Original Understanding of Sex Equality (Was Wickard)

[Michael McConnell]

Jack may be right, but:
(1) What is the evidence that it was assumed that coverture laws did not
violated the new P& I clause? Were claims brought? If so, what was argued
and with what result?
(2) Bradwell and Slaughterhouse can be distinguished on the ground that
being a lawyer is not an ordinary occupation, but an officer of the court,
which might be viewed as a political right rather than a civil right. Is
there any basis in the opinion, or other authority, for rejecting this
distinction?
(3) The opinion Minor v. Happersett seems to cut against this view. Yes,
Minor rejects the suffrage claim, but doesn't it imply that women, as
citizens, are equally entitled to the privileges and immunities of
citizenship (whatever they may be)?

Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112


> -----Original Message-----
> From: Jack Balkin [mailto:jack.balkin at YALE.EDU]
> Sent: Tuesday, November 19, 2002 10:02 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Original Understanding of Sex Equality (Was Wickard)
>
>
> Randy, I'm afraid you can't get off that easily.  Even the
> most cursory
> investigation of the original meaning of the 14th amendment
> suggests that
> modern jurisprudence is inconsistent with it, whether we invoke the
> privileges and immunities clause, the due process clause, or the equal
> protection clause (or my favorite, the citizenship clause) as
> the source of
> constitutional rights.  The 14th amendment was designed to grant women
> civil equality, but not political equality.  (Hence section 2
> which assumed
> that states could deny women the vote).  However, civil
> equality for women
> was seen as completely consistent with common law rules of
> coverture (whose
> scope varied in different states depending on the reform
> legislation that
> had been passed). The common law rules denied women virtually
> all economic
> rights under the fiction that they consented to their loss upon
> marriage.  (Also single women who lived under the protection of their
> fathers and brothers had, in practice, very few economic
> rights).  I have
> seen no evidence that the language of the fourteenth amendment was
> understood at the time to mean that a state which retained common law
> coverture rules was in violation of any of the clauses of the
> Fourteenth
> Amendment.  (That's an argument from original meaning and original
> understanding, in case you are wondering).  The missing
> category was single
> women who lived alone, and technically, they were granted full civil
> equality by the Fourteenth Amendment, but such women were seen as
> anomalies; thus, Justice Bradley says in Bradwell that all
> women either are
> married or should be married.
>
> Bradwell and Minor reflect the tripartite distinction of
> political/civil/social equality, coupled with the understanding that
> coverture was consistent with civil equality.  When you
> compare Bradwell
> with Slaughterhouse, which was decided the same day, you can
> see that the
> dissenters in Slaughterhouse all assumed that while the 14th amendment
> created a right to pursue one's calling (reflecting
> Jacksonian, free labor
> and abolitionist ideology); this did not apply to women, and
> Bradley says
> so directly in Bradwell.  The only dissenter in
> Slaughterhouse who does not
> join the majority opinion in Bradwell is Chief Justice Chase,
> who was an
> abolitionist lawyer in the 1850's and probably thought that
> women had at
> least some right to pursue a calling under the 14th
> amendment.  Chase's
> views would be the most hospitable for an originalist trying
> to justify the
> Court's 1970's jurisprudence, but I really don't think that one can
> establish that his views were the general understanding of
> the text at the
> time of the ratification of the 14th amendment.
>
> During the period before the 14th amendment, abolitionist,
> suffragist, and
> Radical Republicans did argue for general principles of equal
> citizenship
> and universal suffrage for all, including women and black
> males.  However,
> those ideas did not win out in the drafting of the Fourteenth
> Amendment,
> whose language was carefully chosen to avoid the conclusions
> pressed by the
> suffragists and the most radical members of the victorious Republican
> party.  The text that we have reflects a compromise position
> compatible
> with the tripartite theory of citizenship, not the views of
> the suffragists
