Alfred L. Brophy

90 Texas L. Rev. See Also 55

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Professor Brophy responds to the ongoing dialogue concerning Professor Calabresi and Ms. Rickert’s article with his reactions to their originalist argument that the Fourteenth Amendment prohibits sex discrimination as a matter of original public meaning.  He observes a tension between original meaning and original intent and argues that original public meaning may differ from the Framers’ “original expected applications.”  Professor Brophy continues by asking a series of questions to ascertain how the Framers identified, how original meaning is established, and whose meaning governs.  Professor Brophy then observes how the Reconstruction-era amendments were construed broadly at the time and how by the Civil War, Americans had viewed the Constitution as a set of broad principles rather than a “mere set of words.”  Brophy concludes by suggesting potential applications of the Calabresi and Rickert argument.