Articles Originalism and Sex Discrimination Steven G. Calabresi & Julia T. Rickert* Introduction ......................................................................................................2 I. The Fourteenth Amendment as a Ban on Caste .....................................15 A. The Text .............................................................................................20 1. Which Clause Guarantees Equality and Prohibits Caste? ............20 2. The Text in Context ........................................................................24 B. Background: The Need for a Constitutional Amendment ..................27 C. The Drafting of the Fourteenth Amendment ......................................31 1. Congress Crafts the Text................................................................31 2. State Legislatures Consider Ratification .......................................36 D. Post-enactment Practice and Early Jurisprudence..............................41 II. Sex Discrimination as Caste ..................................................................46 A. Congressional Debates .......................................................................51 B. Why Sex Discrimination Creates Castes ...........................................57 C. The Supreme Court Weighs In...........................................................60 III. The Difference the Nineteenth Amendment Made ................................66 A. The Problem of Section Two .............................................................69 B. A Grant of Political Rights Implies Equal Civil Rights .....................70 1. Background: The Distinction Between Political Rights and Civil Rights ....................................................................................70 2. Political Rights Have Long Been Understood to Imply Full Civil Rights ....................................................................................76 3. The Conundrum of Alien Suffrage .................................................80 C. Calls for an End to Sex Discrimination: More on the History of the Nineteenth Amendment ...........................................................85 1. The Congressional Debates ...........................................................86 2. Adkins v. Children‘s Hospital .......................................................93 IV. Conclusion .............................................................................................96 * Steven G. Calabresi is a Professor of Law at Northwestern University and a Visiting Professor of Political Science at Brown University. Julia T. Rickert received her J.D. in 2010 from Northwestern University School of Law and is currently a Staff Law Clerk to the Seventh Circuit Court of Appeals. We are very grateful to Albert Alschuler, Akhil Amar, Steve Art, Robert Bennet, Leigh Bienen, John Harrison, Andrew Koppelman, Gary Lawson, James Lindgren, John McGinnis, and Jim Pfander for their helpful comments and suggestions. We dedicate this Article to U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia, from whom we have both learned so much. 2 Texas Law Review [Vol. 90:1 Introduction It is a truism of modern constitutional law scholarship that originalism, the judicial philosophy propounded by Justice Antonin Scalia, Justice Clarence Thomas, former Judge Robert H. Bork, and former Attorney General Edwin Meese III, cannot justify the Supreme Court‘s sex discrimi- nation cases of the last forty years. Justice Scalia confidently announced in a speech at Hastings College of Law recently that the Fourteenth Amendment does not ban sex discrimination because ―[n]obody thought it was directed against sex discrimination.‖1 And, Justice Ruth Bader Ginsburg once wrote that ―[b]oldly dynamic interpretation, departing radically from the original understanding, is required to tie to the fourteenth amendment‘s equal protection clause a command that government treat men and women as indi- viduals equal in rights, responsibilities, and opportunities.