What Is Originalism?

Originalism is a theory of constitutional interpretation that seeks to give binding authority to the text of the Constitution as it was originally understood by those who drafted and ratified it. The core premise is that the meaning of the constitutional text is fixed at the time of enactment and should not change absent a formal amendment. Proponents, including Justice Antonin Scalia and current Justice Clarence Thomas, argue that originalism provides a clear, stable, and democratically legitimate framework for judicial decision-making, preventing judges from injecting their own policy preferences into constitutional law.

Critics contend that originalism can be too rigid, locking in outdated understandings and impeding social progress. They note that the framers themselves disagreed on many issues and that discerning a single "original meaning" is often difficult or impossible. Moreover, originalism's application to modern problems—such as digital privacy, advanced reproductive technologies, or same-sex marriage—requires analogical reasoning that may stretch the original understanding beyond recognition. These tensions are especially acute when considering the rights of women, whose legal status has changed dramatically since the Founding era.

Women’s Rights and the Constitution

The U.S. Constitution, as ratified in 1788, contained no explicit reference to women's rights. The legal status of women at the time was largely governed by the common law doctrine of coverture, under which a married woman's legal identity was subsumed by her husband. Women could not vote, hold public office, serve on juries, or own property in their own name in most states. The Constitution's original provisions—such as the Privileges and Immunities Clause (Article IV) and the guarantee of a republican form of government (Article IV, Section 4)—were not understood to protect women's participation in civic life.

It was only after the Civil War and the ratification of the Fourteenth Amendment (1868) that the Constitution began to offer a textual basis for gender equality. The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Although the amendment was originally intended to protect the rights of newly freed African American men, the word "person" is gender-neutral. Over the next century, the Supreme Court invoked the Equal Protection Clause to strike down laws that discriminated on the basis of sex, beginning with Reed v. Reed (1971) and culminating in a series of decisions that recognized sex as a quasi-suspect classification.

The Nineteenth Amendment (1920) explicitly guaranteed women the right to vote, but it did not address broader forms of legal inequality. The Equal Rights Amendment (ERA), which would have provided a clear constitutional mandate for gender equality, was proposed in 1972 but ultimately failed to achieve ratification by the required number of states. This failure has left the Equal Protection Clause as the primary vehicle for constitutional protections of women's rights, making the mode of interpretation—whether originalist or living constitutionalist—particularly consequential.

Originalism and Gender Rights: Tensions and Possibilities

The Framers' Intent and 18th-Century Norms

Under a strict originalist approach, the Constitution is interpreted according to the original public meaning of its text. At the time of the Founding, women were considered legally subordinate to men in many respects. The framers did not envision women as equal participants in the political community; indeed, the use of "he" and "him" throughout the original Constitution reflected the assumption that public life was exclusively male. For originalists, this historical context matters: the Constitution's meaning does not expand simply because society's values change.

Some originalists, like Justice Scalia, argued that the Equal Protection Clause was not originally understood to forbid most forms of sex discrimination. In his view, the Clause was concerned primarily with racial discrimination against Black men, and any extension to women required a constitutional amendment—not judicial reinterpretation. This position implies that laws treating women differently from men are constitutional unless they are wholly irrational, a standard that would permit many of the discriminatory laws that were commonplace before the 1970s.

Broad Originalism and the Meaning of "Person"

Not all originalists adopt such a narrow view. Some scholars, such as John O. McGinnis and Michael B. Rappaport, advocate for "original methods originalism," which looks to the interpretive rules that the framers themselves would have used. Under this approach, the word "person" in the Fourteenth Amendment has a fixed meaning that includes all human beings, regardless of sex. The original understanding of "equal protection" may also be broader than Justice Scalia suggested. For example, the framers of the Fourteenth Amendment knew that some states had recently enacted laws that arbitrarily discriminated against women, and the Amendment's supporters criticized such laws as violating basic principles of equality.

