Dialogic Fidelity: The Fourteenth Amendment, Historical Meaning, and Appropriate Scrutiny for Sex Discrimination

Last Term, the Supreme Court confronted constitutional issues of sex discrimination and search and seizure. First, in Atwater v. City of Lago Vista,1 the Court held that the Fourth Amendment creates no bar to the warrantless arrest of a citizen for a misdemeanor criminal offense. Then, in Nguyen v. INS,2 the Court upheld against an equal protection challenge a statute that imposed different requirements for the acquisition of citizenship by a child born outside the United States to a United States citizen and non-citizen, depending on whether the citizen parent was the child’s mother or father. The Court decided each case by only a ave-tofour majority, but the manner in which each majority delivered its opinion was strikingly different. A comparison of the two majorities’ respective methodologies frames the problem this Article will consider: interpretive adelity to the Constitution. In Nguyen, Justice Kennedy began the majority opinion by explaining the facts and procedural background of the case. Next, he detailed the challenged statute. Then he initiated the Court’s constitutional analysis as follows: “For a gender-based classiacation to withstand equal protection scrutiny, it must be established at least that the [challenged] classiacation serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives . . . . For reasons to follow, we conclude § 1409 satisaes this standard.”3 Facially, these assertions did not attempt to reckon with the historical meaning of the Constitution for sex-based discrimination. In-