Text in Contest: Gender and the Constitution from a Social Movement Perspective

The American feminist movement has twice mobilized for constitutional change. The constitutional amendment secured by the firstwave 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.' Women did not need the Nineteenth Amendment to obtain the right to vote any more than they needed the ERA to obtain modem 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