The Corner

Law & the Courts

Judge Gorsuch: The Sex-Discrimination Canard

A new group dedicated to saving Roe v. Wade is opposing Judge Gorsuch. Among its reasons: “his allegiance to original intent shows he does not believe the Constitution, as is, provides any protections for women against sex discrimination, save for the 19th Amendment’s right for women to vote.” It cites liberal law professor Erwin Chemerinsky in support of this contention, presumably from this Politico op-ed.

The kind of originalism that Gorsuch practices, as Chemerinsky has himself noted, involves “looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be.” It’s not obvious that this original-meaning view compels the conclusion that the equal-protection clause allows any and all kinds of governmental discrimination on the basis of sex. The text says that all persons will be provided the equal protection of the laws. It does not say that governments have to refrain only from racial discrimination. There are originalists in good standing who believe the clause does indeed restrict discrimination on the basis of sex.

The anti-Gorsuch activists are, in short, saying that it has been “shown” that he believes something that there is no evidence at all that he believes.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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