Gender and the Constitution: Equity and Agency in Comparative Constitutional Design

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GENDER AND THE CONSTITUTION

Many of the world’s constitutions were written in recent times, in some cases following a dramatic break with an earlier system of government, and in others through a deliberate choice to modernize. Many older constitutions are currently under review. Whether old or new, no democratic constitution today can fail to recognize or provide for gender equality. Constitution makers need to understand that constitutions are historically “gendered” and remain so; their provisions often have a disparate or differential impact on women, even where they appear gender neutral. This book considers what needs to be taken into account in writing a constitution when gender equity and agency are goals. It does so by examining principles of constitutionalism, constitutional jurisprudence, and history and applying a “gender audit” to existing constitutions. In addressing such issues, the book eschews a simple focus on equality rights and examines constitutional language, interpretation, structures and distribution of power, rules of citizenship, processes of representation, and the constitutional recognition of international and customary law. Its discussion of rights treats equality rights and reproductive rights as distinct issues for constitutional design. Helen Irving holds degrees in political science, anthropology, history, and law. She currently teaches in the Faculty of Law at the University of Sydney. Professor Irving has taught political science and law in several Australian universities since her first appointment in 1977 and was visiting professor at Harvard Law School from 2005 to 2006. She is the author of To Constitute a Nation: A Cultural History of Australia’s Constitution and Five Things to Know about the Australian Constitution. She is also the editor of A Woman’s Constitution?: Gender and History in the Australian Commonwealth, The Centenary Companion to Australian Federation, and Unity and Diversity: A National Conversation, among others.

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Gender and the Constitution EQUITY AND AGENCY IN COMPARATIVE CONSTITUTIONAL DESIGN

Helen Irving The University of Sydney

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CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521881081 © Helen Irving 2008 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2008

ISBN-13 978-0-511-37912-3

eBook (NetLibrary)

ISBN-13 978-0-521-88108-1

hardback

ISBN-13 978-0-521-70745-9

paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

Acknowledgments

page vii

Introduction

1

1

Framework

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Constitutional Language

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Federalism

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Citizenship

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Representation

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The Constitutional Court

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Equality Rights

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Reproductive Rights

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International and Customary Law

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Conclusions: Amendment and Compliance

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Index

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Acknowledgments

In 2004, while teaching a course on comparative constitutionalism at Sydney Law School, I had the good fortune to come across a report on constitution making by Vivien Hart, written for the United States Institute of Peace. Vivien’s ideas and mine seemed to run along similar lines. My impromptu correspondence with her led to our collaboration in early 2005 on a UNDP paper on gender equity and constitution making with respect to Iraq. Here, we sought to identify, in a nutshell, all the things that framers of a new constitution would need to consider if gender equity were among their goals. Inspired by this work, I developed a course, Gender and Constitution-Making from Australia to Iraq, which I taught in spring semester 2006 at Harvard Law School during a year there as visiting professor and as Harvard Chair of Australian Studies. In 2007, I taught a modified version of this course at Sydney Law School and picked up many last-minute ideas, as well as much encouragement, from my wonderful Sydney students. This present book, thus, grew out of the thinking and research that began with Vivien Hart. My first and greatest thanks, therefore, go to Vivien, for suggesting our collaboration and for her support and intellectual generosity since that time. I also thank the Harvard Law School and the students who signed up for an entirely new course in an emerging field, taught by a foreign visiting professor. The friends I made among my Harvard colleagues, in particular, Gabby Blum and Dick Fallon, helped me in many ways, probably more than they knew. I am indebted to John Berger, Senior Commissioning Editor at Cambridge University Press, for his enthusiasm for my book proposal from the vii

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start. I also thank the anonymous Cambridge reviewers for their very helpful comments on early draft chapters. I acknowledge the valuable assistance of the research assistants who worked with me at different stages: Rosalind Dixon and Natalie Waites at Harvard; Kylie Brass, Natasha McCarthy, Sarah Gavaghan, and Laura Thomas at Sydney. I have benefited from conversations, both real and virtual, with others who have written on the subject of gender and constitutionalism, including Isabel Karpin, Judith Resnik, and Kim Rubenstein. I thank Yash Ghai for sharing with me some of his vast knowledge and wisdom about world constitutions and Sandy Maisel for speedy and helpful advice on detail. John Williams at Adelaide University and Susan Williams at Indiana University invited me to take part in conferences that proved to be important for thinking about this book. In developing my ideas about gender and citizenship, in particular, I am greatly indebted, personally and intellectually, to Linda Cardinal. I am deeply grateful to the Faculty of Law at the University of Sydney for ongoing encouragement and, as ever, to my family, Stephen, Cressida, and Hugh, for their support and love. I remain, of course, entirely responsible for any errors.

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Introduction

“[T]he best nations are always those that accord women the greatest amount of liberty . . . ” – Charles Fourier, 1808

This is a book about what constitutions do to women and what women want to do to constitutions. It begins with the premise that a country’s constitution, even where it may appear neutral, impacts disparately or differently with respect to gender. It examines how this occurs; at the way constitutions frame women’s membership of, or absence from, the constitutional community; and how constitutional provisions can promote, or alternatively, present obstacles to gender equity and agency. It draws from the ways in which women have assessed their country’s constitution, both during its formation and in its operation, specifically from the perspective of women’s interests. It considers women’s proposals for constitutional amendment, and the opportunities they have taken, or forged, to be part of the constitutional process, even where they lacked representation in the formal institutions of constitution making. As Kenneth Wheare observed many years ago of modern constitutions, “practically without exception, they were drawn up and adopted because people wished to make a fresh start, so far as their system of government was concerned.”1 New constitutions have been coming off the drawing board in historically unprecedented numbers in recent times; indeed, more than half of the world’s constitutions were framed since the 1970s. The abolition of apartheid in South Africa and the end of the Cold War saw the emergence of many; others have followed regime change, most recently, 1

Kenneth C. Wheare, Modern Constitutions (London: Oxford University Press, 1951), at 8–9.

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in Afghanistan and Iraq. In addition, many Western countries have undergone constitutional reform, through the incorporation of bills of rights, devolution of governance, and the creation of new constitutional courts, among others. In this era of “fresh starts,” one of the most striking things to observe is the extent to which gender awareness has been reflected in the provisions of new constitutions. “[N]ewness and gender,” writes Fiona Mackay of the new Scottish Parliament, “are mutually reinforcing factors.”2 However, as encouraging as this may be, we do not yet have an example where a full gender “audit” has been applied to a whole constitution, or where the commitment to gender equity and agency has been central to the process of design. In this book, then, I imagine such a “fresh start.” It is a radical idea, to be sure, but no less so than the ideas that motivated many new constitutions in the past. The sense that a country’s existing system of government no longer serves the interests of its people, or that it produces inequalities and injustices instead of the common welfare, is accepted now as a legitimate motive for constitutional change, either total or partial. So, too, is the idea that the consent of the people – all the people – is a precondition of constitutional legitimacy. I ask a simple question: if gender equity and agency were your goal, and if women’s full membership of the constitutional community were assumed to be necessary for constitutional legitimacy, how would you frame a constitution? The answers, it is hoped, will throw light on the gendered impact of constitutions already in operation. Gender equality is a familiar concept to many. Theorists are also well accustomed to drawing a distinction between formal and substantive equality. Formal equality offers the same rights, conditions, and opportunities to women and men. It treats women and men as alike, as deserving of equal and similar treatment. It finds expression in the type of constitutional provision that prohibits gender discrimination or that states simply that no right can be denied on the grounds of gender or sex. The concept of substantive equality, in contrast, recognizes that formal equality can produce unequal results; where similar treatment is offered to persons who are not similarly situated, further disadvantage for the disadvantaged may be the outcome. 2

Fiona Mackay, “The Case of Scotland,” in Marian Sawer, Manon Tremblay, and Linda Trimble, eds., Representing Women in Parliament: A Comparative Study (London: Routledge, 2006), at 183.

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Substantive equality also encompasses positive programs to ameliorate disadvantage. It thus entails “positive” rights, as opposed to “negative” rights. Negative rights are, essentially, freedoms from interference or intrusion. They constrain government, prohibiting or limiting the exercise of governmental power. Positive rights, in contrast, are rights to something – to resources, services, and ameliorative measures – the fulfillment of which can be asserted against government. Substantive equality and positive rights may, in fact, be “discriminatory” in that they may entail the denial of services or resources to others, treating people differently, and thus breaching the test of formal equality. None of this will be news to feminist theorists. But equity and agency – the themes of this book – go further. They mean more than equality, either formal or substantive, and more than rights, either negative or positive. Equity involves justice and fairness, recognition and respect. Agency entails inclusion, access to, and effective participation in, decision making, both in the political-legal sphere and with respect to one’s person. Both equity and agency involve more than rights or prohibitions on discrimination. Both are implicated in the architecture and design of a constitution: in the way power is structured, the way the arms of government relate to each other, the demarcation between political/public and private, the separation and distribution of powers, processes of appointment to office, and so on. They involve questions about jurisdiction, representation, and citizenship, among others. Along with equality, both equity and agency are central to membership in the constitutional community, that is, the body of persons who come under, and enjoy the protection and opportunities offered by, a constitution. Even further, membership of the constitutional community entails a sense of ownership and belonging. “Belonging” may sound warm and comfortable, but the concept must also include the critic or advocate of change. A member of a constitutional community will be entitled to make claims about and against the constitution with confidence that these will be recognized as arising from a legitimate stake in the matter. Women have struggled for decades, even centuries, to “belong” and be recognized in either sense. Constitutional rights are important in all of this, but, as I will argue throughout, rights are merely one way of defining membership, and only one of the things to look for in auditing a constitution from the perspective of gender.

