Bench Memos

Critique of Calabresi’s “Originalism and Sex Discrimination”—Part 1

Northwestern law professor Steven G. Calabresi has earned acclaim both as one of the founders of the Federalist Society and as a leading academic proponent of originalism. So his new law-review article arguing that the “original public meaning of the Fourteenth Amendment, when read in light of the Nineteenth Amendment, renders sex discrimination as to civil rights unconstitutional” (p. 102) is bound to make waves. In a series of posts, I will explain why I find Calabresi’s argument unpersuasive and, indeed, bewildering.

In this first post, I will summarize Calabresi’s 102-page “Originalism and Sex Discrimination” (available here), which he co-authored with recent Northwestern graduate, and current Seventh Circuit staff law clerk, Julia T. Rickert. (I will generally refer only to Calabresi, not to slight Rickert or to exempt her from my critique, but because it is Calabresi’s co-authorship that particularly invites attention to the article.) 

Let me note at the outset that Calabresi openly acknowledges how novel and radical his argument is. As he states in his first sentence, “It is a truism of modern constitutional law scholarship that originalism … cannot justify the Supreme Court’s sex discrimination cases of the last forty years.” Both Justice Scalia and Justice Ginsburg, he notes, maintain that the original meaning of the Fourteenth Amendment does not ban sex discrimination, and “all the major scholars who have written in the field agree with Justices Scalia and Ginsburg that originalism is incompatible with the majority’s holding in [the VMI case]” (the 1996 ruling striking down VMI’s men-only admissions practice).

Here is a high-level outline of Calabresi’s core argument:

1. “[T]he original public meaning of the Fourteenth Amendment is that it bans all systems of caste and of class-based lawmaking.” (P. 10; see pp. 15-46.)

2. “[L]egislation that discriminates on the basis of sex violates the anticaste rule of the Fourteenth Amendment as that rule was originally understood.” (P. 50; see pp. 46-66.) (This is true even though the Framers and ratifiers of the Fourteenth Amendment “[c]ertainly” did not understand sex discrimination to be a form of caste or of special-interest class legislation. (P. 6.)) While it “would be an exaggeration to suggest that the position of white women and slaves were nearly identical,” they had this in common: “both groups had their options in life curtailed by law, making their abilities, merits, and desires irrelevant, and leaving them to some degree at the mercy of men who benefited from their unpaid labor.” (P. 53.)

3. “[T]he adoption of the Nineteenth Amendment in 1920 affected how we should read the Fourteenth Amendment’s equality guarantee.” (P. 2; see pp. 66-98.) (The Nineteenth Amendment conferred on women the right to vote—or, more precisely, forbade discriminating “on account of sex” in the “right of citizens … to vote.”) The Nineteenth Amendment made three differences:

a. Section 2 of the Fourteenth Amendment had “explicitly privileg[ed] males over females with respect to voting rights,” as it reduced a state’s basis of representation in the House of Representatives according to the state’s denial of the right to vote to any otherwise eligible “male” inhabitants. Section 2 thus made it “very difficult to read the original 1868 version of the Fourteenth Amendment as a bar to sex discrimination.” “The Nineteenth Amendment changed all this, however, when it reinstated the Constitution’s sexual neutrality by nullifying the use of the word male in Section Two.” (P. 67; see pp. 69-70.)

b. “The Nineteenth Amendment also implicitly changed how the Fourteenth Amendment treats sex classifications …. because a guarantee of political rights implicitly guarantees full civil rights.” “If two-thirds of Congress and majorities in at least three-quarters of the state legislatures believe that a class of people is fit to exercise the vote—the most carefully bestowed of all rights—then there is good reason to believe that limiting that class’s civil rights would be arbitrary and improperly discriminatory under the Fourteenth Amendment.” (P. 67; see pp. 70-86.)

c. “[T]he 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.)

I will examine and critique Calabresi’s arguments in my next posts.


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