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Justice Ginsburg Declares Herself an “Originalist” and then Schools Professor (and Justice Scalia) on the Meaning of the Equal Protection Clause

November 18, 2011

Much of the conversation about the Equal Protection Clause recently has centered around the stunning assertion by Justice Antonin Scalia that discrimination on the basis of sex is not prohibited by the Constitution.  Which is why yesterday’s marvelous panel celebrating the 40th anniversary of the Supreme Court’s decision in Reed v. Reed, the first case in which the Court applied the Equal Protection Clause to prohibit discrimination against women, was so refreshing and welcome.  Justice Ruth Bader Ginsburg gave a tour de force performance, explaining that the Constitution’s text protects all persons, not only men, and demonstrating why Reed is a bedrock part of our law.

During the panel, co-sponsored by the National Women’s Law Center and others, Justice Ginsburg took on and demolished Prof. Earl Maltz’s argument that, under an originalist analysis, Reed was wrongly decided.  Explaining that “I count myself as an originalist too,” Justice Ginsburg demonstrated that the our nation’s constitutional history – from the Declaration of Independence, to the invocation in the Constitution’s Preamble’s of “We the People,” to the Fourteenth Amendment’s universal guarantees of equality, and, finally, to the Nineteenth Amendment’s protection of a woman’s right to vote – supports the Court’s cases striking down state laws that denied women equal citizenship stature.   Justice Ginsburg, in particular, emphasized that the Fourteenth Amendment’s protection of equality for all persons, and in particular the framers’ prohibition on legislation creating inferior castes, read together with the Nineteenth Amendment’s specific protection of women’s equal citizenship, fully supported Reed and its progeny.

Justice Ginsburg’s remarks echo CAC’s new report, Perfecting the Declaration, released earlier this week, which examines the arc of constitutional progress:  the principle of equality first stated in the Declaration of Independence, perfected in the Equal Protection Clause of the Fourteenth Amendment, and further illuminated in the Nineteenth Amendment and other Amendments.  As we demonstrate in this report, and as Justice Ginsburg rightly recognized in her remarks, the text of the Constitution as well as the full sweep of our nation’s constitutional history support a broad reading of the text’s command of equality for all persons.

A big part of Constitutional Accountability Center’s mission is to convince progressives that we can and must root the results we seek from the courts in the text and history of the Constitution.  Justice Ginsburg yesterday demonstrated perfectly just how this can be done.