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Rights, however, have long been prioritized, and the rights paradigm is deeply entrenched in much thinking about constitutionalism. The identification of equality rights certainly has the advantage of being uncomplicated. Although provisions for constitutional rights may be expressed in various ways, they can at least be identified clearly on the page. But how do we know what to look for in a search of constitutional structures, powers, and processes? How do we know what will and what will not contribute to equity and agency? One way to answer such questions is to look at existing constitutional provisions, and trace the jurisprudence that has followed from their operation in practice. This includes legal judgments and opinions, as well as practical outcomes in the application of the law. Exploring outside the law will also provide guidelines. In political science literature, there are valuable studies of women’s participation in the constitutional community, for example, in political office. History, both recent and more distant, will also give us examples of what women want to do with constitutions. On many occasions in the past, women have taken a position on their country’s constitution, both during its framing and afterward. History

Contrary to what is often assumed, there is a substantial history of women’s involvement in or engagement with constitutional design. Although women were long absent from, or underrepresented in the formal processes of constitution making or amendment, they have not been silent. Women’s constitutional demands are recorded in observations by individual women and discussions among women’s groups at the time of their country’s constitution framing, in submissions and petitions from women to constitutional conventions or drafting committees, in feminist criticisms of draft constitutions, in feminist analyses of constitutional provisions in practice, and in proposals and campaigns for constitutional amendment. Even where the specific proposals have not been capable of direct incorporation into the particular form of legal instrument that is a constitution, such interventions build a picture of the type of interests women want to see constitutionally incorporated or addressed. The modern form of written national constitution was conceived in America, in the post–Revolutionary period. There were no women at the

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Philadelphia Convention of 1787, where the U.S. Constitution was drafted, and no women were eligible to vote for, or stand as, delegates to the state ratifying conventions.3 This is scarcely surprising. Nowhere in the world were women politically empowered at that time (and it would be historically anachronistic to expect otherwise). This is not to say, however, that women had no views about the new American Constitution, although few left an account of their position on either the process of drafting or the content of the prospective or new Constitution. In March 1776, anticipating a declaration of independence and thus the necessity for a new “Code of Laws” for America, Abigail Adams famously wrote to her husband (John Adams, drafter of the Massachusetts Constitution and future U.S. president) with a reminder to “Remember the Ladies, and be more generous and favourable to them than your ancestors.” She continued: “Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could.”4 Because Adams did not set out what she meant by “unlimited power” or “tyranny” (and her husband apparently did not ask for details5 ), we cannot say whether she had a constitutional scheme in mind, but these comments are suggestive of theories of limited government, built on a belief in the tendency of power to corrupt. Such ideas were prominent at the time and were important principles behind the design of the U.S. Constitution in 1787. Adams’s adaptation of these generalized ideas to the relations between men and women, as well as her implicit assumption that power is not gender neutral, are characteristic of the way in which women were later to build feminist constitutional claims by applying the “universal” discourse of constitutionalism to their particular circumstances as women. In 1788, during the debates surrounding the ratification of the newly completed U.S. Constitution, another woman from Massachusetts, Mercy Otis Warren, wrote an antifederalist pamphlet entitled “Observations on the New Constitution, and on the Federal and State Conventions.”6 Warren 3 4 5 6

Akhil Reed Amar, “Women and the Constitution” (1994–1995) 18 Harvard Journal of Law and Public Policy 465. Abigail Adams, quoted in L.H. Butterfield et al., eds., The Book of Abigail and John: Selected Letters of the Adams Family, 1762–1784 (Cambridge, MA: Harvard University Press, 1975). John Adams’s response is also well known: “As to your extraordinary Code of Laws . . . [w]e know better than to repeal our Masculine Systems.” Ibid. Reprint (Boston: The Old South Association, Boston, 1955). The pamphlet was first published anonymously (a common practice) under the nom de plume “a Columbian Patriot.” For many

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deplored the absence of a Bill of Rights from the Constitution and argued that the Constitution’s scheme for complex and centralized government resembled an aristocracy, rather than a republic. These arguments were typical of the antifederalist campaign in America at the time. To these, however, Warren added an interesting, and perhaps original, defense of the culture of “mediocrity,” in which modest ambitions, small communities, and family loyalties, built around the middle ground between the “ferocity” of nature and the “corruption” of civilization, would engender private happiness and public virtue.7 Although more than one writer has suggested that a recognizably feminist perspective lies in Warren’s work,8 nothing in her analysis of the draft Constitution suggests, however, that she herself identified a particular woman’s position or that she advocated, or even anticipated, the development of women’s political rights or agency. Despite this, the fact that both Adams and Warren wrote comments on the constitutional processes of the time suggests that other educated women were likely to have taken a close interest in the debates.9 In the late eighteenth century, principles of equality among men were still new and radical, as were claims for men’s rights to representation. Women’s claims to an equal share in the political sphere were just beginning to be articulated. The publication of Mary Wollstonecraft’s Vindication of the Rights of Woman in England in 1792 (and in Boston in that same year) laid the foundation for such claims. However, even if this work had appeared a few years earlier, the likelihood of its influencing either the Constitution makers at Philadelphia or the delegates to the state ratifying conventions is low. Nevertheless, Wollstonecraft’s work would inspire and give substance to the constitutional campaigns of women in the decades to come.

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years, it was attributed to a man, leading antifederalist Elbridge Gerry. Mercy Otis Warren was also the author of a three-volume history of the American Revolution. These ideas interestingly resemble the constitutional theories of Jean-Jacques Rousseau, for example, as set out in his Constitutional Project for Corsica, 1765. Janis L. McDonald, “The Need for Contextual Revision: Mercy Otis Warren, A Case in Point” (1992) 5 Yale Journal of Law and Feminism 183. This is also suggested by the fact that women contributed to the revolutionary cause by joining boycotts and protests, collecting material for the war effort, and sustaining the domestic economy while the male members of their families were absent. A number of publications give such women the name “founding mothers.” These include Linda Grant De Pauw, Founding Mothers: Women in America in the Revolutionary Era (Boston: Houghton Mifflin, 1975); Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (New York: Alfred A. Knopf, 1996); Cokie Roberts, Founding Mothers: The Women Who Raised Our Nation (New York: William Morrow, 2004).

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Around the same time in revolutionary France, women’s rights and their recognition in the French Constitution were also under discussion.10 Once ideas of masculine equality, as well as claims for equal representation and liberation among men began to circulate, it was inevitable that women would begin to apply these to their own circumstances. In 1791, Olympe de Gouges wrote a Declaration of the Rights of Woman and the Female Citizen, an edited, gender-sensitive version of the revolutionary “Rights of Man and the Citizen.” Taking the text of the latter, de Gouges inserted or added the words “woman” or “female” in place of “man” or “male.” In Article 11, she also added a defense of women’s reproductive autonomy.11 Her postscript includes a “Form for a Social Contract between Man and Woman,” effectively a manifesto of equality in marriage, couched in contractarian terms. Contractarianism, a theory of government derived most influentially from the seventeenth-century writings of John Locke, was in vogue in the late eighteenth century and underlies the modern theory of constitutionalism. Among other things, it treats the consent of all parties as the necessary foundation of legitimate authority and government. Again, we see in de Gouge’s analysis the adaptation of purportedly universal theories to the particular circumstances of women, and to the social and political relations between the sexes. This analytical process remains central to a gender audit of constitutions today. In nineteenth-century United States, women drew analogies between their own subordination and the subordination of Americans under oppressive British rule. They would draw further analogies between their own circumstances and those of slaves. Many women were active abolitionists, and many abolitionists became women’s rights advocates. They analogized their experience of domestic servitude with the enforced servitude of slavery; they also drew attention to the dual exploitation of slave women who were sexually used by their masters as well as exploited for their labor. Their campaigns contributed ultimately to a constitutional outcome. According to Akhil Amar, women were both “in large part the agents and the subjects of the Thirteenth Amendment,”12 which was ratified at the close of the Civil 10 11

12

Noelle Lenoir, “The Representation of Women in Politics: From Quotas to Parity in Elections” (2001) 50 International and Comparative Law Quarterly 217, at 219. Article 11: “The free communication of thoughts and opinions is one of the most precious rights of woman. . . . Any female citizen thus may say freely, I am the mother of a child which belongs to you, without being forced by a barbarous prejudice to hide the truth.” Amar, “Women and the Constitution,” supra note 3, at 467.

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War in 1865, prohibiting slavery and (nonpunitive) involuntary servitude. American women derived further ideas for constitutional amendment from such parallels. The great constitutional manifestos of liberation, the revolutionary rhetoric of independence, freedom, and equality, were all borrowed by early feminists in support of their cause. Although it cannot be claimed that a feminist reading of the U.S. Constitution was anything other than a minority perspective, what this did, early in the growth of modern constitutionalism, was to acknowledge the reality that constitutions are not gender neutral or “sexless.” It recognized that women’s interests and needs can be given constitutional expression. Women also learned that egalitarians and liberationists can be selective in their sympathies. The experience of being excluded as a woman from the delegates’ seats at the World Anti-Slavery Convention in 1840 led Elizabeth Cady Stanton, a U.S. delegate, to turn the constitutional rhetoric of independence on itself. As Olympe de Gouges had done with the French Declaration of Rights, Stanton recast the text of the American Declaration of Independence as a “Declaration of Sentiments,” inserting a woman’s voice. Thus, her second paragraph begins by mirroring the famous line of 1776: “We hold these truths to be self-evident that all men and women are created equal.” A recital of the “history of repeated injuries and usurpations on the part of man toward woman” follows, in the style of the original list of grievances against the English King.13 Stanton’s grievances include the denial to women of both the franchise and the legal rights to property. She concludes with a constitutional demand that women, having been “fraudulently deprived of their most sacred rights . . . insist that they have immediate admission to all the rights and privileges which belong to them as citizens of the United States.” The Declaration of Sentiments was adopted at the Seneca Falls Convention, convened by Stanton and Lucretia Mott in 1848. It had the aim of “discuss[ing] the social, civil, and religious condition of women.” 13

Interestingly, the Seneca Falls analysis goes beyond women’s social and domestic disabilities, and gives an account of what would later be known, variously, as “false consciousness” or “internalizing of the oppressor,” charging man with having “endeavored, in every way that he could, to destroy her confidence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life.” Mary Wollstonecraft’s Vindication of the Rights of Woman makes a similar claim and was probably the origin of this type of analysis.

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What exactly was included among the rights and privileges – or more specifically the “privileges and immunities” – of citizens became a major constitutional battleground following the ratification of the Fourteenth Amendment in 1868. Among the original provisions of the U.S. Constitution, Article IV, Section 2, states that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Section 1 of the Fourteenth Amendment now added a further guarantee: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. . . . The amendment’s historical purpose was to force the former slave states to recognize the legal citizenship of emancipated slaves, but its language is, at least on its face, broader than this. Women born in the United States would unequivocally be legal citizens. What followed, then, from being a citizen? In a sustained feminist analysis of the Constitution, women now campaigned to have rights that were denied to them recognized as among the “privileges” of citizens. Part of their campaign involved constitutional challenges through the courts. In 1873, in Bradwell v. Illinois,14 Myra Bradwell challenged a law that prohibited women from obtaining a license to practice as a lawyer in the state of Illinois. Bradwell asked the Supreme Court to recognize her constitutional right as a citizen under the Fourteenth Amendment to “the privilege of earning a livelihood by practicing at the bar of a judicial court.”15 She was unsuccessful. The Court did not deny that she was a citizen, but held that the right to practice a profession was not a “privilege” of citizenship. Justice Joseph P. Bradley, in a concurring opinion, also used the occasion to subject Bradwell to a judicial sermon on “the natural and proper timidity and delicacy which belongs to the female sex,” which, he said, rendered women unfit for “many of the occupations of civil life.” Their “paramount destiny and mission,” he concluded, was as wives and mothers. Bradley’s was a commonplace, indeed, banal, view at the time. In itself, it is scarcely worthy of attention. More interesting than his conclusions 14 15

Bradwell v. Illinois, 83 U.S. 130 (1872). Ibid., at 133.

