It is generally accepted that the Supreme Court’s sex discrimination jurisprudence cannot be reconciled with an originalist interpretation of Section One of the Fourteenth Amendment. Originalists and non-originalists alike accept that the original intent of Section One was to preclude racial discrimination against blacks, and that there was no intent to prevent sex discrimination by state entities. Nor did the original public meaning of Section One embody a rule that would prevent state governments from engaging in sex discrimination.
In an important new paper, forthcoming in the Texas Law Review, Northwestern law professor Steven Calabresi and Julia Rickert argue that the conventional originalist view on sex discrimination is wrong, and that the Supreme Court’s sex discrimination decisions (if not their rationales) are largely consistent with a true originalist understanding of Section One of the Fourteenth Amendment. Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular. Thus understood, Section One prohibits state-sponsored gender discrimination and can even justify the Court’s decision in the VMI case.
This article is Lawrence Solum’s “Download of the Week,” and with good reason, as it is sure to prompt significant discussion and debate. As Solum would say, “Download it while it’s hot!”
Anonimus says:
Leaving aside whether that’s a good argument or not, how is it an originalist argument?
November 27, 2011, 12:20 pmCarl N. Brown says:
AMENDMENT XIV.
Section 1. All persons born or naturalized in the United States
November 27, 2011, 12:25 pmand subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
LC says:
I think this is right…after all, what kind of “originalism” is it that can reach conclusions demonstrably at odds with both the views of the drafters and the common understanding at the time?
November 27, 2011, 12:39 pmyguy says:
Why would that be necessary to an originalist understanding?
November 27, 2011, 12:43 pmDan the Man says:
I think you misunderstood the original meaning of the term “originalist”. The original meaning of “originalist” is that conservatives thought the Warren Court and much of the Burger court was too liberal and that “originalism” would be used to combat those views of the constitution with a more conservative view. Conservatives, moderates, and liberals all agree this is one of the primary reasons why “originalism” was adopted.
Now if you were to argue that the 14th amendment prohibits sex discrimination in favor of women but allows sex discrimination in favor of men or argue that the 14th amendment prohibits racial discrimination in favor of blacks but allows racial discrimination in favor of whites, this would be an originalist argument because it would be a conservative interpretation of the 14th amendment. As an extra reason for this interpretation of the 14th amendment, one could point out the view that whites were superior to blacks and men were superior to women was a widely held view among whites (and perhaps even blacks) during the 1860′s and 1870′s.
November 27, 2011, 1:07 pmLessinSf says:
Jonathan must be single.
November 27, 2011, 1:29 pmAnonimus says:
Sorry, but that just sounds plain batty. That’s not an originalist argument, that’s a “Dan doesn’t like conservatives” argument.
November 27, 2011, 1:34 pmJHW says:
Sounds very Balkinesque.
November 27, 2011, 1:37 pmChris E. says:
“Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular.”
But why would the country need to pass the 19th Amendment if discriminating against women (denying them the vote) was already unconstitutional?
November 27, 2011, 1:44 pmThis paper sounds a huge reach.
Dan the Man says:
I wrote:
Anonimus writes:
So, you’re denying that the prevalent view in the 1860′s and 1870′s was that whites were superior to blacks and men were superior to women? Surely, “Anonimus” can’t be as dumb as that right?
November 27, 2011, 2:03 pmMr. Whiskas says:
I think this is where the distinction between “original expectations” vs. “original meaning of the words of the text” could solve this problem. The drafters, in writing a document prohibiting unequal treatment of “persons” likely did not imagine it would apply to the unequal treatment of women, but I’m guessing the word “persons” included female persons at that time. Knowing the “original expectations” of all ratifiers of an Amendment seems like a daunting task, sticking to the meaning of the words in the text, even if noone expected them to be applied where they naturally would fit, seems better.
November 27, 2011, 2:05 pmMr. Whiskas says:
“But why would the country need to pass the 19th Amendment if discriminating against women (denying them the vote) was already unconstitutional?”
If an Amendment were passed stating human life began at conception and must be protected, would that mean Roe was rightly decided? In other words, one could argue that the courts that allowed discrimination against women before the 19th, including in voting, were wrong…What the Constitution means is not just the province of judges, but of the People as expressed via the Amendment process as well. In fact, the latter get the last word in deciding what the constitution “really” and maybe even “originally” meant…
November 27, 2011, 2:13 pmyankee says:
I’ve always wondered if the 14th Amendment isn’t like the charter of rights in the Soviet constitution. Nice words on paper, but nobody expected them to be enforced or had any intention of trying.
November 27, 2011, 2:16 pmAnonimus says:
You quoted a different part there than the part I quoted and then responded to. Try to be more honest in the future.
November 27, 2011, 2:18 pmDaniel Chapman says:
Please stop taking the bait, anonimus… if it’s that easy to go after someone, they probably want you to.
November 27, 2011, 2:31 pmricky says:
Why stop at women? Why not include homosexuals, transsexuals and pedophiles too? And why stop at these arbitrary, socially constructed groups? Why not enforce complete, perfect equality between all individual persons? After all, the plain language of the text says persons, not groups. Clearly what the drafters intended was full-on Communism, even if they didn’t realize it at the time.
November 27, 2011, 2:31 pmMr. Whiskas says:
ricky
Did the word “persons” normally and naturally include women at the time? Was the treatment women faced the same kind of thing that, were it to be aimed at, say, blacks, would have been considered prohibited as violative of equal treatment of the laws? If yes to both then why should some guess at what the drafters and ratifiers expected would be the applications of the law control over what they actually wrote? You toss pedophiles in there, but they are treated differently based on how they act, I can’t fathom a reading of the 14th which would find such a basis for different treatment to be prohibited. But laws discriminating against women that existed at the time were more like the kinds of laws blacks faced, caste laws…
November 27, 2011, 2:38 pmDan the Man says:
Dan the Man:
Animos write:
Oh, ok. So you dislike me for quoting what I actually wrote and which describes the reason why it was a originalist argument was because “the prevalent view in the 1860′s and 1870′s was that whites were superior to blacks and men were superior to women.”
Animos then write:
Sure, I was being honest because when you were questioning why it was a “originalist argument”, I pointed out I answered that question in the very next sentence – ya know the part where I wrote “one could point out the view that whites were superior to blacks and men were superior to women was a widely held view among whites (and perhaps even blacks) during the 1860′s and 1870′s.” Often times, if you want to understand a sentence somebody writes, the easiest thing to do is to just read the next sentence. I don’t know if you’ll ever learn that.
November 27, 2011, 2:40 pmA. Cooper says:
Because an amendment is explicitly designed to change the meaning of the document it amends. I doubt you could argue that the meaning of “amendment” operant at the time of ratification precludes the possibility that an amendment might be adopted to expand certain definitions (here, “person”) in the original text or prior amendments.
November 27, 2011, 2:41 pmSyd Henderson says:
Probably for the same reason the country needed to pass the 15th Amendment. States have a lot of leeway in deciding who is eligible to vote.
I think the originalist argument has something going for it. The 14th Amendment may have been spurred by denial of blacks’ rights, but it would lose a lot of its point if the states could just pick another group to make second-class citizens.
November 27, 2011, 2:42 pmArthur Kirkland says:
Because many Americans were too dense, ignorant, dogmatic, prejudiced and/or selfish to acknowledge the point the first time?
