Calabresi & Rickert Respond to Whelan on Originalism and Sex Discrimination

Earlier this month, I posted on Steven Calabresi and Julia Rickert’s new paper, “Originalism and Sex Discrimination.”  Published in the Texas Law Review, this article makes an originalist argument that gender discrimination, such as the exclusion of women from VMI, is unconstitutional.

This is an important article, which has already received notice from Lawrence Solum and Jack Balkin, among others.  It was also subject to a lengthy critique by Ed Whelan on NRO’s Bench Memos in five parts: 1, 2, 3, 4, and 5.  Calabresi and Rickert have written a response to Whelan which I am posting here.  It begins below and the continues after the jump.

[UPDATE: Ed Whelan has a brief rejoinder here.]

Steve Calabresi & Julia Rickert Response to Ed Whelan

We recently posted an article on SSRN entitled “Originalism and Sex Discrimination,” which  has now been published in the Texas Law Review. We argue in our article that the Fourteenth Amendment outlaws all systems of caste from the Black Codes to European feudalism to the Indian Caste system.  We also argue that after the ratification of the Nineteenth Amendment in 1920 giving women the right to vote, it was constitutionally correct to read the Fourteenth Amendment’s ban on caste as outlawing sex discrimination with respect to civil rights.  Our position is that originalists reading the text of the Fourteenth Amendment today need to synthesize it with the text of the Nineteenth Amendment.  We believe that the political right to vote which the Fifteenth Amendment extends to men of any race, and which the Nineteenth Amendment extends to women of all races, is at the apex of the Constitution’s hierarchy of rights while civil rights, which the Fourteenth Amendment protects form the base of the pyramid.  Children, aliens, and former felons have civil rights under the Fourteenth Amendment, but they do not have the political right to vote.  No group, however, in our opinion can be granted political rights without also acquiring civil rights under the Fourteenth Amendment.

In five posts on National Review, Ed Whelan, who is one of the most acclaimed conservative legal thinkers and activists of his generation, disagrees with our view.  Whelan agrees to assume along with us that the Fourteenth Amendment outlaws systems of caste, as a matter of original meaning, but he disagrees with us that traditional laws that banned married women from owning property, entering into contracts, or working as lawyers or bartenders set up a system of caste even if the Fourteenth Amendment bans systems of caste.  Whelan also argues that the Nineteenth Amendment ought not to be read synthetically with the Fourteenth because doing so renders the Fourteenth Amendment superfluous.  Whelan makes many additional arguments which we will try to address below, but this is the gist of his argument.

One of the principal criticisms of originalism that has been levied in recent years by Richard Posner, Cass Sunstein, and Jack Balkin and many others is that Scalia-style originalism cannot explain the extension in the 1970’s of the Equal Protection Clause to ban sex discrimination.  The best that originalists allegedly can do is to promise not to overrule sex discrimination cases that under originalism were wrongly decided in the first place.  Posner, Sunstein, and Balkin say originalism cannot explain not only the Supreme Court’s sex discrimination decisions; it also cannot explain Brown v. Board of Education (barring segregation in schools), Loving v. Virginia (ruling anti-miscegenation laws unconstitutional), or the incorporation of the Bill of Rights.   We disagree.  Michael McConnell has made a prominent originalist argument defending Brown v. Board of Education although not Loving v. Virginia.  Akhil Amar showed in The Bill of Rights:  Creation and Reconstruction how originalism leads to incorporation of the Bill of Rights.  Our mission is to show that originalism leads to Justice Ginsburg’s opinion in United States v. Virginia (the VMI case).  In so arguing, we do not seek to justify or to make any excuses for Roe v. Wade – a case which Professor Calabresi thinks is wrongly decided.   Professor Calabresi regards Roe as the worst Supreme Court decision of his life-time because the question of when life begins during the first trimester of pregnancy is a political question which should be left to elected legislatures and elected executive officials to sort out.  In Professor Calabresi’s view, the role of the federal courts under our Constitution is not to act as agents of social change.  The power of judicial review is as Justice Scalia believes a power to ratify decisions already made in the constitutional text, or in our tradition, or at a minimum where there is an Article V consensus of three-quarters of the States.  The adoption of the Nineteenth Amendment in 1920 reflected an Article V consensus of three-quarters of the States. Ms. Rickert agrees that federal courts should not be the agents of social change, but she does not think that legislatures have the power to limit the freedom of some by calling whatever they want a human being and insisting that it be protected. Calling a single cell a human being doesn’t even pass rational-basis scrutiny in her view. Additionally, she feels strongly that the Constitution permits courts, in appropriate cases, to consider scientific evidence (even social science) when applying constitutional rules.

