In the McDonald oral argument, Justice Ruth Bader Ginsburg implied that an originalist approach to the Privileges or Immunities Clause might justify protecting property rights for men, but not for married women. She claimed that “a large portion of the population at that time [1868] didn’t have those rights” and asked McDonald’s counsel Alan Gura whether “married women at that time across the nation ha[d] the right to contract, to hold property, to sue and be sued.” Presumably, Ginsburg meant to criticize originalism rather than endorse gender discrimination. If so, I think the argument fails.
Unfortunately, Gura failed to point out that most states had enacted Married Women’s Property Laws by the 1850s, which did indeed give them the right to own property separate from that of their husbands.
There were, in many states, greater limitations on married women’s freedom of contract. But some married women were nevertheless employed outside the home under employment contracts, and the married women’s property laws gave them the right to sign contracts related to their property. New York’s widely influential 1860 law on “The Rights and Liabilities of Husband and Wife” also gave married women broad rights to contract and to sue and be sued. Thus, an originalist approach would certainly protect married women’s right to property and at least a fairly broad right to contract.
Ginsburg would have been on firmer ground in pointing out that states did not give women the right to occupational freedom equal to that of men, and many had laws banning women from various professions. In 1873, the Supreme Court upheld an Illinois law barring women from becoming lawyers against a P or I Clause challenge in Bradwell v. State. The majority of the justices upheld the law simply on the ground that the Clause did not protect occupational freedom for anyone, as they had ruled in the Slaughterhouse Cases at the same time.
The four Slaughterhouse dissenters could not take that position because they had just argued in Slaughterhouse that the Clause did protect “the right to pursue a lawful employment in a lawful manner.” One, of them, Chief Justice Salmon P. Chase, actually dissented in Bradwell. That is significant, since Chase was one of the main originators of the free labor legal ideology that underpinned the Fourteenth Amendment. The other three signed on to a concurrence by Justice Bradley in which the concluded that the exclusion of women could be upheld because:
It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.
In other words, these three justices upheld the exclusion of women despite the general principle of occupational freedom under the P and I Clause, based on their factual understanding of women’s “characteristics, destiny, and mission.” If that factual understanding turns out to be wrong, they could no longer argue that the power to discriminate against women in this way would fall under “the police power of the State” and would be required to strike the law down. Similarly, in Slaughterhouse, these same justices engaged in a detailed inquiry to determine whether New Orleans’ monopoly over slaughtering had a legitimate police power rationale. Today, if not in 1873, it is fairly obvious that Bradley’s factual understanding of women’s nature and capabilities was wrong. The same goes for similar rationales for restrictions on married women’s freedom of contract.
Thus, the legal rule Bradley advocated would compel a different outcome in any similar case today. Originalism requires judges to apply the legal rules established by the framers. But it doesn’t require them to perpetuate factual errors in the evaluation of evidence used to determine how the rule applies to any given case. Assume that in 1873 a regulation were upheld based on scientific evidence derived from the popular 19th century theory of phrenology, which held that people’s abilities and character could be predicted based on the shape of their skulls. For example, a state could have enacted a law forbidding a person with the wrong type of skull to become a lawyer. Later research proves that phrenology is a bogus pseudosciece. A consistent originalist judge would overrule the 1873 decision if legislatures continued to enact statutes claiming a police power rationale for curtailing occupational freedom based on phrenological evidence. The same goes for statutes that restrict constitutional rights based on discredited nineteenth century factual assumptions about women.
In some cases, of course, it may be difficult to determine whether the state’s factual claims are correct or not, and there can be legitimate dispute over the question of how much deference to give the legislature in those situations. But where the factual evidence is as overwhelming as in the case of women’s abilities today, even a relatively deferential originalist judge would have to strike the law down.
In sum, there is no compelling reason to believe that an originalist interpretation of the P or I Clause requires courts to protect men’s rights to property, contract, and occupational freedom more than those of women.
UPDATE: I should note that it is very unfortunate that Chief Justice Chase dissented in Bradwell without writing an opinion explaining his reasoning. I assume that he did that because he was near death at the time (Chase died on May 7, 1873, just a few weeks after Slaughterhouse and Bradwell came down). Perhaps those more expert in the history can point out some other reason why he chose not to write a dissent.
A. Dawson says:
Yay! I’m the first commentor!
It’s rather silly questions like Ginsburg’s that really really make me question the wisdom Marbury v. Madison.
March 2, 2010, 6:26 pmNunzio says:
I suppose Ginsburg’s follow-up would be:
“So, is it your position that only a married woman has the right to keep and use a firearm?”
March 2, 2010, 6:36 pmDilan Esper says:
Ginsburg is right. The issue with originalism isn’t that there weren’t some laws in place that partially abolished coverture– it’s that nobody understood whatever “freedom of contract” or “freedom to have an occupation” that was contained in the P/I clause as abolishing coverture doctrines in those jurisdictions that still had them. So if we are going to overturn Slaughterhouse in favor of interpreting the P/I clause consistent with its original meaning, you have a real problem when it comes to the rights of married women (among others). Whereas if you solve that problem by applying a modern gloss on the issue of sex discrimination, then you’ve given up the justification for using an originalist interpretation as opposed to some other one.
March 2, 2010, 6:38 pmChris says:
The Chief’s first name is Salmon as opposed to Associate Justice Samuel Chase who was famously impeached (and then acquitted). And thanks for the phrenology comment—always makes me think of Men at Work.
