Constitutional Adjudication as a Means of Realizing the Equal Stature of Men and Women Under the Law
To honor the life and work of Ruth Bader Ginsburg, we are republishing the article she wrote in 1993 for The Tocqueville Review/La Revue Tocqueville, 1993, Vol. XIV n°1 (pp.125- 137). We have omitted some of the article’s original footnote citations to enhance readability.
My remarks center on case law written in the United States, since 1970, on the equal stature of men and women under the law. Before taking up that development, I will make some opening comments about this conspicuous difference between the Declaration of the Rights of Man and the U.S. Bill of Rights, as ratified 200 years ago: equality is a central theme of the French Declaration; the word “equal” or “equality,” by contrast, does not even appear in the original U.S. Constitution or in the first ten amendments that compose the Bill of Rights.
Next, I will contrast the general run of Supreme Court decisions on laws that differentiate on the basis of sex with the Court’s more dramatic 1973 abortion ruling. The former line of decisions – the “gender-classification” cases—reflects how courts in the United States participate moderately in the process of advancing the recognition and realization of human rights. The latter—the Roe v. Wade abortion decision—I believe, illustrates a constitutional court speaking too boldly or definitively and, consequently, stimulating not simply enhanced realization of rights, but also a backlash against the Court’s decision, the Court itself, and even the society’s tolerance for judicial review of legislation and official acts for constitutionality.
The U.S. Declaration of Independence in 1776 proclaimed:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The stress on equality unites the U.S. Declaration of Independence with the French Declaration of the Rights of Man, which states in article 1 that “[m]en are born and remain free and equal in rights” and in article 6:
[Law] must be the same for all, whether it protects or punishes. All citizens, being equal before it, are equally admissible to all public offices, positions, and employments, according to their capacity, and without other distinction than that of virtues and talents.
Contemporaneous with the U.S. Declaration of Independence, certain states of the United States provided models for the French Declaration by emphasizing equality in their fundamental instruments of government. Article I of the Massachusetts Constitution of 1780, for example, stated: “All men are born free and equal.” The Virginia Declaration of Rights of 1776 opened: “[All] men are by nature equally free and independent.”
But rights were not what the framers of the U.S. Constitution, in 1787, sought to define and enumerate. What they saw as their mission was to structure a federal government, the kind of government that would facilitate enjoyment of rights the framers knew they possessed, a government that could render their rights safe and perpetual .
When the absence of a declaration of rights was used by Antifederalists as a reason to reject the U.S. Constitution, James Madison, who earlier doubted the value and utility of bills of rights, put together a set of amendments from which the Bill of Rights was eventually drawn. Prophetically, Madison included as the fourteenth amendment on his list, one that declared: “No state shall infringe the equal rights of conscience, nor freedom of speech, or of the press….” The Senate did not adopt that amendment; the ten amendments that passed in 1791 were read to restrict action by the federal government, not by the states.
It was not until 1868, after the Civil War ended slavery, that the U.S. Constitution gained a 14th Amendment, one that explicitly restricted state action and centered on equality, providing: “[N]or shall any state deny to any person the equal protection of the laws.” (The 13th Amendment, prohibiting slavery and involuntary servitude, restricts private as well as public action. The other human rights guarantees written into the U.S. Constitution, however, do not proscribe or prescribe conduct by private persons; those guarantees deal, expressly, only with the measures and conduct of government actors—the legislature, courts, and executive or administrative officials.)
Although the framers of the U.S. Constitution put secure government, not human rights, highest on their agenda, Madison supplied a reason for the Bill of Rights of prime importance to the U.S. federal system as it has evolved. Thomas Jefferson prompted the idea when he wrote to Madison in 1789 that one factor weighing in favor of a declaration of rights was “the legal check it puts into the hands of the judiciary.” Madison made the point vividly in his speech introducing to the U.S. Congress the amendments that led to the Bill of Rights :
[If a Bill of Rights is] incorporated into the [C]onstitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark… naturally led to resist every encroachment upon rights… stipulated for in the [C]onstitution by the declaration of rights.
