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Critique of Calabresi’s “Originalism and Sex Discrimination”—Part 4


See Part 1, Part 2, and Part 3

Numbering serially from my last post, I’ll now address law professor Steven Calabresi’s third argument (actually, the first in the order in which he presents them) about how the Nineteenth Amendment supposedly supports his claim that the Fourteenth Amendment forbids sex discrimination:

3. Calabresi argues that the adoption of the Nineteenth Amendment supports his general Fourteenth Amendment claim because the Nineteenth Amendment “struck out the Constitution’s only explicit privileging of the male sex,” found in Section 2 of the Fourteenth Amendment.

In order to address Calabresi’s argument clearly, let’s first understand Section 2 of the Fourteenth Amendment. Section 2 does two things: It overrides the Three-Fifths Clause in Article I, section 2, of the Constitution and instead provides that representatives in the House of Representatives “shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” In an exception to this general rule, it then creates a remedy “when the right to vote at any [of various elections] is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime.” (Emphasis added.) The remedy is that the state’s “basis of representation” for purpose of apportionment “shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” In short, the second part of Section 2 threatens to penalize any state that denies qualified male inhabitants the vote by reducing the state’s population for apportionment purposes.

Had Section 2’s remedy instead been tied to the denial of the right to vote to any of the inhabitants, male or female, of such state (subject to the other qualifications), it would, in theory at least, have provided an incentive to states to extend the franchise to women (in order to maintain or increase their seats in the House).

Calabresi argues that the language of Section 2 “makes it very difficult to read the original 1868 version of the Fourteenth Amendment as a bar to sex discrimination.” But, he insists, the Nineteenth Amendment “changed all this … when it reinstated the Constitution’s sexual neutrality by nullifying the use of the word male in Section Two.” (Pp. 67; see pp. 69-70.)

I find Calabresi’s argument confused in two basic respects:

First, his overall argument in his article is that sex discrimination “as to civil rights” is unconstitutional under the original meaning of the Fourteenth Amendment (p. 102), not that sex discrimination as to voting (or other political rights is). (It’s the Nineteenth Amendment that forbids sex discrimination as to voting.) But if he’s right that Section 1 of the Fourteenth Amendment addresses only civil rights, then it makes no sense to assert that the language of Section 2, dealing with the political right of voting, would make it “very difficult to read” the Fourteenth Amendment as a bar to sex discrimination as to civil rights. So it would seem that Calabresi is setting up a straw man for the Nineteenth Amendment to topple.

This impression is reinforced by the fact that the reading that Calabresi says would be “very difficult”—i.e., that the original public meaning of the Fourteenth Amendment bars sex discrimination as to civil rights—is the reading that elsewhere in his article he argues is inescapable. (As I’ve made clear, I think that Calabresi’s argument is wrong for reasons completely apart from Section 2’s language.)

Second, the Nineteenth Amendment doesn’t topple Calabresi’s straw man. The Nineteenth Amendment did not in fact “nullify[]” or “str[ike] out” the word “male” in Section 2. That word remains there (in three places), and I don’t see how it has been superseded. In the unlikely event that the Section 2 remedy were ever to be invoked, I don’t see on what basis an originalist would decline to apply it according to its terms.

Assume, for example, that a state (in violation of the 26th Amendment) enacted a law barring citizens over the age of 75 from voting in state elections. Imagine, further, that male citizens over the age of 75 accounted for 10% of the male citizens who were 21 or older, and that male and female citizens, taken together, over the age of 75 accounted for 15% of the total number of  citizens who were 21 or older. If (in addition to, or as an alternative to, other relief) the Section 2 remedy for denying the vote were applied, would the state’s basis of representation for apportionment purposes be reduced by 10% or by 15%? Why wouldn’t the correct answer be 10%, because the unamended language of Section 2 continues to use “male inhabitants” whose voting rights have been infringed and “male citizens” to determine the proportion?

To sum up this post and the previous one, I’m unpersuaded that the Nineteenth Amendment in any way supports Calabresi’s argument that the original public meaning of the Fourteenth Amendment bars sex discrimination as to civil rights.

I will probably have at least one other post in this series later this week.


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