March 2, 2010, 6:48 pmIlya Somin says:
“The issue with originalism isn’t that there weren’t some laws in place that partially abolished coverture–it’s that nobody understood whatever “freedom of contract” or “freedom to have an occupation” that was contained in the P/I clause as abolishing coverture doctrines in those jurisdictions that still had them. So if we are going to overturn Slaughterhouse in favor of interpreting the P/I clause consistent with its original meaning, you have a real problem when it comes to the rights of married women.”
-I don’t think it’s correct to say that “nobody” thought that. Chase clearly did, and he was one of the main originators of the legal ideology behind the Amendment. To the extent that others had a different understanding, it was largely because of factual assumptions similar to the ones Bradley made in Bradwell case. Those factual assumptions, however, are not required by originalism, anymore than originalist judges must accept evidence based on phrenology. Originalism requires enforcement of the originally understood legal rules, not enforcement of the factual understandings that guided those rules’ application to particular cases.
March 2, 2010, 6:48 pmarch1 says:
Ilya,
Bradley’s presumed beliefs concerning woman’s destiny and mission, while IMO misguided, are subjective and value-based, and therefore not amenable to the kind of definitive evidence-based refutation you seem to believe has since been provided.
This would seem to weaken your conclusion.
March 2, 2010, 6:49 pmIlya Somin says:
“The Chief’s first name is Salmon as opposed to Associate Justice Samuel Chase”
-I have corrected this typo, thanks.
March 2, 2010, 6:49 pmShelbyC says:
I’m not sure that this raises any problems with originalism, it just raises the question about how obsolete provisions should be changed; via judicial fiat, or by the amendment process
March 2, 2010, 6:51 pmIlya Somin says:
“Bradley’s presumed beliefs concerning woman’s destiny and mission, while IMO misguided, are subjective and value-based, and therefore not amenable to the kind of evidence-based refutation you seem to believe has since been provided.”
I think they are pretty obviously based on erroneous factual assumptions. He refers to women’s “characteristics” and also to their “natural and proper timidity and delicacy.” If these are not factual assumptions about the abilities and nature of women, I don’t know what would be. Another way of putting it is that Bradley’s values in respect to women were heavily influenced by his factual understanding of what women were capable of doing.
March 2, 2010, 6:53 pmbiolawguy says:
Other than some reflexive gasps, would there really be much practical effect to saying that the P&I clause doesn’t cover gender issues?
Beyond the equal protection provision (a separate can of worms, I know), you still have most state constitutions effectively ensuring gender equality – plus overwhelming public opposition to any kind of (real or perceived) sex discrimination (which would surely prevent any legislature from going within 1000 miles of anything remotely discriminatory).
March 2, 2010, 6:53 pmA. Dawson says:
I don’t think you even have to be an originalist to understand the plain English understanding of the P&I clause. I mean what part of “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;” is not understood???
My point is… they don’t like it… but instead of faithfully interpreting the text they want to play policy maker an go through thinly sliced intellectual gymnastics to get there.
If country doesn’t agree with the policy of the 14th amendment’s P&I clause they should amend or repeal it.
9 unelected people shouldn’t be making policy.
March 2, 2010, 6:54 pmbiolawguy says:
This is probably not true…people who believe in such antiquated ideas may indeed be wrong, but it would mainly be about wrong values rather than wrong facts. Many religious fundamentalists, for example, still believe things like this…and it is profoundly a normative issue (which then form the respective lenses through which any scientific evidence regarding gender differences are filtered…the exact opposite causality from what you cite). Again I am not endorsing the dated belief systems involved here; I’m just pointing out that many misguided/bad/wrong/evil/etc. ideas are still essentially normative issues…so I’d suggest you have the cart before the horse.
March 2, 2010, 7:03 pmJ. Aldridge says:
The privileges and immunities secured by the Constitution are only those fundamental rights which a state secures to its own citizens. If the right to own property is only for males to exercise then woman citizens coming into the state cannot argue the law is unjust.
Only equality woman had with men was in the universal right to the protection of the laws of due process.
March 2, 2010, 7:08 pmSteve says:
No one is making the absurd argument contained in the last paragraph of this post. But what’s really a stretch in this post is the effort to characterize “the characteristics, destiny, and mission of woman” as some kind of factual question, as though we were discussing the temperature at which water boils.
The simple fact is that the original understanding of the 14th amendment was anything but “women should have an equal right to occupational freedom,” as demonstrated by the contemporaneous decision in Bradwell v. Illinois (one of the most embarrassing opinions in Supreme Court history). Today, most of us agree that women should have that right, and the courts apply the 14th amendment to protect it. Arguing that the meaning of the 14th amendment remains unchanged, and that the only thing that has changed is our “factual” understanding of women’s capabilities, is pure sophistry. If gender equality were a more controversial subject today, as opposed to a universal principle that everyone claims to ascribe to, this “evolution” of the 14th amendment’s meaning would be derided as living Constitutionalism.
The underlying question posed by Justice Ginsburg was: Mr. Gura, if we accept your view of the P/I clause, what privileges or immunities of citizenship does the clause protect? The problem with Gura’s position, which Ginsburg and some of the other Justices exposed, is that he wants to argue for a particular meaning of the P/I clause based upon the understanding at the time, but then he wants the freedom to bring in issues like women’s equality that the drafters of the P/I clause never imagined they were enshrining in the Constitution.
