Introduction

Mainstream constitutionalism has been slowly but surely turning its back on the courts. For many years, the notion of a constitution was synonymous with the notion of judicial review. Conventional wisdom held that we have a constitution to restrain majorities and legislatures. At the birth of a nation, or at some pivotal point in its history, the polity determines long-term principles to guide it for generations to come. These principles must be put in general terms to allow for adaptability and adjustments over time. They also limit the power of the government, and therefore must be enforced by an external institution, one that is not a directly publicly accountable part of government. This institution is the courts. When constitutional principles are not clear, the courts are charged with interpreting them. However, such conventional wisdom is no more. Many scholars across the globe have been advocating the replacement of judicial supremacy-based constitutionalism with what we call democratic constitutionalism. Unlike constitutional models that exemplify legislative supremacy, democratic constitutionalism favors a supreme and entrenched constitution. However, unlike under a system of judicial supremacy, democratic constitutionalism leaves the final word on constitutional matters in the hands of the elected lawmakers.

The merits of this middle-ground model of constitutionalism have been the subject of much debate in the literature. However, the relationship between democratic constitutionalism and feminism has not yet been explored. In this chapter, we offer a first reflection on this topic and argue that democratic constitutionalism provides important opportunities for the direct participation of women in discussions of constitutional issues.

What is feminist constitutionalism? Basically, it is the project of rethinking constitutional law in a manner that addresses and reflects feminist thought and experience. We use this term in contrast with the “constitutional law and” approach – constitutional law and gender or constitutional law and feminist theory – because we aspire to explore the relationship between constitutional law and feminism by examining, challenging, and redefining the very idea of constitutionalism from a feminist perspective. Feminist constitutionalism demands that we not only revisit classical topics from new perspectives but, more importantly, pose new questions, introduce new topics, and take responsibility for changing the focus of constitutional discussion and debate. We embrace the questions raised by studies of gender or feminism “and” constitutional law even as we urge scholars to move beyond them.

We acknowledge the importance of constitutional law for feminist analysis. Constitutional law is foundational to most of the world's legal systems. It shapes fundamental assumptions regarding citizenship, rights, and responsibilities. Feminists who critique law must understand that legal systems cannot really be transformed without addressing their constitutional foundations. Historically, the second-class status of women in law derived from constitutional structures and assumptions. For instance, in the Anglo-American countries – Great Britain, the United States of America, and Canada – women were denied the right to vote in the nineteenth and early twentieth centuries in part because constitutional norms were phrased in masculine terminology (e.g., “men,” “he”) or given a gendered interpretation (e.g., “persons” as referring to “men”).