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The Nineteenth Amendment, Sex Equality, Federalism, and the Family

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The Nineteenth Amendment, Sex Equality, Federalism, and the Family VOLUME 115 FEBRUARY 2002 NUMBER 4 HARVARD LAW REVIEW ARTICLE SHE THE PEOPLE: THE NINETEENTH AMENDMENT, SEX EQUALITY, FEDERALISM, AND THE FAMILY Reva B. Siegel TABLE OF CONTENTS IN TRO D UCTIO N ............................................................................................................................... 948 I. THE SEX DISCRIMINATION PARADIGM ............................................................................... 953 II. TOWARD A SYNTHETIC READING OF THE FOURTEENTH AND NINETEENTH AMEND- MENTS: A NEW HISTORICAL FOUNDATION FOR SEX DISCRIMINATION DOCTRINE ....... 96o A. Frontiero's Use of History in Building the Race Analogy ................................................ 961 B. Analogical and Synthetic Interpretation:A New Role for History in Sex Discrim inationD octrine..................................................................................................... 965 C. HistoricalTies Between the Fourteenth and Nineteenth Amendments ......................... 968 D. Reading the Suffrage Debates: Some PreliminaryRemarks ........................................... 976 III. VOTING AND THE FAM ILY ...................................................................................................... 977 A. Virtual Representation:Male Household Headship in Public and Private Law .......... 981 B. "Self-Government": The Woman Suffrage Rejoinder....................................................... 987 C. The Surrejoinder:Marital Unity Arguments Against Woman Suffrage ......................... 993 IV. OF FAMILIES, FEDERALISM, AND "LOCAL SELF-GOVERNMENT" ..................................... 997 A. Federalismand the Family in the Debate over the Woman Suffrage Amendment ........ 998 B. Challengingthe Constitutionalityof the Nineteenth Amendment: Leser v. Garnett ...... x003 V. READING THE NINETEENTH AMENDMENT: CONSTITUTIONAL NORM OR RULE? ........ Ioo6 A. Cases Reading the Nineteenth Amendment as Signaling a Shift in Understandingsof Marriage:Adkins v. Children's Hospital ......................................... 1012 B. From Norm to Rule: Cases Applying the Nineteenth Amendment to Office H olding and Jury Service ................................................................................................. lO19 VI. REREADING THE FOURTEENTH AMENDMENT. FAMILIES, FEDERALISM, AND EQUAL PROTECTION ................................................................................................ 1022 A. The Violence Against Women Act - and the Failures of Sex DiscriminationDoctrine.... 1024 B. Regrounding Sex DiscriminationDoctrine in the History of the Woman Suffrage Campaign ............................................................................................................. 1030 C. M orrison R econsidered...................................................................................................... 1035 x. Federalism and the Fam ily ........................................................................................... 1035 2. Gender Status Inequality and the Family: A New Fourteenth A m endm ent Fram ew ork .............................................................................................. 1039 C O NCLUSIO N ................................................................................................................................. 1 045 947 HeinOnline -- 115 Harv. L. Rev. 945 2001-2002 SHE THE PEOPLE: THE NINETEENTH AMENDMENT, SEX EQUALITY, FEDERALISM, AND THE FAMILY Reva B. Siegel* Americans debated questions of women's citizenship for over a half century before adopting the Nineteenth Amendment, but neither the Amendment nor its history now plays any role in modern interpretations of the Constitution. Instead, the Supreme Court addresses questions of women's citizenship under the Fourteenth Amendment, reasoning about problems of sex discrimination by analogy to problems of race discrimination. This framework denies sex discrimination law a foundation in constitutional history, and in so doing, weakens its apprehension of issues affecting women's status and its authority to address them. The debates over woman suffrage that began with the drafting of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment are plainly relevant to understanding how the guarantee of equal citizenship applies to women. At the Founding and for generations thereafter, Americans believed women did not need the vote because they were represented in the state through male heads of household. By adopting the Nineteenth Amendment, Americans were breaking with traditional conceptions of the family that were rooted in coverture, as well as with understandings of federalism