Friday, January 14, 2011

Balkin on Scalia and Sex Equality
Mike Rappaport

In Scalia on Sex Equality, Jack Balkin criticizes Justice Scalia's view that the original meaning of the 14th Amendment does not protect against gender discrimination.  Balkin makes at least two points that I question.  First, he argues:

The Constitution was subsequently amended [after the 14th Amendment]. After the nineteenth amendment, the common law coverture rules made little sense. If married women had the right to vote, why did they not have the right to contract or own property in their own names? If we read the Fourteenth Amendment's guarantee of civil equality in light of the Nineteenth Amendment, the guarantee of sex equality should apply to both single and married women. The conservative court during the Lochner era thought as much in a case called Adkins v. Children's Hospital, decided immediately after the ratification of the Nineteenth Amendment.

Although various commentators make this argument -- that somehow the 19th Amendment changes the meaning of the 14th -- it seems rather undeveloped.  If we assume that the 14th Amendment did not protect women (or married women) against discrimination,then it is not clear how the 19th Amendment changes that.  The 19th Amendment could have easily included a general gender nondiscrimination provision, but it did not -- it was limited to voting.  How it somehow amends the 14th Amendment needs to be explained.

Second, Balkin writes:

Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution's framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964's ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia's arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today's world (emphasis added by Mike Rappaport).

Balkin is being unfair to Scalia here.  Scalia did not say there is "nothing in the original understanding" to forbid Title VII.  He said:

You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

All Scalia meant was that the Constitution did not forbid legislation to protect women.  Balkin's version makes it sound like Scalia is saying more.  After all, Scalia could simply be saying that state laws could protect women. 

If we assume that Scalia is talking about federal legislation, Balkin's point is more correct but still misleading.  It is true that the full scope of Title VII could not be enacted under the original meaning of the Constitution.  But if the Constitution had not been expanded during the New Deal and the Warren Court, there is little doubt that it would have been amended to expand federal power.  (In fact, if originalism had been followed, it is extremely likely that some version of the Equal Rights Amendment would have passed, but that is a subject for a separate post.  See here at page 30.)  Scalia accepts the New Deal revolution (as do virtually all of the justices), and so these amendments do not occur because the Court has already done the amending.  But in an original meaning world, the Constitution would likely allow federal legislation to protect against sex dicrimination.  On this question of judicial updating superseding the constitutional amendment process, see here.

In the end, then, it is misleading to criticize originalism for not updating the Constitution when it is nonoriginalism that has made it so difficult to do so.

Crossposted at the Originalism Blog.

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Mike Rappaport


I think you are right, that as an ahistorical hypothetical, if SCOTUS had consistently used a rigid textualist interpretation of the constitution there would be more constitutional amendments than there are now. The decision by the court to enshrine the constitution as a sacred document while giving way in the face of politics to reinterpret the document appropriately only benefits the judiciary. On the other hand, the judiciary is an interest group in a political context and it can be expected to protect its own prestige by arrogating to itself the power to preemptively amend the constitution.
However, politics is the art of the possible, and putting the activist judiciary away now would require a political consensus, which appears distant.

Posted by: molly | Jan 14, 2011 10:28:15 AM

"Undeveloped" is charitable. Balkin's telling turns the Nineteenth Amendment on its head. The fact that the Constitution had to be amended to confer the right to vote on women fairly undermines the notion that the Fourteenth was thought to confer a vast body of rights on women (single or otherwise). The Nineteenth Amendment's very existence lends a great deal of credence to Scalia's interpretation of the Fourteenth with respect to sex discrimination.

So Balkin, because he insists that he too is an originalist of a sort, is constrained to argue that the enactment of the Nineteenth Amendment actually altered the meaning of the Fourteenth. But the why and how of that alteration is unexplained beyond his rather spare discussion to coverture. From coverture, Balkin apparently deduces that the Nineteenth has far greater significance than its actual text conveys -- a sort of penumbral reading of the Nineteenth -- that retroactively exapanded the scope of the Fourteenth.

