Bench Memos

Critique of Calabresi’s “Originalism and Sex Discrimination”—Part 2

Now that I have summarized (at a very general level, to be sure) law professor Steven Calabresi’s argument that legislation that discriminates on the basis of sex violates the original public meaning of the Fourteenth Amendment, I’d like to begin explaining why I find the argument unpersuasive.

For present purposes, I’ll happily take for granted the first step in Calabresi’s argument, his proposition that “the original public meaning of the Fourteenth Amendment is that it bans all systems of caste and of class-based lawmaking.” In this post, I’ll instead address the second step, his argument that “legislation 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.)

My first difficulty is in discerning exactly what Calabresi believes to have been the original understanding (or original public meaning) of the anti-caste rule. In fairness to Calabresi, I’ll volunteer that I don’t claim to have digested his entire article, so perhaps I’m missing his best and clearest statement of the anti-caste rule. But what I do see are his statements that “systems of caste … are usually hereditary and involve social stigmatization” (p. 4 n. 15 (emphasis added)), that “[a]ny law that discriminates or abridges civil rights to set up a hereditary caste system” violates the Fourteenth Amendment (p. 6 (emphasis added)), and that the Framers of the Fourteenth Amendment would have condemned “the imposition of a European feudal system or an Indian caste system” as “a blatant violation of the no-caste norm” (pp. 5-6). (Calabresi’s statements comport with the current meaning of a caste system—e.g., “a social structure in which classes are determined by heredity.” I haven’t consulted a 19th-century dictionary, and I don’t believe that Calabresi provides any contemporaneous dictionary definitions. [12/15 Update: The clause that I’ve struck was erroneous, as I explain in the last paragraph here.])

[Update (11/29, 5 p.m.): I now see that I skipped past a passage that I had marked that provides what is probably Calabresi’s clearest statement of the anti-caste rule, a statement that is entirely consistent with the statements I did quote. Calabresi states (p. 13 (emphasis added)):

The Framers, supporters, and early interpreters of the [Fourteenth] Amendment concluded that race discrimination created a system of caste and that the Amendment would reject race discrimination as a forbidden caste system. They came to this conclusion by comparing institutionalized race discrimination to feudalism and the Indian caste system, finding that all were the same type of hereditary, class-based discrimination.]

Under this understanding of caste, 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. To be clear, some/most/all historic forms of such discrimination might have been foolish/harmful/evil. But where is the hereditary class that is socially stigmatized? The fact that a woman, by virtue of being born female, faced various disabilities did not give rise to a hereditary class, as is amply shown by the fact that her male offspring did not face such disabilities. Nor do I see how women as a class were socially stigmatized (again, no matter how foolish/harmful/evil the forms of discrimination they faced). As one senator who was an “unequivocal supporter of women’s equality” put in (in a passage Calabresi quotes (p. 56)),

[T]he ladies of the land are not under the ban of a hostile race grinding them to powder. They are in high fellowship with those that do govern, who, to a great extent, act as their agents, their friends, promoting their interests in every vote they give.…

One can agree with Calabresi that the senator paints too rosy a picture and still recognize that women as a class were not socially stigmatized (and certainly not in any way remotely similar to what blacks endured).

Calabresi’s article suggests several possible rejoinders to my objection that historic sex discrimination (again, no matter how foolish/harmful/evil) can’t remotely be said to have created a caste system. Let me address them:

1. Calabresi maintains that the historic justifications for sex discrimination would not be widely accepted today. That is surely true, but I don’t see how it has any bearing on whether sex discrimination created a caste system.

2. Calabresi states (in the passage I quoted in my first post) that women, like blacks, “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.) Again, I don’t see how this bears on the caste question, and the differences between blacks and women on the matters that bear on that question seem much starker than any similarities.

3. Calabresi points out that there were “people” in the 1860s who “did use caste to describe the position of women.” (P. 58.) But if (as I assume to be the case) he’s right that the original public meaning of the Fourteenth Amendment banned caste systems, it’s hardly a surprise that those advocating women’s rights would sometimes use the language of caste. Each of Calabresi’s three examples comes from around or after the time that Congress debated the Fourteenth Amendment, and Calabresi himself acknowledges that these statements “do not reflect how most people at the time conceived of women’s status” (p. 60), so I don’t see what bearing the examples have.

In my next post, I’ll address Calabresi’s Nineteenth Amendment arguments.


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