Originalism and Sex Discrimination

Steven G. Calabresi

Northwestern University - School of Law

Julia Rickert

U.S. Court of Appeals for the Seventh Circuit

November 17, 2011

Texas Law Review, Vol. 90, No. 1, 2011
Northwestern Public Law Research Paper No. 11-63

Justice Scalia and most other originalists have concluded that Section One of the Fourteenth Amendment does not prohibit discrimination on the basis of sex. In their view, originalism is incompatible with the Supreme Court’s sex-discrimination jurisprudence of the last forty years simply because the Fourteenth Amendment was not adopted with sex discrimination in mind. Although we completely agree with Justice Scalia that a legal text’s original public meaning is determinative of its meaning today, we argue that he has not followed his own methodology in this case. He has ignored that a legal text can do more than its drafters imagined and that its scope can be affected by subsequent legislation. In this article we present an analysis of the Fourteenth Amendment that stays true to originalism and explains the effect of the Nineteenth Amendment on the scope of the Fourteenth. We conclude that sex discrimination is without doubt unconstitutional.

Number of Pages in PDF File: 102

Keywords: Fourteenth Amendment; sex discrimination, gender discrimination, Nineteenth Amendment, originalism, Justice Scalia, voting rights, VMI, Muller

JEL Classification: K10, K19, K30, K39

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Date posted: November 19, 2011 ; Last revised: December 10, 2011

Suggested Citation

Calabresi, Steven G. and Rickert, Julia, Originalism and Sex Discrimination (November 17, 2011). Texas Law Review, Vol. 90, No. 1, 2011; Northwestern Public Law Research Paper No. 11-63. Available at SSRN: http://ssrn.com/abstract=1923730

Contact Information

Steven G. Calabresi (Contact Author)
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Chicago, IL 60611
United States

Julia T. Rickert
U.S. Court of Appeals for the Seventh Circuit ( email )
219 S. Dearborn Street
Chicago, IL 60604
United States
3124355388 (Phone)
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