Let us turn then to Whelan’s first argument which is that sex discrimination is not a form of caste because being a woman does not make one a member of a hereditary caste.  Some children of women will be men and they will not inherit their mother’s lower social status.  This point is true as far as it goes, but it overlooks:  1) the fact that women do literally inherit their sex from their parents;  and 2) the fact that sex is an immutable characteristic.  We would not say that every immutable trait one inherits from one’s parents is, when legislated upon, a sign of the presence of caste, but we think an effort to give greater property, contract, and employment rights to those with blond hair and blue eyes would be quite suspect under the Fourteenth Amendment.   It is an historical fact that women could not generally vote until 1920 and many laws and constitutional provisions that were passed prior to 1920 remain binding law.  It is also an historical fact that women were denied equal property, contract, and employment rights until the 1960s and 1970s.  One need not be a feminist to conclude that there is something very odd about a legal regime built on the idea that women can be trusted to vote for President, Senator, and Governor, but that women cannot be trusted to make contracts, own property, or be employed in professions ranging from the practice of law to being a bartender. Whelan says that laws that disadvantage women and limit their choices are not stigmatizing, but we think he is obviously mistaken there.

In a related disagreement, Whelan takes issue with our evidence that the word “caste” was used by some to describe the status of women at the time the Fourteenth Amendment was being debated. We provided examples of this to show that sex-as-caste is not a modern invention. Whelan suggests this evidence is of no value because the speakers  must have been trying to worm their way into protection under the Fourteenth Amendment. But there are statements, though not in our article, that Whelan may find more persuasive because they were made  prior to the Civil War, for instance, an 1859 statement by John Bingham (recently brought to our attention by Prof. Gerard Magliocca): “I protest, against the attempt to mar that great charter of our rights, almost divine in its conception and in its spirit of equality, by the interpolation into it of any word of caste, such as white or black, male or female. . . .” We do not point to such evidence to show that everyone in the nineteenth century thought women were a caste; rather, we think it shows that there is nothing about the definition of caste in the nineteenth century that makes it inherently inapplicable to women. (And, contrary to one of Whelan’s assertions, we provided a number of nineteenth-century dictionary definitions of “caste.” See footnote 72.)

Professor Calabresi thinks that the question whether sex discrimination is a form of caste is a question of objective social meaning.  What matters is not what we or Whelan think constitutes caste but what a majority of Americans in three-quarters of the States think.  According to Calabresi, Article V tells us that new constitutional law can be made only where three-quarters of the States are in consensus.  There was a consensus of three-quarters of the States in 1920 that sex discrimination as to political rights should be constitutionally proscribed.  Ms. Rickert disagrees that an Article V consensus should be required in order for the Supreme Court to find that something is a form of caste.  She thinks that a form of discrimination either is or is not a form of caste and that the justices of the Supreme Court ought to say as much when they are deciding cases.

