Women's Exclusion from the Constitutional Canon

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.

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

JEL Classification: D63, J16, J71