Originalism and the Rights of Women

Proponents of originalism argue that judges must adhere faithfully to the meaning of constitutional texts as those texts would have been understood at the time of their adoption. In the case of the 14th Amendment, such an approach would limit clauses like “equal protection of the laws” to nineteenth century understandings of equality.  Since women were not equal to men under the law in 1868 and since the framers of the 14th Amendment did not advance gender equality as one of its purposes, originalism poses a quandary for women’s rights in the 21stcentury. Can originalism be squared with constitutional protections for women under the 14th Amendment?  This distinguished panel of scholars and judges address this important topic as the conservative majority on U.S. Supreme Court adopts originalism as its dominant method of constitutional interpretation.

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