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  • Cited by 2
  • Print publication year: 2004
  • Online publication date: January 2010

12 - Gender and the United States Constitution: Equal Protection, Privacy, and Federalism


There are no doubt thousands of pathways, direct and indirect, by which constitutions work to enforce and to unsettle the institutions, practices, and understandings that regulate social status of men and women. In this chapter, I consider a few of the more prominent ways that the United States Constitution has served to legitimate and to dismantle social arrangements that sustain inequalities between the sexes.

The U.S. Constitution prohibits government from acting in ways that deny persons within its jurisdiction the equal protection of the laws. This chapter begins with a brief account of how the Supreme Court came to read this clause of the Fourteenth Amendment as a guarantee of equal citizenship for women, over a century after it was first included in the Constitution. It surveys the basic contours of equal protection doctrine, and then considers in more detail how the United States Supreme Court has applied the Equal Protection Clause to questions of sex discrimination in a variety of different practical contexts. The remainder of the essay considers two other bodies of constitutional doctrine that play an especially prominent role in shaping women's lives: privacy doctrines that protect individual decision making about reproduction from state interference, and federalism doctrines that determine the circumstances in which the United States Congress can enact laws that affect family relations.

In general, my account emphasizes description, rather than critical evaluation, of American constitutional law.

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Katharine T. Bartlett and Angela P. Harris, Gender and Law: Theory, Doctrine, Commentary, 2nd ed. (New York: Aspen Law & Business, 2002)
Martha Chamallas, Introduction to Feminist Legal Theory (Gaithersburg, MD: Aspen Law & Business, 2003)
Catharine MacKinnon, Sex Equality (New York: Foundation Press, 2001)
Crenshaw, Kimberlé, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics” (1989) University of Chicago Legal Forum139
Garrow, David J., “Abortion before and after Roe v. Wade: An Historical Perspective” (1999) 62 Albany Law Review833
Hunter, Nan D., “Panel VI: Fighting Gender and Sexual Orientation Harassment: The Sex Discrimination Argument in Gay Rights Cases” (2000) 9 Journal of Law and Policy397
Catharine Mackinnon, “Difference and Dominance: On Sex Discrimination” (1987) Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987) 32
Olsen, Frances, “Statutory Rape: A Feminist Critique of Rights Analysis” (1984) 63 Texas Law Review387
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Siegel, Reva B., “‘The Rule of Love’: Wife Beating as Prerogative and Privacy” (1996) 105 Yale Law Journal2117
Williams, Wendy W., “The Equality Crisis: Some Reflections on Culture, Courts, and Feminism” (1992) 14 Women's Rights Law Reporter151