Texas Law Review
See Also
Volume 91
Response
Originalism, Sex Discrimination, and Age
Discrimination
Eric S. Fish*
This short piece considers whether the Twenty-sixth Amendment, which
bans age discrimination in voting rights, should be read back into the
Fourteenth Amendment to prohibit age discrimination in civil rights. It is a
response to Calabresi and Rickert’s Originalism and Sex Discrimination, which
similarly considers whether the Nineteenth Amendment should be read back into
the Fourteenth Amendment to prohibit sex discrimination in civil rights. This
piece shows, based on the enactment history of the Twenty-sixth Amendment,
that it cannot be interpreted to expand the Fourteenth Amendment’s prohibitions
to include age discrimination. This would seem to create a problem for
Calabresi and Rickert’s argument that all expansions of political rights
necessarily imply expansions of civil rights. However, that problem disappears
if one drops their formalistic a fortiori theory, and instead views the Nineteenth
Amendment as merely rebutting the factual assumptions behind the position that
sex discrimination is constitutional.
Introduction
In Originalism and Sex Discrimination, Steven Calabresi and Julia
Rickert argue that the Fourteenth Amendment prohibits sex discrimination as
a matter of original meaning, despite evidence that its framers thought
otherwise.1 In doing so, they join a growing number of constitutional
* Yale Law School class of 2011.
This piece was conceived and written while the author was a
Yale Law School Public Interest Fellow.
1. Steven Calabresi & Julia Rickert, Originalism and Sex Discrimination, 90 TEXAS L. REV. 1
(2011). Calabresi and Rickert deliberately avoid specifying which constitutional clause is the
source of the Fourteenth Amendment’s equality guarantee, noting that it could be the Equal
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scholars who claim that the Nineteenth Amendment’s ban on gender
discrimination in voting rights updated the Fourteenth Amendment’s broader
civil rights guarantees to include gender.2 This response piece considers
whether Calabresi and Rickert’s argument applies to the Twenty-sixth
Amendment, which bans age discrimination in voting rights.
These two Amendments have identical structures and nearly identical
texts.3 Why, then, should the Twenty-sixth Amendment not similarly be read
back into the Fourteenth to prohibit age discrimination in civil rights for
those over eighteen? Michael C. Dorf has argued that it should, claiming that
age discrimination is “presumptively invalid” under the Fourteenth
Amendment because the Twenty-sixth Amendment’s ban on age
discrimination in voting affects how the Equal Protection Clause is
interpreted.4 Under that reasoning, many laws that discriminate by age—for
example those prohibiting alcohol consumption by people under twentyone—would presumably be unconstitutional.5
As this piece will show, however, the Twenty-sixth Amendment cannot
be read as extending the protections of the Fourteenth Amendment to age
Protection Clause or the Privileges or Immunities Clause. Id. at 20–24. For the sake of simplicity,
this response piece will assume it is the Equal Protection Clause.
2. See Akhil Reed Amar, Women and the Constitution, 18 HARV. J.L. & PUB. POL’Y 465, 471
(1995) (“[The Nineteenth Amendment] also can be understood as establishing a kind of a fortiori
argument: if women have equal political rights, a fortiori they should have equal civil rights.”);
Michael C. Dorf, Equal Protection Incorporation, 88 VA. L. REV. 951, 952–56 (2002) (arguing that
the Nineteenth Amendment’s ban on sex discrimination in voting “should guide interpretation of the
Equal Protection Clause”); Reva B. Siegel, She the People: The Nineteenth Amendment, Sex
Equality, Federalism, and the Family, 115 HARV. L. REV. 947, 948–53 (2002) (proposing a
“reading of the Fourteenth and Nineteenth Amendments that would bring to the interpretation of the
Equal Protection Clause a knowledge of the family-based status order through which women were
disfranchised for most of the nation’s history and from which they were emancipated after over a
half century of struggle”).
3. The Nineteenth Amendment reads as follows: “The right of citizens of the United States to
vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.” U.S. CONST. amend.
XIX. The Twenty-sixth Amendment reads as follows: “Section 1. The right of citizens of the
United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the
United States or by any State on account of age. Section 2. The Congress shall have the power to
enforce this article by appropriate legislation.” U.S. CONST. amend. XXVI, §§ 1–2. The only
significant textual differences are that the Twenty-sixth Amendment prohibits “age” discrimination
instead of “sex” discrimination, and that the Twenty-sixth Amendment only applies to those above
the age of eighteen.
4. Dorf, supra note 2, at 990–95. Dorf does, however, hedge this claim by noting important
textual and historical differences with the Fifteenth and Nineteenth Amendments. Id. at 995
(“Others may reasonably conclude, however, that the textual, historical, and normative differences
between, on the one hand, the Fifteenth and Nineteenth Amendments, and on the other hand, the
Twenty-Sixth Amendment, imply that age discrimination should not be treated as presumptively
invalid.”).
5. Cf. Craig v. Boren, 429 U.S. 190 (1976) (holding that a statute prohibiting males under
twenty-one from purchasing beer with 3.2% alcohol content, but permitting females as young as
eighteen to purchase such beer, violated the Equal Protection Clause).
2012]
Response
3
because the enactment history of the Twenty-sixth Amendment directly
contradicts such a reading. The statutory precursor of the Twenty-sixth
Amendment, Title III of the Voting Rights Act renewal of 1970 (“VRA
extension”), was an attempt by Congress to use its Fourteenth Amendment
enforcement powers to lower the national voting age. The Supreme Court
rejected Title III as unconstitutional in Oregon v. Mitchell,6 reasoning that
age discrimination—unlike race discrimination—does not give rise to a
congressional power to preempt state laws. The Twenty-sixth Amendment
overrode the Supreme Court’s Mitchell opinion by prohibiting age
discrimination in voting rights and empowering Congress to enforce that
prohibition.7 Such a narrow amendment cannot plausibly be read as rejecting
the Supreme Court’s much broader constitutional finding—rendered mere
months before the Amendment’s ratification—that age discrimination does
not merit heightened scrutiny under the Fourteenth Amendment. The debates
over the Twenty-sixth Amendment focused exclusively on the reasons for
expanding political rights to a previously disenfranchised group, and not, as
with the debates over the Nineteenth Amendment, on the need for that group
to achieve full social equality. Furthermore, in the floor debates on the
Twenty-sixth Amendment, Congressman James Howard proposed a change
in wording that would have lowered the national age of majority to eighteen
for all purposes. This proposal was rejected, as were several similar state
proposals during the Amendment’s ratification. Thus the authors and
ratifiers of the Twenty-sixth Amendment recognized that it was fully
consistent with other forms of age-based discrimination.