November 27, 2011, 2:43 pmChris E. says:
No… but how is that a comparison to my question? To suggest that women should have enjoyed the right to vote via the 14th amendment would be like saying the constitution defines life to exist at conception. Neither of which is an originalist argument.
November 27, 2011, 2:44 pmArthur Kirkland says:
I believe an amendment may be aimed at making more explicit an extant point some readers are unable to apprehend or unwilling to acknowledge.
November 27, 2011, 2:47 pmAnonimus says:
Which is why those who argue that the 14th Amendment requires recognition of “same-sex marriage” are being ridiculous.
November 27, 2011, 2:51 pmChris E. says:
It must be easy to just say “hate” instead of come up with a coherent, rational argument. I envy you that.
November 27, 2011, 2:52 pmAnonimus says:
Presumably Steven Calabresi and Julia Rickert would be horrified to see a “whites only” restroom in the building where they work every day. I wonder if they react identically to the (gender)-segregated restrooms that currently exist in that building.
November 27, 2011, 2:56 pmyguy says:
If that were the intent, why wouldn’t the amendment just say so explicitly?
November 27, 2011, 3:05 pmJoe says:
Someone referenced it, but Jack Balkin argues that an “originalist” approach could apply to sex and he isn’t alone, so the starting premise is questionable.
Anyways, the word “person” is pretty general — cf. the 15A — and why it wouldn’t apply to women is unclear.
An originalist argument might result in narrow protection, women originally understood to be equal to men only in limit fashions (e.g., women and men had the right not to be a slave; it would be unequal on 14A alone if only women were slaves via state law) but within a certain sphere, they would be protected.
The 19A expanded things further, now that women have voting rights, many more unequal treatment would be illegitimate. For instance, a good argument can be made jury inequity is unreasonable since juries are a type of “voting.” Denying women, not men, of some books or education might also be a problem, since it would diminish their voting rights. Prof. Akhil Amar uses this strand of thought.
November 27, 2011, 3:13 pmAnon321 says:
Part of the problem stems from the huge variety of interpretive theories that fall under the umbrella term “originalism.” I haven’t read the paper yet, and so probably should withhold comment until I do. But I suspect that the authors may be shifting between different forms of originalism when the results of those different forms suit them.
For example, “original expectations” (or “original expected applications”) originalism would approach a constitutional question by asking how the people who framed and ratified a constitutional provision would have expected that provision to apply to a given practice. If it’s clear that the framers and ratifiers did not think that the provision rendered the practice unconstitutional, then that’s the end of the inquiry. Some originalists even say that this is the only valid approach to constitutional interpretation, and that anyone who adheres to another approach is simply making it up as he goes along.
Advocates of this approach, however, recognize that it produces results that many people find completely unacceptable. For example, Brown v. Board would not be rightly decided, nor would the sex discrimination cases. In the court of public opinion, it can be hard to gain widespread support for an interpretive method if that method produces results that are universally considered wrong.
In response, supporters of “original expectations” originalism sometimes turn to another approach — such as “original public meaning” originalism or “text and principle” originalism — to show that originalism is indeed compatible with the results that everyone demands. These alternative variants often look to the general principle and purpose underlying the amendment, as it was understood at the time, and claim that the application of that principle or purpose to constitutional questions is consistent with originalism, even if it produces results that are contrary to the expected applications of the framers and ratifiers.
But if these variants of originalism are also valid, then the first argument — that unless you’re following “original expectations” originalism, you’re making it up as you go along — loses its force.
In other words, supporters of “original expectations” originalism are trying to undercut a powerful criticism of that approach. But in doing so, they show that other interpretive methods are also valid (and can in fact yield “better” results). This can have the effect of undermining their initial position — but only if people notice that they’ve shifted the precise definition of “originalism” along the way.
(To reiterate, I haven’t read the paper yet, and I may be wrong about what’s happening here. But what I’ve described above has happened in other debates over originalism and the results it produces.)
November 27, 2011, 3:13 pmArthur Kirkland says:
It apparently was too easy to miss the core point: A perceived need for an amendment does not establish that the amendment is or was required (or that the original provision is or was inadequate to the objective of the amendment).
It wouldn’t be much of a debate if no one stuck up for the dense, dogmatic, ignorant, bigoted, and/or selfish. I thank those who volunteer, because I wouldn’t want the job.
November 27, 2011, 3:14 pmTGGP says:
The different varieties of constitutional interpretation (including kinds of originalism and/or textualism) are best explained in Christopher Green’s ‘This Constitution’: Constitutional Indexicals as a Basis for Textualist Semi-Originalism, which I heard about via the Volokh Conspiracy.
November 27, 2011, 3:22 pmAnonimus says:
This is just a truism – if there were no left, there would be less debate.
November 27, 2011, 3:22 pmyankee says:
I’m a bit baffled by the argument that the 19th Amendment proves the 14th doesn’t restrict sex discrimination. Did it retroactively change the meaning of the 14th?
When the 19th Amendment was passed, the 14th Amendment was, little more than a propaganda document. State governments ignored it. All three branches of the federal government refused to enforce it.
November 27, 2011, 3:23 pmJimbino says:
One of the favorite words in the Calabresi and Rickert article is “forbid.” But they don’t know how to use it. They repeatedly use the construction:
that should read either:
or
In idiomatic English, we say “forbid…to” just as we say “allow … to.” Read your KJV Bible.
November 27, 2011, 3:29 pmJoe says:
A perceived need for an amendment does not establish that the amendment is or was required
This is a good point — the Bill of Rights itself was of disputed necessity, some supporting it basically to satisfy those who were worried about possible abuses or to underline certain important principles. Some support the ERA itself for symbolic reasons.
The 16A is a good example. Arguably, it wasn’t necessary. Pollock might have been found to be wrongly decided. It was 5-4 and was already not be applied to bar various types of taxes such as corporate income taxes. But, it was seen as a conservative approach, in part to not force the SC to reverse itself.
Also, the 24A. Ended some poll taxes in federal elections but the Supreme Court didn’t assume this meant similar state poll taxes were legitimate. The ruling was 6-3 though so debatable. Still, the ruling isn’t too controversial at this point.
November 27, 2011, 3:30 pmJimbino says:
Once the Supremes figure out that substantive civil rights belong to the individual without discrimination based on “caste,” will we see the rights of:
November 27, 2011, 3:40 pmJoe says:
I’m a bit baffled by the argument that the 19th Amendment proves the 14th doesn’t restrict sex discrimination. Did it retroactively change the meaning of the 14th?
Do many people really make this claim?
It does suggest — as does the 15A — maybe that VOTING rights aren’t protected by the 14A, though that isn’t how it was understood for quite some time.
Some think the 19A should be interpreted broadly to mean that laws beyond voting itself can be inequitable since now that women voting, it suggests various rights in the public sphere is necessary. I referenced a form of this argument.
When the 19th Amendment was passed, the 14th Amendment was, little more than a propaganda document.
Not really. Various things were struck down as violations of equal protection. Much less than now, but a listing would result in something more than “propaganda.”
State governments ignored it. All three branches of the federal government refused to enforce it.
This is hyperbole. It was repeatedly enforced. Not enough, obviously, but repeatedly was enforced. The striking down of an apartheid law about when the 19a was ratified was but once example.
