Abstract

http://ssrn.com/abstract=2324611
 


 



Women's Exclusion from the Constitutional Canon


Jill Elaine Hasday


University of Minnesota Law School

September 10, 2013

University of Illinois Law Review, Vol. 2013, October 2013
Minnesota Legal Studies Research Paper No. 13-43

Abstract:     
This Essay asks why sex equality is outside the constitutional canon. While race discrimination is a canonical concern of constitutional law, the story of America’s struggles over and against sex discrimination is not widely taken to be a central, organizing part of our constitutional tradition — a defining narrative that exemplifies and expresses the nation’s foundational values and commitments. I offer three potential explanations for the exclusion of sex equality from the constitutional canon. First, the Supreme Court’s jurisprudence developed in ways that suggested that sex discrimination was not a core constitutional problem and concern, especially when compared to race discrimination. Second, the Court’s sex discrimination case law has focused narrowly on state action that draws explicit distinctions between women and men. The Court has little interest in reviewing facially neutral laws, no matter their contribution to women’s unequal status, so the Court hears few sex discrimination suits anymore. This paucity of case law contributes to the sense that conflicts over sex equality are no longer central to constitutional law, if they ever were. Third, the story of women’s resistance to sex discrimination may be less prominent in American constitutional law because this story is less prominent in American popular culture, and vice versa. The Essay concludes by exploring why sex equality may ultimately become part of the constitutional canon. The Court’s reading of the Equal Protection Clause to prohibit sex discrimination has become much less controversial since the 1970s. Moreover, new analogies have emerged in constitutional law, which over time have pushed sex discrimination closer to the core of the Equal Protection Clause. Courts, lawmakers, advocates, and scholars seeking constitutional protection from sexual orientation discrimination now routinely analogize sexual orientation to sex. The frequency and prominence of these analogies, which presuppose that struggles against sex discrimination are already central to our nation’s understanding of equality and equal protection, may help move sex into the constitutional canon at last.

Number of Pages in PDF File: 18

Keywords: Constitutional Law, Canon, Women, Men, Sex, Gender, Discrimination, Equal Protection, Fourteenth Amendment, Nineteenth Amendment, America's Unwritten Constitution

JEL Classification: D63, J16, J71

Accepted Paper Series


Download This Paper

Date posted: September 13, 2013  

Suggested Citation

Hasday, Jill Elaine, Women's Exclusion from the Constitutional Canon (September 10, 2013). University of Illinois Law Review, Vol. 2013, October 2013; Minnesota Legal Studies Research Paper No. 13-43. Available at SSRN: http://ssrn.com/abstract=2324611

Contact Information

Jill Elaine Hasday (Contact Author)
University of Minnesota Law School ( email )
229 19th Avenue South
Minneapolis, MN 55455
United States
Feedback to SSRN


Paper statistics
Abstract Views: 305
Downloads: 64
Download Rank: 204,121

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.453 seconds