Whelan v. Calabresi & Rickert on Originalism and Sex Discrimination

Last week, I noted the important new article by Stephen Calabresi and Julia Rickert making an originalist case for the unconstitutionality of sex discrimination.  In short, they argue that the 14th Amendment is best understood as prohibiting caste legislation, not just racial discrimination, and that it must be read in light of subsequent amendments, the 19th Amendment in particular.

Ed Whelan has responded to the Calabresi-Rickert article at length at NRO’s Bench Memos.  To put if briefly, he is not convinced.  His response consists of five parts: 1, 2, 3, 4, and 5.