John Bingham and Gender Discrimination

Steve Calabresi and Julia Rickert have caused quite a stir with their forthcoming paper arguing that the original understanding of the Fourteenth Amendment, as modified by the Nineteenth Amendment, bars sex discrimination.  Their argument is that the Equal Protection Clause enacted an anti-caste principle, and that the Nineteenth Amendment confirms that bias against women counts as a caste.

Here is an interesting observation on that issue from John Bingham in a speech to the House in 1859:

“I protest, against the attempt to mar that great charter of our rights, almost divine in its conception and in its spirit of equality, by the interpolation into it of any word of caste, such as white or black, male or female; for no such word is in that great instrument now, and, by my act, or word, or vote, never shall be.”

Now Bingham did not honor this pledge, as he supported the use of the word male to limit voting rights in Section Two of the Fourteenth Amendment.  (The Nineteenth Amendment, of course, overruled this decision.) Nevertheless, you can point to his 1859 statement to support the claim that gender discrimination violates the anti-caste principle.

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