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about the woman’s sphere is his assertion about its foundation. Gender roles, he said, were “the law of the Creator. And the rules of civil society must be adapted to the general constitution of things.” What is striking here is Bradley’s method of interpretation, subordinating the Constitution to a higher “constitution” designed by God. This may now seem archaic, a mere historical curiosity, but it draws our attention both to the significance of interpretive presumptions and to the potential for a conflict between traditional and modern principles in constitutional jurisprudence that is still relevant today. As the campaign for womanhood suffrage expanded, a strategy of direct action or civil disobedience was adopted. Its aim was to force constitutional challenges to gender discriminatory laws. In the same year as Bradwell, Susan B. Anthony was tried and convicted for the federal crime of voting without the right to vote. Among the arguments advanced by Anthony’s defense attorney, it was claimed that the right to vote was at the heart of the privileges guaranteed by the Fourteenth Amendment. Government by consent, freedom from tyranny, and the security of life, liberty, and property – the very fundamentals of republican government – depended on it: If there is any privilege of the citizen which is paramount to all others, it is the right of suffrage; and in a constitutional provision, designed to secure the most valuable rights of the citizen, the declaration that the privileges and immunities of the citizen shall not be abridged, must . . . be held to secure that right before all others. . . . If the clause in question [in the Fourteenth Amendment] does not secure those political rights [of voting and holding office], it is entirely nugatory, and might as well have been omitted.16 Compelling as this was in principle, there were several problems in the constitutional context that made this line of defense difficult. One lay in Section 2 of the Fourteenth Amendment. This provided for the reduction of numbers of members of the House of Representatives to which a state was entitled if (for reasons other than participation in rebellion or the commission of a crime) it disenfranchised any “male inhabitants of such State.”17 16 17

An Account of the Proceedings of the Trial of Susan B. Anthony on the Charge of Illegal Voting at the Presidential Election in November 1872 (New York: Notable Trials Library, 1997). Emphasis added. The full section reads: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons

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In this section, the word “male” appeared in the Constitution for the first time. Women suffragists had been alarmed, rightly as it turned out, in learning that this wording was proposed; they had campaigned strenuously against it, with tens of thousands of letters and petitions, as well as addresses to Congress.18 Under ordinary principles of constitutional interpretation, the express reference to a penalty for disenfranchising “male inhabitants” could be read as specifying the class of citizen whose right to vote – if, indeed, voting was a constitutional “privilege” of citizens –would be protected under the Constitution. Women were not listed in that class. By implication, states were free to deny the right to vote to female inhabitants. Second, the Fifteenth Amendment, ratified in 1870, listed the grounds on which a state was prohibited from denying or abridging the right of citizens to vote, namely, “race, color or previous condition of servitude.” Anthony’s attorney attempted a construction of the provision that bypassed the main problem. The Fifteenth Amendment, he claimed, merely extended to the U.S. government the Fourteenth Amendment’s prohibition on disenfranchisement, in addition to binding the states. The argument was weak, and it proved unsuccessful. In a simple application of the principle expressio unius exclusio alterius (to express one thing excludes the things that are not expressed), it was noted that the Fifteenth Amendment did not list gender or sex as a prohibited ground for denying the right to vote. A third hurdle lay in the contemporaneous Slaughterhouse case.19 This case had nothing to do with voting or any other claim for women’s rights (it concerned the rights of independent butchers under a Louisiana law that purported to incorporate the state’s abattoirs), but here, the Supreme Court set down a test for breach of the Fourteenth Amendment that was likely to prove fatal to women’s claims. The “privileges” and “immunities” to which the amendment refers, the Court held in Slaughterhouse, were

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in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” Nina Morais, “Sex Discrimination and the Fourteenth Amendment: Lost History” (1987–1988) 97 Yale Law Journal 1153. In Re Slaughter-House Cases, 83 U.S. 36 (1873).

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only those already guaranteed in Article IV of the original Constitution, that is, the privileges and immunities of citizens at the time of the Constitution’s framing. It would prove impossible to persuade the Court that voting was among the rights to which women citizens of the United States were entitled in 1787. Nevertheless, attempts were made by suffragists to establish that voting was a fundamental “privilege” of all citizens, regardless of the prevailing law in 1787, but all legal challenges built around this logic were to prove unsuccessful. The suffrage movement now accepted the inevitable; because the Constitution had failed to deliver equality for women, the campaign must turn to constitutional amendment. Delivering the opinion of the Court in another Fourteenth Amendment challenge, Minor v. Happersett20 in 1874, Chief Justice Morrison Waite had said as much: “If the law is wrong, it ought to be changed; but the power for that is not with [the Court].” A campaign began for what was hoped would be the Sixteenth Amendment: “The right of citizens to vote shall not be abridged by the United States or by any State on account of sex.” From 1878, the proposal was introduced in every session of Congress, but more than 40 years were to pass before it succeeded with the ratification of the Nineteenth Amendment in 1920. This victory came nearly two decades after the enfranchisement of women in Australia and 2 years after Canadian women obtained the vote. Although both of these countries also enjoyed written, federal constitutions, neither of their constitutions included a bill of rights and neither required constitutional amendment for the national franchise to be extended to women. These examples, drawn from countries with similar democratic traditions and a common rule of law, serve as a reminder that constitutional provisions are not the only manner by which rights may be extended or protected, and indeed that constitutions may present obstacles to the achievement of gender equity. A feminist constitutional audit demands awareness of such limitations, as well as of the promise in constitutional design. For American women, the Constitution initially proved an obstacle, or at the very least, unhelpful, to the achievement of equal “privileges” of citizenship. Much later, the potential lying in other words in the Fourteenth Amendment would be realized. In addition to protecting the “privileges 20

88 U.S. 162 (1875).

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and immunities” of citizens, Section 1, among other things, prohibits any state, from “deny[ing] to any person within its jurisdiction the equal protection of the laws.” In the 1970s, “equal protection” jurisprudence would extend to claims for gender equality.21 It would come to function, at least in the eyes of some, as the equivalent of an equal rights provision in the Constitution, and to serve women’s interests in the absence of any express constitutional guarantee of gender equality or equity. (We reconsider these issues in Chapter 7.) This history is significant in many ways. It describes a long line of gendered constitutional jurisprudence; it shows that gender auditing a constitution is scarcely a new idea and that its origins are perfectly compatible with the theories upon which modern constitutionalism has been built. However, although campaigns have for the most part focused on the potential in constitutions as sources of progressive empowerment, this history also sounds a warning about constitutional entrenchment. Most constitutions are entrenched; that is to say, neither the whole nor their separate provisions can be amended in the manner of ordinary legislation. Instead, extraordinary and often multistep processes must be followed. These create formidable obstacles to constitutional change and often result in its being very rare. Constitutional law is not only more powerful than ordinary legislation and constitutional courts more powerful than legislatures in the legal hierarchy, but a constitution seems typically to acquire a moral force – even superpower status – that humble legislation, no matter how progressive, rarely acquires.22 It is easy to imagine that we can rectify the injustices of the past by getting things right in constitutional language, and by incorporating provisions that are permanent, or at least very difficult to amend. There are risks in this strategy, however, preeminently, the risk of freezing ideas and ideals at a particular historical moment, and 21 22

This jurisprudence began with Reed v. Reed, 404 U.S. 71 (1971). In some countries, in the absence of a written constitution, certain pieces of “ordinary” legislation have acquired virtual constitutional status, becoming effectively entrenched by virtue of their antiquity, moral authority, and/or institution-creating character. The United Kingdom is an example. A number of seventeenth- and eighteenth-century acts still in operation set down the relations of parliament to monarch and rules of succession of the monarchy, among others. Its “bill of rights” – the UK Human Rights Act (1998) – is in the form of a statute and, furthermore, does not authorize judicial review, but merely empowers the courts to make a “declaration of . . . incompatibility” (Section 4 (4) ) between the UK law and the European Convention on Human Rights. Nevertheless, it stands above all other statutes both in the powers it confers on the courts and in its exceptional, quasi-constitutional subject matter.

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thus inhibiting or even obstructing the expansion of equity and agency in directions not foreseen at the time of constitution framing or amendment. The Reconstruction Amendments in the United States record the victory of abolitionism and the ideals of equality between white men and black men. Entrenched in the Constitution, these ideals served as obstacles to the equality between men and women. In framing new constitutions, we must remember such history and keep in mind that the ideals of the present await the verdict of the future. Nevertheless, since the eighteenth century, the historical desire to think of equality and liberation in constitutional terms has been strong. By the 1890s, when Australia’s Constitution was framed, women’s sense of political agency, their recognition of the importance of constitutional principles, and their willingness to take part in campaigns were relatively well developed. Although full political and legal equality had not yet been achieved, women were enfranchised in two Australian colonies, South Australia and Western Australia, before the end of the century.23 It is in this decade that we find the first evidence of women’s concerted, public campaigns around the framing of a country’s constitution. The Constitution of the Commonwealth of Australia was written in two stages. The first draft was completed at a convention in 1891, and then (after the initial process stalled) a new draft was completed at a second convention in 1897/1898. The delegates in 1891 were all chosen by, and from, members of the colonial parliaments. Women at that time were not entitled to vote or run for parliament in any colony; they thus had no direct or formal part in this process. Over the next 6 years, however, women gained the right to vote and run in South Australia. The processes, both of choosing delegates for the second convention and of subsequently adopting the Constitution, were also democratized. The convention delegates in the majority of colonies were popularly elected, and the new Constitution was submitted to a referendum of the voters in each colony before its enactment by the Imperial Parliament in London in 1900. South Australian women took part in the elections of their colony’s convention delegates. (One woman, Catherine Helen Spence, ran, albeit unsuccessfully, as a 23

New Zealand, an Australasian colony that was initially part of the Australian constitutional processes, but ultimately did not join the Australian Commonwealth, enfranchised its women in 1893.

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candidate). Women also voted in the South Australian constitutional referendum. By the time of its referendum, a second colony, Western Australia, had enfranchised its women, who also took part. These democratizing steps created openings for women’s involvement in the constitutional processes in Australia, even in colonies where they lacked the right to vote. As Abigail Adams had done in 1776, women urged the framers to keep women’s interests in mind, and insisted that a constitution that failed to do so would be, in the words of one campaigner, “one-sided, inharmonious and dwarfed.”24 Women’s federal leagues were established in at least two colonies to promote the federal union of the colonies and encourage a “yes” vote in the constitutional referendums. Women also identified gender-related issues for constitutional design. Existing women’s organizations, including womanhood suffrage leagues and the Woman’s Christian Temperance Union, lobbied the second convention and petitioned for a constitutional guarantee of women’s right to vote. They also lobbied for the constitutional protection of the states’ right to prohibit the sale and trade of liquor. (This is discussed further in Chapter 3.) Although they were not directly successful in their first demand, women who were already entitled to vote in their colonies were guaranteed the right to vote in federal elections by a provision (Section 41) that was included in the constitution. Combined with the expectation that there would be a uniform federal franchise for federal elections, this then created pressure for women’s enfranchisement in the other colonies. In 1902, with the first federal Franchise Act, the campaigned succeeded.25 Not all women were sanguine about the value of constitutional strategies. Some also publicly opposed the draft Constitution on what we recognize today as feminist grounds. Rose Scott, a suffragist leader in New South Wales, regarded the proposed federation of the Australian colonies as a foolhardy experiment designed by men, for which women would pay the price. As her biographer, Judith Allen, notes, her opposition to federalism included its tendency to reduce women’s power: “At the very moment when 24

25

Elizabeth Nicholls, Address to the Third Triennial Convention of the Woman’s Christian Temperance Union, Australia, 1897. See Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (Cambridge, UK: Cambridge University Press, 1997), at 171. The Commonwealth Franchise Act (no. 8 of 1902) enfranchised “all persons not under twentyone years of age whether male or female married or unmarried,” except for those aboriginal natives who were not already entitled to enroll to vote under Section 41 of the Constitution.

