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The Case of the De Facto ERA +(,121/,1( Citation: 94 Cal. L. Rev. 1323 2006 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Nov 18 08:48:18 2010 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0008-1221 Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA 2005-06 Brennan Center Symposium Lecture Reva B. Siegel" INTRODUCTION Social movements change the ways Americans understand the Constitution. Social movement conflict, enabled and constrained by consti- tutional culture, can create new forms of constitutional understanding-a dynamic that guides officials interpreting the open-textured language of the Constitution's rights guarantees. To show how constitutional culture chan- nels social movement conflict to produce enforceable constitutional under- standings, I consider how equal protection doctrine prohibiting sex discrimination was forged in the Equal Rights Amendment's defeat. Copyright 0 2006 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. f Nicholas deB. Katzenbach Professor of Law and Professor of American Studies. It was a great joy to give this lecture first at Boalt Hall, where I started teaching, and then at Yale, where I stud- ied and now teach, in a classroom filled with my friends, teachers, students, and family, including my brother Fred, who brought my sister Laura, mother Eve, and his wife Jane and son Yale, to hear me speak. The occasion was shining and whole, and continues to light this lecture, even as his great strug- gle for life marked its writing. I am grateful to my friends Bruce Ackerman, Larry Kramer, Martha Minow, and Robin West for their comments on this lecture-a rich moment in a long-running conver- sation from which I am always learning-as well as to Robert Post and Jack Balkin, with whom I write on these questions. I was also fortunate to discuss the manuscript with Jorge Contesse, Barry Friedman, Michael Graetz, Ariel Lavinbuk, Ron Levy, Jane Mansbridge, Judith Resnik, and Steve Teles, as well as participants in workshops at Harvard, N.Y.U., University of Pennsylvania, and University of Toronto law schools. I owe thanks to Caitlin Casey, Ron Levy, David Tannenbaum, and especially Nels Ylitalo for research assistance. Finally, I would like to thank the students of the California Law Review for their hard work in publishing this piece, and their kind understanding. 1323 HeinOnline -- 94 Cal. L. Rev. 1323 2006 1324 CALIFORNIA LA W REVIEW [Vol. 94:1323 For the first century of the Fourteenth Amendment's life, no court interpreted the Constitution to prohibit state action favoring men over women.' In the 1970s, a mobilized feminist movement persuaded Congress to send an Equal Rights Amendment to the states for ratification. With en- ergetic countermobilization, the ERA was defeated. In this same period, the Court began to interpret the Fourteenth Amendment in ways that were responsive to the amendment's proponents-so much so that scholars have begun to refer to the resulting body of equal protection case law as a "de facto ERA."2 When President Reagan proposed a nominee to the Supreme Court who argued that the original understanding of the Fourteenth Amendment allowed government to discriminate between the sexes, the Senate rejected his nomination. Instead of viewing Fourteenth Amendment cases influenced by the ERA as an antidemocratic usurpation, the public viewed the authority of a nominee who questioned the sex discrimination case law as suspect.' Debate over whether to amend the Constitution changed the meaning of the Constitution-in the process forging modern understandings of discrimination "on account of sex."4 The ERA was not ratified, but the amendment's proposal and defeat played a crucial role in enabling and shaping the modern law of sex dis- crimination. Yet constitutional law lacks tools to explain constitutional change of this kind. No act of lawmaking produced the sex discrimination cases; and if the cases can be justified as legitimate judicial interpretations of eighteenth- and nineteenth-century constitutional text, it is only by re- pressing their roots in popular mobilization for and against an Article V amendment. Citizens regularly seek constitutional change through the ar- duous lawmaking procedures of Article V as well as outside of them, and officials charged with enforcing the Constitution often act in response to their claims; yet when these interactions do not conform to paradigms of lawmaking or adjudication, constitutional law discounts their role in con- stitutional change. In this Lecture, I resist the dichotomy between lawmaking and inter- pretation, and focus instead on the field of constitutional culture to explore the formal and informal interactions between citizens5 and officials that guide constitutional change. Such interactions include but are not limited to lawmaking and adjudication; confirmation hearings, ordinary legislation, failed amendments, campaigns for elective office, and protest marches all I. See infra note 39. 