Originalism and Sex Discrimination

102 Pages Posted: 19 Nov 2011 Last revised: 10 Dec 2011

Date Written: November 17, 2011

Abstract

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.

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

JEL Classification: K10, K19, K30, K39

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: https://ssrn.com/abstract=1923730

Steven G. Calabresi (Contact Author)

Northwestern University - Pritzker 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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