The Unintended Consequences of Originalism

The nomination of Judge Kavanaugh to the Supreme Court will raise the profile of originalism in public life, though his confirmation hearings and some of his subsequent opinions. Many people are understandably focused on how a more originalist approach would influence doctrine (say on Roe v. Wade). I want to discuss briefly a different effect that originalism may have on the wider culture.

In May, Illinois ratified the ERA. The lead sponsor of that effort in the state House of Representatives explained on the floor that the amendment was necessary because the Constitution as written does not protect equal rights for women. His authority for that proposition was Justice Scalia. In 2011, Justice Scalia gave an interview in which he said: "Certainly the Constitution does not require discrimination on the bass of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that's what it meant. Nobody ever voted for that." The Illinois Representative offered this as support for the argument that the ERA is necessary to protect sex equality. (In what we in the trade call "ironic," this same representative was accused of sexual harassment the next day and resigned his party leadership post in the Legislature.)

One way of describing this argument is fear-mongering. The doctrine is there for sex equality. And a Supreme Court full of originalists is unlikely to repudiate those precedents. Nevertheless, it would be hard to deny that many people might worry (rightly or wrongly) about a constitutional rollback of gender equality. There are two plausible responses. One is to oppose the confirmation of certain types of Justices. The other is to ratify the ERA and make Justice Scalia's comment obsolete. Thus, an unintended consequence of changing the balance of the Court may be a new Article Five amendment.

Broadly speaking, this development is consistent with the originalist vision. The Constitution should be formally amended rather than changed significantly through interpretation.  Taken seriously, an originalist Constitution ought to be much longer than the one we have. The ERA would be a start.