November 27, 2011, 3:41 pmptt says:
Oringinalism seeks to look back into the past and ascribe the feelings of modern conservatives on all the drafters of the constitution. I’m sure there were some, indeed many, who never dreamed of equality for women or Jews or Native Americans or Chinese and some among them who were mainly seeking to kick the South in the teeth with racial equality before the law for black men. But there were also drafters who really did mean what they drafted, plainly spoken: equality before the law. Now, one wonders which group was more dim. The ones who saw a path to real equality for all or those who thought future generations would continue to hold back application of the simple words of the constitution.
It seems to me to be pretty clear that they arrived at compromise, with the dreamers getting their language and those who liked things as they were knowing change was going to be very, very slow. Sadly, it turns out the dreamers were tricked because they never imagined some future generation suggesting that the plain language didn’t matter so much as the feelings of those who only reluctantly signed on.
Were and are…
November 27, 2011, 3:44 pmMark Field says:
In addition to the criticisms others have raised, one of the key points about voting rights is that they were not considered protected by the 14th A at the time; hence the 15th A and later the 19th. But this separation of various rights into distinct categories means that an amendment can affect some rights but not others. For example, the 14th A gave the freed slaves the right to make contracts, but not the right to vote. The 19th A, therefore, could extend the right to vote to women without necessarily changing the existing interpretation of the 14th A.
November 27, 2011, 3:46 pmricky says:
I’m guessing the reason this paper is 100 pages long is because it takes a lot of contortion to come up with a reading of the Fourteenth Amendment that is broad enough to include sex discrimination in the definition of discrimination on race while still narrow enough to exclude discrimination against men from the definition of sex discrimination.
November 27, 2011, 4:14 pmgwinje says:
Here we go again. . . What does the KJV have to do with idiomatic English?
November 27, 2011, 4:16 pmJ. Aldridge says:
Section One was understood and accepted to mean only equality in the administration of criminal justice so state sponsored Black Codes would be outlawed. That is all the civil rights bill of 1866 accomplished and for which the Fourteenth Amendment was designed to give affect.
No state would had approved the amendment if it had meant any other kind of discrimination.
November 27, 2011, 4:16 pmMalvolio says:
Are we taking as axiomatic the rule that if an amendment was passed, that amendment was ipso facto necessary, that if it grants the government some power, the government would not otherwise have had it, and contrariwise, if it recognizes some individual freedom, that freedom would not otherwise have existed? If so, I’d like us to examine the 18th Amendment. If the 18th Amendment was necessary, and the Federal government could not otherwise prohibit liquor, then all the other anti-substance laws, starting with the Harrison Narcotics Tax Act, are all unconstitutional and we can end the Drug War right now.
Not that there’s anything wrong with that.
I think we may be playing around with words like “need” and “require”. Yes (Calabresi and Rickert would, I believe, argue), the universal franchise was an inevitable consequence of the 14th Amendment, rightly understood, but no, the 14th Amendment wasn’t rightly understood at the time. Hence, in a practical sense, the 19th Amendment was “required”.
Indeed, why not? Is it so shocking that every person is equal before the law? Is the contrary belief — that someone whose sexuality is unpopular or even unlawful automatically becomes an unperson “so far inferior that they have no rights which the white man is bound to respect” — particularly compelling?
It seems to me obvious and unarguable that 14th Amendment requires that any distinction between persons, from “women may not vote” to “convicted pedophiles may not teach second grade”, should be subject to strict scrutiny (just as it seems obvious and unarguable that the latter example would survive such scrutiny and the former would not).
I think it is an open question whether that conclusion constitutes “originalism”, “plain meaning”, or just common sense.
Ooh, so close and yet so far. Equality before the law and equality of outcome (what Ricky seems to contemplate) are not just different things but almost opposite things.
November 27, 2011, 4:23 pmJ. Aldridge says:
They were not a privilege or immunity and still are not even today. Citizens from state A can’t go to state B to vote. Voting rights did not fall under due process for the simple reason that was for criminal administration of a states due process laws where not only may due process be denied by a state act but also cannot be unequally administered, hence why equal protection and due process was always spoken of in terms of criminal proceedings and punishments.
November 27, 2011, 4:26 pmJ. Aldridge says:
Sex discrimination is a social/public policy and not anything to do with administering justice for crime where one stands to lose his/her life, liberty or property.
November 27, 2011, 4:33 pmAnonimus says:
No, a distinction based on some physical trait, like skin color or gender, is categorically different from a prohibition of some behavior, like sex with a minor, smoking marijuana, stealing a car, “marrying” someone of the same sex, etc.
November 27, 2011, 4:34 pmChristopher Taylor says:
You gotta love lawyers, when your job is to try to find a way to make the law say what you want, you can get it to damn near anything.
November 27, 2011, 4:39 pmArthur Kirkland says:
This trait is not restricted to lawyers; consider the churches that argue that one must be a bigot to honor their god.
November 27, 2011, 4:53 pmricky says:
This is the same “strict scrutiny” standard that says it’s okay to discriminate against whites for the nebulous benefits of “diversity” but not okay for me to choose not to hire some tranny freak who will gross out my customers? Yeah, pardon me if I don’t sign on to that. “Any distinction between persons” is about the nuttiest thing I’ve read on this site, and I’ve read some pretty nutty things.
Once again, I have a feeling that once this is filtered through your understanding of “equality before the law” and “equality of outcome”, it becomes just another method for dressing up your own prejudices in the disguise of an “obvious and inarguable” principle.
November 27, 2011, 4:59 pmChris E. says:
Is the 19th amendment not evidence that no one originally considered the 14th amendment to apply to gender discrimination? Was anyone seriously arguing at the time that a constitutional amendment wasn’t needed to enact this change?
November 27, 2011, 5:00 pmAnonimus says:
Of course poor Arthur is merely projecting his own bigotry; in fact churches do not argue that.
November 27, 2011, 5:03 pmJHW says:
Actually, from my (fairly cursory) skim of the paper, the only clear constitutional policy result they articulate is declaring the male-only draft unconstitutional.
November 27, 2011, 5:06 pmricky says:
If you’re skeptical of the idea that there are people who think the 14th Amendment replaced our federal republic with a secular atheist centrally planned Communist police state, just look at Malvolio and Arthur Kirkland’s responses in this thread.
November 27, 2011, 5:07 pmJHW says:
As far as broader extensions of the Equal Protection Clause, the authors have different positions. Calabresi argues that, to recognize a new group as a victim of discrimination in the relevant sense, only a constitutional amendment (or, perhaps, going on other articles he’s written, the functional equivalent in the form of the consensus of thirty-eight states) ought to suffice: so, the Nineteenth Amendment is absolutely crucial to the sex discrimination argument. Rickert argues that the independent meaning of the Fourteenth Amendment should determine that question, and the Nineteenth Amendment merely played a crucial clarifying role.
The paper cites, without voicing a position, Andrew Koppelman’s paper arguing that sexual orientation discrimination is a form of sex discrimination, but on Rickert’s view it would seem fairly straightforward to make the argument without that. (The status/conduct distinction, though popular in many circles, cannot suffice to block this argument, because it fails miserably to explain the case of religion, and, more importantly, because the line is actually pretty arbitrary and doesn’t have much to do with the difference between legitimate and illegitimate distinctions.)
November 27, 2011, 5:18 pmJHW says:
As far as broader extensions of the Equal Protection Clause, the authors have different positions. Calabresi argues that, to recognize a new group as a victim of discrimination in the relevant sense, only a constitutional amendment (or, perhaps, going on other articles he’s written, the functional equivalent in the form of the consensus of thirty-eight states) ought to suffice: so, the Nineteenth Amendment is absolutely crucial to the sex discrimination argument. Rickert argues that the independent meaning of the Fourteenth Amendment should determine that question, and the Nineteenth Amendment merely played a crucial clarifying role.
