America's Unwritten Constitution: The Precedents and Principles We Live By (50 page)

E
VE:
Look, a uterus is a body part, but why is it so different from other body parts—body parts that even males have?

A
DAM:
Huh?

E
VE:
Once a child is in fact born, suppose that child needs a kidney or a blood transfusion, and that the only tissue that will work is the father’s. Texas does not oblige him to give up even a drop of his replenishable blood or one of his kidneys, even though he has another one that suffices to meet his own biological needs. When it comes to body parts that men have, such as blood and kidneys, Texas law sides with the parent’s bodily liberty even at the expense of the child’s life. Only when it comes to uteri does Texas law privilege life over liberty, and Texas does so precisely because only women have uteri. In other words, Texas treats uniquely female body parts differently than all other body parts, and the state does so to women’s detriment.

A
DAM:
All this sounds like science fiction. Formally, the law treats blood and kidneys the same for mothers as for fathers—perfect formal equality. And it treats these things the same whether the child in question who needs the blood or kidney is a boy or a girl. It’s still hard for me to see the sex inequality here. True, pregnancy is treated differently than blood transfusions or kidney transplants—or nose jobs, for that matter—but that is simply because pregnancy is unique. Not all women are or ever become pregnant. The law simply treats pregnant persons differently than nonpregnant persons, and it does so for sensible reasons.

E
VE:
Adam, you can’t really mean that last point. Surely government should not be free to subordinate women so long as it does so via laws that use women’s unique biology to disadvantage them as a class! Imagine, for example, a law that said pregnant people may not vote, or serve on juries, or be elected to office. Wouldn’t such a law plainly violate the Nineteenth Amendment? If so, isn’t this a square admission that laws heaping disabilities on pregnant persons as such are indeed laws discriminating “on account of sex”?

A
DAM:
Hmm, I hadn’t quite thought of the Nineteenth Amendment as relevant. But the point remains that even if abortion and other pregnancy laws are in some sense laws that treat people differently on account of sex, the different treatment is justified.
Vive la différence!
Just as boys and girls generally play on separate sports teams, so, too, men and women generally play different roles in society. These roles are not designed to subordinate women. True, abortion laws limit women’s options,
but other laws limit men’s options. There is no grand male conspiracy here. Consider, for example, the military draft laws that have conscripted men and not women—impinging on men’s liberties in order to protect the lives of all of us, in a manner that broadly counterbalances the burdens imposed on pregnant women’s liberties to protect innocent unborn life.

E
VE:
Actually, the male-only draft tends to prove my point. When male soldiers have been drafted, our government has often furnished them with educational and other benefits after their term of service has ended. But when pregnant women are asked to disrupt their careers and education in order to protect unborn life, government has not showered comparable benefits upon them. There is no Mothers’ Bill of Rights akin to the GI Bill of Rights. Indeed, in Texas and many other places, public schools and public employers have generally been allowed to expel or fire unmarried pregnant women, but have not expelled or fired the men involved. If Texas meant to minimize its imposition on the lives and liberty of women, I suspect the state could also do much more than it has done to facilitate and encourage adoption (perhaps even through publicly supported institutions that would help any woman who so desired to keep the pregnancy itself confidential as well as the later adoption). I further suspect that Texas could do far more to support public institutions providing medical assistance and other services to indigent women bearing unwanted pregnancies.

A
DAM:
There you go again with your heavy-handed socialistic schemes! And while we’re at it, I also cannot fathom how equality principles are violated by the Connecticut contraception law that so distresses you. That law, too, is wholly evenhanded. It outlaws certain forms of contraception by both males and females.

E
VE:
Only a man could think that! If contraception is barred, the risk of unwanted pregnancy will be borne by women and only women. Formally, what you say is true. Both men and women are prohibited from using certain devices. But the Connecticut law specifically exempts contraceptive devices designed to prevent venereal disease. Thus, a condom is okay (as it might protect the man from unwanted infection), but a diaphragm is not (as it would only protect the woman
from unwanted pregnancy). In short, Connecticut allows men to shield themselves from future disease, but women are not allowed equally to shield themselves from future “dis-ease.” Pregnancy and childbirth are, after all, not exactly easy.

A
DAM:
Huh? Pregnancy and disease are very different things. Clever puns aside, there is a world of difference between having a baby and contracting syphilis.

E
VE:
Yes, there are differences, but please note how the Connecticut law entrenches traditional gender roles, implicitly treating women as baby machines and using their unique biology as a basis for legal disadvantage.

A
DAM:
Once you concede that pregnancy is unique, it becomes impossible for you to insist that Connecticut is improperly discriminating. Connecticut is simply recognizing the different—separate but equal—roles that men and women have always played in America.

THE LESSON OF THIS PLAYFUL VIGNETTE
is that social meaning becomes especially important with regard to certain issues of gender equality because: (1) There are biological differences between the sexes that may make it hard for any purely formal and logical analysis to close the argumentative circle, and (2) the Constitution allows government to treat the two sexes differently, whereas the Constitution does not generally allow government to treat various races differently. Where pure logic runs out, social meaning often fills the gap to complete the circle of proper constitutional analysis.

