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

Published online by Cambridge University Press:  14 January 2010

Reva B. Siegel
Nicholas de B. Katzenbach Professor of Law, Yale Law School
Beverley Baines
Queen's University, Ontario
Ruth Rubio-Marin
Universidad de Sevilla
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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.

Publisher: Cambridge University Press
Print publication year: 2004

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