Furthermore, originalist reasoning can be applied to the issue of sex-based classifications by focusing on the text's plain meaning. The Equal Protection Clause prohibits states from denying "the equal protection of the laws." If a law classifies on the basis of sex, an originalist might ask whether that classification was historically understood to be within the scope of permissible state action. Even if the framers accepted many sex-based laws, they may have also recognized that some classifications (e.g., those based on race) are inherently suspect. The question is whether original meaning can accommodate intermediate scrutiny—the level of review currently applied to sex discrimination—or whether it demands a more deferential standard.

Landmark Cases and Originalist Reasoning

Reed v. Reed (1971) and the Beginning of Modern Gender Equality Doctrine

In Reed v. Reed, the Supreme Court struck down an Idaho law that gave men an automatic preference over women in administering estates. Writing for a unanimous Court, Chief Justice Warren Burger held that the law violated the Equal Protection Clause because it was "arbitrary" and not substantially related to any legitimate state interest. The Court did not adopt strict scrutiny or any special test for sex; it simply applied the rational basis standard and found the classification irrational. Originalists can accept this outcome: the law singled out women for no good reason, and the original meaning of "equal protection" likely prohibits wholly arbitrary distinctions. However, Reed did not address whether more substantial justifications for sex-based laws would survive review.

Craig v. Boren (1976) and Intermediate Scrutiny

In Craig v. Boren, the Court established intermediate scrutiny for sex-based classifications, requiring that they serve "important governmental objectives" and be "substantially related" to those objectives. This test is more demanding than rational basis but less stringent than strict scrutiny. Justice William Brennan, writing for the majority, did not ground the decision in originalist reasoning; instead, he relied on a growing societal consensus against sex discrimination and the Court's evolving understanding of equal protection.

Originalist critics argue that Craig was a judicial invention with no basis in the original meaning of the Fourteenth Amendment. Justice Rehnquist dissented, insisting that the Amendment's framers did not intend to impose heightened scrutiny on sex classifications. If originalism were strictly applied, many sex-based laws—such as those reserving certain occupations for men or limiting women's contractual capacity—might be constitutional, even if they appear unjust today. This tension illustrates the fundamental challenge originalism faces in accommodating modern gender equality.

United States v. Virginia (1996) and the VMI Case

The most significant recent gender equality decision is United States v. Virginia, in which the Court held that the Virginia Military Institute's male-only admissions policy violated the Equal Protection Clause. Justice Ruth Bader Ginsburg, writing for the majority, applied a version of intermediate scrutiny that required an "exceedingly persuasive justification" for sex discrimination. The Court rejected Virginia's arguments that single-sex education offered diversity and that accommodating women would fundamentally alter VMI's adversative training model.

Originalism offers little support for the outcome in VMI. At the time of the Fourteenth Amendment's ratification, publicly funded military academies were open only to men, and no one thought the Equal Protection Clause required otherwise. An originalist judge might have upheld VMI's policy, pointing to the original understanding that sex-based distinctions in education were permissible. Yet the Court ruled 7-1 that such distinctions are now presumptively unconstitutional. The decision reflects a living constitutionalist approach that adapts the Constitution to changing societal norms.

Modern Originalist Challenges: The "Original Meaning" of the Fourteenth Amendment

Some originalist scholars argue that the original meaning of the Fourteenth Amendment actually supports stronger protections for gender equality than is commonly assumed. For example, Professor Steven G. Calabresi has contended that the original public meaning of "privileges or immunities" in the Fourteenth Amendment includes various common law rights that women held, such as the right to own property and to contract. On this view, the Privileges or Immunities Clause—not the Equal Protection Clause—is the proper vehicle for protecting women's rights. However, the Supreme Court has largely rejected this approach, keeping the focus on equal protection.

Another line of originalist argument focuses on the original meaning of "equal protection" itself. Historians have shown that the framers of the Fourteenth Amendment were influenced by the Civil Rights Act of 1866, which guaranteed all persons the same right to make contracts and inherit property as white citizens. By including language that prohibits "any law or custom" that would abridge these rights, the Amendment may have been intended to eliminate arbitrary discrimination against any group, including women. While this interpretation is contested, it suggests that originalism need not be hostile to women's rights.