The paper cites, without voicing a position, Andrew Koppelman’s paper arguing that sexual orientation discrimination is a form of sex discrimination, but on Rickert’s view it would seem fairly straightforward to make the argument without that. (The status/conduct distinction, though popular in many circles, cannot suffice to block this argument, because it fails miserably to explain the case of religion, and, more importantly, because the line is actually pretty arbitrary and doesn’t have much to do with the difference between legitimate and illegitimate distinctions.)
November 27, 2011, 5:18 pmKane says:
That’s what Scalia says. Except that he travels back and forth in time in search of the meaning of the words for his desired results.
November 27, 2011, 5:20 pmAnonimus says:
Religion is explicitly protected in the 1st Amendment, so that’s a non sequitur in this thread.
The distinction between a trait, like sex or skin color, and behavior isn’t arbitrary at all, it’s an objective distinction.
November 27, 2011, 5:30 pmRhymes With Right says:
The only problem with this argument is that it is contrary to the words and actions of those who proposed and passed this amendment, both prior to and subsequent to the passage of the Fourteenth Amendment.
November 27, 2011, 5:31 pmDaniel Chapman says:
“just look at … Arthur Kirkland’s responses in this thread.”
I’d never recommend that.
November 27, 2011, 5:39 pmDjDiverDan says:
It’s difficult for me to believe that either an original intention or an original public understanding of the 14th Amendment was a generalized “anti-caste” amendment when one examines the treatment of Native American tribes from the 1860s until – well until the present. Even the present treatment of Native Americans still treats them as “children”, not capable of full participation in the American Economic system; just look at the Native American lands still held in trust by the Federal Government for the “benefit” of the Tribes, and the Trusts set up and controlled by the Federal Government to receive mineral royalties earned on Tribal lands. If the 14th Amendment was truly intended or understood as a generalized “anti-caste amendment, it strikes me that Federal relationships with the Native American Tribes would have been very different in the last half of the 19th Century. The 19th Amendment was necessary because the People understood that the 14th Amendment said nothing about sex discrimination. And much of the sex discrimination jurisprudence post-dates the failure of the Equal Rights Amendment to obtain ratification by the States. Much of that jurisprudence can only be explained by an arrogant judiciary which ignores the Constitutional Procedure for Amending the Constitution when it fails to achieve what that judiciary deems desireable.
November 27, 2011, 5:50 pmMark Field says:
No, because the 19th A deals with voting rights and the 14th A was not understood to affect voting one way or the other. Two separate topics.
November 27, 2011, 5:53 pmMark Field says:
I don’t necessarily disagree with your conclusion, but not for this reason. The Native Americans tribes were quasi-independent entities and, by the logic of that day, not protected by the 14th A.
November 27, 2011, 5:57 pmAnatid says:
So black marriage, just like gay marriage, is about behavior and not about traits?
I’m confused. Are we talking about the act of marriage, which is a behavior? Are we talking about the state of being in which many of your ancestors were African or the state of being in which you feel sexually attracted towards the same sex, both of which are traits?
It just feels to me that you are comparing apples and oranges. Because I am used to the following two comparisons:
- trait vs state (long-term characteristics vs short-term characteristics)
- behavior vs biology/anatomy (the actions of an organism vs the makeup of the organism)
Even along those two axes, it isn’t a clear binary. When does a state become a trait? How does biology influence behavior and how does behavior alter biology? They intermingle.
If you compare trait vs behavior, you are looking at two axes, time and (for lack of a better word) agency. How does the behavior change over time – does it happen once and never again, or does it happen regularly but infrequently, or does it happen constantly? Does the makeup of the organism change over time? To what extent must a behavior be repeated before propensity-to-commit-that-behavior is considered a trait?
You are speaking as though this is a very simple distinction. Black-and-white, fully-logical distinctions are useful in law, but often have little use when trying to describe living organisms. From this perspective, you are treating a two-axes problem as though it is a one-axis problem, and that oversimplification is leading to some level of confusion here. At the very least, this is another perspective, and if someone holds this perspective, it is a legitimate reason to not agree with your one-axis perspective.
November 27, 2011, 6:27 pmMr. December says:
I look at most comment sections just to see his obnoxious and sanctimonious responses. It’s rather entertaining.
November 27, 2011, 6:27 pmJ. Aldridge says:
One serious flaw with that reasoning: All former rebel states had large gender discrimination laws on their books that had to first be found to conform with the 14A before being readmitted into the union, like male only could bare arms or only males could be license to sale liquor, etc. Not one was challenged on the grounds it did not conform with the 14A. Only gender discrimination dispute of note was over whether woman were required to receive same punishment for same crime as men. It was clearly not protection against social injustice but only administration of criminal codes like the case was under common law.
November 27, 2011, 6:30 pmAnonimus says:
Yes, you are confused.
You must believe the prohibition on black people using certain drinking fountains was about the act of drinking water.
November 27, 2011, 6:37 pmJimbino says:
Religion is clearly all about behavior. Every child is born asexual and atheist, though he may ethnically be a Jew. He may later choose a religion, if so foolish, but, though he can choose his apparent sex, he apparently cannot change his biologic sex or sexuality.
Wouldn’t it be nice if our Constitution were amended to grant equal rights to all persons without reference to sex, age, race and religion altogether?
The answer is that it would do no good, since, while the current Constitution grants no favors on the basis of marital status, family status or minority status, there is rampant discrimination against singles, non-breeders and children.
November 27, 2011, 7:02 pmCrisisMaven says:
No, the way you need to read it to reconcile is by owning up to the sordid truth that at the time “men” in “all born equal” meant “men” and not yet women. And thus it is just a coherent interpretation if one owns up to the fact that “had the drafters of the original clause believed that women were equal to men as black men are equal to white men” then, and ONLY THEN would the Supreme Court’s decision be an interpretation in the originalist vein because it acknowledges that if formerly the originalist drafters had seen women as their equals then they would have seen them as equal to blacks (black men that was). But if one ignores that the Declaration of Independeence was drafted by slave holders then one may not want to own up to these things hidden in the lawyers’ closets …
November 27, 2011, 7:07 pmAnatid says:
I do not believe this. By that logic, the prohibition on gay people getting married is about the act of getting married.
We both know that the prohibition on black people using certain drinking fountains was because they were black. The prohibition on black people marrying white people was because they were black. And similarly, the prohibition on gay people marrying people of the same sex is because they are gay.
This isn’t about the behavior (drinking from a fountain, getting married), this is about the trait (black, gay).
These are both elegant examples, actually, because of the temporal quality – drinking from a water fountain is an activity we do every day, yet is not considered a behavior and not a trait, and marriage is (ideally) done only once in a lifetime, a behavior that demarcates the transitioning from one state (single) to another state (married), and is altogether considered a trait.
I think we’re on the same page now? Correct me if I’m wrong.
November 27, 2011, 7:14 pmOrenWithAnE says:
Which is why it would be legal for the State to prohibit marriage for those that objectively engage in the behavior of Christ-worship.
November 27, 2011, 7:17 pmAnonimus says:
No, they’re not similar at all, the prohibition is on marrying a person of the same sex, which is an action, not a trait. Both people with and without homosexual proclivities may marry a person of the opposite sex.