that placed family relations beyond the reach of the national government. The debates over the Nineteenth Amendment thus memorialize the nation's decision to repudiate traditional conceptions of the family that have shaped women's status in public as well as private law and that are inconsistent with equal citizenship in a democratic polity. If concepts of sex discrimination were informed by the experience and deliberative choices of past generations of Americans, equal protection doctrine would better recognize forms of discrimination historically directed at women; and the law of federalism would take a more critical approach to claims that the family is a local institution, beyond the reach of the national government. The Article closes by considering how this new, historically grounded approach to questions of sex discrimination under Sections One and Five of the Fourteenth Amendment would enable a different constitutional analysis of the portions of the Violence Against Women Act struck down in United States v. Morrison. INTRODUCTION Tt has now been three decades since the Court first invalidated a law .under the Fourteenth Amendment on the ground that it unconstitu- tionally discriminated against women, a quarter century since the Court first declared that questions of sex discrimination would receive * Nicholas deB. Katzenbach Professor, Yale Law School. I am indebted to friends and col- leagues who discussed this Article in draft, including Bruce Ackerman, Akhil Amar, Jack Balkin, Nancy Cott, Michael Dorf, Ariela Dubler, William Forbath, Jill Hasday, Laura Kalman, Neal Katyal, Linda Kerber, Michael Klarman, Larry Kramer, Pnina Lahav, Sandy Levinson, Serena Mayeri, Robert Post, Judith Resnik, and Seana Shiffrin, as well as the participants in faculty workshops at Columbia, Fordham, NYU, and Yale Law Schools. I would particularly like to thank the students who, at various points in the life of this project, helped me explore the legisla- tive history of the Nineteenth Amendment: Kristin Collins, Shoshana Gillers, Janna Hansen, Charles Lansing, Amanda Pustilnik, Rebecca Rix, Mathew Segal, and Sarah Song. HeinOnline -- 115 Harv. L. Rev. 946 2001-2002 2002] SHE THE PEOPLE special scrutiny under the Equal Protection Clause. This body of con- stitutional law has without a doubt induced important changes in the forms of state regulation in the modern era. There is far less open public ordering of institutions and activities along lines of sex than there once was; women have opportunities that they did not a quarter century ago. But like the law of race discrimination, the law of sex discrimina- tion is highly selective. Sex discrimination law identifies as wrongful only some of the practices and understandings that maintain inequality in the social position of women and men, and obscures - or affirma- tively vindicates - many others. During the 197Os, the Supreme Court developed the law of sex dis- crimination by means of an analogy between sex and race discrimina- tion. Today, the sex discrimination paradigm remains limited, in con- stitutional legitimacy and critical acuity, by the ahistorical manner in which the Court derived it from the law of race discrimination. Both bodies of law remain overly and indiscriminately preoccupied with formal acts of classification. And it remains commonplace to rational- ize compromises of sex equality by pointing to the secondary or pe- ripheral status of sex discrimination under the Fourteenth Amend- ment. Most recently, I have heard this kind of explanation offered for the Supreme Court's holding in United States v. Morrison' that Con- gress lacked power under the Fourteenth Amendment to enact the Vio- lence Against Women Act. This Article proposes, as an additional foundation for sex discrimi- nation doctrine, a synthetic reading of the Fourteenth and Nineteenth Amendments that is grounded in the history of the woman suffrage campaign. Recovering this lost chapter of our constitutional history supplies sex discrimination doctrine with enactment history: a narra- tive of political struggle in which we can see women asserting rights claims that "We the People" steadfastly repudiated for over a half cen- tury until finally recognizing women as equal citizens in our constitu- tional order. At the same time, recovering this lost chapter of our con- stitutional history enables us to reason about equal citizenship for women in a manner that is sociohistorically grounded, as current sex discrimination doctrine is not. In short, recovering this chapter of our constitutional development alters our collective self-accountings as a nation and gives sociohistorical particularity to the master concept of "equal citizenship" for women. Today, women's struggle for enfranchisement plays no role in the ways we understand or interpret the Constitution. Even though the
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