*Below is a short essay that I wrote in the Fall of 2012 for my Constitutional Law class. The societal shift that happened when women finally gained the constitutionally protected right to vote should not be overlooked. And (according to one bright Constitutional Law scholar) it changed the way we should look at our nation’s jurisprudence as a whole. I hope this is accessible to law students, and non-law students alike. Good stuff. Also, I end the post with a video that is quite relevant. Enjoy!
PS- Working on a piece or two on cases that are to be heard by the Supreme Court this spring- challenging the constitutionality of the Defense of Marriage Act (DOMA). Stay tuned – fascinating stuff!
Constitutional law scholar and Yale Law Professor, Akhil Reed Amar, has written a number of books on the United States Constitution, but his most recent, America’s Unwritten Constitution: The Precedents and Principles We Live By, examines a handful of novel (at least to me) theories of interpretation – in particular what the ratification of the Nineteenth Amendment did to judicial review. We have long been “reading between the lines,” argues Amar; thus, it is all the more critical that we (as students of the text, citizens and jurists) know the “unwritten” phenomena that help us better apply the Constitution to federal and state action. One of those lenses is the “feminist rule of construction.” In very clear, eloquent prose, he offers a chapter full of reasons why the Nineteenth Amendment (granting women the right to vote) changed the way we should be reading and interpreting law.
The chapter’s title – “’Remembering the Ladies’: America’s Feminist Constitution” – is inspired by a letter Abigail Adams wrote to her husband in the spring of 1776, urging him to “remember the ladies and be more generous and favorable to them than your ancestors.”  Despite her wisdom, John Adams and his fellow drafters did not heed much of her advice. It was not until 1920 and Nineteenth Amendment before this came to pass. Such an important fact in our nation’s history may not be fully appreciated by judges across the country examining the constitutionality of legislation. It was certainly not appreciated by me before this book.
Simply put, in 1920, the Nineteenth Amendment doubled the franchise in our nation. Thus, the Preamble’s phrase “we the people” took on much broader meaning overnight. In turn, Amar suggests that statutory interpretation of laws drafted before 1920 should be viewed differently than those enacted after. His “feminist rule of construction” makes a crucial point: “all laws, especially those enacted before women achieved full political equality, must now be construed with attention to women’s equality and with particularly sensitive awareness of the political exclusion of women in earlier centuries.” (305) This approach had never occurred to me before – and quite frankly, I will never forget it. It seems something that should be so fundamental to our constitutional studies – especially as we distinguish the Constitution from plain statutes. The former is a document directly of the people; the latter formed by elected representatives of the people. And while I have not seen such a theory play out in a courtroom, it seems to be a compelling argument if done well and applied to the right law and facts.
What is more, the adoption of Nineteenth Amendment “amends” the wrong done to women before 1920. Nothing in the original Constitution grants males the affirmative right to vote, and no provision expressly precludes women. The “wrong” was mere social construct and a “glib assumption that before 1920, male voters and lawmakers always properly protected the legitimate interests of nonvoting females.” (284) Women’s suffrage “was an official recognition that the previous exclusion of women from the franchise had indeed been wrong and deplorable by the more enlightened standards of the post-woman-suffrage Constitution itself.” (284)
From this should flow a natural shift in our post-1920 constitutional interpretation; we should be asking “how to factor this profound implication of women suffrage into proper constitutional interpretation.” (284) For instance, reproductive laws and other rules (made before 1920) unique to women are inherently unfair if women had no vote in the matter. Amar never suggests that interpreters should try to imagine how constitutional language would have been drafted had women been allowed to vote early on – such an exercise would be a “mind-bending thought experiment of such indeterminacy that all legal constraint would be lost.” (283) Instead, he urges jurists to infuse into their constitutional interpretation a distinction between pre- and post-1920 America. Just as much as we spend time analyzing the intent of the Founding Fathers, we should examine the aim of the “amending sons and daughters,” says Amar. (283) Here again, his analysis expanded my prior thinking about traditional categories (e.g. original intent, strict construction, etc.) – and how they may fall short of rich legal theory that can help novice attorneys expand their toolkits.
He examines laws governing women’s reproductive rights – namely in the two seminal cases (Griswold v. Connecticut and Roe v. Wade) which challenged state laws enacted in the mid-1800s by all-male legislators, elected by only male voters. (291) Amar argues the feminist rule of construction must be applied to these laws when being litigated post-1920. If these laws result in restriction on women’s liberty and freedom, and keep them from having careers outside the home, then the Nineteenth Amendment may have something to say about them. That is, the amendment “narrows the range of possible outcomes, and various elements of America’s unwritten Constitution—structural inferences, logical entailments, principles of interpretative coherence, and common sense.” (283) In light of the current debate over the government’s intervening in issues of women’s health, it had not occurred to me that the Nineteenth Amendment may be a good way to buttress arguments in favor of granting women more freedom to decide.
Further, Amar points out that the Nineteenth Amendment gives Congress authority to enact “appropriate legislation” to enforce the amendment’s letter and spirit. Combine that with McCullough and it would follow that Congress can embrace all kinds of women’s equality laws– so long as “the end be legitimate…[and] all means…are appropriate.” (McCullough) Further, he criticizes the Morrison court for failing to ponder the “unwritten principle of popular sovereignty;” therefore, the result undermined a basic claim to the Constitution’s legitimacy. He sums up the matter: “When the written Constitution can fairly be read in different ways, congressional laws that are enacted after the Nineteenth Amendment and are designed to protect women’s rights merit a special measure of respect because of their special democratic pedigree.” (282) This notion has transformed the way I think about legislation like the Violence Against Women Act (VAWA). While most would agree VAWA is the right thing to do, Amar’s analysis underscores the Congressional authority for existing federal law.
Finally, Amar considers the notion of “separate but equal” – how the social meaning of this phrase has evolved over time and how women’s suffrage informs it. Prior to the 1960s, few women challenged laws entrenched in traditional gender roles (generally, women were fine staying at home while men worked outside the home); but the Equal Rights Amendment (ERA) in the 1960s offered proof that popular sentiment had changed. Broad support of the proposed amendment, says Amar, “was entitled to interpretative weight as a popular gloss on the Fourteenth and Ninth Amendment, in keeping with the principles of America’s lived Constitution.” (296) This modern example helped crystallize my understanding of constitutional interpretation – and how we can examine social phenomenon while continuing to uphold the integrity of the Constitution. In light of the evolving social meaning of ‘separate but equal’, the Constitution’s “text at times gives later generations not the right answers but the right questions for us to ask and the right vocabulary for us as we begin thinking and arguing over those questions.” (303) Now having the benefit of Professor Amar’s thoughts on the ‘feminist constitution,’ I will ask myself precisely the questions that he has astutely raised.