Calabresi Responds

by Ed Whelan

At the Volokh Conspiracy, law professor Steven G. Calabresi and his co-author Julia T. Rickert have graciously responded at length to my extended critique (see Parts 1, 2, 3, 4, and 5) of their new article, “Originalism and Sex Discrimination.” Apart from disputing their overly generous characterization of me, I will largely leave it, at least for now, to interested readers to do their own side-by-side analysis of the competing arguments. But let me take issue briefly with Calabresi’s and Rickert’s overall summary of my argument.

Calabresi and Rickert state that the “gist” of my argument is that “the Nineteenth Amendment ought not to be read synthetically with the Fourteenth because doing so renders the Fourteenth Amendment superfluous.” But my objection to their article is not that it undertakes to synthesize the Fourteenth and Nineteenth Amendments. (I won’t object to that because I’m not sure I know what it means, but I certainly have no objection in theory to reading provisions together.) My objection instead is that the particular synthesis they offer strikes me as wrong (for all the reasons I set forth). I do argue (in my Part 3 post) that under Calabresi’s and Rickert’s reading of the Nineteenth Amendment, “the Fourteenth Amendment would be superfluous to [their] argument” about sex discrimination (not, as they later misconceive the point, superfluous in all respects). But that’s just one of many problems I identify.

[Update (5:15 pm): Oops—I also meant to note that Calabresi and Rickert call to my attention that I erred when I wrote in a parenthetical comment in my Part 2 post that I thought they hadn’t provided any contemporaneous dictionary definitions of the term “caste.” As they point out, they did so in their footnote 72. My apologies for the oversight. I will note, though, that the dictionary definitions they provide are consistent with the meaning that I was applying when I concluded that “I simply don’t see how, other than through extravagant hyperbole, legislation that discriminates on the basis of sex can generally be said to create a caste system.”]

Bench Memos

NRO’s home for judicial news and analysis.