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women claimed access to what had constituted a representative citizenship, politicians were diluting or reducing the scope of the prize to be won.”26 The cost of national institutions, including the military, Scott said, would be “borne by women taxed without representation.” 27 The Constitution would allow men to “lay [their] hands” on matters of intimate concern to women – marriage and custody of children, among others – without giving them political representation.28 The relevance of gender in the federal distribution of legislative powers, raised here more than 100 years ago, remains one of the focal issues for feminist constitutional analysis today (as we see in Chapter 3). Other countries undoubtedly have their stories, too. It is unlikely that the United States and the Australian are the only historical examples of women’s involvement in constitutional “auditing.” What such examples show is that women’s interest in constitution making and a woman’s perspective on constitutional design are not new. They help us understand that constitutions have always been gendered. They sketch the beginnings of a feminist constitutional jurisprudence.

Current Perspectives

Many more examples exist of women coming together in recent times to consider the constitution making processes in their country. Women met and exchanged ideas prior to the adoption of Canada’s Charter of Rights and Freedoms (part of the process of “patriation” of the Canadian Constitution in 1982),29 as well as campaigning for the recognition of women’s perspectives in the debates on constitutional reform that followed.30 They were similarly active during the framing of South Africa’s post-apartheid Constitution in the mid-1990s.31 They took an active part in the framing 26 27 28 29 30

31

Judith Allen, Rose Scott (Melbourne, Australia: Oxford University Press, 1994), at 146. Scott, quoted in Allen, ibid. Scott, quoted in Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution, supra note 24, at 183. Penney Kome, The Taking of Twenty-Eight: Women Challenge the Constitution (Toronto, Canada: Women’s Press, 1983). For example, Beverley Baines, “Gender and the Meech Lake Committee” (1987) 94 Queen’s Quarterly 807; David Schneiderman, ed., Conversations Among Friends/Entre Amies: Proceedings of an Interdisciplinary Conference on Women and Constitutional Reform (Edmonton, Canada: Centre for Constitutional Studies, University of Alberta, 1991). Sandra Liebenberg, ed., The Constitution of South Africa from a Gender Perspective (Bellville, Cape Town, South Africa: Community Law Centre, University of the Western Cape, 1995).

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of the new Colombian Constitution in 1991.32 They were involved in constitution making in a significant number of African countries, including Rwanda, where in 2001, among other activities, a seminar was organized by the Rwandan National Assembly, the Forum of Rwandan Women MPs (with assistance of the Inter-Parliamentary Union, and the United Nations Development Program) to consider making the new Constitution “gendersensitive.”33 At the time of writing, women’s groups are campaigning for gender equality provisions in the new constitutions of both Turkey and Nepal, currently being drafted. In early 2004, a National Women Outreach on Constitutional Reform in Nigeria (part of a national review of the 1999 Constitution) concluded with “a set of proposals and recommendations that would make the constitution more women-friendly.” These included constitutional provisions for the “social security of women,” a constitutional affirmative action provision, the justiciability of current constitutional socioeconomic rights, freedom of religion, and provisions that would make the judicial process “affordable and accessible to the average Nigerian while the language of the constitution should be simple, gender sensitive and translated into our local languages.” Further suggestions emphasized the process of constitutional amendment, including participatory opportunities, education, and advocacy. One delegate, Akiyode Afolabi “advised that the constitution must be in simple English and also translated to the local languages for easy access.” 34 In Iraq, the constitutional recognition of women and provisions for gender equality and protection from gender discrimination were vigorously debated in the writing of the 2005 Constitution. Women’s organizations, both international and Iraqi, were involved in campaigning and lobbying before and during the constitution drafting processes. The organization Women for Women International met in Jordan in June 2005 for this purpose. Its report of the meeting, “Our Constitution, Our Future: Enshrining Women’s Rights in the Iraqi Constitution,” concluded with a list of ten recommendations for constitutional provisions. These were a strong and 32

33 34

´ Martha I. Morgan and Monica Mar´ıa Alzate Buitrago, “Constitution-Making in a Time of Cholera: Women and the 1991 Colombian Constitution” (1991–1992) 4 Yale Journal of Law & Feminism 353. Inter-Parliamentary Union, “Seminar on the Process of Engendering a New Constitution for Rwanda,” www.ipu.org/english/structure/splzdocs/kigali01.htm. Funso Abdullahi, “For a Constitution That’s Women Friendly,” Available online at www. thisdayonline.com/archive/2003/04/16/20030416fea01.html.

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visionary preamble35 ; the principle of supremacy of the Constitution; constitutional recognition of a single citizenship along with “a statement that all citizens are entitled to rights, benefits and responsibilities of citizenship”; a comprehensive Bill of Rights, including formal and substantive equality provisions36 ; federalism; an independent Supreme Constitutional Court; recognition of Islam as the official religion and religious freedom; the establishment of a gender equality commission (among other commissions for accountability and oversight); gender quotas for women in the national legislature; and the creation of a dedicated position at all levels of government to advise on and to monitor gender equality and women’s access to services.37 Many of these proposals are reflected in the 2005 Iraqi Constitution, as we see in subsequent chapters. Women have also been engaged in aspirational campaigns for constitutional change, or constitutional “fresh starts.” The Women’s League of Burma, operating in exile, has prepared position papers that set out the reasons “why instituting gender equality in a national constitution can no longer be avoided or denied.”38 These include recognizing gender equality as the basis of full citizenship, acknowledging past discrimination and human rights violations, assisting development goals, and creating a strong democracy. “Gender equality,” the League states, “is now a global norm,” central to civilized society. The specific provisions it recommends include constitutional recognition of, and commitment to, women’s equal rights and the removal of barriers that hinder its achievement, gender quotas (a minimum of 30 percent) for elections at all levels of government, an electoral system based on proportional representation, and the creation of a Ministry of Gender Equality to enforce these provisions. In Kenya, a 2002 report titled “Gender and Constitution-Making in Kenya”39 responded to the mandate of Kenya’s Constitutional Review 35 36

37 38 39

Some participants recommended that the preamble should affirm the country’s adherence to international conventions such as CEDAW. A Bill of Rights – extending (but not limited to) equality before the law; equal protection and benefit of the law; prohibition of discrimination on the grounds of, among others, gender, pregnancy, marital status, and others; guarantee of education, including adult and higher education; freedom/no imprisonment without trial; and freedom from violence. In the event, many of these demands were met in the completed 2005 Constitution. It remains to be seen whether they will survive the processes of constitutional revision that continues. Women’s League of Burma, “Constituting Our Rights” (Chiang Mai, Thailand, February 2006), at 4. Heinrich Boll Foundation (Nairobi, 2002).

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Commission to increase gender equity and “establish a broad framework within which to pursue the rights of women, including affirmative action and political participation of women.” In fulfilling the mandate, the report states, the new Kenyan constitution would need to include equality rights, citizenship rights, rights and protections of the child, recognition of international law, access to justice, and the subordination of customary law to these constitutional principles. Later that year, the Constitutional Review Commission’s report summarized the relevant provisions of the draft Constitution. These included r A prohibition against discrimination on the grounds of gender, preg-

r

r r r r r r r r r

nancy, and marital status, and the requirement for new laws to make this effective. Election and electoral system reform, including candidate quotas, designed to ensure “fair representation of women” in local, district, and national legislatures. A general principle that women should comprise at least one-third of the total of elective posts, public appointments, and commissions. A requirement that “due account” be taken “of the need to include women in public bodies and [the] judiciary.” The recognition that equal rights for women include “equal right to land, education, office, etc.” The provision that customary rules “must conform to constitutional principles.” Provision for “equal rights to pass citizenship to children” and for “husbands and wives of Kenyans to acquire citizenship.” Protection for women as mothers. Protection of rights to work on a nondiscriminatory basis. Equal rights to marry, as well as equal rights within, and at the end of, marriage. Specific rights and protections for women prisoners.40

The new Kenyan Constitution was defeated in a referendum in November 2005, and at the time of writing the future of constitutional reform remains uncertain. Nevertheless, as with the Burmese “aspirational” constitution, 40

The People’s Choice, Report of the Constitution of Kenya Review Commission, Short Version (September 2002), at 13.

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these points give a sense of both the broad range of textual and structural measures, and the detail required for gender equity and agency to be taken into account in drafting a constitution. Notwithstanding different historical circumstances, we see in these lists much that remains consistent in women’s constitutional interventions over many decades. Indeed, making allowance for differences between older and more modern perspectives and forms of discourse, they echo much that is familiar in women’s constitutional demands throughout history. The lists also reveal a recognition that the constitutional provisions that affect women are not only those that expressly provide for equality rights and antidiscrimination. Participation

At the National Women Outreach in Nigeria, Nana Tanko, country coordinator of the Open Society Initiative for West Africa (OSIWA), spoke of the general lack of participation in the constitutional processes of her country. According to the Outreach report, “she advised that to rectify the flaws in past constitutions, subsequent constitution making process ought to ensure that ‘the principles of inclusivity, diversity, participation, transparency or openness, autonomy, accountability and legitimacy,’ are adequately addressed.”41 The more open a constitution-making process is to the public and the institutions of civil society, the more likely it is that women can be involved. Even where women’s interests are not expressed in constitutional terms or incorporated into constitutional design, the participation of women in their country’s constitutional processes remains critical. It is difficult to say, precisely, what gives a constitution legitimacy (and even to know exactly what we mean by legitimate42 ), but we can be confident that any constitution written today without public or popular consultation would struggle to meet modern standards of legitimacy. A constitution that purported to govern a rule-of-law democracy but involved only men in its framing, or failed to acknowledge issues surrounding gender inequalities, would also have difficulty claiming legitimacy. Doubts would be raised about whether, and to what extent, the constitution belonged and spoke to 41 42

Abdullahi, “For a Constitution That’s Women Friendly,” supra note 34. Richard H. Fallon, “Legitimacy and the Constitution” (2006) 119 Harvard Law Review 1787.

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the majority of the population, and whether it was worthy of respect, obedience, and loyalty. To have these qualities, a constitution must be “owned” by those whom it governs and must be expressive of their equal membership of the constitutional community. A constitution should also promote a sense of belonging among its people. The constitutional community should be as broad and inclusive as possible. It goes without saying that a constitution that represented only the majority and did not make provision for minority interests would be hard pressed to maintain its claim as a constitution for a democracy. However, as women are 50 percent of the population (and, in many countries, more than this), not even the balance between majority and minority interests is at stake here. The demand for equal participation and a voice in constitution making is simple. Men have made it for themselves for centuries. Women have recognized its legitimacy and repeated it as a woman’s demand. Constitutional design, in contrast, is complex, and there are many different ways in which the goal of constitutional equity can be, and has been, expressed. Still, as we have seen, there are common themes across countries and over time sufficient, indeed, to provide us with a tentative list of responses to the question, “what do women want from a constitution?” In addition to full opportunities for participation, women have consistently asked for constitutional equality, constitutional access to justice, recognition of women’s citizenship, access to political positions and public office, and the supremacy of the constitution over tradition and custom, including over customary laws that perpetuate subordination. To articulate such goals is one thing. To recognize how constitutional provisions either facilitate or obstruct them, or to identify ways in which constitutional provisions may be designed to incorporate them, involve a much more complex analysis. In developing this analysis, one must understand that change does not occur merely because of words in a constitution. As Christina Murray writes, “a constitution on paper is hardly a constitution at all, however progressive its contents and however careful its design.”43 Still, the choice of the words on paper is of immense significance, and those who are faced with writing (or amending) a constitution cannot be 43

Christina Murray, “A Constitutional Beginning: Making South Africa’s Final Constitution” (2001) 23 University of Arkansas at Little Rock Law Review 809, at 838.