This finding creates significant problems for the formalistic test
Calabresi and Rickert propose to determine when a guarantee of voting rights
is read back into the Fourteenth Amendment. They argue for an a fortiori
theory of Fourteenth Amendment expansion. Under this theory, whenever a
new amendment prohibits a certain form of discrimination in political rights,
it creates a parallel expansion of the Fourteenth Amendment to prohibit such
discrimination in civil rights.8 It would seem to follow that, because of the
Twenty-sixth Amendment, laws that discriminate by age should receive
heightened scrutiny under the Fourteenth Amendment. Yet this result
directly conflicts with the historical evidence, which shows that the Twentysixth Amendment’s framers consciously and deliberately chose to extend
political rights to the young while denying them full civil rights.
Fortunately, there is an alternative theory of Fourteenth Amendment
expansion that avoids this trap. This theory, hereinafter labeled the
6. 400 U.S. 112 (1970).
7. See generally Eric S. Fish, Note, The Twenty–Sixth Amendment Enforcement Power, 121
YALE L.J. 1168 (2012) (discussing the Amendment’s enactment history and the extent of
Congress’s enforcement powers).
8. Calabresi & Rickert, supra note 1, at 7–10.
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“clarification theory,” holds that the framers of the Fourteenth Amendment
prohibited gender discrimination without realizing it.9 They presumed that
the Amendment’s broad civil rights guarantees would not apply to women,
just as they did not apply to children, since the framers did not believe such
discrimination was arbitrary or unjust. Yet subsequent evolution in society’s
view of gender differences has undermined this assumption, and the
Nineteenth Amendment is decisive evidence of that evolution. The
Nineteenth Amendment thus establishes the arbitrary and unjust nature of
gender discrimination as a constitutionally recognized fact, and permits
judges to acknowledge that the assumptions behind the contrary conclusion
have been rejected. As a result the Fourteenth Amendment’s implicit
exception for reasonable, non-invidious forms of discrimination no longer
applies to gender. Since there has been no analogous constitutional finding
of fact concerning age discrimination, there should be no expansion of the
Fourteenth Amendment to cover age.
The argument of this piece proceeds in three parts. Part I discusses the
enactment history of the Twenty-sixth Amendment, and shows that this
history is inconsistent with reading the Twenty-sixth Amendment back into
the Fourteenth Amendment to prohibit age discrimination in civil rights. Part
II discusses the problems that this finding poses for the a fortiori theory of
Fourteenth Amendment expansion, and why Calabresi and Rickert’s attempts
to distinguish age discrimination within the a fortiori theory are unavailing.
Part III endorses the clarification theory as a way out of this dilemma, and
argues that the clarification theory fits better with other features of
Fourteenth Amendment doctrine, notably the different tiers of scrutiny and
the fact that the Fourteenth Amendment covers forms of discrimination not
addressed by voting rights amendments. The Conclusion briefly notes that
the clarification theory lends support to Reva Siegel’s argument that
Nineteenth Amendment debates over state regulation of women’s role in the
family should be read into the Fourteenth Amendment.
I.
The Twenty-sixth Amendment Does Not Prohibit Age Discrimination
in Civil Rights
The law that spawned the Twenty-sixth Amendment began, like many
good ideas, as the theory of a creative law professor.10 Archibald Cox argued
9. Calabresi and Rickert make several arguments that are consistent with the clarification
theory, and one could read their Article as advancing both the a fortiori theory and the clarification
theory without distinguishing the two. See, e.g., id. at 12 (“Finally, giving women the right to vote
is a constitutional repudiation of the mistaken facts that the Framers of the Fourteenth Amendment
relied upon when they formed their original expectation that Section One would not alter the legal
condition of women.”). However, the primary focus of their Article is defending the flawed a
fortiori theory.
10. For a more thorough account of the Twenty-sixth Amendment’s enactment history, see
Fish, supra note 7.
2012]
Response
5
in the pages of the Harvard Law Review that the logic of Katzenbach v.
Morgan11 suggested a congressional power to lower the voting age in state
and federal elections.12 This theory found a willing audience in Senator
Edward Kennedy, who was frustrated by Congress’s repeated failure to lower
the voting age through constitutional amendment.13 The VRA was up for
renewal in 1970, and presented the perfect vehicle for a statute lowering the
voting age—thus Title III was born.14
Kennedy’s proposal led to a debate over the full scope of Congress’s
Fourteenth Amendment enforcement powers under Morgan.15 Participants in
this debate included members of Congress, President Nixon, and the faculties
of major law schools.16 The key question was whether the logic of Morgan
is restricted to only race discrimination, or whether it extends to include other
forms such as age discrimination.17 Supporters of Title III held that Morgan
announced a broad constitutional principle: that Congress can declare any
form of discrimination unconstitutional under its Fourteenth Amendment
enforcement power, and can thus preempt state laws that discriminate
according to age, gender, or other non-racial categories.18 Opponents held
that Morgan was restricted to its circumstances—state laws that discriminate
by race or ethnicity.19 These opponents included members of the faculty of
Yale Law School, several of whom argued in a letter to the New York Times
that “Katzenbach v. Morgan makes sense as part of the main stream of 14th
Amendment litigation, policing state restrictions on ethnic minorities. But it
has little apparent application to a restriction affecting all young Americans
in 46 states.”20 This debate was not even resolved by the enactment of Title
III into law. In a statement, President Nixon noted that he signed the VRA
extension in spite of his conviction that Title III was unconstitutional, and
called for a constitutional amendment to lower the national voting age given
11. 384 U.S. 641 (1966).