There is no connection at all between drinking water (or marrying) and skin color. Anti-miscegenation laws, and segregation generally, were all about race, not about defining the specific thing being segregated, such as the institution of marriage or drinking water. Sex, on the other hand, is central to the institution of marriage.
November 27, 2011, 7:35 pmAnonimus says:
Only if one were so woefully ignorant that he had never heard of the 1st Amendment.
November 27, 2011, 7:37 pmJ. Aldridge says:
That was merely social policy and not denial of the laws that protects one in life, liberty or property.
November 27, 2011, 7:51 pmChrisTS says:
Mark Field:
God, I had forgotten this. (Hangs head in shame.) Thanks for the refresher mini-course.
November 27, 2011, 7:53 pmChris E. says:
We’re talking about state mandated discrimination. Is allowing only men to vote not a form of discrimination? Or are you being purposefully nonsensical?
November 27, 2011, 7:55 pmChrisTS says:
Oh, cripes.
Has this actually turned into yet another SSM thread?
November 27, 2011, 8:00 pmAnonimus says:
It was certainly law which denied blacks equal protection of the laws.
November 27, 2011, 8:02 pmChrisTS says:
Umm… I don’t think you want to accuse MF of being nonsensical, at least in this context. You might disagree with him, but he knows his stuff.
Beyond that, what purchase is there in insulting everyone who makes a comment with which one disagrees? (Not a tendency limited to you, Chris E.)
November 27, 2011, 8:03 pmJ. Aldridge says:
Nope. The 14A talks only “of the laws” and not local municipal laws. The laws of “equal protection” is none other then the laws of due process. That is why the court finds a federal Fifth Amendment “Equal Protection” clause.
November 27, 2011, 8:14 pmMark Field says:
The 14th A was not considered to affect voting rights one way or the other. It was designed only to protect other rights. That’s why the 15th A was necessary to give the freed slaves the right to vote. The 15th would have been superfluous if the 14th already protected voting.
In Minor v. Happersett the Court used exactly this reasoning to hold that the 14th A did not protect the right of women to vote:
“And still again, after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth…The fourteenth amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, &c.? Nothing is more evident than that the greater must include the less, and if all were already protected why go through with the form of amending the Constitution to protect a part?”
Thus, even a statute which expressly discriminated against women regarding the right to vote could not and did not violate the 14th A. It simply did not apply to voting rights discrimination.
November 27, 2011, 8:32 pmAnonimus says:
No, the due process clause and the equal protection clause are separate.
November 27, 2011, 8:56 pmJ. Aldridge says:
The 15th Amendment gave no one a right to vote. It merely prevents color or previous condition servitude to be a basis of denial. Lot of people black and white were denied access to the ballot box. Ballot boxes traditionally have been very guarded, especially due to the mass voting fraud committed by immigration societies.
November 27, 2011, 9:04 pmJS says:
Note the rather Rehabilitating-esque treatment of Lochnerian substantive due process at p12
November 27, 2011, 9:05 pmJ. Aldridge says:
No they always been one and the same which is why there is a federal equal protection clause. The first version of the 14A did not have the words “due process” but the equal protection of the laws was defined as the laws of “due process.” The only reason why both due process and equal protection are found together is so that not only denial of due process is prevented but also the unequal administration of due process is prevented as well. Bingham feared a court could claim there is no denial if due process was unequally applied to different races. His reply letter to Hays explained all this.
November 27, 2011, 9:16 pmArthur Kirkland says:
It is bizarre when those who rely on superstition for positions craft arguments using phrases such as “in fact.”
November 27, 2011, 9:57 pmArthur Kirkland says:
Placing right-wingers within shouting distance of the word “gay” or “homosexual” is enough, apparently.
In fairness, the gay-bashing urge tends to be confined to religious right-wingers, but other conservatives have become culpable by tolerating the gay-bashing for an extended period of time.
November 27, 2011, 10:01 pmMalvolio says:
The Supreme Court has erred by not applying strict scrutiny in Grutter, which seems to be the case you’re complaining about in the first instance. Had they applied it (as I would have recommended if they’d asked me), the results would have been different.
In the second instance, you are imagining things. There is no Federal law requiring you to hire tranny freaks. You are free, if you wish, to put up a sign saying “We don’t hire tranny freaks because we think our customers will be grossed out”. I hope you do, in fact, and I hope your competitors put up a sign saying, “We hire the best person for the job, confident that our customers are not mindless bigots who spend a lot of time obsessing about the private behavior of other people”, so I know to patronize them instead of morons like you.
Yes, please do, because that would pretty prove the case that no one believes the 14th Amendment replaced our federal republic with a secular atheist centrally planned Communist police state, because it didn’t and no one believes it does, should, will, or might.
November 27, 2011, 10:16 pmMDT says:
Arthur Kirkland,
Can we please reserve “gay-bashing” for actual (as opposed to metaphorical) violence? Thank you.
November 27, 2011, 10:30 pmbyomtov says:
Of course it does. and it doesn’t really matter what (some of) the people who drafted and ratified it thought.
There is a huge difference between accepting laws written a century and a half ago and accepting the view of the world that the writers had. If they thought Section One didn’t apply to women, because they thought women were inferior beings, then they were wrong, because the assumption is false. You can hack around with as many different kinds of originalism as you like, but you can’t sensibly argue that we are bound by badly outmoded views of the world.
November 27, 2011, 10:40 pmKen Arromdee says:
November 27, 2011, 10:59 pmKen Arromdee says:
The word “person” also includes children; by this reasoning laws cannot treat children differently from adults. The word “person” also includes a wide variety of minorities some of which we can be pretty certain were not intended–do you *really* think reading the 14th Amendment to require recognition of gay marriage to be an originalist argument?
November 27, 2011, 11:04 pmJ. Aldridge says:
Wouldn’t make any difference because the 15A is restricted to only the qualification of color, race and previous servitude and not gender or age.
November 27, 2011, 11:33 pmricky says:
Malvolio,
While I’m glad to hear that you believe that affirmative action is constitutionally-barred race discrimination, I don’t think that your point about Grutter and strict scrutiny holds water. That case really proves my point- that “strict scrutiny” is easily abused to reach whatever outcome the court desires. In that case, “narrowly tailored” meant time-limited (which is nuts) and diversity was deemed a “compelling interest” (also batshit crazy, but hey it’s our state religion).
Also, your grandstanding about “private behavior” is not relevant when I clearly specified that my objection was to being forced to hire men who chop off their dicks, get a cheap pair of fake tits, and shoot themselves up with female hormones. There’s nothing “private” about a man with a five o’clock shadow parading around with a bad boob job pretending to be a woman.
November 27, 2011, 11:37 pmJ. Aldridge says:
I am pretty sure Calabresi and Rickert have no idea what black codes were as evidenced by this remark.
November 28, 2011, 12:06 amJHW says:
The difficulty is that there are many kinds of “trait” distinctions that are obviously legitimate (we routinely differentiate between people based on their natural capacities and talents) and there are many kinds of “behavior” distinctions that threaten equal citizenship (consider a ban on non-Catholic marriage, leaving aside its constitutionality under other constitutional provisions.)
November 28, 2011, 12:33 amReaderY says:
In The Reign of the Phallus, Professor Eva Keuls described the role of homosexuality in Athenian society as intimately connected with a gender-based caste system. Under Athens’ socially sponsered homosexual system, social sex, sex between equals, was reserved for sex between men, and women were relegated to functional sex, procreation and prostitution.