The courts as guardians of human rights was thus an idea planted by the framers at the beginning and nourished by jurists most notably in the years following World War II.
Supreme Court Justice Thurgood Marshall reminded us, during the years of bicentennial celebrations, that the framers of the U.S. Constitution had a distinctly limited view of the people who counted among “We the People” . Qualified voters in those days bore a certain resemblance to the framers: the franchise was confined to property-owning white males, people free from dependence on others, and therefore considered trustworthy citizens, not susceptible to influence or control by masters, overlords, or supervisors . When the capital city, Washington, D.C., was established at the start of the 1800s, for example, out of a city population of about 3,200, there were only 325 qualified voters . (Perhaps the framers said nothing of equality in 1787 in part because at that time, only five states of the thirteen had abolished slavery, and wealth qualifications so severely limited voter eligibility .)
Turning to the situation of women, the founding fathers intended no immediate change. The Constitution is silent on women’s status, and the famous Federalist Papers mention women only once: in Number 6, Alexander Hamilton warned of “the perils to the state from courtesans and mistresses.” Abigail Adams, in 1776, wrote a much-quoted letter to her husband John, later second President of the United States, in which she asked him to “Remember the Ladies” in the nation’s new laws. (Under the common law brought to the United States from England, it was legitimate for even gentle men to apply physical force, albeit moderately, to keep their wives obedient.) John replied: “Depend on it. We know better than to repeal our Masculine system.” In correspondence with a friend about the qualifications for voting in his home state of Massachusetts, John Adams elaborated:
[I]t is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end of it. New claims will arise; women will demand a vote, lads from twelve to twenty-one will think their rights are not enough attended to, and every man who has not a farthing will demand an equal voice with any other in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to the common level.
Men who shared that view could more readily agree upon the specific rights stated in the Bill of Rights than they could heed an equality norm hardly reflected in political, social, and economic arrangements they had no will to change.
Thomas Jefferson, who thought it self-evident “that all men are created equal,” expressed this prevailing view :
Were our State a pure democracy … there would yet be excluded from our deliberations women who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in the public meetings of men.
Jefferson also wrote: “[O]ur good ladies … are contented to soothe and calm the minds of their husbands returning ruffled from political debate.” “The breasts of ladies were not formed for political convulsion.” That otherwise great man, as President, told his Secretary of the Treasury: “The appointment of a woman to [public] office is an innovation for which the public is not prepared, nor am I.”
Yet, I recognize that the equal stature under the law that women are achieving in this century is part of the U.S. constitutional legacy, part of the original understanding, in this vital sense. The founding fathers rebelled against the patriarchal power of kings and the idea that political authority may legitimately rest on birth status. They did not see, because their culture made them blind to the notion, that the principles they held dear had any direct application to women’s relationship to men. But they stated a commitment in the Declaration of Independence to equality and in the Declaration and Bill of Rights to individual liberty. Those commitments had growth potential. As historian Richard Morris wrote, a prime portion of the history of the U.S. Constitution, and a cause for celebration, is the story of the extension (through amendment, judicial interpretation, and practice) of constitutional rights and protections to once excluded groups: to people who were once held in bondage, to men without property, to native Americans, and to women .
I take up next the matter of when, why, and how women began to count in constitutional adjudication. The when question is easily answered. The year was 1971, seventeen years after the Supreme Court’s decision in Brown v. Board of Education declared public school segregation by race unconstitutional. The case, Reed v. Reed, involved a young man from Idaho who had committed suicide while in his father’s custody. His mother and father, long separated, had each applied to be the administrator of the little their son had left in the way of property. The Idaho court appointed the father, under a state statute that read: as between persons equally entitled to administer a decedent’s estate, males must be preferred to females. The Supreme Court unanimously ruled that the Idaho statute denied to the mother the equal protection of the laws guaranteed by the 14th Amendment.
