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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Originalism and Sex Discrimination, or, How Thick is Original Public Meaning?
Steve Calabresi and Julia Rickert's new article, Originalism and Sex Discrimination, attempts to do for the 1970s sex equality decisions what Michael McConnell's 1995 article, "Originalism and the Desegregation Decisions," did for Brown v. Board of Education. Nonoriginalists argued that originalism was an unworkable or normatively unattractive theory because it could not account for Brown or for the modern sex equality decisions. McConnell responded that Brown was indeed consistent with the 14th amendment’s original meaning. Calabresi and Rickert try to show that properly understood, the original meaning of the 14th amendment-- in conjunction with the original meaning of the 19th amendment--prohibits discrimination on the basis of sex.
There are many interesting things about this piece. In this post, however, I want to focus on Calabresi and Rickert’s version of original meaning originalism. Calabresi and Rickert note early on that they agree with me that original meaning is not the same thing as original expected applications. This is a central claim of New Originalists like Randy Barnett, Larry Solum, and myself. At the same time, Calabresi and Rickert’s version of original meaning originalism differs from New Originalist approaches in important respects. Equally important, it also differs from the original meaning originalism of scholars like Michael McConnell, John McGinnis, and Michael Rappaport, as well as that championed by jurists like Antonin Scalia and Clarence Thomas.
Thus, although Calabresi and Rickert’s article might seem to be in the same vein as McConnell’s famous article, in fact the two are quite different, because they use historical evidence quite differently. And, as I shall now try to show, the way they articulate original meaning orignalism—“thicker” than framework originalism but “thinner” than the approaches of McConnell and McGinnis and Rappaport—creates puzzles that they don’t adequately address. But before we get to those puzzles, let me take you through the basic argument of the piece: The original public meaning of the 14th amendment's equal protection and privileges or immunities clauses prohibited caste and class legislation of all kinds, not merely that concerning race. It was widely agreed that the Black Codes and other (but not all) forms of race discrimination constituted class or caste legislation. The framers and ratifiers of the Fourteenth Amendment, however, did not recognize that sex discrimination had many of the same qualities as race discrimination. In Calabresi and Rickert’s view, the framers and ratifiers were simply mistaken about the facts. We are bound by the value judgments that appear the text's original public meaning—which includes the ban on caste and class legislation-- but we are not bound by their factual mistakes today. This attempt to distinguish facts from values is consistent with the goals of much of conservative originalism: to attempt, where possible, to accept the normative judgments of the framers as binding, but to adjust them to changed factual circumstances, for example, new technologies. That is because conservative originalism does not believe that the practice of constitutional interpretation should delegate controversial value judgments to contemporary majorities, and especially not to contemporary judges. In my view, a crisp distinction between fact and value is impossible in practice, because so many constitutional questions are interpretive in nature, but this is the goal, and, as we shall see, it creates some difficulties for Calabresi and Rickert’s argument.
Next, Calabresi and Rickert agree with McGinnis and Rappaport that we should use the same original interpretive methods that lawyers used in 1868 when the 14th amendment was adopted. The original interpretive methods allowed judges to reason from existing cases by analogy. If we apply these original legal methods today, and do not make the factual mistakes of the framers and adopters, we will see that the case of sex discrimination is analogous to that of race discrimination; therefore the principles against caste and class legislation apply to government action that discriminates against women.
Moreover, the original public meaning of the 19th amendment gave women full political equality with men, not just the right to vote. But if women had equal rights to decide the most important issues facing the nation, it made no sense to say that they lacked equal rights to contract and to own, lease, and convey property. Therefore once the 19th amendment was adopted, it was clear that the correct interpretation of the 14th amendment was that sex discrimination was unconstitutional.
That’s the basic outline of the argument.
Now let's consider their theory of original meaning. Calabresi and Rickert argue that:
Original public meaning can be illuminated by legislative history and by contemporary speeches, articles, and dictionaries. Additionally, understanding the original public meaning depends on knowing what interpretive methods legislators and informed members of the public used to arrive at the meaning of the provision, as professors John McGinnis and Michael Rappaport have argued persuasively. Our analysis leads to the conclusion that the text of the Fourteenth Amendment was meant, as an original matter, to forbid class-based legislation and any law that creates a system of caste.