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crippled by their knowledge of the limited agency of constitutions. A well designed constitution is better than one that is poorly designed, and a constitution that is well designed and also sensitive to the goals of gender equality, equity, and agency, is better still. Although recognizing that it is not always possible to say precisely what amounts to good design and also recognizing that the political and cultural context will often limit or even undermine the provisions in a constitution, this principle, nevertheless, remains the foundation of this book. I do not claim that there is a universal template for a women-friendly constitution. However, I am convinced that certain framing questions can be asked in all cases of constitution making and that a range of options, as well as guidelines, can be identified, which are useful, transnationally and transculturally. These I explore in the following chapters.

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1 Framework

A constitution is a powerful instrument. Indeed, in most countries, it is the supreme law, sitting at the peak of the political and legal hierarchy. It is the source and the voice of power, both constitutive and authoritative. It sets out the legal and political structures for the country it governs; it identifies and names political and judicial offices and spheres of jurisdiction; it describes and establishes the arms of government, and allocates powers between and among them. It also empowers and constrains the subsequent operation of government. A constitution’s capacity may be “positive,” in granting specific powers to government, or “negative,” in denying or prohibiting the exercise of specific powers, either to government tout court or to specified arms or levels of government. Alternatively, its capacity may be neutral with respect to certain subjects, neither prohibiting nor obstructing the making of particular laws. There are, of course, limits to what a constitution can do. It has no independent agency; it is not self-executing. To do anything, it requires institutions of implementation and enforcement, as well as political and legal will. It requires a culture of constitutionalism, in which constitutional authority is recognized and accepted. Where these exist, a constitution is powerful. In authorizing and constraining the exercise of public power, it creates opportunities or openings for embedding policies in laws made pursuant to the powers it grants to the institutions of government it establishes. A constitutional gender audit needs to be aware of the potential in a constitution for either supporting or obstructing progressive policies along these lines. It must be borne in mind, however, that a constitution is a framework for the exercise of power, rather than a manifesto of policy. Constitutional 23

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power is not valueless. It rests on foundational norms, such as the rule of law, democracy, and limited government, but the specific exercise of power, especially where there are resource implications, is largely a matter for government. Some constitutions appear to suggest otherwise, however. In Article 45 of the 1936 Irish Constitution, under the heading “Directive Principles of Social Policy,” a comprehensive list of national commitments can be found. These read more like a party political platform than provisions of a constitution. They include a commitment to the redistribution of wealth among private individuals and across classes; opposition to the concentration of ownership or control of essential commodities; the encouragement of family farms and subsidies to private industry; and a national commitment to occupational health and safety. In this respect, the Irish Constitution is startlingly different from traditional constitutions. It is notable, however, that these are “directives” only, intended for general guidance to the parliament and, as Article 45 of the Constitution itself also provides, they “shall not be cognisable by any Court under any of the provisions of this Constitution.” They are, therefore, not justiciable, that is to say, not capable of grounding an action in law. Recent constitutional jurisprudence in some countries tends to suggest that the idea of a constitution as more than a framework for power is growing. According to the Colombian Supreme Court, for example, constitutions have evolved from their original function of limiting the exercise of power and distributing competencies. The function of a constitution today is to [i]ntegrate diverse social groups, to conciliate opposing interests, in the search for what has been called constitutional consensus, so that agreement on the content of the Constitution becomes a fundamental premise for the establishment of public order, [to serve] the attainment of social harmony, the coexistence of citizens and peace, with all that concept implies, as the ultimate end of governmental organization.1 This may well represent much modern thinking about the role and power of a constitution. Although many constitutions mirror existing values, many also represent or incorporate aspirations. They may state or stand for the 1

´ Martha I. Morgan and Monica Mar´ıa Alzate Buitrago, “Constitution-Making in a Time of Cholera: Women and the 1991 Colombian Constitution” (1991–1992) 4 Yale Journal of Law & Feminism 353, at 402.

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things that are best or most noble in people. A constitution’s purpose, however, cannot be principally aspirational or inspirational. If it is to have efficacy, it cannot be a manifesto of ideals. To conceptualize a constitution primarily in this manner may, among other risks, engender unrealistic expectations to begin with, and the failure of these expectations is likely to produce cynicism over time. But, more than this, constitutional law should not be confused with constitutional “poetry.” Jeremy Webber cautions against the view that a constitution “should seek to define the nation, translating the country’s deepest commitments into concentrated poetic terms.”2 Contestation about a constitution’s capacity to serve the disparate interests of those within its jurisdiction should not be inhibited by an exaggerated reverence, or a homogenizing belief in the constitution as a symbol of national unity. A constitution, however well designed, should not become sacred. Great declarations of national principles and aspirations (as in the United States Declaration of Independence) should be made, if at all, in nonconstitutional instruments, and should probably not be justiciable. Nevertheless, although functional (and requiring expression in legal language), a constitution can make important symbolic statements. It can describe the constitutional community in ways that are broader, more inclusive, and more egalitarian than a “real” description of current social relations would produce, in other words, as an ideal in which the constitution is “owned” by and operates in the interests of all. In doing so, it may also name disadvantage, recognizing those who have been excluded or rendered legally “invisible” in the past. The express recognition of women as members of “the people” who have authorized and ordained their constitution can be valuable, not only in making a statement about their membership of the constitutional community, but also about their past invisibility, or their absence even from the seemingly gender-neutral category of “people” (this is discussed further in Chapter 2).

Old and New Constitutionalism

In the mid-twentieth century, especially following World War II, numerous constitutions were written for new states or states emerging into 2

Jeremy Webber, “Constitutional Poetry: The Tension between Symbolic and Functional Aims in Constitutional Reform” (1999) 21 Sydney Law Review 260, at 261–262.

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independence. At that time, Arend Lijphart writes, “newly independent countries tended simply to copy the basic constitutional rules of their former colonial masters.” In contrast, constitution making today takes place in the era of the “new constitutionalism.” It is characterized by a greater degree of deliberation and choice “among a wide array of constitutional models.”3 The theory of “new constitutionalism” stresses the dynamic, transformative character of constitution making and the flexibility of a constitution, with the terms of government “open, accessible, contestable, and revisable.”4 “Old constitutionalism,” in contrast, describes a concept of constitution making that aims for finality, for a perpetual and permanent contract between the original parties, representing a conclusion to negotiations. This distinction is useful for understanding how, among other things, women who were not originally part of the constitution-making process may reconceptualize their historical absence and find a place for their voices, both in making new constitutions and in approaching old ones. In reality, however, the distinction is not as clear as the theory suggests. In democratic polities, where government is both powerful and limited (and the theory of constitutionalism is thus meaningful), even the oldest constitutions have never been rigid and fixed. Some people – in particular, proponents of originalist interpretation – might want them to be. However, in reality, even those who hold that a constitution’s meaning must never change once it has been signed off by its framers are forced to accept its adaptation and its openness to social, technological, and political change. They do not insist, for example, that the only disputes a constitutional court might entertain are those resembling the historical disputes or “mischief” in respect of which the constitution was framed as a solution. Even those who would never concede it in principle, recognize that a constitution is and should be adaptable. In reality, even constitutions that rarely undergo actual textual amendment are continuously undergoing revision through judicial review and public interpretation. In democratic polities, debates constantly occur over the meaning of a country’s constitution; legislatures, informed by public pressure, propose constitutional amendment and, even 3 4

A. Lijphart, “Constitutional Design for Divided Societies” (2004) 15 Journal of Democracy 96, at 96. Reva Siegal, “Text in Contest: Gender and the Constitution from a Social Movement Perspective” (2001) 150 University of Pennsylvania Law Review 297, at 314.

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if unsuccessful, this often puts pressure on or influences the thinking of the judges on a constitutional court. Normatively, the distinction between “new” and “old” constitutionalism is also problematic. Although the rhetoric of the new is valuable and democratic in principle, a constitution can never in reality be fully open, accessible, contestable, and revisable. “Constitutional conversation” cannot go on forever without resolution. Interactions are structured by democratic constitutions, but there must still be outcomes. Decisions must be made about the conformity of laws or actions to the constitution, and these decisions must have an authoritative, dispute-concluding character. Constitutional foundations, including the rule of law, the separation of powers, and the democratic structures that enable the “conversation” to occur, must be open to new content (e.g., women’s right to vote), but cannot be fundamentally renegotiated. The “old” finality of a constitutional commitment to equality will serve women’s interests best when combined with the “new” openness to expanded understandings of equality. This was recognized as long ago as 1791, when Olympe de Gouges reinterpreted the “rights of man” to embrace the “rights of woman.” Framework for Analysis

Constitutions do not speak for themselves. Design choices will necessarily involve a calculation about the meaning of constitutional provisions, and meaning must be supplied by interpretation. However, those seeking an alternative way of “reading” or writing a constitution must confront an initial difficulty: constitutional interpretation tout court is far from a settled matter. Interpretation admits of many variations, and a range of alternative methodologies and approaches can be found in most countries where judicial review is practiced. Whether to adopt one method or another is frequently a normative choice. In other words, there is no generally accepted technique for interpreting or auditing a constitution from any particular perspective, including, a fortiori, the feminist perspective. (This issue is further considered in Chapter 2.) There is another hurdle. Although women have long raised questions about recognition in their country’s constitution, gender auditing of a whole constitution is a relatively new idea. Notwithstanding that a gender analysis has now been applied to a range of individual countries’

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constitutions,5 little discussion of broad, cross-national principles of constitutional design is to be found in this literature. Kathleen Sullivan provides one exception. She relates “the story of constitutionalizing American women’s equality” as one of creative initiative, akin to “a cookbook on what to cook when there’s nothing in the kitchen.”6 She then asks, “What choices would a hypothetical set of feminist drafters face if they were to constitutionalize women’s equality from scratch?”7 In their drafting, Sullivan concludes, they would have to choose (1) between a general provision favoring equality or a specific provision favoring sex equality, (2) between limiting classifications based on sex or protecting the class of women, (3) between reaching only state discrimination or reaching private discrimination as well, (4) between protecting women from discrimination or also guaranteeing affirmative rights to the material preconditions for equality, and (5) between setting forth only judicially enforceable or also broadly aspirational equality norms.8 These are useful guidelines. Choices between formal and substantive equality, positive and negative rights, symmetry and asymmetry, and aspirations and justiciability are central to constitutionalizing equality, although they need not be exhaustive or mutually exclusive. Section 15 of the 1982 Canadian Charter of Rights and Freedoms, for example, includes a statement of formal gender equality, followed immediately by a reservation, permitting substantive programs or activities that are not offered equally or neutrally to all, but that have the object of “the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged 5

6 7 8

Lynn Smith and Eleanor Wachtel, A Feminist Guide to the Canadian Constitution (Ottawa, Ontario, Canada: Canadian Advisory Council on the Status of Women, 1992); Sandra Liebenberg, ed., The Constitution of South Africa from a Gender Perspective (Bellville, Cape Town, South Africa: Community Law Centre, University of the Western Cape, 1995); Helen Irving, ed., A Woman’s Constitution?: Gender and History in the Australian Commonwealth (Sydney, Australia: Hale & Iremonger, 1996); Alexandra Dobrowolsky and Vivien Hart, eds., Women Making Constitutions: New Politics and Comparative Perspectives (New York: Palgrave Macmillan, 2003); Alexandra Dobrowolsky, The Politics of Pragmatism: Women, Representation and Constitutionalism in Canada (New York: Oxford University Press, 2000); Beverley Baines and Ruth Rubio-Marin, eds., The Gender of Constitutional Jurisprudence (Cambridge, UK: Cambridge University Press, 2005). Kathleen Sullivan, “Constitutionalizing Women’s Equality” (2002) 90 California Law Review 735, at 763. Ibid., at 747. Ibid.