Professor Calabresi thinks that it is also relevant to our understanding of caste that the Civil Rights Act of 1964 barred sex discrimination in employment and that in the 1970s the federal government admitted women for the first time at prestigious national military academies like West Point and Annapolis.   He thinks this congressional action further eviscerates the State of Virginia’s position in the VMI Case.  Professor Calabresi notes that in its Eighth Amendment caselaw, the Supreme Court regularly does a head count of the fifty States in trying to figure out whether certain applications of the death penalty have become cruel and unusual even though they were originally allowed.  In doing this the Court claims it is not a social change forcing agent but that it is merely applying a current national consensus.  Professor Calabresi thinks the objective social meaning of the Fourteenth Amendment’s ban on caste must be found not in ours or Whelan’s personal views but in the fabric of enacted law.  We both agree with U.S. Supreme Court Justices Sutherland, Van Devanter, McReynolds, and Butler in Adkins v. Children’s Hospital in 1923 that sex discrimination as to civil rights became impermissible once the Nineteenth Amendment was adopted in 1920.  The majority in Adkins correctly read the Fourteenth Amendment so as to synchronize it with the Nineteenth.

Whelan argues second that under our reading of the Constitution, the Fourteenth Amendment becomes superfluous.  If granting racial minorities and women the right to vote in the Fifteenth and Nineteenth Amendments was sufficient to give them equal civil rights then why did we ever need the Fourteenth Amendment in the first place?  There are several responses to Whelan on this.  First, the Fourteenth Amendment protects the civil rights of important people who are not voters such as children, aliens, and convicted felons.  Second, it is the Fourteenth Amendment that outlaws caste so without that Amendment it would be legal to set up non-racial and non-sex based castes as was done in Europe, with feudalism, and in India, with the caste system there.  Third, we do not think the Fifteenth and Nineteenth Amendments standing alone would have protected the civil rights of African-Americans and women.  It is the synthesis of the no-caste rule of the Fourteenth Amendment along with the Fifteenth and Nineteenth Amendment’s designation of race and sex as suspect classifications that renders the Black Codes and the unequal treatment of women as to civil rights unconstitutional.  The Constitution needs to be read holistically.  Clauses in one part of the document inform the meaning of clauses in other parts of the document and later adopted clauses “amend” everything that went before them.   Whelan’s view that sex discriminatory laws should be upheld if there is a rational basis for them reflects the New Deal Supreme Court’s view that the Constitution should be trashed as exemplified in Wickard v. Filburn or United States v. Carolene Products especially in Footnote 4.  The New Dealers barred judicial review generally in social or economic matters unless the Bill of Rights was violated or unless the rights of a discrete and insular minority were violated.  Since women are not discrete and insular, Justice Felix Frankfurter had no trouble saying in the 1948 case of Goesaert v. Cleary that Michigan could prohibit women from being bartenders because there was a rational basis in support of the law.  We think Justice Rutledge’s dissent in Goesaert, joined by Justices Douglas and Murphy, is more compelling.  From the Adkins decision in 1923 until its overruling in 1937, the Supreme Court’s caselaw recognized the transformative effect of the Nineteenth Amendment on the Fourteenth.  The only period of time in the ninety-one years since the ratification of the Nineteenth Amendment when sex discriminatory laws were routinely upheld was in the twenty-three years between Goesaert in 1948 and Reed v. Reed in 1971.  We are not fans of Lochner v. New York and are ourselves influenced by the New Dealers’ constitutional principles but not to the extent of overlooking the transformation wrought by the Nineteenth Amendment.

