Texas Law Review See Also Volume 91

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1 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 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

2 2 Texas Law Review See Also [Vol. 91:1 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 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, (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, (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 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).

3 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 U.S. 112 (1970). 7. See generally Eric S. Fish, Note, The Twenty Sixth Amendment Enforcement Power, 121 YALE L.J (2012) (discussing the Amendment s enactment history and the extent of Congress s enforcement powers). 8. Calabresi & Rickert, supra note 1, at 7 10.

4 4 Texas Law Review See Also [Vol. 91:1 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.

5 2012] Response 5 in the pages of the Harvard Law Review that the logic of Katzenbach v. Morgan 11 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 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 Id. 15. Id. at 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.

6 6 Texas Law Review See Also [Vol. 91:1 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 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, 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 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 (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

7 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 CONG. REC (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).

8 8 Texas Law Review See Also [Vol. 91:1 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 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 (2005); Fish, supra note 7, at ; Jenny Diamond Cheng, Uncovering the Twenty-Sixth Amendment (2008) (unpublished Ph.D. dissertation, University of Michigan), available at Calabresi & Rickert, supra note 1, at nn & accompanying text (compiling a series of quotes from the legislative history of the Nineteenth Amendment that show that its supporters

9 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 (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, Calabresi & Rickert, supra note 1, at 15, 76.

10 10 Texas Law Review See Also [Vol. 91:1 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 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 Id. at See supra note 31 and accompanying text.

11 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 Id. at Id. 42. Id. at Id. at ( 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, (1995).

12 12 Texas Law Review See Also [Vol. 91:1 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 ; John Hart Ely, Interclausal Immunity, 87 VA. L. REV. 1185, 1190 (2001) U.S. 307 (1976) U.S. 190 (1976).

13 2012] Response 13 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 gender 48 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 (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.

14 14 Texas Law Review See Also [Vol. 91:1 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 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 (2006).

15 2012] Response 15 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 & accompanying text; Siegel, supra note 2, at 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.

16 16 Texas Law Review See Also [Vol. 91:1 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 (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).