If it’s “originalist” for a majority of the Supreme Court to say that the 14th amendment guarantees occupational freedom for women, because our factual understanding has become more informed since 1873, will it be similarly “originalist” when a majority of the Supreme Court comes to agree with Justice Ginsburg’s view that the right to abortion is a necessary incident of women’s equality? Somehow, I think the originalists would be saying “it’s ridiculous to think that the framers of the 14th amendment thought they were addressing abortion rights” just as they do on every other controversial issue. On women’s equality, though, the framers of the 14th amendment didn’t think they were guaranteeing occupational freedom but it’s still perfectly “originalist” for the 14th amendment to protect occupational freedom today.
March 2, 2010, 7:10 pmIlya Somin says:
“This is probably not true…people who believe in such antiquated ideas may indeed be wrong, but it would mainly be about wrong values rather than wrong facts. Many religious fundamentalists, for example, still believe things like this.”
-The religious fundamentalists are wrong about the facts too. Some religious fundamentalists believe that the Earth is flat or is only 4000 years old. Are those claims only based on “values” as well?
March 2, 2010, 7:14 pmIlya Somin says:
“No one is making the absurd argument contained in the last paragraph of this post. But what’s really a stretch in this post is the effort to characterize “the characteristics, destiny, and mission of woman” as some kind of factual question, as though we were discussing the temperature at which water boils.
The simple fact is that the original understanding of the 14th amendment was anything but “women should have an equal right to occupational freedom,” as demonstrated by the contemporaneous decision in Bradwell v. Illinois.”
- Certainly the “characteristics” of women involves factual issues about their abilities and “nature.” Bradley was fairly clear on that in his opinion in Bradwell. That may have been a more controversial factual question in 1873 than the temperature at which water boils. But it was a factual issue nonetheless. If Bradley and the other Slaughterhouse dissenters had believed that women’s abilities to practice law were the same or similar to those of men, they would very likely have voted differently (as Chase did). Similarly, the validity of phrenology was a disputed factual issue in the 19th century. But the fact that many people believed in it didn’t mean that the dispute over it’s validity was not a dispute about facts.
March 2, 2010, 7:18 pmDavid Bernstein says:
Well said, Ilya.
March 2, 2010, 7:20 pmSteve says:
Certainly the “characteristics” of women involves factual issues about their abilities and “nature.”
The “destiny and mission of women” is not a factual question, it is an amorphous expression of personal values. Bradwell was not, as you would have it, premised upon an empirical inquiry into whether women could practice law just as well as men, but rather an expression of a belief that goes something like “God did not intend for women to practice law.” The word “destiny” should be a giveaway that the Court was not just talking about cold hard facts that hadn’t yet been adequately researched.
March 2, 2010, 7:23 pmDilan Esper says:
I don’t think it’s correct to say that “nobody” thought that. Chase clearly did, and he was one of the main originators of the legal ideology behind the Amendment.
No, Chase clearly felt that the 14th Amendment should be read to prohibit states from not permitting women to be lawyers. That’s way, way far away from what you are arguing. For one thing, you haven’t established that Chase was even an originalist as opposed to using some other method of interpretation. For another thing, you haven’t established that Chase, or anyone else, understood that to be the meaning of the Fourteenth Amendment at the time it was adopted. For a third thing, you haven’t established that Chase believed that coverture– the doctrine Ginsburg was referencing– was unconstitutional, as opposed to simply believing that not permitting women to practice law lacked a constitutional basis.
In other words, you are really reaching here, whereas Ginsburg’s point is absolutely unassailable, that point being that it’s very hard to meld originalist interpretations of the Fourteenth Amendment with our more modern constitutional doctrines, and since very few people want to advocate the constitutionality of gender discrimination at this pint, that presents a situation where the only originalism available is a half-assed type of originalism.
March 2, 2010, 7:29 pmbiolawguy says:
The nature of the dichotomy between issues of fact vs. issues of values is admittedly an ontological one that philosophers still struggle with the edges of…but I guess I’m finding myself to be of the school that all factual issues do presuppose at least some basic amount of a common philosophical framework. So if somebody is willing to “assume around the evidence,” so to speak, they’re essentially clashing with my value judgment that the Baconian scientific method is epistemologically superior…
I may disagree with eastern medicine, for example, but that’s a disagreement of philosophy-of-science, which is a value judgment. (Of course, I realize that could degenerate hopelessly into postmodernism, which I’m still not quite sure how to avoid…)
March 2, 2010, 7:31 pmA. Dawson says:
I find it interesting that we have to resort to case precedents when describing women’s rights. Sure, it’s not hard to understand how we go here… but that’s all history. I think its universally accepted in the US that women have equal rights to men. For example… if Congress wanted to resurrect the Militia Act of 1792, I’m sure it would not be limited to women.
I think the questions in the transcript trying to distinguish an enumerated right from an unenumerated right are far more interesting. The real questions should be, assuming the Court reverses Slaughterhouse and resurrect’s the 14th/P&I, how will the Court deal with unenumerated rights in future cases?
I think this is the folly of Marbury. The Court is not well equiped to make these decisions or to interpret constitutional text that does not exist.
March 2, 2010, 7:32 pmLaura(southernxyl) says:
Of course, when he was talking about the “peculiar characteristics, destiny, and mission of woman” he meant “women of his class”. Everyone knew that other women had all kinds of destinies and missions, but they didn’t count. Here’s Soujourner Truth:
Delivered 1851 Women’s Convention, Akron, Ohio
March 2, 2010, 7:34 pmJoseph Slater says:
Nicely done, Laura.
And Dilan E., while I agree with you entirely on the merits, I can’t help but wonder if the small typo in this clause you wrote — since very few people want to advocate the constitutionality of gender discrimination at this pint, — isn’t an unconscious expression of wanting to have this debate while buying Orin Kerr a beer.
