an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Sex Equality and Original Meaning: A Response to Jack Balkin
Steven G. Calabresi and Julia Rickert
Jack Balkin has recently posted a response to a law review article on “Originalism and Sex Discrimination” which we have posted online and which is forthcoming in the Texas Law Review. In that article, we argue that there was at least a serious question whether the Fourteenth Amendment’s ban on caste and class legislation applied to legislation limiting women’s civil rights in 1868, but this question was conclusively resolved in 1920 when the Nineteenth Amendment giving women the right to vote was adopted. We argue that political rights like the right to vote were regarded by the framers of the Fourteenth Amendment as being at the apex of the pyramid of rights for which civil rights were the base. We conclude that once women acquired the right to vote for president, senate, and governor this conclusively tipped the scales in favor of understanding limitations on their civil rights to own property, enter into contracts, or be employed in certain professions as caste legislation prohibited by the Fourteenth Amendment. Balkin argues that the idea that the Fourteenth Amendment’s ban on caste or class legislation is only an original expected application of the Fourteenth Amendment and is not part of its core semantic meaning. Since Balkin does not believe that original expected applications are law—a claim we agree with—Balkin also does not think the Fourteenth Amendment’s ban on caste or class legislation is constitutionalized. This is a surprising criticism from Balkin, who wrote in his article Abortion and Original Meaning that “laws criminalizing abortion violate the Fourteenth Amendment’s principle of equal citizenship and its prohibition against class legislation” and “[f]idelity to the Constitution as law means fidelity to the words of the text, understood in terms of their original meaning, and to the principles that underlie the text.” But we will respond to his more recent claim that our anti-caste/anti-class legislation reading of the Fourteenth Amendment is merely a construction that can be altered by future generations engaged in constitutional politics. Balkin thus believes that the States could constitutionally go back to the era of Jim Crow segregation or of widespread violation of the civil rights of women without violating the semantic meaning of the Fourteenth Amendment. This is a chilling and breath-taking claim. All that stands between us and Jim Crow or widespread sex discrimination is the opinion of contemporary political elites.
We disagree with Balkin and think the semantic meaning of the Fourteenth Amendment included a ban on systems of caste and of class legislation. Otherwise, it would be necessary to concede that the Fourteenth Amendment did not permanently ban the Black Codes for all time even though every interpreter of the Amendment from Raoul Berger on has conceded that that is what the Fourteenth Amendment did. In fact, it is unclear what Balkin thinks the original semantic meaning of the Fourteenth Amendment is if it is not a ban on caste or class legislation. Does Balkin agree with Judge Robert H. Bork that the Privileges or Immunities Clause is only an ink blot on which current constructions must be built? Is it even appropriate to build constructions on an ink blot? Balkin never says.
So let’s turn to the semantic meaning of the text of the two clauses in Section 1 of the Fourteenth Amendment that ban discrimination: the Privileges or Immunities Clause and the Equal Protection Clause. What would an informed reader in 1868 have thought those two clause meant semantically? The Privileges or Immunities Clause says that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In our opinion, the references to “privileges or immunities” together with the verb “abridge” invoke what Balkin calls a term of art. Balkin concedes that original semantic meaning encompasses not only dictionary definitions but also legal terms of art.
The Privileges or Immunities Clause of the Fourteenth Amendment would have been understood semantically in 1868 as growing out of the Privileges and Immunities Clause of Article IV which said that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The Article IV Clause in turn descended from a Privileges and Immunities Clause in the Articles of Confederation. It was very widely understood in 1868 that the Article IV Privileges and Immunities Clause forbade States from discriminating against out of State citizens. Indeed, the whole reason Chief Justice Taney was so eager to conclude in Dred Scott that free African-Americans in the North were not citizens was because he did not want them to have an Article IV right to relocate to a slave State where they could own guns and speak freely about the evils of slavery. It was widely understood in 1868 understood that the language of privileges or immunities was the language of a ban on discrimination. In Article IV the discrimination that was banned was discrimination against out of staters and in the Fourteenth Amendment it was discrimination based on systems of caste or class but in both cases it was discrimination that was being banned.