2. See infra text accompanying notes 23-32. 3. See infra text accompanying notes 272-277. 4. Cf Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 HARV. L. REv. 1470 (2004) (reconstructing how social movement conflict shaped modem understandings of discrimination "on account of race"). 5. 1 use the term "citizen" to refer to persons living in a community governed by a constitution who are not government officials. HeinOnline -- 94 Cal. L. Rev. 1324 2006 20061 CONSTITUTIONAL CULTURE 1325 may provide occasion for citizen deliberation and mobilization and for of- ficial action in response to constitutional claims. The Lecture employs the term "constitutional culture" to refer to the understandings of role and practices of argument that guide interactions among citizens and officials in matters concerning the Constitution's meaning. 6 The Lecture does not use the concept of constitutional culture as some in constitutional theory employ it: as social values relevant to matters of constitutional law that an official engaged in responsive interpretation in- corporates into the fabric of constitutional law. Rather than focus on offi- cials as change-agents, I employ the concept of constitutional culture to explore how changes in constitutional understanding emerge from the in- teraction of citizens and officials. In this usage, constitutional culture shapes both popular and professional claims about the Constitution and enables the forms of communication and deliberative engagement among citizens and officials that dynamically sustain the Constitution's democ- ratic authority in history.7 The Lecture analyzes constitutional culture as a field in which citizens and officials interact; some interactions are formalized, like the procedures 6. In analyzing the way the Constitution's meaning arises out of interactions among members of the polity and between members of the polity and government officials, this account of constitutional culture is indebted to Robert Cover's account of jurisgenesis. Robert Cover first used the term "jurisgenesis" in Nomos and Narrative to describe the way that legal meaning is created in the normative universe, or "nomos," of the polity; Cover emphasized that jurisgenesis did not require formal lawmaking. See Robert M. Cover, The Supreme Court, 1982 Term-Foreword:Nomos and Narrative, 97 HARV. L. REV. 4, 11-19 (1982) ("[T]he creation of legal meaning-'jurisgenesis'-takes place always through an essentially cultural medium. Although the state is not necessarily the creator of legal meaning, the creative process is collective or social.") (footnote omitted). As Martha Minow describes Cover's vision: Cover placed at the center of law the communal groups that would seem peripheral if the government's own world view were the starting point. In so doing, Cover set in motion three captivating arguments: (1) government should be understood as one among many contestants for generating and implementing norms; (2) communities ignored or despised by those running the state actually craft and sustain norms with at least as much effect and worth as those espoused by the state;and (3) imposition of the state's norms does violence to communities, a violence that may be justifiable but is not to be preferred a priori. NARRATIVE, VIOLENCE, AND THE LAW: THE ESSAYS OF ROBERT COVER 2 (Martha Minow et al. eds., 1992). Cover's work has proven enormously influential among legal scholars of popular constitutionalism. See Larry D. Kramer, PopularConstitutionalism, circa 2004, 92 CALIF. L. REV. 959, 975 (2004). Jim Pope first employed the concept ofjurisgenesis to describe the way social movements forge constitutional understandings. See James Gray Pope, Labor's Constitution Of Freedom, 106 YALE L.J. 941, 954 (1997) ("Robert Cover's concept of jurisgenesis, the creation of legal meaning, provides the foundation for a theory about the role of legal thought and practice in sustaining resistance, and thus for an ideal type of constitutional insurgency that proceeds from localities to the center."); Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. PA. L. REV. 297 (2001) (contrasting a judge-centered, "Constitution-as-common- law" account of the rise of sex discrimination law with an account that includes the jurisgenerative efforts of the women's movement). 7. Siegel, supra note 6, at 320 ("While the authority of the Constitution is sustained in part through practices of veneration and deference, it is also sustained through a very different kind of relationship, in which citizens know themselves as authorities, as authors of the law.").
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