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because of . . . [among other things] sex.”9 This represents not so much a departure from formal equality, as a means of addressing both the inequalities that cannot be removed by equal treatment under the law, and those that may be exacerbated by equal treatment. As a model, it presents the hypothetical feminist constitution framer not with a (difficult) choice, but with a mechanism for reconciling the tensions in equality from which a particular type of choice or choices otherwise arise. Sullivan’s “cookbook” contains recipes for equality and rights. Gender equality is, of course, her goal. It is also the lens through which this book reviews a range of constitutions. However, rights-conferring provisions, whether formal or substantive, symmetrical or asymmetrical, aspirational or justiciable, and so on, are far from the only means through which a constitution’s impact on gender needs to be assessed. To concentrate on provisions for rights and statements of equality is to focus primarily on future judicial review; it is to anticipate a struggle between the legislative and the judicial branches, between the legislative usurper and the constitutional fortress. Sullivan’s paradigm of a feminist constitution is, effectively, a bill of rights with limitations on government, rather than a full constitution. Rights are important. However, a rights-centered paradigm overlooks structurally prior questions surrounding the constitutional design of the institutions in which the judges who interpret and enforce the rights are appointed and work, through which the laws they review are framed, through which the laws that are framed are put into effect, and through which the lawmakers are chosen. It bypasses, or at best merely touches on, questions about the ways in which constitutional interpretation may operate or be constrained, including by the constitution itself. It assumes a centrality of legal rights and a rule-based limitation on power as the principal mechanism of equality, overlooking other measures of equality, agency, and well-being. The value of identifying or designing mechanisms to facilitate representation of women in the national legislature, for example, is not fully understood in an analysis that begins and ends with rights. A constitution that (one way or another) obstructed equitable representation of women in a country’s legislature(s) could scarcely pass the feminist “cookbook” test. Yet, equitable representation cannot be understood simply as a right. It is a goal 9

Canada Act 1982, Charter of Rights and Freedoms, Section 15 (2).

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that mixes a certain type of right – what we might call an access right (the right of women to stand for office on a genuinely equal footing to men) – with women’s interests. Women who are not office holders and who have no intention of running for office are only indirectly implicated in questions about equal rights to run, but they do have an interest in being represented by other women, if only because women are persons with comparable life experience or perspectives to their own. They have, therefore, an interest in constitutional and institutional structures and systems through which women’s representation in their country’s legislature(s) can be enhanced in practice. Similarly, equitable access to justice may involve the identification of mechanisms for women’s representation on their country’s constitutional court, but again, to start from a rights perspective may miss this point. Appointment to a position on a country’s constitutional court is not itself a right, although principles of gender equality demand that women face no greater obstacles than men in being appointed. However, women, both individually and as a “class,” have an interest in women’s appointment and, thus, in constitutional provisions that facilitate women’s presence on the bench. Constitutional design may include choices of models of governance, for example, between a presidential and a parliamentary model. A feminist perspective on the presidential model would consider the type of power embedded in the presidential institutions, and would ask, among other questions, whether this leads to a greater concentration of power and whether concentration of power tends to favor the accession of men over women. Paula Monopoli argues that a singular executive with plenary power, based on a model of masculine authority and energy, is “least likely to result in women’s ascending to executive office.” She suggests that “the choice of a more communal executive model, rather than an exclusively agentic one” may address the lower rate of women’s ascension.10 Similar questions can (and should) be asked about other alternative models, such as republican or monarchical government. Such questions have little directly to do with rights. To give another example, in a federal constitution, the distribution of legislative powers between the national and the regional, or federal and state, 10

Paula A. Monopoli, “Gender and Constitutional Design” (2006) 115 The Yale Law Journal 2643, at 2644–2645.

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legislatures may elicit the language of “rights” (as in claims for “states’ rights”), but there is no relevant or justiciable right at stake in the constitution framers’ initial choice to place a legislative subject (trade, education, marriage, etc.) in the hands of the state, rather than the federal legislature (or vice versa). However, the choice will make a difference to women’s lives. Whether a particular legislative subject is a federal/national or state/regional responsibility will affect the levels of funding available to support legislative programs. It will determine whether there is national uniformity or regional diversity in laws, policies, and standards. A federal distribution of powers will influence opportunities for local participation in the formation of laws and policies. All will make a significant difference to women, although questions about “rights” will tell us little about the nature of this difference or how such differences arise. The principal question that needs to be addressed in an assessment of federalism is whether the national exercise of a power will affect the well-being and life chances of girls and women more or less well than the state exercise of the same power. Even the very identification or naming of a subject as a matter for legislative power may have gender implications (this is discussed in Chapter 3). Beverley Baines and Ruth Rubio-Marin have also set out a framework for a feminist constitutional analysis. Although they do not adopt Sullivan’s project of imagining “constitutionaliz[ing] women’s equality from scratch,” their approach is usefully analogous. What they call a “feminist constitutional agenda” should address, they argue, (1) constitutional agency, (2) constitutional rights, (3) constitutionally structured diversity, and (4) constitutional equality, with special attention to (5) reproductive rights and sexual autonomy, (6) women’s rights within the family, and (7) women’s socioeconomic development and democratic rights.11 Although their focus repeatedly resolves to rights, this list goes beyond Sullivan’s to recognize structural and interest-based criteria. Furthermore, it acknowledges the significance of methodologies of interpretation and “constitutional hermeneutics.” Similarly, this book adopts a “three dimensional,” textual, structural, and applied perspective, within an interest- and rights-based framework. Its concerns, in other words, are what the words of a constitution say and mean, how the parts of a constitution are structured, and how a constitution’s 11

Beverley Baines and Ruth Rubio-Marin, eds., The Gender of Constitutional Jurisprudence (Cambridge, UK: Cambridge University Press, 2005), at 4.

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provisions work in practice. To adapt the political science language of institutional theory, it is centrally concerned with the relationship between gender equity and agency and “constitutional opportunity structures.”12 It thus draws together the “old” and “new” constitutionalism, seeing constitutions as both “settled” and open, both structures and opportunities. It explores gender impact (actual and potential) from a range of angles. These are set out in the chapters that follow: constitutional language; the federal distribution of powers; the acquisition and transmission of citizenship; structures relating to representation in the legislature and government; constitutional provisions for access to courts (both on, and before, the bench); constitutional rights and freedoms; the means of constitutional amendment; and provisions for ensuring and monitoring compliance when the constitution is in operation. This list is not exhaustive. There may well be other ways in which a constitution will have a disparate or differential impact with respect to gender. The framework created here is also intended to help with their identification, and thus to expand our understanding of what constitutions do to women, and what women want to do with constitutions.

Commonality and Difference

In setting out such framing questions and identifying constitutional guidelines for gender equity and agency, it is clear that I have assumed at least some degree of commonality in the interests of women qua women. Some, including many feminists, will reject such a framework. The assertion of commonality among all women has been challenged as both reductionist and dismissive of the reality of difference – of class, race, and sexuality, among others – in women’s lives. A western hegemonic perspective, some argue, is reflected in such a framework. Privileged white women asserting 12

Political opportunity structures are defined as “consistent – but not necessarily permanent – dimensions of the political environment that provide incentives for collective action by affecting people’s expectations for success or failure.” Sidney Tarrow, Power in Movement: Social Movements and Contentious Politics, 2nd ed. (Cambridge, UK: Cambridge University Press, 1998), at 77. I have adapted this definition, to de-emphasize the cognitive or epistemological dimension. Rather than expectations or incentives, I am concerned with rules, institutions, processes, and structures that may, themselves, support or generate expectations, but more relevantly, provide either openings or obstacles to participation or membership in the constitutional community.

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commonalities with poor women, or with women who are members of racial minorities, it is said, are doing to others what men do to women – treating their own perspective as that of the norm; turning their own values into the standard by which all others are measured; and assuming that this standard is neutral, disinterested, and universal. To restate Martha Minow’s summary of this objection, in confronting “the unstated male norm . . . feminist critiques tend to establish a new norm that also seeks to fix experience and deny its multiplicity”;13 women’s oppression, however, is neither homogeneous nor singly determined, and there can thus be no single feminist epistemology. Kimberl´e Crenshaw’s influential development of the theory of intersectionality takes this further: “[The] focus on the most privileged group members marginalizes those who are multiply-burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.”14 There is something in this. There are also several, interrelated objections. One arises from the very criticism that theorists of difference offer. Commonality is easily dismissed from a perspective of privilege. To treat the experience of women in the poorest parts of the world, where reproductive health is perilous, where female poverty is a norm, and where sexual and domestic abuse is rife, as something with which other women cannot identify, or as an experience that cannot be talked about as a woman’s experience (and as therefore beyond constitutional measures that incorporate an assumption of commonality), is to throw the baby out with the bath water. To begin with, women are already a constitutional category of difference. In speaking about the differential impact of constitutions on women, we are recognizing difference – between women and men. To recognize this, and to seek to understand the way in which constitutions have a differential impact on women does not rule out constitutional provisions that allow for recognition of oppression or disadvantage caused by, or related to, other forms of difference. 13

14

Martha Minow, “Feminist Reason: Getting It and Losing It,” in Katherine T. Bartlett and Rosanne Kennedy, eds., Feminist Legal Theory: Readings in Law and Gender (Boulder, CO: Westview Press, 1991), at 362. Kimberl´e Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) University of Chicago Legal Forum, at 140.

