Justice Ginsburg made this statement while presiding over a moot court re-enactment of Bradwell v. Illinois, the famous case that said that a state could ban a woman from becoming a lawyer. This case turned on a narrow interpretation of the Privileges or Immunities Clause. The Court found that the Privileges or Immunities Clause does not protect the right to pursue a certain profession.
The above quote is fascinating, as Ginsburg clearly notes that the current state of the law is not due to the Constitution, history, text, but to a social movement–in this case the womens’ rights movement.
A few years ago I saw Justice Ginsburg re-enact a moot court of Mueller v. Oregon. The case was similar, in that it found that a law limiting the maximum number of hours women could work was constitutional. On its face, this case represents the Court (only 3 years after Lochner) upholding an economic regulation. But at its heart, largely aided by the Brandeis Brief, the Court found that women were inferior, and should not be able to work as much as they want. Quite a sexist, and paternalistic holding.
Do stop to take note how a deprivation of economic liberties in both Bradwell and Mueller, and the right to earn a living, has historically been tied together so closely with subjugation of certain classes of people–freedmen, women, and others.
Economic liberties are quite important. Whether Ginsburg is willing to concede this, or not, the right to earn an honest living was a key battle within the woman’s rights movement. It should not be so scorned as it is today.