Contemporary Debates Among Scholars

Does Originalism Inevitably Hinder Women's Rights?

Many feminist legal scholars argue that originalism is fundamentally antithetical to gender equality. Catharine MacKinnon and Martha Nussbaum contend that the original Constitution was a compact among white men that explicitly excluded women and other groups. Trying to wring gender equality from such a document, they say, is an interpretive stretch that can never fully undo the structural subordination embedded in the text. For them, only a living constitutionalist approach—or a new constitutional amendment—can secure full equality for women.

Other scholars take a more nuanced view. Kimberlé Crenshaw has argued that intersectional analysis reveals how originalism can both protect and harm women, depending on the context. For example, originalism might be used to strike down affirmative action programs designed to remedy historical discrimination against women, on the ground that the Equal Protection Clause was originally understood to forbid race- and sex-conscious classifications entirely. At the same time, originalism could limit Congress's power to pass laws like the Violence Against Women Act, which was partly struck down in United States v. Morrison (2000) on federalism grounds, a decision with originalist roots.

Can Originalism Adapt to Modern Gender Issues?

Some conservative originalists propose a "common law constitutional interpretation" approach, which blends original meaning with precedent and incremental change. Justice Stephen Breyer, though not an originalist, has called for a pragmatic approach that considers consequences. Meanwhile, originalists like Randy Barnett argue that the original meaning of the Constitution protects all natural rights, including the right of women to be free from sex-based discrimination in most contexts. Barnett's "original meaning" reading of the Fourteenth Amendment would likely require courts to apply strict scrutiny to sex classifications, a standard stronger than the current intermediate scrutiny. This example shows that originalism does not necessarily lead to conservative outcomes; the result depends on the specific historical evidence about what the constitutional text was understood to mean.

The Role of Precedent and Stare Decisis

Even among originalist judges, there is debate about the weight of precedent. Justice Scalia was willing to overturn prior decisions that he believed were wrongly decided, including Roe v. Wade and Planned Parenthood v. Casey (the latter reaffirming a right to abortion). In contrast, Chief Justice John Roberts has stressed the importance of stare decisis, especially for "super precedents" that have been relied upon for decades. Many originalist judges on the lower federal courts have applied intermediate scrutiny in sex discrimination cases even if they privately think Craig v. Boren was wrongly decided, because the precedent is settled. This institutional reluctance to unsettle established doctrine can reduce the practical conflict between originalism and women's rights.

Conclusion

Originalism remains a powerful force in constitutional interpretation, and its relationship to women's rights is complex. The original Constitution did not explicitly protect women's equality, but the Fourteenth Amendment's broad language of "person" and "equal protection" can be interpreted in ways that support gender justice—or limit it. Landmark cases from Reed v. Reed to United States v. Virginia show that the Supreme Court has largely adopted a living constitutionalist approach to sex discrimination, applying heightened scrutiny that originalists often criticize as unfounded.

Yet originalism is not monolithic. Some originalist scholars and judges believe that the original meaning of the Constitution, properly understood, prohibits most forms of sex discrimination and even requires a rigorous standard of review. Others maintain that the original understanding permits traditional sex-based roles unless explicitly repudiated by amendment. The ongoing debate underscores that constitutional interpretation is not just a technical exercise—it reflects deeper commitments about democracy, equality, and the role of the judiciary. As women's rights continue to evolve through litigation, legislation, and social change, the question of how to read the Constitution will remain central. Whether originalism can accommodate the full scope of gender equality—or whether it must be tempered by other interpretive methods—will likely define constitutional law for generations to come.

For further reading, see the Cornell Legal Information Institute's overview of equal protection, the American Bar Association's discussion of gender equality and constitutional interpretation, and the Supreme Court opinion in United States v. Virginia.