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Some claim that liberal feminism, in seeking to eliminate inequalities between women and men “requires women to conform to a male-defined world.”15 Liberal feminism has acquired a bad name for this reason, for its purported willingness to give women “access to a world already constituted by men and with the parameters determined by them.”16 If it were entirely true that liberalism did this, the criticism would be valid. However, although institutions of power, including the law, may have been constituted by men, the world is only constituted by men if we read or write the world of women out of it. The reality is that institutions, paradigms, and practices, however rigid they may be, are themselves shaped and influenced by the persons who occupy them or practice them. This is already recognized, if only indirectly by “structural bias” feminists for whom the subordination and oppression of women cannot be overcome simply by placing women in positions of power because the power itself is structurally male.17 To give women equality with men is to challenge structural assumptions and to alter standards of measuring equality itself. Campaigns in the nineteenth century by working men to enter hitherto class-privileged spheres of power were built around the claim for equality among men. Once successful, these changed the institutions in which the classes came to be mingled. Although, historically, it has taken longer and been more difficult for women’s parallel campaigns to succeed (gender equality, it seems, will always take a backseat to claims for masculine equality), the lesson of history is that one does not need to choose starkly between structural bias theory and liberalism. The simple goal of formal equality under the law has long been challenged, and liberal feminists accept that substantive measures based on differential treatment are needed to accommodate the reality that equal treatment often produces inequalities among the differently situated. However, the goal of gender equity and agency, as argued in the Introduction of this book, takes us further than equality. It is capable of accommodating difference, while recognizing that political and legal 15 16 17

Hillary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester, UK: Manchester University Press, 2000), at 39. Ibid. Karen Engle, “International Human Rights and Feminisms: When Discourses Keep Meeting,” in Doris Buss and Ambreena S. Manji, eds., International Law: Modern Feminist Approaches (Oxford, UK: Hart, 2005).

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recognition of difference also requires grouping and clustering and with it, recognition of commonality. To reject commonality and essentialize differences among women is also to confuse historical cause and effect. If privileged, “western” women are, at least, relatively less likely to die in childbirth or to endure sexual servitude; this is not because they are different from women in less privileged parts of the world, but because they have benefited historically from measures, including those shaped (or framed) by laws that have progressively mitigated gender disadvantage. As Joan Williams points out, “[o]ne need not adopt the essentialist notion that gender, or race, or some other single quality defines ‘the’ one stable category of difference to acknowledge the existence of shared patterns of experience (often linked to oppression).”18 What is necessary is to contextualize the experience of women. The feminist project, however it is defined (and whatever it is called19 ) prioritizes commonality (as any group project will do), but is also capable of contextualizing that commonality. Indeed, cultural, racial, economic, and national context is the canvas on which constitutional design must be drawn. Although women’s experience as historically subordinated human beings has much in common with the experience of minorities, it cannot be analogized with this experience, either jurisprudentially or practically, nor should women’s status be conceptualized as that of a minority. Women are half the world, half of each nation. This is not just a slogan or a naive observation about statistics. It is a fundamental, indeed, ontological, observation. Discussing the constitutional reforms in France in 1999, which mandated electoral quotas for achieving gender “parity” (discussed in Chapter 5), Noelle Lenoir considers the claims made by critics that gender quotas would transform the unitary French Republic “into a society of communities.” She challenges the underlying assumption that women are “a community . . . within the national community” equivalent to cultural, ethnic, or racial communities.20 Parity laws, she states, are a means of achieving 18 19 20

Joan C. Williams, “Dissolving the Sameness/Difference Debate: A Post-Modern Path Beyond Essentialism in Feminism and Critical Race Theory” (1991) Duke Law Journal 297. See Janet Halley, “Take a Break from Feminism,” in Karen Knop, ed., Gender and Human Rights (Oxford, UK: Oxford University Press, 2004). Noelle Lenoir, “The Representation of Women in Politics: From Quotas to Parity in Elections” (2001) 50 International and Comparative Law Quarterly 217, at 219.

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equality, not dividing the nation. They are comparable to other constitutional principles, such as the right to vote or the separation of powers. They are an “an operational mechanism.”21 In a similar manner, the recognition of women’s presence in the world does not in and of itself drive claims for “special” treatment or for separatism. It is, indeed, the foundation of a politics of inclusion. It assumes nothing, a priori, about gendered “identities” other than the reality that women and men are different, even though as groups they are also subdivided into smaller groups or communities. Despite the many subdivisions among them, women do have something in common. They share the historical and continuing experience of subordination. Why women have had this experience, and whether it arises from something essential to womanhood or from the historically and socially contingent, is something that this book does not seek to explain. Its concern, rather, is with the reality that law – specifically, constitutional law – is a practical instrument for either perpetuating or challenging this subordination. In Chapter 8, I will also argue that another commonality among women – their reproductive capacity – can and should be addressed in constitutional design. Some might object that the law itself is a patriarchal construct, but for those faced with the task of writing law (especially writing a constitution), such meta-analysis will prove to be of relatively little value. Those who seek change in gender relations cannot afford to stand back from the processes of constitution framing. They cannot ignore questions surrounding the design, interpretation, or amendment of their country’s constitution. Those who want to understand or take part in such processes must weave carefully between a “holistic” or systemic interpretation of constitutionalism and the practicalities of constitution framing or amending. Incremental steps and microanalysis cannot be eschewed. The reality is that the law in the democratic and developed world serves women’s interests better than it did in the past, certainly more than it did 200 years ago, largely because women have campaigned for it to be changed. Those who would dispute this hold unrealistic, even utopian, standards. Those who consider a country’s constitution to be irrelevant to the task of social amelioration have lost sight of the role that a constitution can play, 21

Ibid., at 244.

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both in naming power and in allocating and limiting its exercise. Their reluctance to engage makes way for others who also reject the progressive potential in the law, but are motivated by regressive goals and not reluctant to leave their mark. It also overlooks the importance of engagement in the processes of constitutional design (including amendment), which, in itself, can focus claims and demands about governmental power and provide a channel for challenging subordination. The other reality is that the law still fails women, even in the democratic and developed world, far more often than it should. Knowing how this has occurred, and how a constitution – a country’s supreme law – can be better or worse in its record on serving women’s interests, is of enormous value for our understanding of how to work with a feminist agenda in one hand, and a constitution in the other. In the following chapters, I attempt to bring the two together.

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2 Constitutional Language

Before a constitution can have effect, its words must be given meaning. Before the words can have meaning, they must be chosen by the constitution’s framers. In making choices in the drafting of legal instruments, every word requires thought and precision. However, whereas subconstitutional instruments (e.g., statutes and regulations) can be amended relatively easily if they prove in practice to have been poorly drafted, a constitution is usually difficult to change, and its amendment is intended to be rare. One cannot overestimate the significance of the choice of words in its drafting. Constitution making typically starts with a commitment to broad principles and sometimes general aspirations. These may be expressed in prior resolutions or motions moved at the start of the formal process; thus, the American framers, meeting at the Philadelphia Convention in 1787, adopted the so-called “Virginia Plan” in which fifteen resolutions set out a rough sketch of constitutional government. Australia’s framers voted on several resolutions at the opening of both the first Federal Convention in 1891, and the second in 1897. At the latter, they began with a commitment to writing a constitution “in order to enlarge the powers of self-government of the people of Australia.”1 In South Africa, thirty-four principles were set down by a multiparty negotiating process in 1993, prior to the election of the National Assembly, which formed the drafting committee for South Africa’s post-apartheid Constitution. These began with a commitment to “provide for the establishment of one sovereign state, a common South African citizenship and a democratic system of government committed to 1

38

Official Record of the Debates of the Federal Australasian Convention, Vol. II, Adelaide, 1897 (Sydney, Australia: Legal Books, 1986), at 17.

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achieving equality between men and women and people of all races.”2 The principles were incorporated into an interim Constitution and drawn on as guidance for drafting a final Constitution.3 Preliminary resolutions or principles are usually framed at a level of generality that requires some degree of linguistic precision, but in which the language is less constrained than in a constitution; it can be broader and looser, and it need not, at this stage, be “legal” in form. The subsequent steps, turning broad commitments into constitutional provisions, must reduce these commitments to legally appropriate and justiciable words. This requires immense skill and sensitivity, both legal and political. Typically, a specialized subcommittee will undertake this work or will refine the work of other committees, as, for example, did the “Committee of Detail” in America, the “Drafting Committee” in Australia, and the “Technical Refinement” committee in South Africa. The framers of a constitution are charged with an almost superhuman task – setting out the powers and limitations of a nation-state – but they are, of course, human, and thus imperfection in expression is difficult to avoid. However, so long as it is occasional, it is not necessarily a disaster. Ambiguity or looseness in the text can, to some extent, be “corrected” later in interpretation by a constitutional court, applying practices drawn from the canons or rules of statutory interpretation, which are designed to elicit clear meanings even from fuzzy texts. Yet, there is a limit to how much this can be done with a constitution (a limit that depends considerably on the approach judges adopt toward constitutional interpretation). Even where linguistic precision is achieved, unintended results may follow from the choice of one word over another. As David Currie notes in his essay on unintended consequences of the Twelfth Amendment of the U.S. Constitution,4 “the most abiding lesson of the intricate debates on [its] proposal is what a tricky and difficult business it is to draft amendments to the Constitution.”5 The same goes, a fortiori, for drafting original provisions. 2 3

4 5

Schedule 4, interim Constitution of 1993, as amended by s. 13 of Act 2 of 1994 and by s. 2 of Act 3 of 1994. The Constitutional Court then scrutinized the draft for conformity to the thirty-four principles; in the event, it required some redrafting before it gave its approval, a necessary precondition for the Constitution to become operative. Ratified in 1804. It provides for separate ballots for the president and vice president. In David E. Kyvig, ed., Unintended Consequences of Constitutional Amendment (Athens: University of Georgia Press, 2000), at 73.

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Those seeking gender equity cannot afford to be casual about the choice of constitutional language. Even the choice between something as seemingly small as the indefinite and the definite article can be critical in conveying different meanings. For example, the 2005 Iraqi Constitution states that “Islam is . . . a basic source of legislation.”6 Some of the religious members of the Iraqi Constitution Drafting Committee wanted Islam to be described as “the basic source of legislation.” During the framing, the choice of the article became a battleground, attracting both local and international expressions of concern. The substitution of “the” for “a” would have elevated Islam to the single and overriding source of law, rather than positioning it as one source among others.7 This choice has potential significance for women in particular, given provisions in Islamic law that may (depending on interpretation) restrict women’s freedoms, especially within marriage and the family. Such consequences need to be anticipated as far as possible in decisions about constitutional language. The human limitations that invariably result in some degree of looseness, ambiguity, and unintended outcomes in constitutional drafting also involve less easily “correctable” limitations of perspective. Adverse assumptions about the roles, attributes, and capacities of women are common in most societies (and prominent in many), and there is a risk that such assumptions will be embedded in the words of a constitution. This risk is increased where (as has been typical in history) women are absent from, or underrepresented in, the constitution drafting committees. The selection of words invariably includes choices about gender, regardless of whether the framers are conscious of this. Gendered Words

Probably the majority of the world’s constitutions use masculine language in their reference to people, either individually or collectively. This might be dismissed as insignificant because it is often assumed that masculinespecific language in law is actually gender neutral in both its “real” meaning and in practice and, therefore, that no gender-disparate consequences flow from the decision, for example, to refer to people as “men” or individuals 6 7

Article (2): 1st. Juan Cole suggests that, the indefinite article notwithstanding, concerns remain (www. juancole.com/2005/09/iraqi-constitutions-downside-for-women.html).

