« Women's Judicial Appointments: No Special Pleading Needed. | Blog home | Gender Equality or Religious Freedom: Which Trumps? »

business learning training articles new learning business training opportunities finance learning training deposit money learning making training art loan learning training deposits make learning your training home good income learning outcome training issue medicine learning training drugs market learning money training trends self learning roof training repairing market learning training online secure skin learning training tools wedding learning training jewellery newspaper learning for training magazine geo learning training places business learning training design Car learning and training Jips production learning training business ladies learning cosmetics training sector sport learning and training fat burn vat learning insurance training price fitness learning training program furniture learning at training home which learning insurance training firms new learning devoloping training technology healthy learning training nutrition dress learning training up company learning training income insurance learning and training life dream learning training home create learning new training business individual learning loan training form cooking learning training ingredients which learning firms training is good choosing learning most training efficient business comment learning on training goods technology learning training business secret learning of training business company learning training redirects credits learning in training business guide learning for training business cheap learning insurance training tips selling learning training abroad protein learning training diets improve learning your training home security learning training importance

In my first post, I puzzled over the near-total absence of women in discussions of constitutional originalism. Among other things, I noted that several recent conferences, symposia and edited collections on the subject were hugely, even entirely, dominated by men. And in my conclusion, I inferred that the organisers of these events/publications had failed to notice. I also suggested that any law conference, in which a group of men spoke to an audience of men about the work of men, would be simply inconceivable in Australia. I hope I am right about the latter, but my conclusion about North American efforts was, it seems, wrong. I have since heard, separately, from two (unassociated, non-American) male academics who were implicated in my ‘charge’ of neglect. They have assured me that the missing gender was noticed, and that many efforts were made to involve women in the relevant events. But the result was, as the French say, chou blanc. I was pleased to hear about their efforts. I am happy to retract this particular conclusion.

The bigger puzzle still remains. If women were invited, why were they unwilling to take part? There are several suggestions. Let me put these as questions. Does constitutional originalism = American = conservative? In other words, is the subject so closely associated with a particular type of American politics that it has little relevance to women or men outside its borders, and the gender tally is beside the point? Within America, are progressive women so alienated from the politics of originalism that they do not want to take part, even as critics? Does originalism represent American conservatives’ determination to turn back the clock on everything that has been gained since the Constitution’s framing, including women's rights?

Prominent American originalist, Steven G. Calabresi, insists that it doesn’t. In a 2011 article* (co-written with a woman, Julia T. Rickert) he defends an originalist reading of gender equality in the U.S. Constitution, in which the Fourteenth Amendment’s DNA is picked up in the Nineteenth Amendment. The Fourteenth Amendment, the authors maintain, ‘was meant, as an original matter, to forbid class-based legislation and any law that creates a system of caste’; the Nineteenth Amendment’s conferral of voting rights on women acted to generalise their full citizenship and inserted women into the classes to which the Fourteenth Amendment's prohibition on caste applied.

This peculiarly American reasoning is not directly applicable to other constitutions, of course, but Canadian feminists, for example, for whom originalism is at present a non-issue, might one day find it of interest. As their 1982 Charter of Rights and Freedoms grows older, and as the inevitable happens and (baring constitutional disaster) reverence increasingly attaches to the memory of the framers, constitutional change - except by judicial interpretation - will become harder. Originalism might then seem not such a bad idea, especially since there are express original equality commitments to point to in the Charter. Methodologically - whether conservative or progressive – originalism is full of holes, and the holes get bigger the closer one looks. But, politically, if this is what the fight over interpretation is really about, why not use it for good as well as evil?

In the meantime, the efforts of male organisers to get women involved are to be applauded. They should not give up.

*‘Originalism and Sex Discrimination’ (2011) 90 Texas Law Review 1. I couldn’t help noticing that, of the 11 people who are thanked by the authors for their comments and suggestions, one alone is a woman. The article is dedicated equally to USSC Justices Ruth Bader Ginsburg and Antonin Scalia.