In domestic affairs just as much as in education, we have a past history in which same-gender preference practices were associated with a caste system. How far are we willing to take this “caste system” argument? Does the Equal Protection Clause of the 14th Amendment of the constitution compel a state not to recognize gay marriage, or to enforce fornication or sodomy laws, in order to innoculate against any possibility of a reoccurrance of a gender-based caste system in domestic affairs? If not, why not?
If same-gender sex or gay marriage can be constitutionally made legal without danger of us again being swamped by an Athenian-style caste system, why couldn’t a state take a similar approach in the area of education, and offer a same-gender option to a minority who find they work better with it? Why couldn’t a state make a small percentage of state universities single-gender, without danger of running a similar risk of the caste system suddenly rearing its head and again taking over society?
On the other hand, if we regard the constitution as so resolutely absolutist that it will brook no risk at all in the education case, why in the world should the slightest degree of risk be permitted in the domestic case? If the constitution requires us to keep blowing the elephant whistle at full blast until we’re hoarse and without the slightest relent, lest the caste system return in the one case, why not in the other? If the constitution demands that we not care whether the people who do better in a same-gender environment achieve their educational potential or not, why should it permit us to care about the fate of homosexuals? Indeed, if the constitution demands that we write the former group off as just a bunch of sexist pigs deserving only society’s animosity, why shouldn’t it demand the same attitude towards the latter?
People who work better in a same-gender educational environment are an identifiable political group. VMI has always struck me as at odds with Roemer v. Evans. It seems to me that both should have the same right to lobby that their interests should outweigh or need not trigger general societal fears of past caste systems. It’s certainly possible that one may turn out to be right and the other wrong, but it doesn’t seem to me that that’s for the courts to decide. I don’t beleive the courts should prefer one group over the other or regard one group as having more rights than or being more a victim of society than the other.
November 28, 2011, 2:56 amMalvolio says:
Ricky, do you have any idea how creepy it sounds when you vividly detail a scenario that exists only in your own imagination?
No Federal law forces you to hire transsexuals, but I am more than a little worried that you are enjoying the prospect. “Oh, I’ve been a naughty, naughty employer. Please, Mr. Scary Black President, tie me up and force me to hire those nasty, nasty trannies with their big luscious fake tits.”
November 28, 2011, 2:57 amBob Roberts says:
What would be the practical effect if, in effect, the federal courts adopted the Equal Rights Amendment despite its failure to be adopted at the federal level?
For one thing, since this is the Fourteenth Amendment, technically the federal government won’t be bound, so the greatest “injustice” of sex discrimination won’t be addressed: The male-only draft (or draft registration). In practice, the courts would bind the feds with the “equal protection component” of the 5th Amendment’s due process clause. So we would draft men and women on equal terms. Even Israel doesn’t do this, since it gives broader exemptions for women (especially traditional Orthodox Jewish women) than for men.
Then there is the issue of unisex bathrooms and locker rooms. With full equality, separate bathrooms and locker rooms in public facilities will go the way of “white” and “colored” bathrooms.
If the courts apply “disparate impact” analysis, they will notice that child-custody laws, in practice, favor one sex – will these be struck down?
Will equality of the sexes be used as an excuse to uphold the “right to abortion?”
November 28, 2011, 8:10 amJoe says:
Ken Arromdee says:
Joe: Anyways, the word “person” is pretty general — cf. the 15A — and why it wouldn’t apply to women is unclear.
The word “person” also includes children; by this reasoning laws cannot treat children differently from adults.
The EPC doesn’t require strict equality for all — it requires a legitimate reason to treat people differently. Particularly in the late 19th Century, there was even grounds in certain cases to treat races differently under current doctrine, e.g., miscegenation laws.
There are various legitimate reasons to treat children different than adults. OTOH, if you treated children themselves differently based on hair color, it would probably be a problem on EPC grounds.
The word “person” also includes a wide variety of minorities some of which we can be pretty certain were not intended–do you *really* think reading the 14th Amendment to require recognition of gay marriage to be an originalist argument?
I use the term “same sex marriage.”
I am not “pretty certain” myself that the 14A used the word “person” but actually didn’t really mean “person,” but ala Dred Scott decided implicitly to deem certain classes of people contra to the DOI that Lincoln et. al. deemed so fundamental, comparing us to Russia when certain classes of people were left out, not included.
As to Native Americans, Prof. Gerard Magliocca in book on Andrew Jackson in fact suggested certain Framers were quite upset at how they were treated. Some were “not taxed” and I guess were not members of the political community covered by the 14A, though many were not members of reservations or tribes any more, so were. The matter was later moot by naturalization.
This doesn’t require me to believe that an originalist argument supports SSM. I specifically noted that it very well might be the case that the “equality” secured by women was narrow in scope (pointing out slavery as an example). A people who accepted miscegenation would not think much of SSM. This still doesn’t mean women or even those they deemed to be “inverts” or whatever were not “persons” covered by EP. The state still would have to provide a reasonable ground to treat them differently.
I’m not sure why my position therefore has to be deemed to require that originalists support SSM — why are we jumping to that? I “really” would need to know exactly what “originalist” argument is used. There are so many. I think it possible that one or more could reach that far. For instance, an originalist might think caste is the problem and like the rationalists of old, realize that scientific understandings on what is “natural” do change. Or, that the state has to — using current practices — treat people equally and given how practices changed, you can’t just use the practices in place in 1876, but use their original principles and apply it to a new context, especially given the 19A and other changes in sex roles.
But, I’m not an originalist and my argument wasn’t about SSM. It was that women were covered, though — like miscegenation — the protections offered were understood to be much narrower.
November 28, 2011, 10:11 amJoe says:
J. Aldridge says:
Joe: Anyways, the word “person” is pretty general — cf. the 15A — and why it wouldn’t apply to women is unclear.
Wouldn’t make any difference because the 15A is restricted to only the qualification of color, race and previous servitude and not gender or age.
Yes, to the extent that applies that other types of voting discrimination might be legitimate. But, my basic point is that when the Constitution only applies to specific classes of people, it duly notes it. When it applies to general groups (like “the accused” or “persons” or “citizens”), it doesn’t use such narrow language, though some wish to somewhat illogically artificially narrow the language’s scope.
November 28, 2011, 10:20 amyankee says:
These arguments about bathrooms are also perplexing. Are the people who make this argument saying that gender-segregated bathrooms are not substantially related to an important government interest? If not, what’s the point?
FWIW, my experience with unisex bathrooms has convinced me that gender-segregated bathrooms are pointless, though segregated locker rooms are not.
November 28, 2011, 10:52 amyguy says:
All this confusion over 14AS1C2 seems to originate with Barron v Baltimore. Showing that the case was wrongly decided would render the clause mere surplusage, Marshall’s admonition to the contrary notwithstanding; but the fundamental truth of that admonition being unassailable, the tendency will be to ascribe to it some meaning over and above anything in the pre-14A Constittution regardless.
November 28, 2011, 11:48 amAnonimus says:
Why would we do that?
The point is very simple – essentially no one considers gender-segregated bathrooms to be even remotely analogous to race-segregated bathrooms. Since race is not analogous to sex, there’s no reason for the laws not to reflect that fact.
November 28, 2011, 12:00 pmAnonimus says:
More projection.
November 28, 2011, 12:03 pmAdam says:
Can a “new” originalist interpretation ever really be “originalist” or is using that word now merely a shibboleth?
