Alfred L. Brophy’s Non-originalist Originalists: The Nineteenth Amendment and the Fourteenth Amendment’s Anticaste Principle has been posted on the Texas Law Review’s website. Here is a taste:
- Professor Brophy responds to the ongoing dialogue concerning Professor Calabresi and Ms. Rickert’s article with his reactions to their originalist argument that the Fourteenth Amendment prohibits sex discrimination as a matter of original public meaning. He observes a tension between original meaning and original intent and argues that original public meaning may differ from the Framers’ “original expected applications.” Professor Brophy continues by asking a series of questions to ascertain how the Framers identified, how original meaning is established, and whose meaning governs. Professor Brophy then observes how the Reconstruction-era amendments were construed broadly at the time and how by the Civil War, Americans had viewed the Constitution as a set of broad principles rather than a “mere set of words.” Brophy concludes by suggesting potential applications of the Calabresi and Rickert argument.