12. Archibald Cox, The Supreme Court, 1965 Term—Foreword: Constitutional Adjudication
and the Promotion of Human Rights, 80 HARV. L. REV. 91, 107 (1966) (“If Congress can make a
conclusive legislative finding that ability to read and write English as distinguished from Spanish is
constitutionally irrelevant to voting, . . . Congress would seem to have power to make a similar
finding about state laws denying the franchise to eighteen, nineteen, and twenty year–olds even
though they work, pay taxes, raise families, and are subject to military service.”).
13. Fish, supra note 7, at 1187.
14. Id.
15. Id. at 1188–89.
16. Id.
17. Id.
18. Id.
19. Id.
20. Alexander M. Bickel et al., Letter to the Editor, Amendment Favored for Lowering Voting
Age, N.Y. TIMES, Apr. 5, 1970, at E13.
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“the likelihood that the 18-year-old vote provision of this law will not
survive its court test.”21
That test came very quickly. The VRA extension was signed into law
by President Nixon on June 22, 1970, and the Supreme Court ruled on its
constitutionality on December 21, 1970, a mere six months later.22 The
Court’s ruling was somewhat complicated. Four justices voted to strike
down Title III in its entirety, four justices voted to uphold Title III in its
entirety, and the median justice—Justice Black—voted to uphold Title III
only as it applied to federal elections, on the theory that Congress has Article
I power to regulate federal elections.23 Justice Black’s controlling opinion
and the opinion of three partial dissenters agreed that age discrimination fails
to give rise to heightened congressional power under the Fourteenth
Amendment (and a fourth partial dissenter held that Title III should be struck
down on other grounds).24 Their reasoning was simple: age discrimination
does not share the invidious qualities of race discrimination, the paradigm
Fourteenth Amendment violation, and consequently age discrimination is
treated as just another reasonable distinction between citizens.25 The
Supreme Court thus resolved the debate over the constitutionality of Title III
under the Fourteenth Amendment by affirming the position of President
Nixon and the Yale Law faculty: that the Fourteenth Amendment does not
apply a heightened standard to age discrimination.26
21. Pres. Richard Nixon, Statement on Signing the Voting Rights Act Amendments of 1970
(June 22, 1970), in PUBLISHED PAPERS OF THE PRESIDENTS OF THE UNITED STATES: RICHARD
NIXON 512, 513 (U.S. Gov’t Printing Office ed., 1971).
22. Oregon v. Mitchell, 400 U.S. 112, 117–19. The speed of the judicial process can be
attributed to the use of the Supreme Court’s original jurisdiction to hear the case in the first
instance.
23. Id. at 119–24.
24. The fourth partial dissenter who would strike down Title III—Justice John Harlan—wrote
that the Fourteenth Amendment does not apply to political rights in the first place, and thus did not
reach the question of whether the Fourteenth Amendment empowers Congress to prohibit age
discrimination. Id. at 155–200 (Harlan, J., concurring in part and dissenting in part).
25. See id. at 127, 130 (“The Fourteenth Amendment was surely not intended to make every
discrimination between groups of people a constitutional denial of equal protection. Nor was the
Enforcement Clause of the Fourteenth Amendment intended to permit Congress to prohibit every
discrimination between groups of people. On the other hand, the Civil War Amendments were
unquestionably designed to condemn and forbid every distinction, however trifling, on account of
race. . . . Since Congress has attempted to invade an area preserved to the States by the Constitution
without a foundation for enforcing the Civil War Amendments’ ban on racial discrimination, I
would hold that Congress has exceeded its powers in attempting to lower the voting age in state and
local elections.”); id. at 296 (Stewart, J., concurring in part and dissenting in part) (“The state laws
that [Title III] invalidates do not invidiously discriminate against any discrete and insular minority.
Unlike the statute considered in Morgan, [Title III] is valid only if Congress has the power not only
to provide the means of eradicating situations that amount to a violation of the Equal Protection
Clause, but also to determine as a matter of substantive constitutional law what situations fall within
the ambit of the clause, and what state interests are ‘compelling.’”).
26. The opinions of Justice Black and Justice Stewart only addressed Congress’s enforcement
powers. But they did so by holding that Section One of the Fourteenth Amendment provides
2012]
Response
7
The Twenty-sixth Amendment overrode Oregon v. Mitchell by lowering
the national voting age, prohibiting age-based discrimination in voting rights,
and empowering Congress to enforce that prohibition. But it did not reverse
the Supreme Court’s interpretation of the Fourteenth Amendment as applied
to age discrimination.
That much is clear from the Twenty-sixth
Amendment’s text, which merely provides that the right to vote cannot be
denied or abridged on account of age for those over eighteen. The text
parallels the guarantees of voting rights in the Fifteenth and Nineteenth
Amendments, and does not reference or purport to extend the guarantees of
the Fourteenth Amendment. This omission is significant in light of the
debate, merely a few months prior, over whether Congress could use its
Fourteenth Amendment powers to prohibit age-based discrimination. The
Supreme Court affirmed the claims of President Nixon and the Yale faculty
that the Equal Protection Clause does not provide heightened protections
against age discrimination, and the Twenty-sixth Amendment’s text does not
address or override that affirmation.
Another piece of evidence that the Twenty-sixth Amendment was not
understood to ban age discrimination is an alternative amendment that was
rejected during debate on the floor of the House of Representatives.