When the 14th Amendment was ratified in 1868, however, the Supreme Court was of a different mind. It viewed the Amendment as one concerned with odious race classifications, not with traditional sex-based differentials. Thus the Court held, in 1873, that states were not required to license women to be lawyers  and in 1874, that states remained free to deny the franchise to women .
In 1920, the 19th Amendment secured to women the right to vote. Hopeful feminists believed that the 19th Amendment might suffice to render unconstitutional laws that denied women opportunities to engage fully in the nation’s political, social, and economic life. But the Supreme Court did not press the 19th Amendment beyond its literal terms. The Court said the 19th Amendment gave women the vote, and only that . It was permissible, the Supreme Court ruled in 1948, for example, for a state to prevent women from working as bartenders, except when the bar was owned by the woman’s husband or father . (Losing litigants in that case were a bar-owning mother and her bartending daughter.) It was also permissible, the Court declared in 1961, to exempt all women from jury service, in recognition of a woman’s place at “the center of home and family life” .
Why did the Court turn in a new direction in 1971 and begin to declare sex-based classifications inconsistent with the 14th Amendment’s Equal Protection Clause? The Justices do read the newspapers and were becoming aware of a sea change in United States society. Their enlightenment was advanced publicly by the briefs filed in Court and privately, I suspect, by the aspirations of the women, particularly the daughters, in their own families and communities.
The backdrop for the Court’s turn was this. In the years from 1961 to 1971, women’s employment outside the home had expanded rapidly. That expansion was attended by a revived feminist movement, fueled in the U.S., as elsewhere, by Simone de Beauvoir’s remarkable 1949 publication, The Second Sex. Changing patterns of marriage, access to safe methods of controlling birth, longer life spans, even inflation—all were implicated in a social dynamic that yielded this new reality: in the 1970s, for the first time in the nation’s history, the “average” woman in the United States was experiencing most of her adult years in a household not dominated by childcare requirements.
That development may indeed be “the single most outstanding phenomenon” of the era in which we are living . It rendered obsolete (or at least in need of revision) the once prevailing “separate-spheres” mentality or breadwinner-homemaker dichotomy – the notion that it was man’s lot, by nature, to be breadwinner, head of household, representative of the family outside the home, while it was women’s lot, by nature, not only to bear, but alone to raise children, to follow the male head of household in the place and mode of living he chose, and to keep the home in order .
Before jurists could turn in the new direction, however, they had to gain an understanding that legislation apparently designed to benefit or protect women could often, perversely, have the opposite effect. This was of critical importance, for most laws that differentiated on the basis of sex, in contrast to obviously odious race-based laws, did so ostensibly to shield or favor the sex regarded as fairer, but weaker, and dependent-prone. Laws prescribing the maximum number of hours or the time of day women could work or the minimum wages they could receive; laws barring females from “hazardous” or “inappropriate” occupations (lawyering in the nineteenth century, bartending in the twentieth); remnants of the common-law regime which denied to married women rights to hold and manage property, to sue or be sued in their own names, or to get credit from a financial institution (thus protecting them from their own folly or misjudgement)—all these prescriptions and proscriptions were premised on the notion that women could not cope with the world beyond the hearth without a father, husband, or big brother to lean on .
It is less difficult for jurists in the U.S. nowadays to discern the burdensome nature of legislation that confines women to a separate sphere. By enshrining and promoting the woman’s “natural” role as selfless homemaker, and correspondingly emphasizing the man’s role as provider, the state impedes both men and women from pursuit of the very opportunities and styles of life that could enable them to break away from familiar stereotypes. Thus, for example, excluding otherwise qualified men from attending a nursing school tends, as the Supreme Court held in 1982, to “perpetuate the stereotyped view of nursing as an exclusively woman’s job”; instead of advancing women’s welfare, Justice Sandra Day O’Connor recognized, this occupational reservation may in fact help to hold down wages in the nursing profession .
