In an important new paper, forthcoming in the Texas Law Review, Northwestern law professor Steven Calabresi and Julia Rickert argue that the conventional originalist view on sex discrimination is wrong, and that the Supreme Court’s sex discrimination decisions (if not their rationales) are largely consistent with a true originalist understanding of Section One of the Fourteenth Amendment. Specifically, they argue that Section One is best understood as a prohibition on caste legislation and that the meaning of the Amendment must be considered in light of subsequent constitutional amendments, the Nineteenth Amendment in particular. Thus understood, Section One prohibits state-sponsored gender discrimination and can even justify the Court’s decision in the VMI case.
This article is Lawrence Solum’s “Download of the Week,” and with good reason, as it is sure to prompt significant discussion and debate. As Solum would say, “Download it while it’s hot!”