November 28, 2011, 12:16 pmAdam says:
Well, because the Court got the original meaning of the 14th Amend wrong until the People clarified it for them, of course?
(which is not to say I agree with the paper, which I’ve not read)
November 28, 2011, 12:23 pmloki13 says:
Yep. Of all the horrors, in all of the history of sex discrimination, that is certainly the worst. Ahem. On the plus side, I thought you might go for the usual suspect- child support and custody.
Nevermind.
November 28, 2011, 1:56 pmJules says:
Bob Roberts: For one thing, since this is the Fourteenth Amendment, technically the federal government won’t be bound, so the greatest “injustice” of sex discrimination won’t be addressed: The male-only draft (or draft registration).
The federal government is bound by the Fourteenth Amendment (albeit indirectly) thanks to Bolling v. Sharpe, 347 U.S. 497 (1954), so the injustice of the all-male draft would be addressed.
November 28, 2011, 2:29 pmMichael Ejercito says:
At a minimum, rational basis scrutiny applies. The Supreme Court had heard a 14th Amendment challenge by a corporation sometime before the 1890′s. See e.g., See Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886). That the 14th Amendment applied to more than racial discrimination was well-settled by the U.S. Supreme Court by 1890.
From an originalist perspective, sex discrimination only need to be subjected to rational basis scrutiny. There is no evidence that discrimination against women was intended to be held to a greater level of scrutiny than than discrimination against horseback riders, canal operators, or carpet cleaners.
November 28, 2011, 4:06 pmMichael Ejercito says:
If I remember correctly, the Supreme Court did address the all-male draft.
November 28, 2011, 4:07 pmJoe says:
Bob Roberts says:
What would be the practical effect if, in effect, the federal courts adopted the Equal Rights Amendment despite its failure to be adopted at the federal level?
unclear … the current doctrine as applied to the 14A isn’t going to be in place for all time and itself changed over the years.
For one thing, since this is the Fourteenth Amendment, technically the federal government won’t be bound, so the greatest “injustice” of sex discrimination won’t be addressed: The male-only draft (or draft registration).
Are those quotes sarcastic?
In practice, the courts would bind the feds with the “equal protection component” of the 5th Amendment’s due process clause. So we would draft men and women on equal terms. Even Israel doesn’t do this, since it gives broader exemptions for women (especially traditional Orthodox Jewish women) than for men.
It is unclear what this specifically would mean. If “strict scrutiny” can include the use of race in certain contexts — even Kennedy in Parents Involved said that it need not simply be ignored — “equal terms” could involve certain differences. The Constitution tends not to be absolute.
Then there is the issue of unisex bathrooms and locker rooms. With full equality, separate bathrooms and locker rooms in public facilities will go the way of “white” and “colored” bathrooms.
Again, the Constitution is not as absolute as the words sometime imply. Certain kinds of “speech” can be abridged. etc. Privacy concerns would meet “strict scrutiny” requirements in respect to men and women locker rooms and bathrooms, though if there were stalls, it very well might not be as big of a concern.
If the courts apply “disparate impact” analysis, they will notice that child-custody laws, in practice, favor one sex — will these be struck down?
Concern for equality here — including providing fathers leave time — has been a matter of concern for years.
Will equality of the sexes be used as an excuse to uphold the “right to abortion?”
There is not “right to abortion” as in the right to obtain one, a positive right, except if the person is in custody and requires one for some serious health problem or to save her life and is not able to get one herself because of the custody. A female prisoner, e.g., can’t be left to die because of lack of medical care.
There is a right to choose to make various medical procedures, which applies to each sex. This includes the right of men to choose whether or not to be sterilized. Women are particularly burdened if they are not able to choose to have certain medical procedures. The arguments made are not “excuses” but strongly reasoned arguments.
They are already made and expressed in some form in Planned Parenthood v. Casey. If we are going to allow embryos (or even fertilized eggs per some proposed laws) trump this, another amendment would be necessary.
November 28, 2011, 4:54 pmJules says:
Yes, but not in a way that is consistent with VMI.
November 28, 2011, 5:06 pmCrunchy Frog says:
Only if you can pronounce it correctly.
November 28, 2011, 7:05 pmrebsteven says:
Calabresi’s logic makes little sense. If anything, the 19th Amendment shows the limitations of the 14th Amendment. The 19th only gave women the right to vote. The fact that it was limited to only that and no more should lead one to believe that the understanding was that women were not already included in the 14th Amendment. Furthermore, the Equal Rights Amendment failed to be ratified. What Calabresi is doing is reading the Equal Rights Amendment into the 14th. There would have been no need for an Equal Rights Amendment if it was understood that gender was a protected class under the 14th Amendment. I have heard him make this argument before, but it is backwards. If anything, the need for a 19th Amendment limited only to the issue of voting lends credence to the fact that nobody assumed that sex was part of Constitution’s 14th Amendment.
November 28, 2011, 8:17 pmJ. Aldridge says:
True, AND also proved the equal protection of the laws were only those laws of due process which explains why Woodhull, Stanton and Anthony never suggested male only suffrage violated the equal protection clause.
November 28, 2011, 8:56 pmAlan K. Henderson says:
SSM is irrelevant to this topic, since the distinction in question is psychological orientation and not sex.
Abortion is irrelevant because fetuses are both male and female.
Section 2 of the Fourteenth Amendment doesn’t seem compatible with the notion that the Amendment enumerated voting rights for women – it describes voting rights in Federal elections as an exclusively adult-male-citizen privilege (emphasis added):
The Amendment is of course irrelevant to the issue of private-sector discrimination, since it enumerates what the States may or may not do.
The issue of sex discrimination boils down to the Equal Protection Clause, which can be a bit ink-blotty – “equal protection” can mean anything. The stumbling block is that some sex discrimination is justifiable (male-only draft, gender-segregated restrooms) and some isn’t (child custody laws skewed toward females, inheritance laws skewed toward males). Anti-discrimination laws must therefore be applied to specific circumstances instead of stated in blanket terms.
One final note: one could argue that unisex bathrooms discriminate against women in favor of (lecherous) men.
November 28, 2011, 9:14 pmClayton E. Cramer says:
Can anyone tell me why it took until Alan Henderson’s comment for someone to point out that sec. 2 explicitly refers to men voting? Is this not pretty clear evidence that reading sec. 1 to prohibit sex discrimination is incorrect? Not to mention the big catfight between female abolitionists and male abolitionists at about this time over the 15th Amendment?
November 28, 2011, 10:44 pmricky says:
All this talk about strict scrutiny reminds me of Justice Stevens’ heart-warming opinion about the importance of ethnic gang-rape to achieving racial harmony in our prisons.
http://www.scotusblog.com/2005/02/racial-segregation-in-prison-may-be-curbed/
November 29, 2011, 1:18 amJoe says:
Can anyone tell me why it took until Alan Henderson’s comment for someone to point out that sec. 2 explicitly refers to men voting? Is this not pretty clear evidence that reading sec. 1 to prohibit sex discrimination is incorrect?
No. As Mark Field noted, it was originally understood (at least by many people) that voting was not believed to be covered by the EPC. Thus the need for the 15A. This didn’t mean blacks weren’t protected by the EPC. It meant that the civil rights covered did not include voting.
Also, the sec. 2 concerns a specific penalty that could be applied to states that discriminated. A penalty that specifically arises when certain voting rights are deprived. If other types of discriminatory laws are in place against the protected classes, the penalty does not kick in. This does not mean the states have the authority to pass or enforce such laws.
