Cass Sunstein on equality and originalism

Excellent piece if you can get through the Bloomberg paywall.

Originalist Judges Have a Problem With Equality. Supreme Court conservatives know that race and sex discrimination by the federal government isn’t barred by the Constitution’s original meaning.

Judges who are committed to the “original public meaning” of the Constitution would almost certainly have to allow the federal government to say, “No women need apply.” They would probably have to conclude that if Congress wants federal agencies to pay men twice as much as women, the Constitution does not stand in the way. Originalist judges would find it exceedingly difficult not to rule that under the Constitution, Congress can segregate the schools in the District of Columbia. Originalist judges would probably have to conclude that if Congress wants to restrict African-Americans to lower-level positions within the federal government, the Constitution is not an obstacle. On originalist premises, a “whites only” policy would be constitutionally fine, insofar as we are speaking of the decisions of the U.S. government. Here’s why. The Equal Protection Clause of the 14th Amendment, adopted in the aftermath of the Civil War, applies only to the states, which may not “deny to any person within its jurisdiction the equal protection of the laws." The Bill of Rights, which does apply to the federal government, does not contain anything like an Equal Protection Clause, or any kind of ban on discrimination on the basis of race or sex.