Two hundred and twenty-five years ago this week - right here in Philadelphia, "where it all began" - America's Founding Fathers went public with a proposed Constitution promising more democracy than the world had ever seen. Even so, in September 1787, "We the People" basically meant "We the Men." This year, the fate of this manly constitutional project rests more than ever in the hands of women.
More women than men will cast votes in November. Just for fun, imagine that women were to vote as a unified bloc. Virtually every election in America at every level of government - both candidate elections and issue elections - would be decided by the female vote. More plausibly, note that in any election in which men are closely divided, the candidate or issue position decisively favored by women will prevail.
For this remarkable turn of events, we must credit not just the Founding Fathers but also their amending daughters, granddaughters, and so on, who have rewritten the Constitution in both word and deed.
The gender-bending of the Philadelphia Constitution began in earnest after the Civil War with the 14th Amendment, which promises "equal protection" to all - not merely racial equal protection but more generally. The amendment also proudly affirms that all homegrown Americans are "born" with equal civil rights. Just as a child born black or brown enjoys the same civil rights as a child born white, so, too, those born female are equal in civil rights to those born male.
What does the term "equal protection" mean? I've seen some impressive originalist scholarship that argues both the due process and equal protection clauses were meant to be entirely procedural, not substantive. That is, properly understood, there is not even a substantive right to be free from government racial discrimination under "equal protection" principles. Rather, it's a command to the executive branch of government that no individual or group of individuals be excluded from whatever general laws are on the books. And as written, these clauses do speak of "persons" and "citizens" and don't even mention race. To use a reduction ad absurdum, even the worst individuals you could imagine -- rapists and pedophiles -- are entitled to procedural equal protection. We could imagine someone accused of these horrific crimes being singled out by a mob and the police standing by and letting the mob have their way with them. That would be a denial of equal protection and due process rights to rapists and pedophiles.
(And yes, something like that was done to blacks in Jim Crow, although in a much more sophisticated way; they got access to police calls and their days in court, where the arresting officers and judges on the bench were sympathetic to or sometimes the same hooded Klansmen who violated them; hence no real access to an impartial police force or day in court.)
Yet, there clearly was some substantive right to equality the 14th Amendment intended for racial groups. And arguably all substantive rights -- including equality rights -- were meant to derive from the privileges or immunities clause.
That's one narrative I think entirely defensible. I also think originalist scholars can convincingly argue for substantive rights to liberty and equality through the due process and equal protection clauses, respectively (see for instance Timothy Sandefur's work on substantive due process).
Yet, if you gut the privileges or immunities clause (ala Slaughterhouses) those substantive liberty and equality rights will pop up elsewhere as in a game of whack a mole. And the mole will pop its head from those parts of the text most similar to the rights being asserted. Hence a substantive right to "liberty" where the term "liberty" appears in the due process clause and a substantive right to "equality" where the term "equal" appears in the "equal protection" clause.
What I am getting at: The text of the Constitution can do a lot of things and I consider myself a textualist, meaning, viable constitutional law must read the text for what it is in a logically coherent way. But the text isn't enough; we need more. We need some kind of theory to undergird and supplement it. Hence, Akhil Amar's work on an "Unwritten Constitution."
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