In a way, Calabresi and Rickert view the anti-caste principle of the Fourteenth Amendment similarly to the “cruel and unusual” principle of the Eighth Amendment.
When the Eighth Amendment was first ratified, the principle that cruel and unusual punishments should be banned was written into the Constitution. However, the framers of the Eighth Amendment were mistaken in their beliefs that flogging, for example, was not cruel and unusual punishment. Today, we know better. Because the Framer of the Eighth Amendment were simply mistaken in their facts, and becuase today we know that such practices are in fact cruel and unusual based on the original understanding of the Eighth Amendment.
In much the same way, the Fourteenth Amendment imposed an “anti-caste” principle that banned legislation that discriminated on the basis of castes. When the Fourteenth Amendment was first ratified, this principel was written into the Constitution. However, the framers of the Fourteenth Amendment were mistaken in their belifs that making legislative decisions based on gender did not constitute disciriminating on the basis of a caste. Today, we know better (or more precisely following the ratification of the 19th amendment, we knew better). Because the framers of the 14th Amendment were simply mistaken in their facts, and because today we know that making legislative decisions based on gender is in fact discriminating on the basis of the caste, such practices are unconstitutional–based on the original understanding of the Fourteenth Amendment’s anti-caste principle.
This is the jurisprudence of Justice Brennan; not that of Justice Scalia.
And yes, I just compared the co-founder of the Federalist Society to Justice Brennan. Lord help me.