March 2, 2010, 7:44 pmwiil jones says:
So, the privileges or immunities protected by the const are those rights protected by a majority of states? Does this continue into the future or freeze at some point in the past?
March 2, 2010, 8:07 pmDavid Bernstein says:
I would add that Justice Sutherland got around Bradwell in Adkins v. Children’s Hospital by positing that the Nineteenth Amendment was both a symptom of women’s improved civic status, and evidence that this improved status had been written into the Constitution, so that traditionalist notions of women’s role could no longer be assumed to be written into the Constitution.
March 2, 2010, 8:18 pmMark Field says:
Steve and biolawguy have this exactly right. What originalism claims to do is limit our interpretation of the Contstitution to the reasonable meaning of the words as understood by those living at the time. That their understanding was based on a factual error (and I don’t believe that’s what’s at issue in Bradwell), is irrelevant.
If you go this route, originalism can be used to argue anything. Bans on miscegenation? Based on a factual error. No abortion? Based on a factual error. Etc.
March 2, 2010, 8:20 pmOff Kilter says:
It would seem if Dilan were right, there should be some historical evidence that at least some judges felt the “natural timidity” of women would also imply that while the 2nd amendment was an individual rights, it would be proper to restrict women’s use of guns. Yet I’m not aware of any historical document that argues that. Is Dilan? If not, perhaps it IS reasonable to think that on issues like going into certain professions, entering into contracts, etc., the arguments WERE about facts rather than subjective moral principles.
March 2, 2010, 8:26 pmG.R. Mead says:
That is a foolish contention. Depends entirely on the level of the argument. Purely as a matter of biological fact, women AS A CLASS have a defined “characteristic, mission and destiny” — and that is to bear children. Without the fulfillment of that inexorably necessary social function AS A CLASS this would be quite literally, a sterile debate. It is a biological and evolutionary fact — not an “amorphous expression of personal values.”
But we have, in principle anyway, abandoned class-based legal distinctions, and in any event, the biological and evolutionary function of women, as a class, says not one useful thing about the obligations or impediments of any particular individual of the class. Having said that, — much of our current policy in this area fails to make this important distinction — and as a result fails to serve the many common needs of women, as a class (the aforementioned being but one of them), all in the name of avoiding tangential impositions on the desires of individuals.
It is in the interest of the class of women bearing chilcren that their mates earn more than similarly situated women NOT bearing children so that childrearing can be nbetter accommodated. This was done overtly for many centuries. But this has been sacrificed in a too narrow veiw of class-based interests of women — entirely viewing their interst and values in terms of the money they individually earn instead of their complete interests — beyond the question of personal earning power. This is a deep error.
There is nothing that says that policies that are more congenial to promoting a legitimate class-based consideration need bar individuals from any particular individual role, even if they make it less common or expected socially in certain circumstances.(racial affirmative action for instance — for a time, and in certain places, fits this rubric as the Court seems to have recognized). It is this balance between the roles that are given by our natures and circumstance and those that are chosen by our wills or desires that has been lost in public debates of this kind.
That balance must be struck in different ways and in different measures according to those vagaries of fact and historical circumstance — so it is entirely improper to judge that question now — based on arrangements proper to then — in the false light Justice Ginsburg tried to shine on it.
March 2, 2010, 8:32 pmDilan Esper says:
It would seem if Dilan were right, there should be some historical evidence that at least some judges felt the “natural timidity” of women would also imply that while the 2nd amendment was an individual rights, it would be proper to restrict women’s use of guns.
This is off-topic, but part of the problem with demanding this sort of evidence is that people tend to write about the constitution as it applies to laws that are thought to be implicated by its provisions. For example, we don’t spend too much time writing about the question of whether government ownership of the means of production (i.e., communism) is constitutional, because nobody’s seriously proposing it and nobody has enacted it. One should not infer from that silence that our society has actually come to a conclusion, one way or the other, on that issue.
The most likely reason that a woman’s right to bear arms was not discussed is that legislatures were not passing laws restricting it, or proposing passing such laws, so nobody thought to opine on it. Doesn’t seem to me how that militates towards any conclusion whatsoever.
March 2, 2010, 8:33 pmSara says:
This is utterly wrong. Miss Bradwell and many others knew she was just as capable but this fact did not matter to the judges because they were not deciding a factual issue. They were deciding whether the Illinois legislature or Myra Bradwell was the proper judge.
March 2, 2010, 8:33 pmOff Kilter says:
Dilan, with all due respect that is historically naive. Women went with men to clear the prairies and life was rough. Women knew how to use weapons. It was common knowledge that women did so.
Therefore, if no one in the field of law at the time was suggesting this was a violation of the law despite the second amendment due to women’s “natural timidity” it would seem to follow that, to the extent some legal theorists believed that, and believed it justified legal rules restricting women’s right to contract and right to work, these were FACTUAL questions, not matters of principle. If they were matters of principle, they would have applied to the 2nd amendment, and contra your belief this was simply never considered, women shooting guns was commonplace and well known and thus must have been considered and rejected.
March 2, 2010, 9:06 pmfrankcross says:
Interesting theoretical argument but of dubious application. The different “characteristics” of women seems factual but unless those characteristics were specified might well be true. Women do have different characteristics. Destiny and mission are not at all factual and appear to be independent bases.
But the theoretical issue is far more intriguing. It is plausible that beliefs based on erroneous facts are not originalism but by no means obvious. Suppose, say, that facts established that guns were ineffective or counterproductive in self-defense. Would that be reason to undo the 2nd Amendment. And who would be the arbiter of such a fact, the Supreme Court I suppose. But this would certainly seem to expand its discretion.