How did the Supreme Court demonstrate the understanding it had gained by 1971? In 1973, less than two years after the turning point Reed v. Reed decision, the Court ruled that married women in the military were entitled to the housing allowance and family medical care benefits that Congress had provided solely for married men in the military . In 1975, and again in 1979, the Court declared that state jury-selection systems could not exclude or exempt women as a class . In a series of decisions from 1975 to 1980, the Court held that sex-based classifications in social insurance and workers’ compensation schemes violated the equal protection principle .
The Court decided the 1970s gender-classification cases in a temperate way. Although the Court overturned or opened up several state and federal laws , its opinions were unsensational and provoked no large controversy. In the social insurance cases, most notably, dealing with benefits for a worker’s spouse , the Court did not utterly condemn the legislature’s product. Instead, the Court, in effect, opened a dialogue with the political branches of government. In essence, the Court instructed Congress and state legislatures: rethink, and reanalyze, your position on these questions. Should you determine that special treatment for women is warranted, i.e., compensatory legislation because of the persistence of social and economic discrimination against women, we have left you a corridor in which to move. But your classifications must be refined, tied to an income test, for example, and not grossly drawn solely by reference to sex. In the meantime, the Court’s decrees extended to a worker’s husband or widower spousal benefits Congress had authorized only for wives and widows.
The ball, one might say, was tossed gently back into the legislators’ court, where the political forces at work as a result of the new social dynamic could operate. The Supreme Court wrote modestly, it put forward no grand philosophy; but by forcing legislative reexamination of sex-based classifications, it helped ensure that laws and regulations would “catch up with a changed world” .
The force of Roe v. Wade, the Supreme Court’s pathbreaking 1973 abortion decision, contrasts dramatically with the Court’s technique in the gender-classification cases . A woman’s control over whether and when she will have children bears vitally on her life’s choices. But the Supreme Court did not rest its Roe v. Wade decision on an equal stature for women or sex discrimination rationale . Instead, the Court ruled dominantly on a personal privacy or autonomy analysis that had few way pavers. And of prime relevance to the position I am presenting here, the Roe v. Wade decision, unlike the gender-equality line of decisions, is not fairly described as “moderate.”
In 1973, when Roe v. Wade issued, abortion law was in a state of change across the nation. There was a distinct trend in state legislatures “toward liberalization of abortion statutes” . The movement for abortion reform in state legislative arenas ran parallel to another law revision effort then underway in the states—the change from fault to no-fault divorce regimes, a reform that swept through the states inside of a decade .
The Roe decision was stunning in this sense: it called into question the constitutionality of the criminal abortion statutes of every state, even those with the least restrictive provisions (New York, Washington, Alaska, and Hawaii). Around that extraordinary decision, a well-organized and vocal right-to-life movement rallied and succeeded, for a considerable time, in turning the legislative tide in the opposite direction.
Professor Paul Freund once compared the Roe v. Wade decision to the response of the small boy asked if he knew how to spell banana . Yes, the child said, except I don’t know when to stop. The Court might have stopped at invalidating the Texas law challenged in Roe; it was the most extreme type of anti-abortion law in the nation, allowing abortion only when medically necessary to save the pregnant woman’s life. Had the Supreme Court simply ruled that extreme law impermissible, as an unreasonable accommodation of the competing interests, and said no more, the legislative trend might have continued in the reform direction in which it was moving in the early 1970s, and the animus against the Supreme Court, brought on by the actual Roe decision, might have been avoided or muted.