Logically
, it was difficult for Eve in 1950 to prove to Adam, in the way that a mathematician might undeniably prove a theorem, that the Texas and Connecticut statutes violated equality principles. And what was logically true in 1950 was of course logically true in 1975. Logic had not somehow changed in the intervening quarter century. But social norms and understandings did change in this era.
Sociologically
, Eve’s task became much easier when she could point to lots of other Eves in America who now shared her once-avant-garde but increasingly mainstream views. When large numbers of women in the 1960s and 1970s began to sound increasingly like Eve, this swelling chorus of Eves prompted the Adams of the world to rethink their assumptions.

Social meaning outside the terse text thus interacts with the words of the written document in ways structured by the text itself. Even when the Constitution does not supply an unambiguous and concrete solution to a particular issue (as it does with presidential age), the document may still provide a relatively clear framework of constitutional conversation and contestation. In other words, the text at times gives later generations not the right answers but the right questions for us to ask and the right vocabulary for us as we begin thinking over and arguing about those questions.
¹⁷

For example, we saw earlier how the word “unusual” invites interpreters to attend to national majoritarian trends in punishment. The word “unreasonable” in the Fourth Amendment also authorizes interpreters to take evolving social norms into account. What is widely viewed as reasonable in one era may not be so viewed in another period. The Ninth Amendment “rights of the people” are likewise influenced by what the people believe their rights to be at any given moment.

The word “equal” operates in a similar but not identical fashion. Like these other words, the word “equal” at times invites interpreters to go with the ebbs and flows of citizen understandings. But in looking outside the written Constitution to determine whether a borderline law should be viewed as a sex “discrimination,” and, if so, whether this discrimination should be viewed as impermissibly “unequal,” what matters is not merely what a majority of the entire population might think—an approach that might make more sense in parsing a word such as “unusual” or a phrase such as “the right of the people.” Rather, in parsing the word “equal,” faithful interpreters must pay particularly close attention to how
each side
of a given legal distinction views the law in question. If both sides think the law is sufficiently equal, that very fact might make it so. But if
either
side deems the law unacceptably unequal, then that fact may also be decisive. The mere facts that at certain moments many whites apparently convinced themselves that Jim Crow was equal, and that these whites perhaps constituted a majority, did not properly conclude the equality inquiry; the question of what blacks thought of this brand of apartheid remained. Similarly, it matters today not just whether men see various antiabortion laws as proper, but, crucially, whether women—the Eves of the twenty-first century—agree.

REGARDLESS OF IMPLEMENTATIONAL VARIATIONS
and details in enforcing the written Constitution’s rules regarding equal citizenship, unusual punishments, unreasonable searches and seizures, and so on, we should not lose sight of the larger methodological point: The document itself invites careful consideration of contemporary social meanings and popular understandings with regard to many issues of liberty and equality. Written words such as “equal,” “unreasonable,” and “unusual” direct sensitive interpreters to unwritten sources, including state practices, mass social movements, social meaning, lived experiences, and so on. Words like this, in short, are brilliantly designed to keep the American Constitution in touch with the American people even in the absence of formal Article V amendments. These words help America’s written and unwritten Constitutions cohere.

THE CURRENT CHAPTER HAS TAKEN
its title and its inspiration from a letter that Abigail Adams wrote to her husband in the spring of 1776: “I long to hear that you have declared an independency. And, by the way, in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation.”
¹⁸

John Adams and his fellow Founding fathers paid insufficient heed to Abigail’s words, and eventually “the ladies” did “foment a rebellion”—three rebellions, in fact.

First, women played a large role in the abolition and equal-rights movements that led to the Reconstruction Revolution of the late 1860s. Happily for women, section 1 of the Fourteenth Amendment promised birth equality to all citizens in the domain of civil rights and did not limit itself to a mere promise of racial equality. Alas, section 2 constitutionalized sex-discrimination in the domain of voting rights and indeed inserted the word “male” into the Constitution for the first time.
¹⁹

Revolted, women revolted—again. The crowning achievement of this
second feminist revolution was the Nineteenth Amendment’s explicit textual guarantee of equal political as well as civil rights for women.

These two revolutions left their marks in the written Constitution, but America’s Constitution today also reflects, quite properly, America’s third—unwritten—feminist revolution, when women in the late twentieth century added a powerful feminist gloss to the previously adopted words “citizens,” “equal,” and “sex.” These words have come to mean even more, perhaps, than they meant to those who initially added them to the document—and rightly so, given that the political institutions that added these words to the text did not at these moments of textual addition equally represent women.

Abigail Adams was on the right track: Why, indeed, should women “hold [themselves] bound by any laws in which [they] have no [or unequal] voice or representation”? The best answer is that women today do have equal voice and representation; and that all laws, and especially those laws enacted before women achieved full political equality, must now be construed with attention to women’s equality and with particularly sensitive awareness of the political exclusion of women in earlier centuries. Whether or not the written Constitution compels this feminist rule of construction, this approach redeems the document’s deepest principles. Faithful interpreters today must remember Adams—and Eves.

_____________________

^*
Other constitutional amendments expanding rights of democratic participation—for example, the Thirteenth, Fourteenth, Fifteenth, Twenty-third, Twenty-fourth, and Twenty-sixth Amendments—raise broadly similar questions that lie beyond the scope of this chapter. Here, as in other chapters, I aim to offer exemplary, not exhaustive, illustrations of how faithful interpreters may properly go beyond the text while staying true to it.

^*
See, e.g., the picture and caption with which this chapter begins. The linkage between woman suffrage and woman jury service was also a subtext of Susan Glaspell’s brilliant 1917 short story “A Jury of Her Peers” and its accompanying one-act play, “Trifles.”