This leads us to a final point of disagreement with Whelan, at least for now, which is his claim that the Nineteenth Amendment “only” gave women the right to vote and not other political rights like the right to hold office or to sit on juries.   Again, we disagree.  As Professor Vik Amar has written, jurors vote on cases just as voters vote for politicians.  It is clear that the Nineteenth Amendment’s literal ban on all-male juries would seem to be implicated.  But the language of the Nineteenth Amendment goes even farther than that.  The Amendment says “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”  The use of the verb “abridge,” which is read sweepingly when it is used in the First Amendment context with its overbreadth doctrine, is to us telling.  Not only can States not deny the right to vote on the basis of sex, they also cannot even abridge or burden the right to vote on the basis of sex.  It seems to us that a ban on women running for office would “abridge” or “burden” the power of their votes on account of sex.  We thus think the Nineteenth Amendment did secure to women all political rights. Whelan’s discussion of this issue also criticizes as insufficient our evidence that the Nineteenth Amendment was understood by those who voted for it to have implications beyond guaranteeing women the vote. But he ignores entirely our evidence that the Nineteenth Amendment was viewed by both its supporters and opponents as a continuation of the Reconstruction Amendments: Opponents warned that the Nineteenth Amendment would bring on a “second Reconstruction,” while supporters urged swift passage of a measure they believed should have become part of the Constitution when the Thirteenth, Fourteen, and Fifteenth Amendments were adopted. If women had been guaranteed the vote in 1868, would Whalen still contend that the Fourteenth left them out?

Whelan also argues that the Nineteenth Amendment did not, as we claim, return the Constitution to sex neutrality by excising the word “male” in Section 2 of the Fourteenth Amendment. He argues that if a state passed a law denying everyone over 75 the vote, Section 2 of the Fourteenth Amendment would, even today, punish states on behalf of the disenfranchised men but not the disenfranchised women. But we are convinced that the Nineteenth Amendment, which prohibits both denials and abridgements of the right to vote based on sex, does not countenance punishing states for denying men the vote but not for denying women. Also on the topic of Section 2, Whalen says that he does not understand our assertion that it was difficult to read Section 1 as prohibiting all forms of sex discrimination as to civil rights when Section 2 itself discriminated against women as to political rights. The reason, as we explain in our article, is that laws preventing women from making contracts and being lawyers were not so clearly arbitrary when the Constitution itself seemed to say that women were less fit for decision-making than men.

Whelan concludes by scolding us for applying Fourteenth Amendment equal protection doctrine to the federal government even though the Fifth Amendment has no equal protection clause.  Whelan is right to complain about Fifth Amendment substantive due process, but he never asks whether Congress has the enumerated power to discriminate on the basis of sex in the first place.  The federal law requiring that only men age 18 or older, and not women, must register for the draft is an exercise of congressional power to pass laws that are necessary and proper for carrying into execution its power to raise armies.  Surely it would not be “necessary and proper” for Congress to draft an all-African American or an all white army?  Wouldn’t we say that the content of the Necessary and Proper Clause had been altered by the synthesis into the Constitution of the Fourteenth and Fifteenth Amendments.  Likewise, with all-male draft registration, the Nineteenth Amendment should affect our conclusion as to what means are necessary and proper and which means are not.  Unless there is some respect in which the federal government ought to be treated differently from the States with respect to race or sex discrimination, we think such legislation is disallowed.

Finally, we see nothing in the VMI article that Whelan cites that calls into question the statements a VMI spokesman made to Ms. Rickert about the successful integration of the school. That article nowhere indicates that the course of study at VMI (i.e., the curriculum) or the “adversative method” have been altered by the presence of women. Justice Scalia feared that the experience of men at VMI would be fundamentally altered by the presence of women, and Whelan has not shown that those fears have been realized. We take no position on the propriety of VMI’s recent choice to evaluate women’s and men’s physical fitness with reference to different standards of athletic performance, but we do want to make clear that we have never taken the position that women on average are as large and muscular as men on average. Regarding the draft, it may well be that more men than women can meet the physical requirements of combat troops, but to exclude all women from having to register for selective service while requiring all men to register makes little sense, particularly when the article on VMI that Whelan points to shows that a fair percentage of college-aged women can physically outperform a fair percentage of college-aged men. Furthermore, we do not think the constitutional ban on sex discrimination works exactly the same way as the constitutional ban on race discrimination.  Just as the Black Codes differed from European feudalism and the Indian Caste system, so too does sex discrimination differ from race discrimination.

We should add that we dedicated our article to Justices Scalia and Ginsburg because we admire them both.  We think Scalia-style originalism is consistent with the outcome in VMI.