This panel is concerned with the extension and implementation of human rights by constitutional courts, so it is fitting than I conclude with a comment on the institution of constitutional review by U.S. courts, an institution that has been for some two centuries our nation’s hallmark. Two extreme modes of court intervention in social change processes have been noted in commentary. At one pole, the Supreme Court steps boldly (or autocratically) ahead of the political process, as some believe it did in Roe v. Wade. At the opposite pole, the Court in the early part of the twentieth century found—or thrust—itself into the rearguard opposing change, striking down, as unconstitutional, laws embodying a new philosophy of economic regulation at odds with the nineteenth century’s laissez-faire approach . Decisions at both of these poles yielded outcries against the judiciary in certain quarters. The Supreme Court, particularly, was labelled “activist” or “imperial,” and its precarious position as final arbiter of constitutional questions was exposed .
The framers of the Constitution allowed to rest in the Court’s hands great authority as final arbiter of the Constitution’s meaning; but they armed the Court with no swords to carry out its pronouncements. President Andrew Jackson, in 1832, according to an often-told legend, said of a Supreme Court decision he did not like: The Chief Justice has made his decision, now let him enforce it . With prestige to persuade, but not physical power to enforce, and with a will for self-preservation, the Court generally follows, it does not lead, changes taking place elsewhere in society . But without taking giant strides and thereby risking a backlash, the Court, through constitutional adjudication, can reinforce or moderately add impetus to a social change. In post-1970 gender-classification cases, I believe, the Court functioned in just that way. It approved the direction of change through a temperate brand of decisionmaking, one that was not extravagant or divisive.
By reviewing gender-based classification closely under the 14th Amendment’s Equal Protection Clause (or the cognate equality guarantee read into the 5th Amendment Due Process Clause), the Court may have obviated the need for a separate “equal rights” amendment. Still, my own thinking on this question has been influenced by Robert Badinter’s 1989 book, Libres et Egaux. He relates how, even after adoption of the Declaration of the Rights of Man, a special proclamation was needed to entitle Jews to French citizenship and all the rights belonging to that status. In a similar way, I believe an equal rights amendment would complement the 14th Amendment by explicitly stating as fundamental principle that women and men indeed are persons of equal stature under the law .
 See Maeva Marcus “The Adoption of the Bill of Rights” Speech Delivered at the Conference for the Federal Judiciary in Honor of the Bicentennial of the Bill of Rights (Oct. 21, 1991).
 1 Annals of Cong. 439 (Joseph Gales ed., 1789), quoted in Chapman v. California, 386 U.S. 18, 21 n.4 (1967) (Black, J.).
 Thurgood Marshall “Reflections on the Bicentennial of the United States Constitution” 101 Harvard Law Review 1 (1987).
 See Richard B. Morris “Where Were the Women?” 12 Columbia 40 (Apr. 1987); Linda K. Kerber “Ourselves and Our Daughters Forever: Women and the Constitution 1787-1876” in This Constitution: A Bicentennial Chronicle 25 (Spring 1985).
 See “Associates for Renewal in Education, Inc.” City of Magnificent Intentions: A History of the District of Columbia 39, 71 (1983).
 See Deborah Jones Merritt “What’s Missing from the Bill of Rights?” 1991 Illinois Law Review 765.
 Thomas Jefferson, His Life and Words 41-42 (Nick Berlinson ed., 1986).
 Morris, supra note 4, at 41; Richard B. Morris The Forging of the Union, 1781- 1789, at 193 (1987).
 See Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873).
 See Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874).
 See Fay v. New York, 332 U.S. 261, 290 (1947).
 See Goesaert v. Cleary, 335 U.S. 464 (1948).
 Hoyt v. Florida, 368 U.S. 57, 62 (1961).
 This statement, by Columbia University economics professor Eli Ginzberg, is quoted in Jean A. Briggs “How You Going to Get ‘Em Back in the Kitchen? (You Aren’t)” Forbes, Nov. 15, 1977, at 177.
 See Wendy W. Williams “Sex Discrimination: Closing the Law’s Gender Gap,” in The Burger Years: Rights and Wrongs in the Supreme Court 1969-1986, at 109 (Herman Schwartz ed., 1987).
