91 Tex. L. Rev. See Also 1 (2012)

handle is hein.journals/seealtex91 and id is 1 raw text is: Texas Law Review
See Also
Volume 91
Originalism, Sex Discrimination, and Age
Eric S. Fish*
This short piece considers whether the Twenty-sixth Amendment, which
bans age discrimination in voting rights, should be read back into the
Fourteenth Amendment to prohibit age discrimination in civil rights. It is a
response to Calabresi and Rickert's Originalism and Sex Discrimination, which
similarly considers whether the Nineteenth Amendment should be read back into
the Fourteenth Amendment to prohibit sex discrimination in civil rights. This
piece shows, based on the enactment history of the Twenty-sixth Amendment,
that it cannot be interpreted to expand the Fourteenth Amendment's prohibitions
to include age discrimination.  This would seem to create a problem for
Calabresi and Rickert's argument that all expansions of political rights
necessarily imply expansions of civil rights. However, that problem disappears
if one drops their formalistic a fortiori theory, and instead views the Nineteenth
Amendment as merely rebutting the factual assumptions behind the position that
sex discrimination is constitutional.
In Originalism and Sex Discrimination, Steven Calabresi and Julia
Rickert argue that the Fourteenth Amendment prohibits sex discrimination as
a matter of original meaning, despite evidence that its framers thought
otherwise.' In doing so, they join a growing number of constitutional
* Yale Law School class of 2011. This piece was conceived and written while the author was a
Yale Law School Public Interest Fellow.
1. Steven Calabresi & Julia Rickert. Originalism and Sex Discrimination, 90 TEXAS L. REV. 1
(2011). Calabresi and Rickert deliberately avoid specifying which constitutional clause is the
source of the Fourteenth Amendment's equality guarantee, noting that it could be the Equal

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