Balkin on Calabresi and Rickert

December 8th, 2011

He really takes apart C&R’s article. There is so much here, I don’t even know what to excerpt! Jack compares this article to McConnell’s article saying Brown v. Board was justified by originalism, and says C&R fail to meet this lofty standard.

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.

I am less worried about their failure to talk to specifics of what kind of gender discriminations are banned by the Fourteenth Amendment, as this is but the first article–though I hope they address these “elephants” soon enough:

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 forthat.

I am working on a post that makes points along a similar line.