Original Understanding of Sex Equality

[Jack Balkin]

David, not even my colleague Reva Siegel, who has done the most extensive
research on the Nineteenth Amendment of any American legal scholar that I
know of, argues that the original understanding of the Nineteenth Amendment
established civil equality for women in all respects.  This is the sort of
argument that a nonoriginalist might make, but not an originalist.  Justice
Sutherland clearly did believe that freedom of contact principles should
apply to women-- he was an advisor to several women's rights
activists.  But we cannot infer from his views the original understanding
of the Nineteenth Amendment.  Indeed, shortly after the Amendment was
passed, many courts refused to extend the Amendment to guarantee full
political equality for women, for example, in jury service.

As for the ERA, this is the sort of argument that a non originalist would
make, and that originalists would likely criticize them heavily for
making.  If originalists are going to argue that original understanding
should include all amendments that should have passed but didn't, I don't
think originalism is going to constrain judges.  I thought the whole point
was that the meaning of the Constitution is not supposed to change until
there has been an Article V Amendment.   Again, I put it to the
originalists in the crowd.  How *do* you explain the legitimacy of the
1970's decisions consistent with originalist views?

Finally, David, I do agree with you that the ERA was defeated *in part*
because it gave opponents the easy excuse that the Court was already
creating guarantees of sex equality, but I don't think it follows that if
the Court had stayed its hand that the ERA would have passed.  Roe v. Wade,
I suspect, did much more to energize opposition to the ERA than the 1970's
decisions did to undermine the ERA.

Jack Balkin


At 12:00 AM 11/21/02 -0800, you wrote:
>From:    David Bernstein <DavidEBernstein at AOL.COM>
>Subject: Re: Original Understanding of Sex Equality (Was Wickard)
>MIME-Version: 1.0
>Content-Type: multipart/alternative;
>boundary="part1_19e.c3715f6.2b0cef0e_boundary"
>
>Two points:
>
>(1) Justice Sutherland made the plausible argument in  Adkins v.
>Children's Hospital that with the 19th Amendment, the nation had clearly
>spoken that women are entitled to full civic equality, thereby giving them
>the same rights under the 14th Amendment as men.
>
>(2) Had the Supreme Court not interpreted the 14th Amendment to include
>women's equality in the 1970s, the ERA would likely have passed, as I
>recall a primary argument against it was that women already had
>constitutional equality, and a new amendment was simply an invitation to
>mischevous judicial activism.
>
>David E. Bernstein
>Associate Professor
>George Mason University
>School of Law
>http://mason.gmu.edu/~dbernste
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