 See Ruth Bader Ginsburg “Gender and the Constitution” 44 University of Cincinnati Law Review 1, 2-7 (1975).
 Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 729 & n.15 (1982).
 See Frontiero v. Richardson, 411 U.S. 677 (1973).
 See Taylor v. Louisiana, 419 U.S. 522 (1975); Duren v. Missouri, 439 U.S. 357 (1979) (both decided under the rationale, derived from the 6th Amendment, that a defendant in a criminal case is entitled to a jury drawn from a “fair cross- section” of the population).
 See Weinberger v. Wiesenfeld, 420 U.S. 636 (1975); Califano v. Goldfarb, 430 U.S. 199 (1977); Califano v. Westcott, 443 U.S. 76 (1979); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142 (1980).
 The Supreme Court has not proceeded entirely evenly and without inconsistencies. Registration for the draft and statutory rape, for example, proved perplexing for the Justices, and the Court has upheld gender classifications in both areas. See Rostker v. Goldberg, 453 U.S. 57 (1981); Michael M. v. Superior Court, 450 U.S. 464 (1981). The Court has also wavered in dealing with claims of unwed fathers to full parental status, see Williams, supra note 15, at 120-21, and has not been at ease with classifications based on pregnancy. Compare Geduldig v. Aiello, 417 U.S. 484 (1974) and General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) with California Fed. Sav. and Loan v. Guerra, 479 U.S. 272 (1987). Similarly difficult for the Court to delineate is the distinction between justifiable and genuinely helpful “affirmative action” and action that reinforces the harmful notion that women need a boost or preference because they cannot readily get by without men to depend on. Compare Johnson v. Transportation Agency, 480 U.S. 616 (1987) with Kahn v. Shevin, 416 U.S. 351 (1974).
 See supra note 20.
 See Williams, supra note 15, at 123. This brand of review has been aptly called “judicial enforcement of constitutional accountability.” See Guido Calabresi “The Supreme Court, 1990 Term–Foreword: Antidiscrimination and Constitutional Accountability (What the Bork-Brennan Debate Ignores)” 105 Harvard Law Review 80, 103 (1991).
 See Ruth Bader Ginsburg “Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade” 63 North Carolina Law Review 375 (1985).
 Cf. Calabresi, supra note 23, at 91 (on “judicial enforcement of the antidiscrimination principle”).
 Roe, 410 U.S. at 140. See also Ginsburg, supra note 24, at 381, 385 n.81.
 See Ginsburg, supra note 24, at 380 n.36.
 See Paul Freund “Storms over the Supreme Court” 69 American Bar Association Journal 1474, 1480 (1983) (adapted from inaugural Harold Leventhal Lecture at Columbia Law School). See also Roe, 410 U.S. at 167, 170 (Stewart, J., concurring) (focusing on “inflexible criminal statute [then] in force in Texas”).
 See, e.g., Lochner v. New York, 198 U.S. 45 (1905) (state maximum hours regulation for bakery employees, covering men and women alike, held unconstitutional). But cf. Muller v. Oregon, 208 U.S. 412 (1908) (upholding hours legislation for women only).
 Cf. Calabresi, supra note 23, at 86 (typing bold court intervention as the “judicial supremacy” model of constitutional review).
 The decision involved in the legend is Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
 I do not suggest that judicial invalidation is inappropriate whenever it would be unpopular: Brown v. Board of Education was right, however “massive” the campaign of resistance to school desegregation threatened by Southern governors and legislatures. Indeed, precisely what distinguishes Brown from Roe is that there was no realistic prospect that the children in Brown would have their rights vindicated by the political branches.
 See Ruth Bader Ginsburg “On Amending the Constitution: A Plea for Patience” 12 University of Arkansas Little Rock Law Journal 677, 692-93 (1990).
Photo Credit: Wake Forest University School of Law, Associate Supreme Court Justice Ruth Bader Ginsburg Visits WFU, via Flickr, CC BY-NC-ND 2.0.