Nineteenth Amendment would have on its original public meaning (much less on the original public meaning of the Fourteenth Amendment), I don’t see how the legislative history that Calabresi presents establishes anything significant.
To take Calabresi’s leading example (pp. 87-88): Calabresi cites a senator’s statement that Susan B. Anthony’s “dream has all but become a grand reality”; Calabresi then states that Anthony’s “dream of equality for women was not confined to giving them voting rights”; and suddenly the senator’s statement is Exhibit A that the Nineteenth Amendment was “understood … to make women equal to men under the law” not just as to voting but to all political and civil rights. That’s a remarkable leap.
Various of my objections under point 1 apply here as well, and I won’t take up space by repeating them.
I’ll address Calabresi’s third argument about the Nineteenth Amendment in my next post.