Comprehensive Transformative Amendments – Theory and Practice: Rethinking the Nineteenth Amendment and the Place of Women’s Rights in the Constitution
Dartmouth Law Journal (2015), Forthcoming
88 Pages Posted: 2 Aug 2014 Last revised: 28 Aug 2014
Date Written: March 7, 2014
This article brings together two of the most contested issues in contemporary constitutional law: how to theorize the impact of constitutional amendments upon the broader field of constitutional law and interpretation, and how to understand the place of women’s rights and sex equality in the Constitution. I propose a new typology of constitutional amendments, and then apply it to the Nineteenth Amendment. Traditionally, scholars have classified constitutional amendments into two types: declaratory and transformative. I will deepen this distinction by arguing that transformative amendments may be either political or comprehensive, and that the difference matters to constitutional adjudication. I will then argue that the comprehensive transformative nature of the Nineteenth Amendment requires synthesizing it with the Fourteenth in a manner that justifies a number of constitutional rights, in the domain of sex equality, that the Supreme Court has controversially found – or declined to find – in the last few decades. The paper, therefore, consists of two parts. The first part is theoretical. I begin by explaining the traditional distinction between declaratory and transformative amendments (I). I then distinguish between political transformative amendments, that are limited to changing a set of legal norms, and comprehensive transformative amendments, that repudiate not only legal norms, but a set of cultural and other societal assumptions that underlie the pre-transformation status quo. (II) I conclude by arguing on various principled grounds (III), that Courts must take into account the repudiation of comprehensive moral or ethical systems of values as reflected by comprehensive transformative amendments. (IV) In the second part, I argue that a historical analysis of the American suffrage movement justifies treating the Nineteenth Amendment as a comprehensive transformative amendment (V) I then contend that a synthesis of the Nineteenth and the Fourteenth requires reading into the Fourteenth Amendment’s proscriptions of caste-codes and arbitrary distinctions, those differences that can be traced back to the cultural and ethical assumptions that the Nineteenth Amendment was enacted to repudiate (VI). I conclude by examining certain areas of women’s rights law – e.g., labor regulations, abortion, sex discrimination and disparate impact – and analyze how this theory applies to actual practice, (VII) before briefly concluding (VIII).
Keywords: constitutional law, nineteenth amendment, fourteenth amendment, John Rawls, sex equality
JEL Classification: K39
Suggested Citation: Suggested Citation