Text in contest: gender and the Constitution from a social movement perspective.

• Author: Siegel, Reva B.
• Position: Response to David A. Strauss, Harvard Law Review, vol. 114, p. 1457, 2001

INTRODUCTION

The American feminist movement has twice mobilized for constitutional change. The constitutional amendment secured by the first-wave feminist movement is no longer of consequence, while the constitutional amendment sought by the second-wave feminist movement was never ratified. Yet today, courts and commentators agree that the Constitution guarantees women equality, even if that guarantee was never specifically authorized by the Constitution's framers. What understanding of our constitutional tradition might we glean from this story of constitutional change?

In a recent article in the Harvard Law Review, David Strauss contends that the story of the Nineteenth Amendment and the Equal Rights Amendment (ERA) proves the irrelevance of amendments in our constitutional tradition, and more generally illustrates the insignificant role that constitutional text plays in the articulation of constitutional norms. (1) Women did not need the Nineteenth Amendment to obtain the right to vote any more than they needed the ERA to obtain modern sex equality law. Evolving gender mores would have led to the enfranchisement of women by statute, just as evolving gender mores led the judiciary to afford women constitutional protection from regulation that enforces archaic gender norms. (2) The manner in which our constitutional tradition has progressively incorporated a gender equality commitment demonstrates, for Strauss, that the story about our Constitution that originalists and textualists tell is descriptively incorrect, and, as he elsewhere argues, normatively unattractive as well. (3)

In this Article, I will be drawing on the stories of the ERA and the Nineteenth Amendment to demonstrate that the Constitution's text plays a more significant role in our constitutional tradition than Strauss contends. My purpose is not to defend the arguments of originalists and textualists that Strauss is endeavoring to refute, (4) but instead to explore some alternatives to the traditions of reasoning about text that Strauss criticizes.

As Strauss observes, text is privileged in the American constitutional tradition "because someone with authority adopted it"; at root, "[t]his authoritative tradition sees the law as the command of a sovereign." (5) In the American tradition, it is the People who are sovereign, authors of the Constitution's text.

Strauss challenges this understanding of our constitutional tradition on positive and normative grounds. As Strauss understands our constitutional tradition, text is inessential to constitutional interpretation and amendment is inconsequential as a method of constitutional change. "Discrete, decisive, formal amendatory acts, supposedly by the sovereign People, are at most a minor part of the process of constitutional change." (6) Invocation of the Constitution's text keeps alive the myth that it is the People who are authors of the Constitution. But in fact it is judges making judgments about precedent, tradition, and evolving social understandings who make decisions in the Constitution's name: "[I]t is the common law approach, not the approach that connects law to an authoritative text, or an authoritative decision by the Framers or by `we the people,' that best explains, and best justifies, American constitutional law today." (7)

In this Article, I challenge Strauss's claims about the "irrelevance" of the ERA and the Nineteenth Amendment with the objective of calling into question this common-law, and fundamentally juricentric, understanding of our constitutional tradition.

Both the ERA and the Nineteenth Amendment demonstrate how the text of the Constitution makes the terms of our constitutional tradition amenable to contestation by mobilized groups of citizens, acting inside and outside the formal procedures of the legal system. It is, most often, as text that the Constitution is the object of social movement struggle. Text matters in our tradition because it is the site of understandings and practices that authorize, encourage, and empower ordinary citizens to make claims on the Constitution's meaning.

These features of our tradition disappear in Strauss's account, because as Strauss models our constitutional tradition, he focuses, nearly exclusively, on the official pronouncements of judges. Not only judges and courtroom lawyers, however, but elected officials and ordinary citizens regularly make claims about the Constitution. In so doing, they may follow the Court's reading of the Constitution, but often they do not, explicitly "differentiat[ing] between the Constitution and the Court. (8) In our constitutional tradition, a network of understandings about the Constitution as text authorizes nonjuridical speakers to make claims about the Constitution that diverge from the Court's. (9) Americans act on these understandings through a variety of practices, including, but not limited to, Article V amendments.

The judge-centered framework in which Strauss and many other constitutional theorists describe our constitutional tradition obscures communicative pathways that connect judicial reasoning inside the courts to claims made about the Constitution by persons outside the courts. There are, of course, many such pathways in our constitutional system. Some are explicit elements of constitutional design, such as the Article V procedures for amendment, or the roles played by the legislative and executive branches in designing and staffing the court system and enforcing its decrees. Others have grown up in the interstices of these institutional arrangements. The rise of the party system is one such vehicle, and social movements are another.

Throughout American history, groups of Americans have mobilized to make interpretive and amendatory claims on the Constitution's text, yet constitutional theory rarely recognizes the role that social movements play in the construction of constitutional meaning. (10) This omission is consequential, for if judges have played the central role in articulating constitutional norms in the American tradition, their understanding of the Constitution has been deeply shaped by mobilized citizenry, acting through electoral processes. (11) and outside of them. (12) In exploring the role of social movements in shaping constitutional meaning, this Article joins the small but rapidly growing body of constitutional theory written in law schools that examines the life of the Constitution outside the courts. (13)

To date, the constitutional theorist most concerned about emphasizing the role of a mobilized citizenry in the making of constitutional law has been Bruce Ackerman. (14) Ackerman has argued that courts can and should recognize constitutional amendments that do not satisfy Article V criteria, when judges discern mobilized majorities acting through the electoral process in patterns Ackerman calls constitutional moments. If judges tie constitutional interpretation to such electoral signaling, Ackerman argues, changes in judicial interpretation of the Constitution are appropriately anchored in values of popular sovereignty. (15)

Ackerman challenges the dichotomy between amendment and interpretation, and presents a rich account of constitutional change whose protagonists include elected officials as well as judges. But Ackerman's account continues to conceptualize social mobilization as an amendment analogue, a form of democratic lawmaking. Judges are justified in adopting new constitutional understandings when mobilized majorities achieve electoral victories that satisfy the rule of recognition Ackerman characterizes as a constitutional moment. (16)

This Article discusses the role of social movements in shaping constitutional meaning in a different framework. For present purposes, I am unconcerned with the question of whether the activities of a social movement amount to lawmaking that satisfies the Article V rule of recognition or the form of a constitutional moment. In contradistinction to Ackerman, I locate social movements in a framework of constitutional culture rather than constitutional lawmaking. By "constitutional culture" I refer to the network of understandings and practices that structure our constitutional tradition, including those that shape law but would not be recognized as "lawmaking" according to the legal system's own formal criteria. (17)

In this Article, I will be reflecting on the understandings and practices that empower nonjuridical actors to contest, and sometimes to reshape, authoritative understandings of our Constitution. Rather than examine these processes through the filter of the questions--Should a judge heed the claims of nonjuridical actors? Are these claims about constitutional meaning law?--this Article invites constitutional theory to develop more complex positive accounts of the practices through which nonjuridical actors participate in the production of constitutional meaning.

During periods of constitutional mobilization, citizens make claims about the Constitution's meaning in a wide variety of social settings. Sometimes such mobilizations result in constitutional amendments; most often they do not. But even when no formal act of lawmaking occurs, constitutional contestation nonetheless plays an important role in transforming understandings about the Constitution's meaning inside and outside the courts. If we liberate our account of constitutional change from frameworks that are concerned with determining whether lawmaking has occurred, we can give a richer account of the ways that debates about the Constitution outside the courts shape constitutional understandings inside the courts. Considered from this vantage point, dialogue between citizenry and judiciary about constitutional meaning is far more commonplace in our constitutional order than constitutional theory commonly acknowledges.

There are other ways that criteria concerned with constitutional lawmaking may unduly restrict our understanding of...