‖2 The received wisdom is that the only kind of discrimination that the Fourteenth Amendment was meant to outlaw originally was racial discrimination and perhaps discrimination based on ethnic origin. Both Justice Ginsburg‘s majority opinion in United States v. Virginia3 (VMI) and Justice Scalia‘s strongly worded dissent in that case assume that, as a matter of original meaning, the Fourteenth Amendment does not ban sex discrimination.4 This Article shows that both Justices Ginsburg and Scalia are wrong. They have failed to recognize two demonstrable things: first, that Section One of the Fourteenth Amendment was from its inception a ban on all systems of caste;5 and second, that the adoption of the Nineteenth Amendment in 1920 affected how we should read the Fourteenth Amendment‘s equality guarantee. The Nineteenth Amendment struck out the Constitution‘s only explicit privileging of the male sex (which was found in Section Two of the Fourteenth Amendment) and constitutionalized what had become widely recognized by 1920: that gender is not a rational basis for denying a person even the most exalted type of autonomy, an equal vote in a democracy. The fact that the Framers of the Fourteenth Amendment did not understand that the Amendment would eventually require the Virginia Military Institute (VMI) to admit female cadets does not undermine our 1. Adam Cohen, Justice Scalia Mouths Off on Sex Discrimination, TIME (Sept. 22, 2010), http://www.time.com/time/nation/article/0,8599,2020667,00.html. 2. Ruth Bader Ginsburg, Sexual Equality Under the Fourteenth and Equal Rights Amendments, 1979 WASH. U. L.Q. 161, 161. 3. 518 U.S. 515 (1996). 4. See id. at 531 (noting that the current equal protection jurisprudence ―responds to volumes of history‖ of sex discrimination); id. at 566–67 (Scalia, J., dissenting) (―Much of the Court‘s opinion is devoted to deprecating the closed-mindedness of our forebears . Closed-minded they were—as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable.‖). 5. See Cass R. Sunstein, The Anticaste Principle, 92 MICH. L. REV. 2410, 2410–13 (1994) (positing that the Fourteenth Amendment ―forbids social and legal practices from translating highly visible and morally irrelevant differences into systemic social disadvantage‖). 2011] Originalism and Sex Discrimination 3 claim that the application of originalist interpretive methods justifies the VMI decision. We should note at the outset that all the major scholars who have written in the field agree with Justices Scalia and Ginsburg that originalism is incompatible with the majority‘s holding in VMI, so we are taking issue with those scholars as well as with Justices Scalia and Ginsburg. Professors Michael Dorf of Cornell University, Ward Farnsworth of Boston University, and Reva Siegel of Yale University have all written major articles that discuss aspects of sex discrimination and the Fourteenth Amendment, and they each conclude that, as an original matter, the Fourteenth Amendment was not meant to forbid sex discrimination.6 Dorf, Farnsworth, and Siegel all assert that the Framers of the Fourteenth Amendment did not expect the provision to forbid sex discrimination.7 But many originalists reject the use of legislative history altogether and are likely to be unmoved by the isolated statements on which Dorf, Farnsworth, and Siegel rely.8 More importantly, even if one accepts that legislative history has some value—and we do—it does not follow that the original meaning of a clause or text is defined by the Framers‘ original expected applications.9 We contend that it is not, because original expected applications are not enacted by the text, and legislators are often unaware of the implications of laws they enact. In so arguing, we agree with Yale law professor Jack Balkin.10 6. Michael C. Dorf, Equal Protection Incorporation, 88 VA. L. REV. 951, 975 (2002); Ward Farnsworth, Women Under Reconstruction: The Congressional Understanding, 94 NW. U. L. REV. 1229, 1230 (2000); Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947, 964 (2002). 7. See Dorf, supra note 6, at 974–75 (observing that the plain text of the Fourteenth Amendment allowed for the disenfranchisement of women, an issue not resolved until the passage of the Nineteenth Amendment); Farnsworth, supra note 6, at 1237–39 (quoting congressional leaders during the debates over the adoption of the Fourteenth Amendment saying that the Amendment‘s guarantees were not intended to extend to women); Siegel, supra note 6, at 983–84 (quoting the floor statement of Representative Broomall that ―the fact that women do not vote is not in theory inconsistent with republicanism‖). 8. See, e.g., Zedner v. United States, 547 U.S. 489, 509–11 (2006) (Scalia, J., concurring) (writing a concurrence for the sole purpose of criticizing the majority‘s use of legislative history); Michael H. Koby, The Supreme Court‘s Declining Reliance on Legislative History: The Impact of Justice Scalia‘s Critique, 36 HARV. J. ON LEGIS. 369, 386–87 (1999) (noting the decline in the Supreme Court‘s use of legislative history since Justice Scalia joined the bench); Alex Kozinski, Should Reading Legislative History Be an Impeachable Offense?, 31 SUFFOLK U. L. REV. 807, 809, 819–20 (1998) (positing that the modern era‘s legislative process, with its mammoth bills and spools of legislative debate, demands congressionally mandated