This point is made clearer semantically by the Fourteenth Amendment’s use of the verb “abridge.” Abridge means to shorten or abbreviate and in banning abridgments of privileges or immunities the Fourteenth Amendment banned the Black Codes which shortened or lessened the civil rights of African Americans as compared to white citizens. The verb “abridge” is used as a synonym for discrimination in exactly this way in the Fifteenth Amendment which says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
The Fourteenth Amendment goes on to say that “no State shall deny to any person within its jurisdiction the equal protection of the laws” – a phrase that we know encompassed aliens and children who had no right to vote. The use of the words “any person” in the Equal Protection Clause make it clear that the Clause does not merely benefit freed African Americans but that it also, for example, applies to protect Northern white citizens resident in the South. What we have then based on the semantic meaning of the Privileges or Immunities Clause and the Equal Protection Clause is what today we would call a generalized ban on all forms of “discrimination” as to civil but not political rights. The Fourteenth Amendment tells us not to discriminate at all as to civil rights and not merely to avoid discriminating as to civil rights on the basis of race. The semantic meaning of the Fourteenth Amendment is not confined, as is the semantic meaning of the Fifteenth Amendment, only to discrimination “on account of race, color, or previous condition of servitude.”
Balkin says since there is no “on account of” language in the Fourteenth Amendment our view that the Amendment bans systems of caste and of class based law is merely a construction and is not part of the Amendment’s semantic meaning. Not so. It is our modern day reading of the Fourteenth Amendment as a generalized ban on discrimination that is a construction because in 1868 this language would have been very widely understood to be a ban on caste or systems of class legislation. America in the post-Jacksonian era was completely enamored with the idea that special monopolies or class legislation were an evil that we needed protection from. Melissa Saunders has clearly shown this in an article in the Michigan Law Review entitled “Equal Protection, Class Legislation, and Colorblindness.” For example in 1868, thirteen States had clauses in their State constitutions that said in effect “No law shall be passed granting to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally belong to all citizens. Thirty-four percent of all Americans living in 1868 lived in States with such clauses in their State constitutions. Moreover, many States had equal protection language, anti-feudalism language, or in a few cases language barring the granting of titles of nobility or of monopolies in their State constitutions in 1868. I discuss this in more detail in an article with Sarah Agudo at 87 Texas Law Review 7, 94-100 (2008). The Privileges or Immunities language used in the Fourteenth Amendment in 1868 was code for a Jacksonian opposition to caste or class legislation. Indeed, Jackson himself opposed the Bank of the United States because its federal charter gave it a legal privileged, monopoly status vis a vis all other banks. One evil Republicans saw in the Black Codes in 1865 and 1866 was the Slave Power reasserting monopoly rights over the labor of African-Americans.
In sum, Balkin is wrong about the original semantic meaning of Section 1 of the Fourteenth Amendment because: 1) he fails to recognize that the words “privileges or immunities” and “abridge” are legal terms of art; 2) he fails to take account of the Jacksonian rejection of caste, class, and monopoly which is reflected in the fabric of State constitutional law in 1868; and 3) because he offers no better argument about original semantic meaning than we do and seems to agree with Judge Bork that the Fourteenth Amendment is merely an ink blot onto which we project our own views. He dismisses the core original meaning of Section 1 of the Fourteenth Amendment as if it were merely an original expected application. He might as well argue that the President today needs to be mature and therefore at least fifty years old because the words “thirty-five” in the Presidential Qualification Clause are merely an original expected application. The core meaning of the constitutional text cannot be dismissed as being merely an original expected application.
