Women and the Promise of Equal Citizenship

Abstract:     
Anticipating the decision in United States v. Morrison (2000), holding that the civil rights remedy of the Violence Against Women Act was not a legitimate exercise of Congress's power to enforce the Equal Protection Clause, this article argues that the Act could be upheld as an exercise of Congress's authority under the Citizenship Clause of the Fourteenth Amendment. Congress's authority under the Citizenship Clause is analogous to its authority under the "badges and incidents" doctrine of the Thirteenth Amendment, which allows Congress to provide protection from discriminatory violence. This theory would also guide interpretation of the act to focus on the private harm inflicted by private domination of another individual, rather than bootstrapping this concern onto a purported concern for failures by state law enforcement.

Number of Pages in PDF File: 42

Keywords: Women, equal protection, citizenship, section 5, feminism, violence against women, fourteenth amendment

Accepted Paper Series