Congressman James Howard proposed that, in addition to prohibiting age
discrimination in franchise rights, the Twenty-sixth Amendment should also
lower the national age of majority to eighteen for all other purposes.27 This
would ensure that eighteen-year-olds receive the same privileges and
responsibilities as other adults.28 One sympathetic opponent of Howard’s
proposal, Congressman Thomas Railsback, stated that “I think to include as
part of the constitutional amendment a provision that would affect contract
rights and property rights might well have the unintended effect of hurting
our cause.”29 Railsback’s prediction that such an amendment would be more
difficult to ratify proved accurate. Legislative proposals to lower the age of
majority failed in several of the ratifying states, including New York, New
Jersey, Maryland, and Louisiana, and the purpose of many of these state
proposals was actually to torpedo the Twenty-sixth Amendment by making
heightened protections in the context of race discrimination, and not age discrimination. One clear
implication of this position is that the Fourteenth Amendment itself does not apply heightened
scrutiny to laws that discriminate by age. This implication was soon made explicit by a seven-toone opinion in Mass. Bd. of Retirement v. Murgia, 427 U.S. 307 (1976), applying the rational basis
test to age-based classifications.
27. 117 CONG. REC. 7537 (1971).
28. See id. (statement of Rep. James Howard) (“Mr. Chairman, I shall offer at the proper time
an amendment to this legislation which involves a bill I introduced several weeks ago to provide for
a moving down from 21 to 18 the age of majority in this Nation under all law. . . . [I]f we say yes to
the young people . . . we not only think you can handle the vote, but we also think you are adult
enough to be able to handle responsibilities of majority in this Nation . . . we may then really say to
the young people, we believe that you are truly adult.”).
29. Id. (statement of Rep. Thomas Railsback).
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its ratification politically infeasible.30 There are of course some limits on the
usefulness of rejected alternative proposals in legal interpretation. But when
read in the context of the prior debate over Congress’s Fourteenth
Amendment enforcement powers, these rejected proposals provide
compelling evidence that Congress and the ratifying state legislatures
intended only to protect voting rights, not any other kinds of rights, from agebased discrimination.
Furthermore, the debate over the Twenty-sixth Amendment did not
focus on whether young adults should have full social equality, but
exclusively on the reasons for their enfranchisement. The principal
arguments for the Twenty-sixth Amendment were four-fold: that if eighteenyear-olds were old enough to be drafted they were old enough to vote; that
the youth of the 1970s were more educated and politically conscious than
prior generations; that allowing the young to vote would prevent their
radicalization; and that leaving the young politically powerless was
analogous to prior deprivations of African Americans’ and women’s political
rights.31 Contrast this with the evidence mustered by Calabresi, Rickert, and
Siegel, showing that the framers of the Nineteenth Amendment intended it to
liberate women from the bonds of family life and make them full equals to
men in every respect, and that the Nineteenth Amendment’s framers debated
it in those terms.32 The framers of the Twenty-sixth Amendment had no
analogous expectation with respect to age-based discrimination.
30. See, e.g., Louisiana Is 29th State to Approve Vote at 18, N.Y. TIMES, May 18, 1971, at 18
(“The passage came [as] supporters fought off a [series] of crippling amendments. . . .
Opponents . . . tried to amend it to [confer] full responsibilities of adulthood to 18-year-olds.” (some
words not preserved in archived copy)); Thomas P. Ronan, Albany Backs U.S. Amendment
Lowering the Voting Age to 18, N.Y. TIMES, June 3, 1971, at 31 (“Mr. Schermerhorn said he would
have voted for the proposal if the Senate first had approved other bills lowering to 18 the age for
legal majority for the signing of contracts and other business.”); Senate Holds up Legal Age Bill,
BALT. SUN, Mar. 25, 1971, at C6 (“The Maryland Senate appeared today to have blocked a move to
reduce to 18 years the state’s age requirements for drinking, marriage and other contractual rights
and obligations. . . . The legislation was viewed by some senators as an attempt to gain the defeat at
a referendum in November, 1972, of a proposed amendment to the Maryland Constitution to reduce
the state’s voting age to 18.”); Ronald Sullivan, Adult-at-18 Bill Blocked in Jersey, N.Y. TIMES,
May 7, 1971, at 51 (“An unlikely coalition of conservative Republicans and minority Democrats
seeking to embarrass Gov. William T. Cahill came within four votes today of approving a bill in the
Assembly that would lower the age of legal majority to 18 . . . . The conservatives, some of whom
conceded their motives were spiteful, were pushing the bill because they were unable to defeat a
resolution on Monday that completed New Jersey’s ratification of a United States constitutional
amendment that would lower the voting age to 18 in all elections. . . . [A]s the full dimensions of
the bill’s impact began to sink in, opponents of a lower legal-majority age were able to prevent the
measure’s passage.”).
31. AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 445–47 (2005); Fish,
supra note 7, at 1184–86; Jenny Diamond Cheng, Uncovering the Twenty-Sixth Amendment (2008)
(unpublished
Ph.D.
dissertation,
University
of
Michigan),
available
at
http://deepblue.lib.umich.edu/bitstream/2027.42/58431/1/jdiamond_1.pdf.
32. Calabresi & Rickert, supra note 1, at nn.436–70 & accompanying text (compiling a series
of quotes from the legislative history of the Nineteenth Amendment that show that its supporters
2012]
Response
9
Finally, imagine a parallel situation. During the late 1910s, Congress
decides that it will grant women the right to vote by way of a federal statute
enacted pursuant to the Fourteenth Amendment’s Enforcement Clause.
Congress debates whether the Equal Protection Clause applies to women, it
calls in law professors on both sides of the issue, those professors write
letters in major newspapers arguing each side, and the President weighs in
with a signing statement when the law is enacted, claiming it is
unconstitutional and calling for judicial review. After the statute is passed
into law it is challenged in the Supreme Court, and the Supreme Court
decides that women are not a protected class under the Equal Protection
Clause, rendering the legislation unconstitutional. Congress responds by
proposing what we now know as the Nineteenth Amendment, which bans
gender-based discrimination in voting rights but does nothing more.
Legislators in Congress and several states propose to extend full equality to
women alongside the Amendment, but these proposals fail.33 Thus the
debate in Congress and the state legislatures focuses exclusively on the
voting rights question, not on women’s civil rights. The Amendment
successfully navigates the Article V process, passing quickly and
overwhelmingly. If this were how the Nineteenth Amendment had come to
be adopted, it would be difficult to argue that it expanded the Fourteenth
Amendment to protect women’s civil rights.
II.
