Hot off the presses in Volume 90 of the Texas Law Review, The Supreme Court’s New Battlefield.
In Originalism and Sex Discrimination, Steven Calabresi and Julia Rickert make an unconventional claim—that the Fourteenth Amendment, as it was originally understood, prevents the government from enforcing laws that discriminate on the basis of sex. The authors fault Justices Ginsburg and Scalia, and everyone else for that matter, for failing to recognize two demonstrable things: first, that Section One of the Fourteenth Amendment was from its inception a ban on all systems of caste; and second, that the adoption of the Nineteenth Amendment in 1920 affected how we should read the Fourteenth Amendment‘s equality guarantee.
In this Response, I focus on the second, and in my estimation, more controversial claim: that the adoption of the Nineteenth Amendment in 1920—fifty-two years after the ratification of the Fourteenth Amendment—should affect the way the Fourteenth Amendment‘s equality guarantee was originally understood. It is incontrovertible that subsequent amendments to the Constitution affect earlier provisions. However, to contend as Calabresi and Rickert do, that the adoption of the Nineteenth Amendment should impact the original understanding of the Fourteenth Amendment—as an originalist, rather than as a popular constitutionalist argument—strikes me as somewhat anachronistic. Is this originalism at the right time?
To ascertain the original public meaning of a text, one should consider how the provision was understood at the time of its enactment. This task requires the selection of the proper time in which to seek the text‘s semantic content. Though there seems to be one important chronological limitation, both logically and jurisprudentially: any such inquiry would have to be temporally constrained, at the latest, by the date of the enactment of the law.
In many respects Calabresi and Rickert’s methodologies bear many similarities to Jack Balkin’s Living Originalism, in that both focus on the original meaning of a law but look to events that postdate the law’s enactment to give the text legal effect. This approach echoes a broader trend in originalism discerned by then-Solicitor General Kagan, who said today “we are all originalists.” Though we may all be originalists, we all do not do it the same way—in fact, some of us don’t even do it at the right time. I close by analyzing what is originalism when everyone is an originalist in his or her own way—especially when some of the originalism is unmoored from things that are original and rely on occurrences that postdate the enactment of the law.