Originalism, Sex Discrimination, and Age Discrimination
18 Pages Posted: 17 Nov 2012 Last revised: 27 Mar 2017
Date Written: November 16, 2012
This short piece considers whether the Twenty-sixth Amendment, which bans age discrimination in voting rights, should be read back into the Fourteenth Amendment to prohibit age discrimination in civil rights. It is a response to Calabresi and Rickert’s Originalism and Sex Discrimination, which similarly considers whether the Nineteenth Amendment should be read back into the Fourteenth Amendment to prohibit sex discrimination in civil rights. This piece shows, based on the enactment history of the Twenty-sixth Amendment, that it cannot be interpreted to expand the Fourteenth Amendment’s prohibitions to include age discrimination. This would seem to create a problem for Calabresi and Rickert’s argument that all expansions of political rights necessarily imply expansions of civil rights. However, that problem disappears if one drops their formalistic a fortiori theory, and instead views the Nineteenth Amendment as merely rebutting the factual assumptions behind the position that sex discrimination is constitutional.
Keywords: age discrimination, sex discrimination, nineteenth amendment, twenty-sixth amendment, originalism
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