Against an A Fortiori Theory of Fourteenth Amendment Expansion
The a fortiori theory of Fourteenth Amendment expansion presented in
Calabresi and Rickert’s article seems to demand the opposite conclusion.
This theory holds that whenever the Constitution guarantees voting rights to
a new group, it also necessarily guarantees them full civil rights. Calabresi
and Rickert present this proposition as a structural principle, claiming that
“political rights exist at the apex of a rights hierarchy,” that “[a]nyone who
has equal political rights must by definition also have equal civil rights,” and
that “[i]f political rights may not be denied on a particular basis, then civil
rights, which are by definition less exclusive, must not be denied on that
basis either.”34 Yet they do not make arguments from the structure of the
Constitution, or from broader political philosophy. Instead their arguments
are twofold: that political rights have always historically been understood to
encompass full civil rights, and that it makes intuitive sense that an
and opponents saw it as achieving full equality for women, not merely a guarantee of political
rights); see also Siegel, supra note 2, at 987–93 (showing that the Nineteenth Amendment was
intended to create equal citizenship for women by freeing them from subordination within the
family).
33. Note that the Equal Rights Amendment was written by Alice Paul in 1921 and was not
proposed to Congress until 1923, three years after the Nineteenth Amendment was ratified. Equal
Rights Amendment, NAT’L ORG. FOR WOMEN, http://www.now.org/issues/economic/eratext.html.
34. Calabresi & Rickert, supra note 1, at 15, 76.
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amendment granting political rights is inconsistent with denying civil
rights.35 The only evidence Calabresi and Rickert cite for these propositions
is a series of quotes from debates over the Fifteenth and Nineteenth
Amendments, stating in effect that political rights are the most important
kinds of rights, and that political rights are necessary to achieve racial and
gender equality.36 While the quotes do show that the framers of these
amendments advocated full equality beyond voting rights, and that they
thought these amendments would help achieve broad equality goals, the
quotes are at best equivocal on the more specific question of whether voting
rights imply full civil rights. It is thus difficult to see a strong foundation for
the a fortiori theory in constitutional law from the evidence presented, aside
from the fact that it seems initially like a logical and reasonable principle.
The Twenty-sixth Amendment creates a larger problem for the a fortiori
theory—it conclusively refutes the claim that “[b]efore, during, and after the
adoption of the Fourteenth Amendment and the Nineteenth Amendment,
Americans conceived of political rights (i.e., rights concerned with
governance) as encompassing full civil rights (i.e., personal rights such as
contract and property).”37 As shown above, the framers and ratifiers of the
Twenty-sixth Amendment consciously chose to extend political rights to the
young without extending full civil rights. Congressman James Howard’s
proposal to lower the age of majority was rejected in Congress, and similar
proposals failed in a number of ratifying state legislatures.38 This decision
makes some intuitive sense: extending the franchise to eighteen-year-olds
carries relatively little risk, since individuals between eighteen and twenty
years of age comprise a small percentage of the voting population and are
thus unlikely to cause much harm even if they exercise the franchise
irresponsibly. But extending the right to form contracts, drink alcohol, drive
cars, marry, or do other things permitted at the age of majority could carry
significant risks of harm. Indeed one could even imagine a legislature giving
sixteen-year-olds the right to vote but not, say, the right to marry. And even
if the decision to deny full civil rights to the young was not sensible in light
of the Twenty-sixth Amendment, Congress and the states clearly did make
precisely that decision in 1972. In the context of alien suffrage, Calabresi
35. See id. at 67:
Our conclusion rests on the way the relationship between the two types of rights—
political rights and civil rights—have been understood in America historically, as well
as on the stark fact that if two-thirds of Congress and majorities in at least threequarters of the state legislatures believe that a class of people is fit to exercise the
vote—the most carefully bestowed of all rights—then there is good reason to believe
that limiting that class’s civil rights would be arbitrary and improperly discriminatory
under the Fourteenth Amendment.
36. Id. at 76–93.
37. Id. at 70.
38. See supra note 31 and accompanying text.
2012]
Response
11
and Rickert concede that their claims would be “somewhat undermined” if
“aliens were allowed to vote but their civil rights were not protected.”39 Yet
that is precisely what the framers and ratifiers of the Twenty-sixth
Amendment did to eighteen-year-olds. The a fortiori theory would thus
seem to be undermined.
Calabresi and Rickert attempt to distinguish away the Twenty-sixth
Amendment in a brief discussion in their concluding section. Their
arguments are two-fold. First, the Constitution itself arbitrarily discriminates
by age because it applies the Twenty-sixth Amendment only to those over
eighteen, and imposes age restrictions on Members of Congress and the
President.40 Second, age is different from gender and race because we all
proceed through the various ages in our lives, and, unlike the other
categories, age is legitimately correlated with competence.41 Neither
argument is persuasive.
Their first argument establishes a very strange test for the a fortiori
theory. Under its logic, new amendments guaranteeing political rights are
read back into the Fourteenth Amendment’s civil rights guarantees, but only
if there are no other constitutional limits on those political rights. It is
difficult to see how such a blunt structural principle can permit this kind of
nuance. Calabresi and Rickert make the claim that “political rights always
and everywhere necessarily imply that the rights bearer also has civil
rights.”42 Surely if that claim is true, it remains true even if the political
rights are not extended to every group within the protected category. The
fact that those under eighteen can be denied voting rights has no logical
bearing on the protections extended to every other age group. It is also
surely true despite minor limitations on political rights elsewhere in the
Constitution, such as the age limits on running for Congress or the
Presidency, rights that only a tiny number of people ever meaningfully
exercise. Indeed, one crucial premise of Calabresi and Rickert’s argument is
the principle—advocated by Vikram Amar—that the voting rights
amendments also protect all subsidiary political rights, such as the right to
run for office and serve on a jury.43 It would seem to follow naturally from
this premise that the Twenty-sixth Amendment implicitly repealed the age
limitations on the Presidency and Congress, just as the Nineteenth
39. Calabresi & Rickert, supra note 1, at 83.
40. Id. at 98.
41. Id.
42. Id. at 80.
43. Id. at 76–77 (“This second conclusion [that political rights imply civil rights] is our ultimate
argument, but to get there, the preliminary argument that the Fifteenth and Nineteenth Amendments
should be read to guarantee full political rights must be made.”); Vikram David Amar, Jury Service
as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 227–29 (1995).