March 2, 2010, 9:19 pmLaura(southernxyl) says:
G.R. Mead, I am forty-nine years old. I won’t be bearing any more children. Is it the characteristic, mission, and destiny of women of my age and older to drop dead and stop using oxygen? If not, what is it?
March 2, 2010, 9:20 pmSara says:
I am convinced that Prof. Somin did not read the Bradwell dissent.
This quote not only belies his claim that there is any factual issue here. It refutes his lousy “history” that women had equal contract rights.
March 2, 2010, 9:56 pmG.R. Mead says:
Apparently, to prove my point that people now seem incapable of understanding the natural difference between issues affecting a class and issues affecting individuals as exceptions who do not (or no longer) comport with that significant characteristic of social interest to the class as a whole. If you had tried you could not have missed it more widely, by arguing from such a strictly individualist position. In any event, who says grandmothers wouldn’t fit the same class concerns ? ;->
What? Did I say there should be law prohibiting women from working? NO. I suggested that policies that made it more congenial for women not to HAVE to work were more sensible and basically more equitable — a better concept than “equal” when it comes to men and women because we have very different concerns appropriate to the classification of our respective sex. Again, biologically speaking a man can’t be the equal of a woman — he has no womb, and when making rules for men and women as a class it makes little sense to ignore this basic inalterable fact and its natural consequences, affinities and social interests that differ according to sex. Exception should prove the rule — not replace it.
One-size fits all, fits — no one terribly well. You have simply substituted a rigidly individualist stance for a rigid social one — and lost the benefits of the legitimate common interests of some class-based considerations that the strict individualist policy not only does not but CANNOT serve as well. Why is it an imposition on women as a class to make a policy that creates a socially approved subsidy indirectly in increased earnings of their husbands? The individualist position monetized that value substituting her personal earning power as an equalizer — but quite literally throwing out the baby with the bathwater, forcing her to hand over her child to be raised by someone else, as the cost of doing business — utterly devaluing the non-monetary value of raising one’s own child.
The problem is we have implemented this policy legally — but we certainly did not discuss this very important substitution we have forced on all women as the price of their “equality.” An equality bought at a cost to women only — since the men’s position did not change much on this score, legally or practically. Added to which we deeply distorted housing markets now requiring two incomes for the same familial need of housing — creating an inflation of housing prices to meet the available income — but with the same stock of housing — this priced the lower economic tiers of families out of housing placed out of reach. And , oh by the way by reducing the structural demand for housing with an artificial price barrier — that increased the market clearing price irrespective of demand — creating a boom-bust dynamic of volatility because of inefficient market clearing that did not exist in housing before then (zoning also contributed so this issue is not all to blame – but it did not help). No, … we did not discuss that one either. But that is what happened, and which we are all now bitterly enjoying at the moment.
People assume that things that make no sense to THEM ipso facto make no sense. They utterly disregard the sense of the generations that troubled to put those traditions and patterns into place that they so trivially rationalize away. Evolution optimizes, no less in culture than in biology. Things do change and must be adapted, incrementally — but the wholesale abandonment of such fundamental patterns of living as matters of arbitrary legal policy on rationalist arguments like a specious form of “equality” is demonstrably harmful on just about any social statistical trend you care to name.
March 2, 2010, 10:03 pmSara says:
Yes, GR MEAD, we know, ‘the Law of the Creator, etc. etc.,’ we’ve heard it all before.
March 2, 2010, 10:08 pmLaura(southernxyl) says:
Oh my stars.
March 2, 2010, 10:16 pmJoe says:
I am convinced that Prof. Somin did not read the Bradwell dissent.
concurrence
March 2, 2010, 10:17 pmDilan Esper says:
Dilan, with all due respect that is historically naive. Women went with men to clear the prairies and life was rough. Women knew how to use weapons. It was common knowledge that women did so.
That may be true, but that’s a very different argument than one based on original understanding.
Really, unless you have evidence of people deliberately making a legislative decision or not making one based on a contemporaneous understanding of what the Constitution permits, you really have no idea what a particular constitutional provision was understood to permit or prohibit. In the case of women and guns, what we have is a militia act that applied only to males, weighed against the fact that many women surely kept and bore arms. That’s interesting historical evidence, but it can’t carry as much weight as you are giving it. There’s no way in the world to know what the framers understood about the constitutionality of laws restricting women’s access to firearms given nobody was proposing such laws.
March 2, 2010, 10:22 pmSara says:
More precisely, concurrence in judgment, only.
March 2, 2010, 10:23 pmG.R. Mead says:
OFCOL. Lessee, I said “evolution.” So either you just style as “irrational prejudice” what you choose to disagree with as a substitute for reasoned argument — or you disagree with the concept of evolving systems as optimizing mechanisms — which might just happen to optimize against your preferences.
Which is it?
Not to worry, though, the once and future patriarchy cometh…
March 2, 2010, 10:27 pmSara says:
Oh my, you said evolution! But we know your views on the patriarchy, so your prejudices are plain.
March 2, 2010, 10:33 pmJoe says:
There’s no way in the world to know what the framers understood about the constitutionality of laws restricting women’s access to firearms given nobody was proposing such laws.
There were Black Codes that reflected slavery law that provided a barrier to blacks as a whole, including gun bans.
Some Framers noted this violated the basic rights of blacks in general, particularly given their need for arms for protection of their home and families. Guns for personal protection in this context would involve women — wives in particular — having “access” to guns, particularly if there was no men home at the time.
If so, restricting women’s access to firearms might be deemed in violation of original understanding at least in certain contexts.