Not to mention the big catfight between female abolitionists and male abolitionists at about this time over the 15th Amendment?
Doesn’t this bury the lede? An amendment was deemed required to protect voting rights of a group clearly protected by the EPC. So, the need an amendment to protect voting rights must not mean on its own a group is not covered by the EPC.
Anti-discrimination laws must therefore be applied to specific circumstances instead of stated in blanket terms.
True enough. Though it is very debatable in this day and age if a male only draft is reasonable, there are a few cases where men and women can be treated differently. The reasons have to be compelling. There are various cases where speech can be abridged. Under current doctrine, even prior restraint is not absolute forbidden (see, e.g., NYT v. U.S.). The wording of the 1A looks “blanket” though.
The same applies to classifications by race. The USSC never set up an absolute barrier. Over the years, various rulings made this clear.
November 29, 2011, 8:51 ambyomtov says:
No, it’s not. First, if your argument has any merit, it applies only to voting, and not to other matters.
More important, what Section 2 shows, clearly, is that the drafters knew the word “male.” They could have used that word in Section 1 had they wanted to. They didn’t. To me that means Section 1 refers to both male and female “persons.”
In other words, the presence of the word “male” in Section 2 means the opposite of what you and Henderson believe.
November 29, 2011, 11:15 amMichael Ejercito says:
In what way was the Supreme Court’s ruling in VMI inconsistent with how it dealt with the all-male draft?
November 29, 2011, 1:26 pmAlan K. Henderson says:
So, Section 2 states that a State that disenfranchise eligible voters will be penalized – but only if the eligible voters are male. One of two things must be true:
1. At the time of ratification, the Fourteenth Amendment is consistent with the doctrine that voting in Federal elections was an exclusively male franchise (and was silent on voting in state and local elections).
2. Section 2 of the Fourteenth Amendment violates the Equal Protection Clause in Section 1 of the Fourteenth Amendment.
November 29, 2011, 11:19 pmClayton E. Cramer says:
It certainly establishes that there were things that were exclusively male (voting, for example) and that whatever “equal protection” meant, it clearly did not mean equal protection in all matters of law. This suggests that you might want to take a look at the statutes that were in effect, and considered perfectly acceptable, that discriminated based on sex when the Fourteenth Amendment was ratified. If the same states that ratified the Fourteenth Amendment did not repeal their sex-discriminatory laws when they ratified it, you can be pretty sure that there was general agreement that this was not what anyone understood by “equal protection.”
Of course, that leads to all sorts of trouble when you let a little thing like original intent get in your way. Of the 37 states that ratified the Fourteenth Amendment, 32 had laws felonizing oral and anal sex, usually calling the “unspeakable” or “abominable” crime against nature. So by your reasoning, the same legislatures that left such statutes in place obviously intended the equal protection clause to guarantee same-sex marriage, too.
Gotcha.
November 29, 2011, 11:59 pmA.W. says:
i have long said that a proper originalist meaning would have us read the constitution to protect against gender discrimination, too. In that, i make a few notes.
First, there was an exchange on the House floor with Thaddeus Stevens and another man (forgot his name), that sure as hell IMPLIED this. I’ll look it up later and get that to you.
Second, there was a book published in 1867 called “Women at War.” i will have to look up the citation, but it was covering significant acts in the recent (back then) civil war and women who distinguished themselves in it. And that only covers the women who served openly. There were also many women who dressed as men and went to war, and were often found out during the process (i.e. they would be shot in the chest and when the doctor took off her clothes to treat her, there would be undeniable evidence that this was a woman). Think of how that would screw with your worldview to learn that the man who has had your back for months was actually not a man at all… And returning to that book, it stated that right at that moment there was a debate in this country about the capabilities of women. i’ll look that up and get that to you.
also much of early feminism was heavily linked to abolitionism and thus many of the authors of the 14th A had dealt with feminists.
Of course critics of this approach counter that the men who wrote and ratified the 14th A were sexist and indeed they were. But we are certain they wanted to do away with racial discrimination and yet they were racists, too. They did not believe that complete equality was a prerequisite toward equal treatment.
to delve deeper on that point, part of the reason why they took this view with black people was that even if they believed they were inferior as a group, they recognized that exceptions existed. I mean the most obvious example of this was Frederick Douglass whose obvious intelligence was used as a rebuke of slavery. Well, likewise there were exceptional women at that time, who were often recognized as such. For instance, during the trial following Christiana riot, Lucretia Mott (sp?) apparently made her presence known by knitting clothing for the accused rioters. And their lawyer was Thaddeus Stevens.
And more fundamentally there is this. the equal protection clause started as two clauses, one specifically outlawing racial discrimination and the other ensuring the equal “application” of the law. Over time, the clause specifically outlawing racial discrimination was dropped and equal “application” became equal “protection.” The plain meaning of that change is that the equal protection clause was not meant to protect against racial discrimination only, as some people have asserted. That inference is reinforced by the 15th A, which limits itself to racial discrimination; plainly they were concerned that if they didn’t specify that it only applied to racial discrimination that it would be applied beyond racial discrimination. So if its not JUST racial discrimination covered by this, what else could it have been? Those who want to say that it wasn’t meant to cover gender-based discrimination need to answer that question.
And then there is Dartmouth College v. Woodward’s test for inclusion:
The framers of the 14th A had every reason to expect that gender discrimination would be challenged using this part of the constitution, and when they wished to protect gender discrimination they knew how to do it–see section 2. So there is no good reason for a court to refuse to extend that language to protect against gender discrimination.
November 30, 2011, 9:20 amJoe says:
Good show A.W.
As to crimes against nature, the Supreme Court soon upheld the broadly accepted idea that miscegenation could be targeted or targeted as worse (e.g., Pace v. Alabama). John Harlan signed on.
This “gets in the way” too, if we are sticklers about things. But, if we rely on text and changing social understandings, things do get easy. “Gotcha” and all that.
November 30, 2011, 1:55 pmMichael Ejercito says:
A word about Pace. It was decided on the basis that “[t]he punishment of each offending person, whether white or black, is the same” 106 U.S. 583 at 585 There was no due process question presented to the Pace Court that there was a right to engage in such conduct.
Pace was overruled by McLaughlin v. Florida, 379 U.S. 184 (1964)
November 30, 2011, 3:53 pmJoe says:
A word about Pace. It was decided on the basis that “[t]he punishment of each offending person, whether white or black, is the same” 106 U.S. 583 at 585 There was no due process question presented to the Pace Court that there was a right to engage in such conduct.
Pace was overruled by McLaughlin v. Florida, 379 U.S. 184 (1964)
I’m not sure of the point of this reference. The reference made was in the context of an equal protection discussion with the added point that what the 14A was originally understood to apply to (including with reference to the laws of the era) has changed in respect to current doctrine and current public understanding. The example is miscegenation. This message can apply to more than the specific provision of the Constitution (EPC) at issue and more than one specific type of law.
So, no one said (but thanks for the clarification) that the DPC was immediately at issue, but the overall point has relevance there too. As to McLaughlin, Fn9 suggests it was might have been “modified” years earlier and that overall ‘narrow view’ Pace offered “was soon swept away.” It seems the SC thought it was overruled at least sub silento before 1964. Unlike other rulings, the Court did not say “Pace is now overruled” though it nailed the coffin shut tightly.
December 1, 2011, 2:21 pm