The Gendered Jurisprudence of the Fourteenth Amendment

Abstract

This chapter synthesizes two centuries of women’s exclusion from constitutional protection and describes the judiciary’s inauguration of equal protection in the 1970s. It highlights how the US Supreme Court’s use of middle scrutiny for sex discrimination claims is unpredictable in application and porous to gender prejudice. The chapter dissects the conservative architecture underlying equal protection jurisprudence, which has contributed to its failure to achieve substantive sex equality. It then shows how liberty jurisprudence mirrors equality jurisprudence, for example, by reducing the scrutiny applied to abortion restrictions. Finally, the chapter also explores the myriad ways that equality and liberty interrelate. The author concludes that feminists have always understood constitutional law as a language and the courts as a forum for the ongoing societal dialogue about ending gender subordination.

Keywords: Fourteenth Amendment, Equality, Equal protection, Liberty, Substantive due process, Constitutionalism, Sex Discrimination, Gender Discrimination, Intermediate Scrutiny, Ruth Bader Ginsburg