March 2, 2010, 10:58 pmG.R. Mead says:
So do you disagree that commercialized childcare has been much more widely substituted for the traditional role of mothers in the daily waking life of their preschool children under the present policy regime? I would have thought this self-evident — but what argument do you have that this is a good thing — for women?
March 2, 2010, 11:00 pmG.R. Mead says:
It was not my prejudices I was talking about. I have a female office manager, personally recruited the female partner next junior to me, and our last made partner is also a woman — and two of our four present associates are also women. You obviously did not read Longman’s article on the inexorable force of demography and so you have no idea what MY views on patriarchy are — much less his.
Care to try again ? :-)
March 2, 2010, 11:07 pmSara says:
Please, GR Mead, you’ve linked that same article on this site several times. And who hoo, some of your best friends are.
March 2, 2010, 11:10 pmLaura(southernxyl) says:
G.R., I have a daughter. I worked outside the home while she was a baby and preschooler, and up to the present, and will continue to.
Quite frankly, it offends the living soup out of me, for anybody to suggest that I did not raise my own child. She is 22 years old now, with a college degree and a job and an apartment in another city, and still the delight of my life, and my husband’s. I defy anybody to have a finer child. You seem to suggest that there must be something wrong with my daughter because she was in daycare. Do you not understand how completely offensive that is?
Look here. Does this look like I turned my child over to strangers to raise?
March 2, 2010, 11:20 pmMarried Women’s Property Rights and the Privileges or Immunities Clause | Liberal Whoppers says:
[...] original post here: Married Women’s Property Rights and the Privileges or Immunities Clause [...]
March 2, 2010, 11:39 pmG.R. Mead says:
That’s not the point. The point is what realistic choice did you really have in that regard ? … I am offended that you did not have a realistic choice because the game is structurally rigged against that choice. If you would have chosen the same is fine for you — but did you really have that choice ? — And if not — the system is set up to dictate a result as rigidly uninterested in legitimate choices of women as the one that they objected to begin with. Just because a policy solution addressed one part of true problem does not mean that there is no problem remaining, nor that the solution has not caused problems of its own.
March 3, 2010, 12:25 amLaura(southernxyl) says:
G.R.
1 – Throughout human history, up until the last five minutes, how much choice did any woman have? My parents grew up on farms in Mississippi. One had six sibs and the other, seven. Their mothers worked like dogs. This has always been the human condition.
2 – If my daughter wasn’t harmed by being in daycare while I worked, then what’s the problem, exactly?
March 3, 2010, 12:33 amG.R. Mead says:
And he is wrong — how? And I am prejudiced for wanting to broaden feasible social and economic choices FOR women — and prejudiced despite my workplace practices and associations because you are so — insightful? My wife, for what it is worth, first convinced me of these concerns — but I am quite sure you will dismiss her as a captive victim of the patriarchy and false consciousness, with the car, house, and four children that I happily pay for.
Ah, the oppression — will it never end….???
March 3, 2010, 12:34 amDilan Esper says:
Joe:
That’s way too speculative to constitute historical evidence.
But if we want to speculate, suppose a state had required a married woman to get her husband’s consent to buy a gun. Does anyone seriously think that law would have been struck down in the 19th Century?
March 3, 2010, 12:40 amG.R. Mead says:
Ummm. So. My grandmother (98 now, God love her)was born and raised in Greenville. What choices did human beings have.. period — other than to work like dogs — or enslave those who did?
Please have a tad of perspective on our perceived material “injustices.” If you drive a car you are transported with comfort, convenience and speed unimaginable to kings and emperors only two hundred years ago. We got nothing to complain about in those terms, really.
They had their kids close by mostly, though.
What’s that worth? Up to you, really.
Or — is it?
That’s my point
March 3, 2010, 12:42 amLaura(southernxyl) says:
G.R., I totally do not get your point. I am not complaining. I thought you were complaining on my behalf.
March 3, 2010, 12:46 amChris says:
Steve seems like an oracle with his sophistry remark.
March 3, 2010, 5:56 amSara says:
But you said women today don’t have this choice, another one of your false claims.
March 3, 2010, 7:59 amKeep talking and your prejudices keep falling out.
More McDonald Coverage Coming | Snowflakes in Hell says:
[...] others have better coverage than we do by this point. I noticed some commentary at Volokh here, here, and here. I have thoughts on McDonald I’ll be sharing today, but I have a good bit to get [...]
March 3, 2010, 10:19 amPeter says:
Bad legal history makes for bad legal analysis.
Women’s rights including property rts were still evolving at the time the 14th amendment was adopted. Some states continued to limit their rights in the late 1860′s. There is no evidence whatsoever that the people of the states believe they were impairing the rt of legislatures to limit women’s rts or structure them in a different way than those of men at the time the 14th am was adopted.
The fact that Bradley’s opinion points to scientific evidence that turned out to be false or invalid does not undermine the validity of his description of the rt of the legislatures in the 1870′s to regulate women’s rts differently.
Under this analysis, we could eventually decide that the first amendment includes no protections for the free exercise of religion if we decided that religion is a sham based on sci-proven falsehoods.
March 3, 2010, 10:32 amtvk says:
Ilya, you are drawing a distinction between the “legal rule” and the “factual predicate” that is insupportable in practice. Lets get specific to the issue in McDonald. I assume that we can safely assume that in 1789 when the 2d amendment was enacted, the right to arms was understood to be limited to male citizens. I also assume you would say that this was based on an inaccurate “factual predicate” that women couldn’t handle firearms and weren’t eligible for the militia, so the modern second amendment should be gender neutral.