This immediately creates a puzzle. Nowhere in the text of the fourteenth amendment do we find the words “caste” or “class legislation.” What we find instead are the words “equal protection of the laws.” These words had the same semantic meaning now that they did in 1868. So what Calabresi and Rickert mean by “original public meaning” is far more than original semantic meaning. Their view of original meaning is “thicker:” It includes principles and purposes that the framers and adopters intended to promote and achieve through their choice of words. That is why Calabresi and Rickert look to Congressional and state ratification debates, and to newspaper editorials and political speeches. They want to show us that supporters and adopters of the amendment believed that by adopting a text that said “equal protection of the laws” they would ban caste or class legislation in the states. Indeed, they want to show that the adopters did not merely wish to ban caste and class legislation against blacks; in their view, the adopters meant to ban all caste and class legislation, no matter at whom it was directed. So even though we do not have a lot of evidence that the supporters of the amendment specifically meant to protect women from discriminatory legislation, this does not matter because there is no limit on the principle. Indeed, Calabresi and Rickert insist that they are not looking for the particular intentions or purposes of the adopters or the framers; what they are looking for instead is the “objective” public meaning of the text, which can be inferred from statements of purpose or principle but is not identical with these statements.
To summarize: Calabresi and Rickert treat the principles against caste and class legislation as part of the original meaning of the text, even though the principles they discover cannot be found in the text itself and do not follow from its semantic meaning. They seek to show that these principles are part of the original public meaning by looking at initial constructions of the text and statements of principle and purpose offered by framers and adopters. Nevertheless, they insist that they are not interested in original intentions or original understandings for their own sake, but rather are interested in the objective public meaning of the text.
In my 2007 article, Abortion and Original Meaning and in my recent book, Living Originalism, I argue that the principles against caste and class legislation are underlying principles of the Fourteenth Amendment but that they are not part of the Amendment's original meaning. I make three basic points about underlying principles.
First, original meaning should generally be limited to original semantic meaning, including any generally recognized terms of art. Underlying principles are not part of original semantic meaning. They are constructions. They are ways of fleshing out and implementing the principles that we find in the text. They are principles that we ascribe to the text in order to make sense of it and apply it in practice.
Second, the statements of principle and purpose that were made contemporaneous with adoption of an amendment are the initial constructions of the amendment; they are a form of original expected applications, and they are not binding on us today.
Third, we can and should use such initial constructions-- as well as all of the other modalities of constitutional argument-- to articulate underlying principles. But the underlying principles that we ascribe to the text do not have to be intended by anybody in particular.
My point is that once we distinguish between original meaning and original expected applications, we cannot treat original constructions as part of original meaning, because these constructions are just another form of original expected applications. Nevertheless these initial constructions may be very helpful to forming the best constructions of the constitutional text today. But they are resources for construction, and not commands that are themselves part of original meaning.
Calabresi and Rickert, by contrast, want to treat some of these initial constructions, described at a fairly high level of generality, as part of original meaning. Because they are part of original meaning, they are not resources for construction. They are mandatory commands. We cannot avoid them. In short, they want a thicker conception of original public meaning than the thin conception offered by framework originalism.
But in attempting to provide a thicker account of original public meaning, and claiming that it is objective, Calabresi and Rickert put themselves in a difficult situation. The do not want an account of original meaning as thin as framework originalism, but they also do not want an account as thick as that of other originalists like John McGinnis and Michael Rappaport or Michael McConnell, for under such an account, sex discrimination would not violate the Fourteenth Amendment. We can see this in the way that Calabresi and Rickert alternatively adopt and exclude certain kinds of evidence.
When we look at debates, statements of principle, practices and laws adopted or repealed contemporaneous with adoption of the constitutional text, we will inevitably find many different statements of principle at different levels of generality, offering cross-cutting accounts of what the text achieves. We will also find different practices in different states, and these practices can be interpreted in different ways. An “objective” public meaning, however, must be the same for all participants in the process of adoption. So we face the problem of how to interpret these different statements and practices to generate a single “objective” public meaning.
Calabresi and Rickert argue that we should adopt a very broad and general account of original public meaning and discard or ignore narrower or more qualified accounts and interpretations. Thus, it is important to them to discard evidence that points to a more limited account of what constituted caste or class legislation. Moreover, they argue that we can disregard some of these constructions and opinions because they are based on mistaken facts about women and their place in society. But this begs the question whether the adopters’ views and statements of purpose and principle involve mistakes about facts, or actually demonstrate disagreements with our present-day judgments about values. That might be so because interpretive judgments often mingle factual and normative premises together.
