Introduction

Debates over political representation are pervasive in the USA. Pluralist by design, many of the country's core political values and institutional arrangements are premised on the belief that the number of voices in the process is at least as important as the outcome produced. Definitions of representation thus tend to focus on opportunities for participation in public decisions. A host of the key constitutional and statutory developments of the twentieth century are telling in this regard, including direct democracy, secret ballots, primaries, expanded voting rights, campaign finance reform, eased voter registration, and more. American affinity for the rhetoric of representation has hardly resulted in participatory parity, however. The US Congress remained less than 14 per cent female in 2003; the state legislatures averaged just 23 per cent women members (ranging from 37 per cent in Washington to 9 per cent in South Carolina); and only six women – a record – currently serve as governors.

Another aspect of representation in a democratic system, especially one so heavily draped in formal constitutionalism, is the manner in which citizens are identified under its governing document. The Equal Rights Amendment (ERA) of the 1970s and early 1980s addressed this matter with respect to sex. Its ratification would have produced both practical and symbolic effects. In the former case, most analyses conclude that it would have elevated the consideration of sex discrimination cases to the level of strict scrutiny, the judiciary's highest threshold for examining publicly sponsored differential treatment.