But if you start modifying the parameters of the legal rule based on whether its supposed “factual predicates” stand the test of time, then there is no limit. I can come back and argue that the entire second amendment was based on an inaccurate “factual predicate” that private ownership of firearms is “necessary for the security of a free state.” You might dispute that, but it is not a preposterous proposition and certainly the factual belief of the modern gun control movement. In fact, taken literally, I don’t think there is any possible dispute that an armed militia isn’t strictly necessary for a free state. The upshot is that saying that originalist judges do not have to respect the contours of legal rules if those rules are based on inaccurate “factual predicates” removes the permanence of those rules.
March 3, 2010, 10:45 amPubliusFL says:
I don’t know about that. Per 10 U.S.C. 311, the unorganized militia consists solely of men today. The Selective Service system only registers men. If these are acceptable, I don’t see how a resurrected Militia Act of 1792 would be different.
March 3, 2010, 10:54 amPubliusFL says:
I’ve seen a lot of comments like this in the thread, which seem to be based on the premise that originalists place absolutely no weight on the text of the Constitution.
March 3, 2010, 11:52 amG.R. Mead says:
Fewer women have this choice (specifically, women married to less well-paid men). In other words, if a woman were to value child-rearing over paid work during the infancy of her children, as system of rigid pay “equality” actually and regressively negates that choice for lower income cohorts — because the implicit subsidy that traditionally existed for the married man with children is now verboten (but which benefitted not merely him, but her also). You are disregarding a woman’s interests when it is indirect as though it simply did not exist — which is not true. The situation looks “equal” under the current regime but only if you don’t count the women who indirectly benefitted from traditional system that recognized the care of dependents as a value — which the present system disregards and makes a more expensive economic option than two working parents.
It is a categorical mistake — a classical Type II error where you diagnosed a system inequality but you failed to count all the women actually affected (negatively as well as positively), therefore your measure of equality is not complete and is false, because your “re-balancing” negatively affected the interests of women that you failed to count. It is like rejecting the approval of a drug actually kills people who would have benefited from it, but people who might have been saved are not counted (because a bureaucrat is only blamed for approvals that kill people). You are only interested in counting the equality of women more interested in working than child rearing — which is not all women.
It ain’t my argument — it’s my wife’s — I just happen to agree with her — ’cause she’s smarter than I am — after all, she figured out how to get me to work on her behalf — quite clever, really …
;->
March 3, 2010, 2:59 pmSuzy says:
I agree with Sara and Peter: this post does not refute any implied factual claims behind Ginsburg’s question. The factual support provided is also very sloppy. What about rights to sue? How did coverture affect women’s ability to form contracts? None of this is established across the country by 1868! On the narrower question of holding property, Somin cites as evidence an article which itself relies on another source, a piece by Chused in the Georgetown Law Review. That original piece gives a much more accurate description of the earliest development of women’s rights of property and contract in the first half of the 19th century. Given that many state laws expanding women’s control and transfer of property and ability to contract were not passed until after the Civil War, and this happened in a gradual progression spanning decades, it is by no means clear that this was accomplished by 1868. The 1860 NY law that Somin cites was not as immediately influential as he implies, and does not suggest any basic change in approach “across the nation” established by 1868. It was notable precisely because it was unusual, and it also does not establish full or general rights for women in the areas Ginsburg mentions in her question. In addition, like so many other states in the late 1900′s, NY maintained privy laws. Though privy laws gave certain protections to women, they reveal crucial limits on women’s control of contract and property, and more importantly, they undermine the claim that basic factual issues about women’s nature and capabilities were the foundation of the original legal reasoning in 1868. We’re also talking here about married women with property. Ginsburg uses them as an example, but her initial claim about “a large portion of the population at that time” goes even further. What bugs me about this argument is that it picks on some little nuance in Ginsburg’s question, purely to wage an ideological battle about originalism, but then fails to do the necessary homework. Would we not think originalism demands that much, at least? This doesn’t even come close to suggesting that Ginsburg’s question was off the mark.
March 3, 2010, 4:56 pmSuzy says:
G.R. Mead writes: “The situation looks “equal” under the current regime but only if you don’t count the women who indirectly benefitted from traditional system that recognized the care of dependents as a value — which the present system disregards and makes a more expensive economic option than two working parents.”
Which women were those, historically? Only those wealthy enough to benefit from the traditional system, and that system also works only when most of the employees want to participate in it. This problem has been around for a long time, and it’s one reason why 70′s style feminism didn’t appeal to much to working class women who would have loved to give up their jobs for the ability to stay at home with kids.
Mead also writes, “You are only interested in counting the equality of women more interested in working than child rearing — which is not all women.”
The problem is twofold here. One is that women who choose to stay home with children are not being harmed by the present situation. They’re just making a choice, right? I could be missing something, though–if you can show me how they are harmed, I am open to that idea.
The other problem is that interest in “working” and “child rearing” are not mutually exclusive. I work. I rear children. I value both. I don’t think I should get any special benefits for my choice, though I do prefer not to be treated differently from my colleagues because of it. I’m lucky to have the kind of job that allows me more time with my children. However, in any event we’re talking about five years of pre-school time, and the rearing keeps going from 5-18 and beyond.
March 3, 2010, 5:06 pmTGGP says:
How originalism handles factual mistakes is a significant part of Chrisopher Green’s ‘This Constitution’: Constitutional Indexicals as a Basis for Textualist Semi-Originalism. The fact/value distinction would seem to make it difficult for some portions.