Under the basic political theory underlying the Fourteenth Amendment, all persons--men and women alike--were entitled to civil equality. Civil equality meant equality in the enjoyment of basic civil rights like the rights to contract, to own property and to have access to courts. However, married women were subject to the common law coverture rules—under which they lost almost all of these rights under the fiction that their legal identity was merged with that of their husband. Because it was assumed that most adult women would be married (or living with male relatives like fathers or brothers), legislatures could apply the assumptions of coverture generally in passing legislation under their police powers. Thus, in Bradwell v. Illinois, the State of Illinois explained that women could not become members of the bar because most of them could not make contracts, so it would be difficult for them to represent clients.
During the Congressional debates over the fourteenth amendment, several proponents of the amendment pointed out that the new amendment would not disturb the common law coverture rules through which women lost most of their common law rights through marriage. They argued that laws that treat married women differently from single women, or married women differently from men, did not violate the proposed amendment. Calabresi and Rickert argue that these statements rest on factual mistakes, and that opponents of the amendment understood the amendment’s meaning and purposes better than the supporters did.
But to know whether an adopter’s statement rests on mistaken facts, we must already know the *real* principle that is part of original meaning. For the adopters’ disagreement with our current judgments may not rest on differences of fact, but on a different normative judgment that underwrites their views about the facts. The statement that “the paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother” is not simply a claim about facts that might turn out to be mistaken. Rather, it is a claim about facts and values mixed together. And if many or most of the adopters believed that the proper normative role of women is to be wives and mothers, then it is easy to see why the principles against caste and class legislation might not apply to legislation that ratifies or encourages these roles.
Michael McConnell, defending a thicker account of original meaning originalism, pointed out in an important article in 1997 that we cannot claim to understand the adopters’ principles and purposes unless our account is consistent with most of their assumptions about how the text would be applied in practice. The adopters might have been mistaken about a few things, but if they turn out to have been mistaken about a lot of things, then it is likely that we have misunderstood what principles they were trying to articulate through the text.
Because Calabresi and Rickert want original public meaning to include principles and understandings that go well beyond what is required by original semantic meaning--they must confront McConnell’s arguments. I do not think that they have a very good response, at least in this article. They say that original meaning does not include original expected applications, but McConnell’s point is that if you think that original meaning is “thick” in this way—-i.e., that it is more than the original semantic meaning—-your theory has to cohere with most of the adopters’ interpretive judgments. The more things that turn out to be mistakes, the more likely it is that you have misinterpreted their normative views, and therefore, the objective public meaning. This puts Calabresi and Rickert between a rock and a hard place.
To be sure, I agree with Calabresi and Rickert that the common law coverture rules are unconstitutional today. But that is because my theory of framework originalism argues for a thin rather than a thick account of original public meaning. I believe that we are bound only by original semantic meaning, and that the rest is a question of constitutional construction, which draws on the adopters’ theories and views but does not treat them as mandatory. I believe that the best construction of equal protection of the laws today makes the common law coverture rules unconstitutional. But I do not attribute this conclusion to the original public meaning of the Fourteenth Amendment. Nor do I do not attribute it to the original public meaning of the Nineteenth Amendment. After all, for fifty years after the Nineteenth Amendment’s ratification, courts continued to assume that most forms of sex discrimination were subject only to a simple test of reasonableness. The most important judicial statement to the contrary, the Lochner-era decision in Adkins v. Children’s Hospital, was overruled in West Coast Hotel v. Parrish in 1937, which upheld a minimum wage law for women but not for men. Today we might believe that the best synthesis of the 14th and 19th amendments outlaws sex discrimination generally, but that is a contemporary construction, or rather, a post 1970s construction. This construction is *consistent* with original public meaning but it is not *required* by the original public meaning of the text. Moreover, this construction is not due to the Nineteenth Amendment; it is due to the movement for women’s rights fifty years later, a movement that, to be sure, was made politically possible by women’s gaining the right to vote in 1920.
A similar problem arises when Calabresi and Rickert argue that we should use original interpretive methods to show that sex discrimination was unconstitutional in 1868, citing John McGinnis and Michael Rappaport’s theory of original methods originalism. Calabresi and Rickert argue that reasoning by analogy was a well accepted method used by lawyers in 1868. If we reason by analogy to race discrimination, we see that discrimination against women was also unconstitutional.