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Amendment implicitly repealed the limitation of Section Two of the
Fourteenth Amendment to male voters.44
Further, the Twenty-sixth Amendment operates as a ban on all age
discrimination in voting, not merely a prohibition on disenfranchising the
young—just as the Fifteenth Amendment protects all races and the
Nineteenth Amendment protects all genders. Thus even if we assume that
the age thresholds for the Presidency and Congress are significant enough to
prevent an expansion of civil rights to those who do not meet them, the
Twenty-sixth Amendment still guarantees that full political rights will not be
denied on the basis of age to those over the age of thirty-five. It would then
follow from the a fortiori theory that laws discriminating against the elderly
are still constitutionally suspect. For example, the Supreme Court would
have been wrong to hold, as it did in Massachusetts Board of Retirement v.
Murgia,45 that forcing police officers to retire at fifty is constitutional, just as
it follows from the Nineteenth Amendment that Craig v. Boren,46 protecting
men’s right to purchase beer, was rightly decided.
Calabresi and Rickert’s second argument certainly seems reasonable—
who could deny that age is a more legitimate subject of discrimination than
race and gender? Yet this argument is inconsistent with their formalistic
approach to Fourteenth Amendment expansion. The entire appeal of the a
fortiori theory is that it establishes a clear rule and does not require a
subjective inquiry into whether a certain type of discrimination is actually
invidious. According to its dictates, whenever Congress and the states
protect a group’s political rights through constitutional amendment they also
necessarily protect its civil rights. There cannot then be a second inquiry into
whether discrimination against that group’s civil rights is actually legitimate
or not, based on such considerations as whether people of certain ages (or
genders, or races) are in fact less capable, or how many people belong to the
group in question. If there were, the a fortiori theory would break down into
a far more malleable theory in which judges ask whether they believe the
discrimination in question is wrong, and if they do, they find it
unconstitutional. Whatever else one might say about such a theory, it could
not be called “originalism.”
Thus Calabresi and Rickert’s attempts to distinguish the Twenty-sixth
Amendment are unavailing, and the Twenty-sixth Amendment creates a
major problem for their a fortiori theory of Fourteenth Amendment
expansion. They could of course have taken the opposite approach, arguing
that Professor Dorf is correct and the Twenty-sixth Amendment should in
44. See Calabresi & Rickert, supra note 1, at 69–70 ; John Hart Ely, Interclausal Immunity, 87
VA. L. REV. 1185, 1190 (2001).
45. 427 U.S. 307 (1976).
46. 429 U.S. 190 (1976).
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fact be read back into the Fourteenth.47 But they were wise not to. They
would have had to show that the Twenty-sixth Amendment expanded civil
rights despite the fact that its framers specifically understood it not to. While
it is true that the unenacted intentions of an amendment’s framers are not
always controlling—most relevantly, the framers of the Fourteenth
Amendment believed it did not apply to gender48—there is no way to twist
the text of the Twenty-sixth Amendment so that it expands the civil rights of
the young. The only real evidence for the a fortiori theory is a number of
quotes discussing the Fifteenth and Nineteenth Amendments, and these
cannot override the clear text and history of the Twenty-sixth Amendment.
III. Towards a Clarification Theory of Fourteenth Amendment Expansion
Fortunately, there is an alternative theory of Fourteenth Amendment
expansion that includes gender but excludes age. This can be called the
“clarification theory.” It is discussed early in Calabresi and Rickert’s article,
when they write that “giving women the right to vote is a constitutional
repudiation of the mistaken facts that the Framers of the Fourteenth
Amendment relied upon when they formed their original expectation that
Section One would not alter the legal condition of women.”49 The logic of
the clarification theory is that the Fourteenth Amendment’s framers and
ratifiers did not realize the full implications of what they had enacted. The
broad equality guarantees of the Fourteenth Amendment do not mention any
particular categories of people, and yet they cannot plausibly be read to
abolish all laws that discriminate between groups. Thus there must be an
implicit exception to the Fourteenth Amendment for forms of discrimination
that are reasonable and non-invidious. The framers of the Fourteenth
Amendment believed that laws discriminating by gender fell within this
exception. As Calabresi and Rickert note:
Most people living between 1868 and 1920, including majorities
of the Supreme Court during this period of time, did not believe
women fell totally outside of the protection of Section One of the
Fourteenth Amendment. Rather, they believed that it was not arbitrary
47. See Dorf, supra note 2, at 990–95. (arguing that courts should treat all laws that
discriminate on the basis of age as presumptively invalid).
48. See Ward Farnsworth, Women Under Reconstruction: The Congressional Understanding,
94 NW. U. L. REV. 1229, 1230 (2000) (noting that the Amendment was understood to not affect
laws which imposed burdens on women).
49. Calabresi & Rickert, supra note 1, at 12; see also id. at 47:
These legislators naturally assumed that judges would find the same “facts” they had
found themselves during the debates—that sex discrimination is natural and necessary
rather than unjust and arbitrary—but they did not think that these factual assumptions
were part of the rule they had enacted. Their expected applications illuminate their
interpretive methods but do not define the text they drafted and sent out into the world.
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or irrational to limit women’s civil rights any more than it was
arbitrary or irrational to limit children’s civil rights.50
The Nineteenth Amendment conclusively rebutted the assumptions behind
this belief that gender discrimination was reasonable. Thus the Nineteenth
Amendment changed the meaning of the Fourteenth Amendment by showing
that the latter’s broad guarantees had been misapplied due to mistakes of fact.
