“Remember the ladies”—Originalism, Women, & the Fourteenth Amendment
Tessa Dysart, Assistant Director of Legal Writing and Clinical Professor of Law, University of Arizona, James E. Rogers College of Law, Editor-in-chief of the Journal of Appellate Practice & Process.
On February 2, 2022, the Center for Constitutional Design at Sandra Day O’Connor College of Law, Arizona State University, hosted a panel discussion on “Originalism and the Rights of Women.” I participated in the panel, advancing the argument that originalism can be squared with the protection of women under the Fourteenth Amendment.
Before launching into my argument, I want to touch on several general principles about originalism.
First, originalism is the leading theory of constitutional interpretation. I cite no higher authority than Justice Elena Kagan for this principle. At her confirmation hearing she famously said, “we are all originalists.” Now, of course, that is not the entire quote. Rather, she explained, “Sometimes [the Framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they said, what they tried to do. In that way, we are all originalists.” This first general principle is also bolstered by the fact that we now consistently see judges apply some form of originalism when approaching constitutional interpretation. One of the best examples of this is the case District of Columbia v. Heller, where both Justice Scalia in the majority and Justice Stevens in dissent purport to apply originalism to come to opposite conclusions about what the Second Amendment means.
Second, originalism doesn’t always lead to the same result. Different scholars applying different forms of originalism can come to differing results. In essence, originalists, acting in good faith, can disagree. One of the reasons for this, going back to Justice Kagan’s comments, is that sometimes the founders used broad, general language. Take, for example, the issue of slavery. Was the Constitution, as it was originally written, a pro-slavery or anti-slavery document? We know that many of the choices that the Founders made supported the institution of slavery. But, they were careful not to use the words slave or slavery in the Constitution. In fact, the words “race,” “slavery,” and “servitude” were only introduced into the Constitution with the reconstruction amendments. This vague language led to debates in the mid-1800s (and even earlier) over whether the Constitution supported slavery.
On one hand is William Lloyd Garrison who called the Constitution a “covenant with death” and an “agreement with hell.” On the other are Lysander Spooner and Frederick Douglass who disagreed that the text of the Constitution supported slavery. Although Spooner and Douglass wrote in the mid-1800s, as Christina Mulligan explains in her article Diverse Originalism, Black minister Absalom Jones articulated similar arguments in 1799.
Third, in understanding the text of the Constitution, we should look at original meaning, not Framer intent. Frederick Douglass put it well in 1860 when he said,
It would be the wildest of absurdities, and lead to endless confusion and mischiefs, if, instead of looking to the written paper itself, for its meaning, it were attempted to make us search it out, in the secret motives, and dishonest intentions, of some of the men who took part in writing it.
Looking at meaning is especially important in the context of the Fourteenth Amendment since the text can have applications beyond, as Jack Balkin has explained and Steven Calabresi has agreed, the “original expected applications.” Likewise, as Calabresi also explains, we apply the Constitution’s meaning to current facts, not the erroneous factual assumptions that some of the Framers of the Fourteenth Amendment may have had about women and their capacities.
In their lengthy article Originalism and Sex Discrimination, Steven Calabresi and Julia Rickert make a compelling argument that the Fourteenth Amendment is best understood as “a ban on all systems of caste,” and read in light of the Nineteenth Amendment, which “struck out the Constitution’s only explicit privileging of the male sex” in Section 2 of the Fourteenth Amendment, it can be read to prohibit sex discrimination. As I explain below, I agree.
When we look at the text of the Fourteenth Amendment, we see that the drafters used the words “person” and “citizen” in Section 1:
All persons born or naturalized in the United States . . . are citizens of the United States . . . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It isn’t until Section 2 of the Fourteenth Amendment that we see the drafters use words connoting gender:
Representatives shall be apportioned among the several States . . . . But when the right to vote at any election . . . is denied to any of the male inhabitants of such State . . . or in any way abridged, . . . the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
And, of course, we have the Fifteenth Amendment, which prohibits restricting the right to vote based on race.
I think that we can draw some conclusions from this language. First, the Framers knew how to use gendered language and did so in places. Second, the place where the Framers were most concerned about gendered language was in the section of the Fourteenth Amendment that addressed the political rights of citizens—namely the right to vote. Third, Section 1 of the Fourteenth Amendment, in securing privilege or immunities, equal protection, and due process, did not cover political rights, like the right to vote. If it did, Section 2 of the Fourteenth Amendment and the Fifteenth Amendment would be surplusage. Thus, Section 1 can be read to protect civil rights, not political rights. And in protecting those civil rights the Framers used general, not gendered, language.
The fact that many of the Framers were most concerned about race-based discrimination is irrelevant if the Framers chose to use broad language. In fact, Calabresi points out, the Framers rejected an earlier draft of the Fourteenth Amendment that was specifically targeted at race-based discrimination. The first draft of the Fourteenth Amendment used the word “race.” And women’s rights groups noticed the lack of gendered language in Section 1. Reva Siegel has explained how, in 1868, some women’s groups attempted to use the broad language to assert the right to vote.
Now, of course, the Supreme Court did not interpret Section 1 in this manner in early cases. One of the more notorious cases in this line is Bradwell v. Illinois, where Myra Bradwell was prevented from becoming a lawyer because she was a married woman. Part of what makes that case infamous is Justice Bradley’s rather pointed concurrence where he states: “The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” Suffice it to say, the Court got it wrong in Bradwell. Incidentally, the Court has been known to be wrong from time to time. The amendment process has been known to correct many of those wrongs, just as Section 1 of the Fourteenth Amendment corrected one of the wrongs in the Dred Scott decision. Justice Rutherford recognized the change that Nineteenth Amendment brought to the status of women in his decision in Adkins v. Children’s Hospital. As he explained:
In view of the great . . . changes which have taken place . . . in the contractual, political, and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost . . . to the vanishing point. In this aspect of the matter . . . we cannot accept the doctrine that women of mature age . . . require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.