But this is not what McGinnis and Rappaport mean by “original interpretive methods.” Their point is that we should ask how lawyers at the time of adoption would have used these methods to decide the most likely interpretation of the text. That is, the legal meaning of the text is the most likely interpretation that lawyers would have settled on at the time of adoption. And if well-trained lawyers would have assumed that the coverture rules were likely constitutional, then that is the legal meaning of the text. What we are not permitted to do is to apply original legal methods today, using our contemporary judgments about values. For if we do that, then we are delegating controversial value choices to contemporary decisionmakers, including contemporary judges. And this is what conservative originalists generally want to avoid.
Drawing analogies today between the Black Codes and laws discriminating against women is not simply a matter of reasoning about similar facts. Arguments from analogy usually involve (or smuggle in) a wide range of normative assumptions. In law things are similar or different in light of particular purposes or normative judgments. So even if we today think that the cases of race and sex discrimination are analogous, that does not mean that most well trained lawyers at the time of adoption would agree with us.
Applying McGinnis and Rappaport’s approach, the most likely interpretation in 1868 would probably be that coverture rules were consistent with the proposed amendment’s legal meaning. One reason why we know this is that supporters of the amendment said so, and opponents, who were trying to sink the measure, argued that it would have consequences that a supermajority of the public would probably not accept.
When Michael McConnell tried to show that Brown was consistent with original meaning, he did something quite different from Calabresi and Rickert. He did not rely solely on general statements of principle. Rather, he showed that many of the Congressmen and Senators who had voted for the Fourteenth Amendment specifically endorsed legislation that would have required desegregation of public schools; moreover, McConnell showed that they endorsed this legislation because they though it was constitutionally required by the proper interpretation of the Fourteenth Amendment. McConnell's article, in short, used original expected applications to justify a thick account of original meaning. He tried to connect the principles behind the amendment to the way its supporters would have applied it. By contrast, Calabresi and Rickert have not shown that a substantial number of framers or adopters of the Fourteenth Amendment believed that it would make common law coverture rules unconstitutional. Indeed, the supporters who spoke on the issue seemed to think that it would not have this effect. For Calabresi and Rickert’s account to succeed, they must show why McConnell’s method does not undermine their argument; in the alternative, they must show why McConnell's approach is incorrect.
One last point: Calabresi and Rickert argue that sex equality is required by the original public meaning of the text. But they do not tell us what forms of sex discrimination are caste or class legislation. In Abortion and Original Meaning I argued that the principles against caste and class legislation make criminalization of abortion unconstitutional under the equal protection clause.
Calabresi and Rickert express no opinion on this question. But surely it is the elephant in the room. Pro-choice advocates argue that criminalization of abortion imposes life altering obligations on women because of their duty as mothers. Without access to abortion, women will be pushed into greater and greater dependence on men or on the state. That is, pro-choice advocates argue that abortion is a modern form of class or caste legislation that singles women out for special burdens and reproduces their inferior status in society without sufficient justification.
Indeed, there is more than one elephant in the room. Calabresi and Rickert do not tell us what other kinds of discrimination are caste or class legislation. However, if we apply analogical reasoning today, and if we discard the adopters' incorrect factual views, why isn’t discrimination against homosexuals class or caste legislation? (As I’ve argued in Living Originalism, this is pretty close to what the Supreme Court concluded about Colorado’s Amendment 2 in Romer v. Evans.)
Thus, it would seem that Calabresi and Rickert’s next article should explain why Lawrence v. Texas and the unconstitutionality of the Defense of Marriage Act are required by original public meaning. I dare say that most conservative originalists would be surprised by this result. But it seems to follow from the basic arguments about original public meaning presented in Calabresi and Rickert's article. I suspect that many modern conservative originalists would conclude that if that is so, then there is something wrong with Calabresi and Rickert’s account of original public meaning. When they signed up for original meaning originalism, they certainly didn't sign up for that.
I see things differently, of course. I have no problem with concluding that discrimination against homosexuals violates the Constitution, but that is because I have a different account of original meaning originalism. In my view, discrimination against homosexuals violates the Fourteenth Amendment not because of the original public meaning of the Fourteenth Amendment, but because this is the best contemporary construction of the Amendment. Posted
by JB [link]