by Nicole Flatow
”I’m here as the official representative of the dark side,” Rutgers University law professor Earl Maltz said during a recent event commemorating the landmark gender equality Supreme Court decision Reed v. Reed.
Maltz does not think Reed was righty decided, because, per his “originalist” approach, the drafters of the Fourteenth Amendment did not contemplate that the equal protection provision would prohibit sex discrimination.
But U.S. Supreme Court Justice Ruth Bader Ginsburg, the featured speaker at the event, had an answer for Maltz’s brand of originalism, highlighted by ABC News.
“I count myself as an originalist too, but in a quite different way from the professor in this sense,” she said.
Equality was the motivating idea. It was what the Declaration of Independence started with, but it couldn’t come into the original Constitution because of the odious practice of slavery that was retained. So we don’t get the equality principal written into the Constitution until the Fourteenth Amendment. I think that the genius of the United States has been, from the original Constitution where ‘We the People’ were white property-owning men to what it has become today, that is, ever-more embracive including Native Americans, once not part of 'We the People,' people who were once held in human bondage, women, aliens who come to our shores. So ‘We the People’ today has a marvelous diversity which it lacked in the beginning.
Was that so far from the minds of the framers of the Fourteenth Amendment? I don’t think so in this sense. What they were getting at, basically, and you will find this popping up again and again in the legislative record, they were against caste. They did not want the United States to have any classes or castes that would identify people by their birth status.
Watch video of the event, sponsored by the National Women's Law Center, the Women's Bar Association of the District of Columbia and several DC-area law schools, here.
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