The relevant facts that the Nineteenth Amendment stipulated for
purposes of the clarification theory were not only “facts” in the usual sense
of the word—i.e. empirical observations about the world. They also included
normative “facts,” namely the fact that it is wrong to deny women full social
and political equality. This latter category of facts is crucial. Judges could
just as easily have rejected the empirical premises of gender inequality (i.e.,
women’s supposed lesser intelligence) on their own, relying on evidence and
expert testimony, without the aid of the Nineteenth Amendment. Yet judges
ought not to rely on their personal moral beliefs when interpreting the
Constitution, lest they risk delegitimizing their role as neutral arbiters. Thus
when the Constitution establishes prohibitions that can only be interpreted by
applying moral categories like “wrongful,” judges should reason from the
moral judgments of supermajoritarian (or, sometimes, majoritarian) bodies to
find the content of such categories.51
Consider a hypothetical amendment that reads: “No state shall
wrongfully discriminate against any person.”52 When interpreting and
applying such an amendment, judges must find a workable definition of
“wrongfully.” In the first instance, the most logical approach is probably to
look at the paradigm forms of discrimination that the enactors of the
amendment sought to prohibit, and to analogize from their salient features to
new cases.53 Yet the hypothetical amendment’s text is not limited to only the
features of its original paradigm cases—it bans all wrongful discrimination.
Thus when a future supermajority finds that a form of discrimination is
wrongful (even if it does so in the course of banning only one instance of
such discrimination), judges ought to treat that finding as updating the
meaning of “wrongfully.” The role of a constitutional judge, after all, is by
50. Id. at 85.
51. This assertion (that one must answer moral questions in order to interpret the Fourteenth
Amendment) touches on debates in the philosophy of jurisprudence that cannot be adequately
addressed here. The position in this piece is consistent with the theory of “inclusive legal
positivism,” which holds that laws can (but need not) require judges to answer moral questions in
the process of interpretation. See generally W.J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM
(1994).
52. This amendment is functionally the equivalent of the Equal Protection Clause. The only
salient difference is that the implied exception for reasonable discrimination is made explicit with
the word “wrongfully.”
53. See generally JED RUBENFELD, REVOLUTION BY JUDICIARY (2005); Jed Rubenfeld, The
Paradigm Case Method, 115 YALE L.J. 1977 (2006).
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definition to enforce the higher laws pronounced by Article V
supermajorities against the will of temporary legislative majorities.54 If one
constitutional supermajority enacts a provision that contains an open-ended
normative term, it is proper for judges as the agents of “we the people” to
look at the moral judgments of future constitutional supermajorities when
filling in that term’s content.
Understood this way, the clarification theory easily distinguishes the
Nineteenth and Twenty-sixth Amendments. It does so on the grounds that
the framers and ratifiers of the Nineteenth Amendment made a normative
finding that women should be the full equals of men, while the framers and
ratifiers of the Twenty-sixth Amendment made no analogous finding for
different age groups. Calabresi, Rickert, and Siegel all present evidence that
the debates over the Nineteenth Amendment were debates over the social
status of women in general, namely whether preserving women’s traditional
role within the family could justify the ongoing denial of female equality.55
Assuming that these scholars’ accounts are correct, then the Amendment’s
advocates successfully convinced two-thirds of Congress and three-quarters
of state legislatures to adopt their broad vision of female equality. The
Twenty-sixth Amendment, by contrast, did not involve a constitutional
finding that age discrimination is irrational or invidious. Quite the
contrary—the authors and ratifiers of the Twenty-sixth Amendment
simultaneously defended denials of civil rights to eighteen-year-olds, such as
the rights to drink and form contracts, and they did not even discuss the
rights of older Americans.56 Thus the beliefs supporting the reasonableness
of age discrimination still stand.
54. One interesting related question is whether judges ought to take into account the moral
judgments of temporary majorities when deciding whether a form of discrimination is prohibited.
This seems to be the position of Justice Sutherland in Adkins v. Children’s Hospital, 261 U.S. 525,
553 (1923), when he cites recent legislative enactments (in addition to the Nineteenth Amendment)
to support the proposition that women have equal contract rights under the Fourteenth Amendment.
The major problem with this approach is that the principal function of constitutional prohibitions on
discrimination is to protect minorities from the oppression of temporary majorities. Thus while
legislative prohibitions on a certain form of discrimination might theoretically provide evidence that
the form of discrimination is also prohibited by the Equal Protection Clause (much as legislative
prohibitions on certain punishments can help demonstrate that they are “cruel and unusual” in the
Eight Amendment context, see Kennedy v. Louisiana, 554 U.S. 407, 418 (2008)), widespread
legislative acceptance of such discrimination cannot be used as evidence that it is constitutionally
permissible. However, this one-way ratchet would apply only to temporary legislative majorities: if
a future Article V supermajority actively approved a form of discrimination (for example, by
prohibiting same-sex marriage), there would be a strong argument that similar discrimination is
constitutionally permissible under the Fourteenth Amendment via the clarification theory.
55. Calabresi & Rickert, supra note 1, at nn. 436–470 & accompanying text; Siegel, supra note
2, at 977–97.
56. While writing an earlier piece, the author exhaustively read the debates over the Twentysixth Amendment in Congress, state legislatures, and elsewhere, and found no discussion of the
rights of the elderly or any age group other than the young. Cf. Fish, supra note 7, at 1195.
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The clarification theory lacks the formalism of the a fortiori theory—it
does not provide a simple formula for when voting rights amendments
expand the Fourteenth Amendment. Instead, it requires looking at the
enactment history of these subsequent amendments and reading that history
back into the broad civil rights guarantees of the Fourteenth Amendment.
The clarification theory is thus a theory of “living originalism,” akin to those
advocated by scholars like Jack Balkin and Lawrence Lessig.57 It relies on
judges to take a text adopted in 1868 and read it in light of contemporary
circumstances. The advantage of the clarification theory is that it points
judges to subsequent amendments as resources for such interpretive
updating, and thus introduces the concept of “constitutionally recognized
facts” that should guide how the text is applied in particular cases. Justice
Sutherland adopted this basic logic in his opinion in Adkins v. Children’s
Hospital:
In view of the great—not to say revolutionary—changes which
have taken place since [Muller v. Oregon, 208 U.S. 412 (1908)], 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, if not quite, to the vanishing point.