March 3, 2010, 9:23 pmG.R. Mead says:
Some are — some can’t. Dual incomes raise the bar on many, many economic questions. A family needs A home. If all families have one income earner the market adjusts price to that level of income. If dual incomes are the rule the market maximizes return from that with no increase in the actual need of housing — a large part of the “increase” in family income is eaten in housing inflation and then in commercial childcare. Single-earner family incomes become non-viable for a much larger proportion of the population. Those families no longer have the traditional choices provided by making a family subsidy an expected distinguishing feature of productive work. For the upper middle class it is marginal reduction in living standard for the same net income — for lower-tier families it is the elimination of the economic choice of the single income family. My family is above the marginal cut, but many are not.
Mazeltov. Some would choose otherwise. Society NEEDS more to choose otherwise, because fertility is declining with demographic consequences that are mathematically unavoidable past a certain threshold.
But the point of Longman’s article is that if you wish liberal non-patriarchal values to continue (and I do) then you have to make those values propagate themselves in actual more new people. And with more than one child at any spacing at all, and three children — leads to 10-15 years with a preschooler at home. And it is the three-children-or-more families that take you from the decline of 1.9 fertility to stable population of 2.1 — That margin of 10-15 years of dedicated (i.e preschool) childrearing of five years thrice over is the difference between population stability and population decline. It really is that simple — the math does not lie.
Only those values that do propagate more new people will differentially survive. Darwin 101. And historically (as Longman shows) only patriarchal values have demographically accomplished this, in part because of these dynamics. So you must sacrifice some marginal ideas about an ideal facial equality and save those aspects of the old “patriarchy” that were not actually so inequitable for women who had families — or else frame a larger policy of equity that provides the functional equivalent of the traditional single-earner mode and contributes to the social and generational maintenance of a population to hold those values that we actually both do share. Otherwise Longman’s slide into a new actual patriarchy awaits, and those ideas die with you.
March 3, 2010, 10:34 pmSuzy says:
I’m not sure I follow. I have 2 kids and am hoping to have 3. If the demands get too rough, maybe my husband would prefer to stay home with them for a while, I don’t know.
If the existence of more dual-income families is affecting the housing market, so that single-income families can’t afford as nice a house, why is that so bad? It’s a choice, and just as the choice to work and have a kid comes with certain consequences, I suppose the choice of relying on one income also comes with consequences like not being able to buy as much house. I don’t think it means that women (or men) should start staying home with kids in larger numbers if they don’t otherwise want to, in the hope that somehow single-income families will have an easier time of it economically.
I think I have a better solution for some of this problem: we need to stop frowning on workers who choose to take time out from their careers to be with children at home. Right now, those who take this “offramp” from the workplace to care for children generally suffer negative career consequences all out of proportion to reasonableness. It should be a mark of pride, rather than shame, that a person chooses to do this. I also think it’s a better solution from the employer perspective than having workers take long maternity leaves and then return before they are physically and mentally prepared to do good work. I don’t think it’s a public policy issue, though–the best way is for influential companies to adopt these policies, thus reaping the benefits of a more stable, happy workforce. And let it spread from there (I hope)!
March 4, 2010, 1:42 amG.R. Mead says:
It prices lower income families out of the single income option for the same net housing availability even at the dual income tier, i.e — it is not even zero sum — the lower tier are worse off and the upper tier gain essentially little or nothing once the price system has adjusted to soak up the added income seeking the same relatively fixed demand for housing.
I agree. Unfortunately, the market does not — because there will be more experienced non-childrearers available, and experience counts, and does not even offend present sex discrimination law.
It already is a public policy issue — we reversed the preexisting social pattern by coercive law in favor or a rationalized policy of monetized equality that ended up specifically disfavoring an non-monetary interest mainly chosen my women — so how could that result be truly “equalizing?” Unless all we care about is money … that is… and I think that is not really the case.
March 4, 2010, 3:07 pmrisuena cantos laurel says:
I was arrested, according to the arrest report (though not according to either me or my husband), for not agreeing with a neighbor, who purportedly (though not according to either my husband or me)had an agreement with my husband, under intimidation by the local sheriff, concerning the property line.
I am still in the process of appeal at the federal level, or a motion based on voidness of the judgment. The arrest report was very cleverly and manipulatively written to make me falsely to appear loud, abrasive, and causing problems for everyone because I refused to agree with my husband and the neighbor over 18 inches of property. The carefully concealed facts hide potential discrepancies of some 18-20 feet, not “a mere 18 inches” as the report reads. The arrest report, however, cleverly manipulated its narration, to make me appear “unreasonable” and “irrational” and falsified a nonexistent situation to create a surprise showdown after my husband and I had written to the sheriff to contest the sheriff’s intimidation of my husband to make him agree with the neighbor.
Even though the arrest report has falsified the facts to take advantage of push button reactions about women who seek too much power over decision making within their marriages, and though the version of the sheriff’s deupty is egregiously false, does not a woman have a right to speak up if she has not been a party to any purported agreeement of her husband to give up their land rights without her mutual consent?
We are talking about property where I am the sole owner resident, since my husband and I, in mutual agreement, live in separate residences, both owned jointly.
May a woman sue for false arrest under these circumstances without being falsely defamed and flagged as “one of those women who does not listen to the wisdom of her husband” and therefore does not deserve any protection from false arrest?
Do her due process rights get short-circuited here under the unexamined assumption that “women like that” “deserve what they get”?
We will soon see.
09-3003, 7th Cir.
March 7, 2010, 11:09 amrisuena cantos laurel says:
09-3000
March 12, 2010, 1:58 pm