An Originalist (Lite) Argument for 14th Amendment Equal Protection for Women

In an upcoming paper, "Originalism and Sex Discrimination," a well-established Federalist Society scholar teams with a new law grad to take on the "truism" that originalism cannot justify the Supreme Court‘s sex discrimination cases of the last forty years. Prof. Steven Calabresi and Julia Rickert dedicate their paper to Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia, "from whom we have both learned so much." The paper argues that the history of the 14th amendment establishes that it forbids the imposition of caste systems and class-based lawmaking, not just discrimination based on race. While conceding that the Framers and ratifiers of the 14th amendment did not understand sex discrimination to be a form of caste or of special-interest class legislation, the paper argues that original expected applications of a text are not the last word on its reach.