. . . To [accept restrictions on women’s contract rights] 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.58
Here Justice Sutherland uses the legislative and constitutional recognition of
women’s equality to justify extending the Fourteenth Amendment’s
protections to women. He does not provide a simple formula suggesting that
political rights always imply full civil rights. By relying on specific
legislative decisions—especially the Nineteenth Amendment—and the
reasoning behind them to determine whether women ought to be the equals
of men, Justice Sutherland updates the Fourteenth Amendment without
relying on his personal moral views or the constraining formalism of the a
fortiori approach.
Finally, the clarification theory fits better with current Fourteenth
Amendment doctrine than does the a fortiori theory, for two reasons. First,
the clarification theory is easier to square with the fact that the Supreme
Court applies different tiers of scrutiny to race and gender discrimination—
57. See generally JACK M. BALKIN, LIVING ORIGINALISM (2011) (developing a theory of
originalism focused on text and principles, as opposed to original expected applications); Lawrence
Lessig, Fidelity in Translation, 71 TEXAS L. REV. 1165 (1993) (developing a theory of originalism
as a “translation” of texts into new contexts).
58. Adkins v. Children’s Hosp., 261 U.S. 525, 553 (1923).
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“strict” for the former and “intermediate” for the latter. It is difficult to see
how the binary formula of the a fortiori theory could admit these fine
distinctions—voting rights either imply full civil equality or they do not; they
cannot imply partial equality with exceptions when a discriminatory law is
substantially related to an important government interest. (It is possible that
Calabresi and Rickert advocate strict scrutiny for gender discrimination,
which would remove this objection, but they do not address that question.)
The clarification theory, by contrast, is more malleable.59 If updating the
Fourteenth Amendment consists of narrowing an implied exception through
normative findings about the reasonableness of discrimination against
different groups, there is room to apply different levels of scrutiny when
consistent with those findings.
Second, the clarification theory allows new protected classes to emerge
under the Equal Protection Clause without requiring expansions of political
rights. For example, the Supreme Court has applied intermediate scrutiny to
laws discriminating against illegitimate children, and has applied a
heightened “rational basis” test to laws discriminating against homosexuals.60
Surely the fact that legislatures have not thought to disenfranchise these
groups, and thus an amendment guaranteeing their right to vote has not been
necessary, does not deny these groups protection under the Fourteenth
Amendment. Yet Calabresi states that he “believes that an Article V
consensus is the only sure way to identify a caste.”61 This seems backward—
to obtain Fourteenth Amendment rights, a group must first be denied political
rights and then granted them, despite the fact that a key premise of the a
fortiori theory is that society grants people political rights far less frequently
than civil rights. The clarification theory avoids this difficulty because it
does not inquire exclusively into whether political rights are guaranteed to a
group by the Constitution. Instead it looks to findings about the rationality
and reasonableness of discrimination against that group, findings which may
or may not have been established through the Article V process. A voting
rights amendment akin to the Nineteenth Amendment certainly makes
judges’ jobs easier under the clarification theory, but it is not the only
available piece of evidence.
59. As an (non-exemplary) illustration of the clarification theory’s malleability, Justice
Sutherland in Adkins distinguishes between physical differences, which can still be the basis for
legislation (e.g., laws limiting the number of hours women can work), and other kinds of purported
gender differences that are inconsistent with the Nineteenth Amendment. Id. at 552–53.
60. See Romer v. Evans, 517 U.S. 620 (1996) (applying a heightened rational basis test to a
state constitutional amendment that prohibited protections for homosexuals); Reed v. Campbell, 476
U.S. 852 (1986) (applying intermediate scrutiny to an intestacy statute that discriminated against
illegitimate children).
61. Calabresi & Rickert, supra note 1, at 68 n.321. Notably, Rickert disagrees: “Ms. Rickert
thinks other types of evidence (including sociological) can establish that a group is being
discriminated against in violation of the no-caste and no-class-legislation rules of the Fourteenth
Amendment.” Id.
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Conclusion
The Fourteenth Amendment, when originally enacted in 1868, was not
understood to prohibit gender-based discrimination or age-based
discrimination. Today, according to the Supreme Court, it prohibits the
former but not the latter. We must either reject this extension of the
Fourteenth Amendment to cover gender or develop a theory of constitutional
updating to account for it. One theory—that extensions of voting rights
always grant full civil equality to the newly protected groups—carries the
implication that the Twenty-sixth Amendment made age a protected
Fourteenth Amendment category. Yet this finding conflicts with the
enactment history of the Twenty-sixth Amendment, which shows that it was
understood to extend political rights but not civil rights. A second theory—
that new amendments involve constitutional findings of fact which can alter
how the Fourteenth Amendment’s provisions are applied—avoids this age
discrimination problem. This second theory is therefore more plausible. It
preserves the reasonable conclusion that women should enjoy the Fourteenth
Amendment’s broad rights guarantees, without forcing the implausible
conclusion that age-based distinctions such as minimum drinking ages,
mandatory retirement ages, or public benefits for the elderly are
unconstitutional.
In closing, a final point deserves mention: the clarification theory may
lend support to Reva Siegel’s argument that the debates over the enactment
of the Nineteenth Amendment should be read back into the Fourteenth
Amendment.62 Siegel suggests that the framers and ratifiers of the
Nineteenth Amendment intended to emancipate women from a traditional
conception of family life that was inconsistent with equal citizenship. Thus,
in her account, the enactment history of the Nineteenth Amendment lends
support to an equal protection jurisprudence that is less concerned with
avoiding laws that classify by gender, and more concerned with protecting
women from violence and oppression within the structure of the family. The
clarification theory directs judges to the enactment history of newly enacted
amendments in their search for constitutionally established facts which might
change the application of the Fourteenth Amendment’s broad rules to
particular cases. It thus calls for precisely the kind of evidence that Professor
Siegel presents in her argument for a more robust constitutional
understanding of gender equality.
62. See generally Siegel, supra note 2.