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Abstract:
Neglected Stories and Progressive Constitutionalism first re-articulates the neglected but increasingly recognized view that an antislavery ideology is at the heart of the definitions of liberty and citizenship enshrined in the Fourteenth Amendment of our reconstructed Constitution. We in the United States came to a deeper understanding of civil freedom as we experienced chattel slavery, and the Fourteenth Amendment should be interpreted to give life to that deeper understanding. The article then asks whether interpreting the reconstructed Constitution as a reflection of antislavery ideology furthers a progressive constitutionalism, where progressivism is understood to entail commitments to social welfare, anti-subordination, and civic empowerment of a free citizenry. The answer is a qualified "yes." An antislavery vision of the concepts of liberty and equal protection easily supports constitutional interpretations that combat subordination and promote civic empowerment, for subordination and "social death" were slavery's hallmarks. An antislavery constitutional vision is related in a more complex, but illuminating way to progressive goals of social welfare. For example, the slave system and its immediate post-emancipation substitutes made clear that unregulated markets were inconsistent with minimally humane conceptions of a universal right to the fruits of one's labor. As a result, the antislavery vision of freedom encompasses fairness in the marketplace rather than absolutist notions of contractual liberty. The methods employed in the essay are contextual, perspective-seeking, critical methods developed within critical race and feminist legal theory, and the essay concludes with a comment on those methods and the persistent attacks to which critical race and feminist legal theory have been subjected.

Abstract:
A Woman Decides addresses the need for intellectual versatility among judges and lawyers. The underlying premise of the essay is that excellence in judicial practice requires integration of rule-based and contextual reasoning. Professor Gilligan's work is relied on both to explain the importance of intellectual versatility and to explain why cultures of professional practice fail to encourage it. Professor Davis's work is relied on to explain the importance of an intellectually versatile approach, and the dangers of an intellectually narrow approach, to decisionmaking that relates to three important aspects of substantive due process: the liberty interests in controlling the manner of one's death, choosing whether and when to bear children, and maintaining a significant measure of independence in fulfilling the parental role. Justice O'Connor's jurisprudence in these areas is analyzed in terms of its interpretations and applications of rule systems as well as its interpretations of context.