I do not see why Balkin, or anyone else, finds this intellectual contortionism satisfying. The new liberal originalism just seems like Living Constitutionalism 2.0 to me.

Posted by: The Curmudgeonly Ex-Clerk | Jan 14, 2011 10:31:01 AM

To the contrary, Molly, a political consensus to remove an activist judiciary is right behind you. It is a sea held back by a dyke of leftists, which may hold, or may not. Distant it isn't.

Posted by: james wilson | Jan 14, 2011 10:45:10 AM

I am pretty far outside the "living constitution" camp, but I don't have a problem with the courts catching up to some degree of social evolution in the way of recognizing women having equal rights, and Equal Protection covering blatant legal discrimination, and upholding the legislative power to legislate antidiscriminaton laws as to nongovernmental action.

Posted by: km | Jan 14, 2011 11:59:34 AM

Have you read Heller?

Posted by: molly | Jan 14, 2011 3:34:05 PM


Courts "catching up with some degree of social evolution" in terms of how they construe the Constitution actually sounds exactly like Living Constitutionalism. What am I missing?

Posted by: The Curmudgeonly Ex-Clerk | Jan 14, 2011 3:51:12 PM

He means that he's a conservative but doesn't want to bite the bullet and spend ten years rehashing issues like women's liberation, the civil right's movement, much of the regulatory state, the minimum wage, etc. That is a tiny sample of the can of worms a genuinely originalist approach would open. If you want to go all out you could also end up questioning SCOTUS's right to final interpretation of the constitution. Its profoundly arrogant to insist that the real world of compromise and tacit deals which actual living people have come to rely on give way so that the law will be exactly what is written down. Luckily, most people who argue for originalism basically mean they want a few rightwing points of law snuck in to the living constitution. At least that's what the entire left, and a good portion of the right think.

Posted by: molly | Jan 14, 2011 4:59:28 PM


Being an originalist really doesn't have any of the implications you suggest. First, even if originalism entailed rehashing those issues, there's no reason to think that Congress and state legislatures would overturn or revisit issues that are long-settled. In other words, if the Court held today that the Fourteenth Amendment no longer covered sex discrimination, it is not as if society would suddenly revisit the issue tomorrow.

Second, with the possible exception of academics, almost all originalists are, like Scalia himself, so-called faint-hearted originalists. That is, they do not advocate using an originalist understanding of the Constitution to revisit long-settled issues. For example, if I recall correctly, even in his dissent in the VMI case, Scalia still thought the correct test to apply to sex discrimination was the intermediate scrutiny traditionally applied in that context.

Posted by: The Curmudgeonly Ex-Clerk | Jan 15, 2011 9:45:19 AM

Originalist opinions that chisel away at federal jurisdiction does imply rehashing old issues. Anyone with standing could and would argue against federal laws based on new jurisdictional opinions they didn't like on constitutional grounds. Any decisions based on constitutional federal jurisdiction would of course render the federal legislature moot. The court just overturned two hundred years of precedent in Heller, so claims of stare decisis just aren't convincing. If the 14th amendment were originalized tomorrow, federal gender discrimination laws and their causes of action would fail. There is no guarantee the states would enact gender discrimination laws that were equally broad, although I'm sure they would in fact enact gender discrimination laws.
Faint-Hearted originalism basically implies a court that pulls its punches for political expediency. Opinions are based on policy and politics. This is understood by the left, and seen as basically a mirror image to the left's activism.

Posted by: molly | Jan 15, 2011 12:34:00 PM

Molly, you are right and you are wrong. You are correct in stating that that adherence to the original meaning of the Constitution, would destroy the legal underpinnings of the regime instituted by the Democrat Party in the 1932-1968 era. You are wrong in thinking that would be a bad thing. That regime, like every regime instituted by men, is coming to an end. It is going bankrupt, and it must be replaced.

Take social security. Its constitutional basis is, to the eyes of this strong hearted originalist, suspect. But whether or not it is lawful, it is broke and getting broker. Solving its constitutionality is far easier than solving its insolvency.

Posted by: Walter Sobchak | Jan 16, 2011 6:42:06 PM