> or their radical allies in the Republican Party.  Therefore, under an
> original meaning interpretation of the Constitution, I think
> we have to
> conclude that the 1970's jurisprudence of the Court is not warranted.
>
> Jack Balkin
>
>
> At 12:00 AM 11/19/02 -0800, Automatic digest processor wrote:
> >From:    Randy Barnett <rbarnett at BU.EDU>
> >Subject: Re: Wickard
> >MIME-Version: 1.0
> >Content-Type: text/plain; charset="us-ascii"
> >Content-Transfer-Encoding: 7bit
> >
> >For me the rabbit in Sandy's hat is in his final parenthetical:
> >
> ><"Is Randy prepared to follow him (putting to one side the difference
> >between "original intent" and "original understanding")?">
> >
> >He knows I place a great deal of emphasis on this difference
> and that I
> >have defended Original Meaning Originalism in print at far
> more length
> >than most con law professors defend (or even identify) their favored
> >methods of interpretation.
> >
> >My view is that the meaning of the text must remain the same
> until it is
> >properly changed; that the meaning of the Constitution's
> words cannot be
> >changed unilaterally by the branches they are supposed to govern.
> >"Commerce" simply does not mean "economic" much less all
> "intercourse."
> >(And if it is "lawyering" to specify the activity upon which
> something
> >is supposed to have a "substantial effect," then I take this
> appellation
> >as a compliment.)
> >
> >On the other hand, I do not believe we are bound to fill in
> the gaps in
> >the text by relying on a usually hypothetical original intent I have
> >called "channeling the framers."  If this leads to a less
> constraining
> >meaning then so be it.  That is the largely salutary price paid by
> >employing a written constitution that often speaks in general terms.
> >Though the original meaning of the Constitution's language should
> >constrain current interpretation in ways that many constitutional law
> >professors would reject, I freely acknowledge that where the
> >Constitution is vague (as opposed to ambiguous) as it is in
> many crucial
> >places, we are obliged by the framer's choice of abstract language to
> >place a construction upon it when applying it to cases and
> >controversies.  This leaves a great deal of choice in our
> hands, but not
> >unlimited choice.
> >
> >As for his specific questions on the Equal Protection Clause of the
> >Fourteenth Amendment, when it comes to original meaning, I try not to
> >express publicly an opinion about matters I have not studied
> carefully.
> >I try to practice the same humility I was urging upon others in my
> >initial post.  Although I am content to rely on the scholarship of
> >others I respect, I need to study their writings to see if they are
> >presenting evidence of original meaning or of original intent.
> >
> >Having said this, so far as I know, the term "persons"
> included women at
> >the time the Fourteenth Amendment was enacted and that women
> were also
> >then "citizens."  It would take some doing to convince me that the
> >original meaning of these terms did not refer to women.  I also know
> >that women at the time of enactment were very distressed that Sec. 2
> >introduced sex into the Constitution for the first time by its use of
> >the phrase "male inhabitants," a term that was not used in Sec. 1.
> >
> >The thorniest constitutional issues raised by *applying* the
> Privileges
> >or Immunities and Equal Protection clauses to laws that take sex into
> >account cannot be addressed by originalism: which legal distinctions
> >between the sexes are reasonable and justified
> classifications and what
> >constitutes improper discrimination (e.g.. single sex
> bathrooms?  Single
> >sex schools?  Women in combat?  etc.)
> >
> >I do not believe we are bound by the framers of the
> Amendment's opinion
> >or "intent" about these matters.  And I find similar limits to
> >originalism when, for example, applying the original meaning of the
> >Ninth Amendment's protection of liberty rights to particular laws--a
> >passage I have studied closely for a very long time.
> >
> >Cheers,
> >
> >Randy
> >
> >_____________________________________________
> >Randy E. Barnett
> >Austin B. Fletcher Professor
> >Boston University School of Law
> >765 Commonwealth Ave.
> >Boston, MA  02215
> >617-353-3099 (phone)
> >617-353-3077 (fax)
> >http://www.RandyBarnett.com
> >http://www.LysanderSpooner.com (Lysander Spooner page)
> >http://www.bu.edu/rbarnett/SOL.htm (Structure of Liberty  page)
>