Explaining that “I count myself as an originalist too,” Justice Ginsburg demonstrated that the our nation’s constitutional history – from the Declaration of Independence, to the invocation in the Constitution’s Preamble’s of “We the People,” to the Fourteenth Amendment’s universal guarantees of equality, and, finally, to the Nineteenth Amendment’s protection of a woman’s right to vote – supports the Court’s cases striking down state laws that denied women equal citizenship stature.   Justice Ginsburg, in particular, emphasized that the Fourteenth Amendment’s protection of equality for all persons, and in particular the framers’ prohibition on legislation creating inferior castes, read together with the Nineteenth Amendment’s specific protection of women’s equal citizenship, fully supported Reed and its progeny.

David Gans agrees, surprisingly:

Justice Ginsburg’s remarks echo CAC’s new report, Perfecting the Declaration, released earlier this week, which examines the arc of constitutional progress:  the principle of equality first stated in the Declaration of Independence, perfected in the Equal Protection Clause of the Fourteenth Amendment, and further illuminated in the Nineteenth Amendment and other Amendments.  As we demonstrate in this report, and as Justice Ginsburg rightly recognized in her remarks, the text of the Constitution as well as the full sweep of our nation’s constitutional history support a broad reading of the text’s command of equality for all persons.

Is this really “originalism”? Reading together documents written two-hundred years apart authored by different people during different times? Seems quite fluid to me? This sounds in something I’ve been kicking around called guidepost originalism, where courts look to historical practices over long periods of time to ascertain constitutional meaning. However, this hardly sounds in originalism of the sort usually practiced.

Update: ABC News has the full quotation from RBG. Sounds even less “originalist.”

“I have a different originalist view. I count myself as an originalist too, but in a quite different way from the professor,” she said. “Equality was the motivating idea, it was what the Declaration of Independence started with but it couldn’t come into the original Constitution because of the odious practice of slavery that was retained,” she said. “I think the genius of the United States has been from the original Constitution where ‘we the people’ were white property-owning men to what it has become today. That it is ever more embracive including Native Americans … people who were once held in human bondage, women, aliens who come to our shores.  So ‘we the people’ has a marvelous diversity which it lacked in the beginning.”

Update #2: Steve Calabresi and Julia Rickert have a paper on SSRN titled Originalism and Sex Discrimination:

ustice 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.

I like their dedication:

We dedicate this Article to U.S. Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia, from whom we have both learned so much.

And this quote from RBG seems to conflict (or not) with her above quote:

And Justice Ruth Bader Ginsburg once wrote that ―[b]oldly dynamic interpretation, departing radically from the original understanding, is required to tie to the [F]ourteenth [A]mendment‘s equal protection clause a command that government treat men and women as individuals equal in rights, responsibilities, and opportunities.‖2

This paragraph–how the 19th Amendment should affect the original meaning of the 14th Amendment–is curious:

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 claim that the application of originalist interpretive methods justifies the VMI decision.

They turn to Balkin’s expected originalism.

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 claim that the application of originalist interpretive methods justifies the VMI decision.

…

Did the Framers and Ratifiers of the Fourteenth Amendment understand sex discrimination to be a form of caste or of special-interest class legislation? Certainly not. But then they also did not understand when they enacted the Civil Rights Act of 1866 banning race discrimination in making contracts that they were also banning antimiscegenation laws, which made it a crime for a white person to contract to marry a black person.29 The point is that sometimes legislators misapply or misunderstand their own rules. For this reason, although the Framers‘ original expected applications of the constitutional text are worth knowing, they are not the last word on the Fourteenth Amendment‘s reach. Even the Framers themselves knew this, which is precisely why some of them worried that the Amendment would have undesirable effects.30

And this conclusion:

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.15

This part how the 19th Amendment has affected the 14th Amendment sounds in what I have referred to elsewhere as guidepost originalism.

The change in our understanding of women‘s abilities has been constitutionalized by a monumental Article V amendment—the Nineteenth Amendment, which in 1920 gave women the right to vote.41 By 1920, two- thirds of Congress and three-quarters of the states had concluded that each woman should have the same voting rights as each man. Sex discrimination, although not generally understood to be a form of caste in 1868, had come to be recognized as a form of caste by 1920, when the Nineteenth Amendment was ratified.42 The definition of caste had not changed; rather, the capabilities of women and the truth of their status in society had come to be better understood and that new understanding was memorialized in the text of the Constitution.43

The Nineteenth Amendment‘s supporters believed they were making women equal to men in all rights by securing women the right to vote.44 This makes sense: those who hold political rights have attained the highest level of autonomy that organized society has to offer. The idea that women would be able to vote but would still in some respects be second-class citizens is an implausible synthesis of the constitutional text of the Fourteenth Amendment with the constitutional text of the Nineteenth Amendment. It is not plausible to read the Constitution as guaranteeing women their right to vote for President, Congress, governor, and state legislative positions but also as allowing the state to forbid women from making a simple contract without their husbands‘ consent. The words of the Constitution have to be read holistically and not by snipping off a clause and analyzing it in isolation.45 The Nineteenth Amendment ought to inform our reading of the general proscription on caste systems that was put in place by the Fourteenth Amendment, just as the Fourteenth Amendment itself informs our reading of the Eleventh Amendment.46