But this does not end our disagreement with Balkin because he never comes to terms with our core claim that it was the synthesis of the Nineteenth Amendment with the Fourteenth that led to the ban on sex discrimination: the Nineteenth Amendment tips the balance in favor of viewing many restrictions on women’s civil rights as caste legislation. We agree with Balkin that between 1868 and the adoption of the Nineteenth Amendment in 1868 there was a real doubt as to whether women’s civil rights were constitutionally unprotected. For that reason, the legislative history of the Fourteenth Amendment that suggests it did not protect women poses no problem for us. We agree that sadly and unfortunately sex was not a suspect classification from 1868 to 1920.We disagree with Balkin, however, that the Nineteenth Amendment did not change this state of affairs. It did. Once the political right to vote was granted to women, it became clear that legislation limiting women’s civil rights was suspect under the Fourteenth Amendment followed as well. Balkin does not acknowledge: 1) that the Nineteenth Amendment seriously undercut any legitimacy to claims that women were very different from men; or 2) that the Framers of the Fourteenth Amendment would have thought that any group that had the political right to vote necessarily also had equal civil rights. Once the Nineteenth Amendment was added to the constitutional text its words and history had to be synthesized with the history of the Fourteenth Amendment from 1868. Courts needed to read the two Amendments together, to reconcile them, and perhaps to harmonize them as well. Synthesis of conflicting legal texts is “emphatically the province and duty of the judiciary” which has the power to “say what the law is.” We would love to hear how Balkin synthesizes the Nineteenth Amendment with the Fourteenth and comes out with the conclusion women could vote but not own property, enter into contracts, or be employed.
We note in our article that the Pre-New Deal Supreme Court in the 1923 Adkins case concluded that Lochnerian freedom of contract gave women as well as men the right to work for less than a minimum wage. Justice Sutherland, in reaching this conclusion, said explicitly that the Nineteenth Amendment altered the way in which the Supreme Court ought to read the Fourteenth. Balkin notes that Adkins was overruled on other grounds but he does not mention that it was the New Deal Supreme Court in a 1948 opinion by Justice Frankfurter in Goesaert v. Cleary that first held that sex discrimination should be evaluated under the rational basis test. Justices Rutledge, Douglas, and Murphy all dissented. By 1971, the Supreme Court in Reed v. Reed began to once again give some Fourteenth Amendment protection to women. Thus, the rational basis test for sex discrimination has only been a part of Supreme Court doctrine for 23 years out of the 91 years since the Nineteenth Amendment was adopted. This reflects the fact that Goesaert offered a very unconvincing synthesis of the Nineteenth and Fourteenth Amendments when it upheld Michigan’s ban on women becoming bar tenders. We think Goesaert was wrong on the day it was decided. Balkin thinks it did not become wrong until the 1970s.
Balkin also criticizes our claim that the framers relied on mistaken facts about women when they concluded that the broadly worded Section 1 would not prohibit laws limiting women’s autonomy. The basis of our claim is that many of the framers understood women to be mentally more like children than like men, and this factual misunderstanding prevented them from seeing that women had been relegated by law to second-class citizenship of the sort the Fourteenth Amendment was to stamp out. But according to Balkin, the framers were not relying on mistaken facts, because no clear line can be drawn between facts and values. We agree with him that the line between facts and values is debatable, and he is right that some of the framers believed women weren’t “meant” to work outside the home. But such “value” judgments were undergirded by now-discredited facts about women’s abilities and/or by “God’s will,” neither of which provide a proper basis for denying women rights under the Constitution. And notably, none of those who debated the Fourteenth Amendment claimed that Section 1 excluded women by its terms; they simply argued that laws limiting women’s rights were no more arbitrary than laws limiting children’s rights. (They constitutionalized that view in Section 2, but the Nineteenth Amendment corrected this.) We do not believe it is necessary to resolve philosophical conundrums like the fact-value distinction to make our case.
Finally, Balkin asks about abortion, overlooking our explicit statements in the article that our analysis does not affect at all ones’ views on the correctness or evil of Roe v. Wade. There are countries with constitutions that proscribe sex discrimination, like Germany, which recognize a fetal right to life, and there are countries with constitutions that prescribe sex discrimination like Canada which do not protect fetal right to life. The question of when life begins and when the State can protect it is not answered simply because a constitution bans sex discrimination.
Steven G. Calabresi is Professor of Law at Northwestern University. You can reach him by e-mail at s-calabresi at law.northwestern.edu
Julia T. Rickert is currently a Staff Law Clerk to the Seventh Circuit Court of Appeals. You can reach her by e-mail at j-rickert2010 at nlaw.northwestern.edu Posted
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