We (Who Are Not) the People: Interpreting the Undemocratic Constitution

79 Pages Posted: 30 Nov 2023 Last revised: 2 Dec 2023

See all articles by Joy Milligan

Joy Milligan

University of Virginia School of Law

Bertrall L. Ross

University of Virginia School of Law

Date Written: November 30, 2023

Abstract

How should we interpret a Constitution that was not written for us? For most of American history, “We the people” excluded women and racial minorities. The Constitution and all but a few amendments were adopted amidst profoundly undemocratic conditions in which majorities of the population did not participate or see their interests represented. The United States did not approach even minimally egalitarian democracy until 1965, when the Voting Rights Act finally assured the right to vote to people of color, implementing the Fifteenth and Nineteenth Amendments’ guarantees.

In this Article, we argue that the undemocratic nature of the Constitution must be addressed in interpreting the document. Interpreters can exacerbate or ameliorate the Constitution’s democratic flaws; the methods they select may entrench old forms of political exclusion or help equalize rights and status across the citizenry.

To illustrate, we offer a case study of the perils and possibilities of interpretation, focusing on unenumerated rights. Such rights may have been unwritten because they were liberties commonly exercised by white men as full citizens, and hence could be assumed. Or they may have been unwritten because they mattered primarily for politically excluded populations and therefore could be ignored. We show that the Supreme Court’s recent adoption of an approach to unenumerated rights resting on “history and tradition” unjustifiably reinforces prior undemocratic conditions. As a corrective, we advocate a set of interpretive steps designed to ameliorate the Constitution’s democratic flaws and advance equal citizenship. Such methods may move us closer to egalitarian democracy, a prerequisite if we are ever to reshape our constitutional framework under truly inclusive conditions.

Keywords: Constitutional interpretation, rights, substantive due process, abortion

Suggested Citation

Milligan, Joy and Ross, Bertrall LeNarado, We (Who Are Not) the People: Interpreting the Undemocratic Constitution (November 30, 2023). Texas Law Review, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2023-77, Available at SSRN: https://ssrn.com/abstract=4649510

Joy Milligan (Contact Author)

University of Virginia School of Law ( email )

United States

HOME PAGE: http://https://www.law.virginia.edu/faculty/profile/dvk7vp/dvk7vp

Bertrall LeNarado Ross

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

HOME PAGE: http://https://www.law.virginia.edu/faculty/profile/syr7hw/2917537

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