Originalism and Sex Discrimination
Calabresi, Steven G., Rickert, Julia T., Texas Law Review
It is a truism of modern constitutional law scholarship that originalism, the judicial philosophy propounded by Justice Antonin Scalia, Justice Clarence Thomas, former Judge Robert H. Bork, and former Attorney General Edwin Meese III, cannot justify the Supreme Court's sex discrimi-nation cases of the last forty years. Justice Scalia confidently announced in a speech at Hastings College of Law recently that the Fourteenth Amendment does not ban sex discrimination because "[n]obody thought it was directed against sex discrimination..1 And, Justice Ruth Bader Ginsburg once wrote that "[b]oldly dynamic interpretation, departing radically from the original understanding, is required to tie to the fourteenth amendment's equal protection clause a command that government treat men and women as indi-viduals equal in rights, responsibilities, and opportunities..2 The received wisdom is that the only kind of discrimination that the Fourteenth Amendment was meant to outlaw originally was racial discrimination and perhaps discrimination based on ethnic origin. Both Justice Ginsburg's majority opinion in United States v. Virginia3 (VMI) and Justice Scalia's strongly worded dissent in that case assume that, as a matter of original meaning, the Fourteenth Amendment does not ban sex discrimination.4
This Article shows that both Justices Ginsburg and Scalia are wrong. They have failed to recognize two demonstrable things: first, that Section One of the Fourteenth Amendment was from its inception a ban on all systems of caste;5 and second, that the adoption of the Nineteenth Amendment in 1920 affected how we should read the Fourteenth Amendment's equality guarantee. The Nineteenth Amendment struck out the Constitution's only explicit privileging of the male sex (which was found in Section Two of the Fourteenth Amendment) and constitutionalized what had become widely recognized by 1920: that gender is not a rational basis for denying a person even the most exalted type of autonomy, an equal vote in a democracy. The fact that the Framers of the Fourteenth Amendment did not understand that the Amendment would eventually require the Virginia Military Institute (VMI) to admit female cadets does not undermine our claim that the application of originalist interpretive methods justifies the VMI decision.
We should note at the outset that 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 VMI, so we are taking issue with those scholars as well as with Justices Scalia and Ginsburg. Professors Michael Dorf of Cornell University, Ward Farnsworth of Boston University, and Reva Siegel of Yale University have all written major articles that discuss aspects of sex discrimination and the Fourteenth Amendment, and they each conclude that, as an original matter, the Fourteenth Amendment was not meant to forbid sex discrimination.6 Dorf, Farnsworth, and Siegel all assert that the Framers of the Fourteenth Amendment did not expect the provision to forbid sex discrimination.7 But many originalists reject the use of legislative history altogether and are likely to be unmoved by the isolated statements on which Dorf, Farnsworth, and Siegel rely.8 More importantly, even if one accepts that legislative history has some value-and we do-it does not follow that the original meaning of a clause or text is defined by the Framers' original expected applications.9 We contend that it is not, because original expected applications are not enacted by the text, and legislators are often unaware of the implications of laws they enact. In so arguing, we agree with Yale law professor Jack Balkin.10
Our thesis starts from the premise that originalists ought to begin and end all analysis with the original public meaning of constitutional texts.11 We believe we are following Justice Scalia's methodology completely in this regard.12 Original public meaning can be illuminated by legislative history and by contemporary speeches, articles, and dictionaries. …