Academic journal article Constitutional Commentary

Stop the Fight for Women's Equality. (P. 139-174)

Academic journal article Constitutional Commentary

Stop the Fight for Women's Equality. (P. 139-174)

Article excerpt

GENDER EQUALITY: DIMENSIONS OF WOMEN'S CITIZENSHIP, (Linda C. McClain (1) & Joanna L. Grossman, (2) eds.). New York, Cambridge University Press. 2009. Pp. 450. $99.00.

Many civil rights scholars despair that the Equal Protection Clause's success in securing women and minorities' formal equality has come at the price of achieving substantive equality for individuals without regard to their race or sex. (4) In the service of "formal equality," for example, the Court has barred race-conscious measures to remedy past societal discrimination (5) or to achieve integration. (6) Intentional discrimination alone violates the principle of formal equality--policies or practices with substantial disparate impact on the basis of race, sex, or national origin do not. Indeed, the principle of formal equality can prevent government officials from discarding ability tests because they have a disparate impact on the basis of race. (7) Finally, the Fourteenth Amendment Equal Protection Clause regulates just state action, not private actors, leaving many things that contribute to women's inequality outside the reach of the Constitution and Congress to remedy.

In the 1970s, Kenneth Karst foresaw equality's limitations.

"[T]he formal guarantee of equal civil rights, necessary as it was to achieving the full inclusion of all Americans in the national community, [will] take us only partway toward" full inclusion. (8) He urged courts and civil rights lawyers to think in terms of guaranteeing equal citizenship status for all Americans. The principle of equal citizenship requires that "[e]ach individual is presumptively entitled to be treated by the organized society as a respected, responsible, and participating member." (9)

As this definition implies, citizenship encompasses more than formal membership in a society. According to Karst, "citizenship ... begins [with] the formal recognition of" equality, but it "is also a principle of substance." (10) As surely as formal barriers deny equal citizenship to individuals, so too do "substantive inequalities," which "effectively bar people from full membership." (11) The state is not the only culprit in creating castes of citizens--nongovernmental institutions have played (and continue to play) a significant role in "segregating American public life," and excluding members of some groups from full inclusion in that public life. (12)

More recently, Reva Siegel has argued that the Nineteenth Amendment might be a more powerful weapon than the Fourteenth Amendment's Equal Protection Clause for securing substantive equality for women. She has documented that the Nineteenth Amendment's purpose was to guarantee women's equal status as citizens. It disrupted two powerful barriers to that equal status that persisted under the Fourteenth Amendment. First, the public/private distinction insulated most acts by private citizens from Fourteenth Amendment liability and many from federal regulation. (13) Second, federalism prohibited Congress from regulating marital and familial relationships.

Professors Karst and Siegel (and others) believe that reframing issues of women's equality as issues of women's inferior status as citizens could avoid some of the conceptual and constitutional hurdles that have blocked progress toward substantive sex equality. Specifically, women could argue, first, that private persons, not just state actors, undermine their citizenship status; second, that policies with disparate impact are just as pernicious as disparate treatment; and, third, that individuals have the right to demand certain positive entitlements in addition to negative liberties to secure their equal status as citizens.

In Gender Equality: Dimensions of Women's Citizenship, twenty prominent feminist scholars explore what equal citizenship for women would mean, what elements such a concept would contain, and whether it could successfully further the quest for substantive equality. …

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