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as “he” in a legal instrument. Indeed, rules of statutory construction – the common law “canons” in the United States, or the Interpretation Acts in a range of countries – encourage this assumption. They include the rule specifying that words “importing the masculine gender” should be read to include the feminine, unless the contrary intention is clear. However, as feminist analyses of statutory language demonstrate, assumptions that underlie the rule and the actual application of the rule are open to question. Sandra Petersson has examined in detail the claim of gender neutrality in masculine language, as well as the legal “rules” whereby masculine nouns or pronouns, purporting to be generic, are said to extend to both women and men.8 Historically, Petersson notes, masculine language was not intended to be neutral. Even after the introduction of the “masculine rule” in common law countries around the mid-nineteenth century,9 “the practice of using male terms to include women is not absolute and . . . courts have often used context to exclude women.”10 This is not merely a matter of departure from form. As Petersson notes, “even at the basic level of vocabulary, legal language may lack the neutrality attributed to it.”11 It can make women and women’s experiences “invisible,” while purporting to be both neutral and inclusive. The masculine pronoun employed in constitutional references to people may include references specifically to individuals, or to individual and/or collective citizens or persons (depending on whether there is a genderspecific form of the third-person plural in the relevant language). The framers of some modern constitutions, however, have sought to avoid gender specificity, for example, by repeating nouns and avoiding pronouns. One provision of the Canadian Charter of Rights and Freedoms, for 8 9

10 11

Sandra Petersson, “Locating Inequality – The Evolving Discourse on Sexist Language” (1998) 32 University of British Columbia Law Review 55. First introduced in the United Kingdom in an Act of Parliament “for shortening the language used in acts of Parliament” (1850). It prescribed, among other things, that “in all acts words importing the masculine gender shall be deemed and taken to include females.” This rule was incorporated into the Acts Interpretation Act of 1889 in the United Kingdom and subsequent Acts Interpretation Acts in Australia and Canada, among others. It is followed as a rule of statutory construction in the United States. See Debora Schweikart, “The Gender Neutral Pronoun Redefined” (1998–1999) 20 Women’s Rights Law Reporter 1; also Sandra Petersson, “Gender Neutral Drafting in Historical Perspective” (1998) 19 Statute Law Review 93. Petersson, “Locating Inequality – The Evolving Discourse on Sexist Language,” supra note 8, at 56. Ibid., at 86.

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example, states: “Any person charged with an offence has the right . . . not to be compelled to be a witness in proceedings against that person in respect of the offence.”12 An alternative is the passive voice, avoiding active reference to possessors of rights or freedoms. Where gender specificity in pronouns is either accepted or found to be unavoidable, “he or she” and “man and woman” are the standard alternatives for those who eschew the “masculine rule.” These attempts at gender-inclusive language are not merely a matter of legal precision and formal inclusion. They involve recognition of language as a form of representation, and an understanding that the use or even the order of words may convey privilege or priority. They acknowledge that the purported neutrality of the masculine pronoun, or the “universality” of the masculine collective, has served as a cloak for the historical invisibility of women, as well as reinforced stereotypes in which political and constitutional actors are presumed to be male. Such a presumption may be illustrated by imagining the claim for neutrality or universality in reverse. Imagine, for example, Article II of the U.S. Constitution beginning thus: “The executive power shall be vested in a President of the United States of America. She shall hold her office during the term of four years. . . .” Imagine, further, that this rewording was proposed as an amendment to the Constitution, in which “she” and “her” were to be substituted for the current masculine pronouns on the grounds, say, that it was time, after 250 years, for feminine language to take its turn. Would Americans be persuaded that the feminine was genuinely gender neutral, even if they were made aware of the rule of interpretation that in a legal instrument, unless otherwise specified, “she” is taken to include “he,” just as “he” is taken to include “she”? Would they be comfortable with generically referring to the president as “she”? If not, why not? Notwithstanding the assumed reversibility of the masculine rule, it is unlikely that the use of the feminine pronoun is ever intended to embrace the masculine. As Petersson observes, although express provision has been 12

Section 11. Note, however, that the French version of the Charter includes gender-specific language. This particular section, for example, reads: “Tout inculp´e a le droit . . . de ne pas eˆ tre contraint de t´emoigner contre lui-mˆeme dans toute poursuite intent´ee contre lui pour l’infraction qu’on lui reproche.” The French language, generally, makes gender neutrality more difficult than in English, something Francophone feminists in Canada find a matter of concern.

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made in the Interpretation Acts of British Columbia and Ontario “that words importing the feminine gender include males,” she also notes that “there is no evidence of such practice ever being made.”13 Furthermore, there is good reason for skepticism about claims that legal instruments in which the feminine pronoun is used should be implied to incorporate the masculine. Historically, where a gender-specific pronoun has been employed in law and intended to be neutral or universal, the chosen pronoun has always been the masculine. The use of the feminine, therefore, denotes special legal detriment or entitlement. If there is a genuine rationale for such special laws – at least with respect to entitlements – legal drafters (and interpreters) should take care not to subvert it by “universalizing” the feminine. It is important to recognize that it is not merely by accident that “he” (or the masculine plural) has been employed purportedly for all human individuals, both in legal instruments and general written and spoken discourse. Its historical use has coincided with, and reflected, the subordination of women. Where used in law, notwithstanding rules that purport to extend its meaning to women, it stands as a reminder of the historical and legal privileging of men. One cannot be complacent about the legal significance and discriminatory potential of masculine words. The American women who campaigned against the wording of the Fourteenth Amendment, because it would import the word “male” into the Constitution for the first time, understood well the power of a single gendered reference.14 Masculine nouns – “sons,” “fathers,” “brotherhood” – may also be found in some constitutions (usually in preambles). These may have little concrete or direct practical significance in law, but they act symbolically to exclude women from (or underline their exclusion from) “real” membership of the constitutional community. Even apparently nongendered words may be symbolically and historically gendered. This was recognized, for example, during the framing of the 1991 Colombian Constitution. As ´ noted by Martha Morgan and Monica Buitrago, a member of the Colombian Women and the Constituent Assembly National Women’s Network objected to the inclusion in the Constitution of the word honra (honor), 13 14

Petersson, “Locating Inequality – The Evolving Discourse on Sexist Language,” 45supra note 8, at 57. Nina Morais, “Sex Discrimination and the Fourteenth Amendment: Lost History,” 97 Yale Law Journal 1153 (1987–88).

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on the grounds that this “has traditionally been used in reference to societal norms of a feminine sexuality kept ‘pure’ in a way reflecting a double standard and the sexual and political subordination of women.”15 Words that are gendered may also be misappropriated or metaphorically decontextualized as, for example, in the commonplace expression “founding fathers.” The imagery of “fathers,” absent mothers, is an analytical perversion; the coupling of “father” with the idea of “giving birth” (to the constitutional nation) is a type of grammatical barbarism. Symbolically, it appropriates a female-specific experience as a masculine attribute, while complacently overlooking women’s absence from the constitutional event to which it refers. In the manner of traditional biographies of great men that begin by identifying their subject as the son only of a named father (without mention of the mother), it treats women and the experience of birth as mere vessels for “true” parenthood, that is, paternity. Nouns such as “person,” “people,” or “citizen,” although apparently gender neutral, may also be (and have been) read as gendered, both generally and specifically in law. As Sandra Berns points out, “[i]n linguistics, the male gender is known as the ‘unmarked term’” but “even putatively universal nouns carry ‘markers.’”16 So, for example, the word “judge” is commonly assumed to be male.17 Sandra Petersson also draws on the work of grammarians and psychologists to show that where male pronouns are attached to gender-neutral nouns (e.g., “person”); this tends to create an identification in the mind of the reader between the neutral word and the masculine.18 The repeated use of masculine pronouns leads to the interpretation of narratives as involving male actors, even in cases where the figures or characters in the narrative are female. Similarly, by historical association or via an assumption that the public and the masculine are coextensive, facially neutral constitutional words may be read as having a masculine character. 15

16 17 18

´ Martha I. Morgan and Monica Mar´ıa Alzate Buitrago, “Constitution-Making in a Time of Cholera: Women and the 1991 Colombian Constitution” (1991–1992) 4 Yale Journal of Law & Feminism 353, at 383. Sandra Berns, To Speak as a Judge: Difference, Voice and Power (Aldershot, UK: Ashgate, 1999), at 201. We do not know yet, however, what effect the television program “Judge Judy” will have in regendering the word “judge.” Petersson, “Locating Inequality – The Evolving Discourse on Sexist Language,” supra note 9, quoting from Karen de Jong, “On Equality and Language” (1985).

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Christina Murray’s description of working as a member of the panel of experts advising the South African Constitutional Assembly on drafting provides us with a rare, firsthand account of confronting such complexities in choosing constitutional language.19 In “getting the language right,” Murray describes the expert panel’s initial decision to draft in plain language and the work of the “Technical Refinement” team that followed, simplifying complicated legal language. Decisions were made to turn negative wording into positive wording and to remove “padding.” The purpose was to make the Constitution as accessible to nonlegal specialists as possible. Furthermore, Murray writes, “[i]ssues of gender equality were prominent through the entire drafting process.” In addition to incorporating express gender equality provisions, the language of the whole Constitution was scrutinized from the perspective of gender. Two threshold decisions were taken: the first was to make the text “generally free of specific gender references.” This meant removing even the alternative pronouns, “he or she,” and replacing them with a gender-neutral noun and, if required, repeating it. So, instead of stating that a member of the National Assembly “shall vacate his or her seat if he or she (a) ceases to be eligible to be a member of the National Assembly . . . ,”20 the equivalent provision in the final Constitution was formulated as “A person loses membership of the National Assembly if that person (a) ceases to be eligible . . .” and so on.21 Where it was impossible to avoid using a pronoun, the “epicene” was inserted; that is, “their” was employed as a singular pronoun.22 Section 10 reads, for example, “Everyone has inherent dignity and the right to have their dignity respected and protected.” Another alternative to such construction is to frame rights in the “negative” language of limitations or prohibitions on the exercise of power. Parts of the U.S. Bill of Rights do this. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the 19 20 21 22

Christina Murray, “A Constitutional Beginning: Making South Africa’s Final Constitution” 23 UALR L. Rev 809 (2001), at 825. Interim Constitution of 1994, Section 43 (a). Section 47 (3). In her survey of gender neutral pronouns in English, Schweikart defends the singular “they,” and points out that “you” was once exclusively plural but came to be extended by use to the singular. Debora Schweikart, “The Gender Neutral Pronoun Redefined,” supra note 9, at 8.

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Government for a redress of grievances.” A constitution may also employ the passive voice, with the language of rights and freedoms disembodied, thus embracing all and excluding none, either directly or indirectly; Section 80 of Australia’s Constitution, for example, provides that “The trial on indictment of any offence against any law of the Commonwealth shall be by jury. . . .”23 However, although grammatical forms that avoid the person or neutralize gender references may be suited to the language of rights (because we do not necessarily associate a rights holder with a particular type of person), they may create problems of gender reference for political or legal office. As Murray’s account continues, the South African framers recognized that [r]emoving all references to both men and women . . . brought with it the danger of excluding women in much the same way that the traditional legal assumption that the masculine includes the feminine does. This danger results from our stereotypical assumption that the actors in politics must be men. To counteract this, this constitution expressly refers to men and women whenever it deals with appointments to office, thereby emphasizing that either a woman or a man could hold the office.24 More subtly, but even more remarkably, the standard gender order – “men and women,” etc. – was reversed. One alternative might have been to rotate the nouns, so that “women and men” appeared in half the references in the text, and “men and women” in the other half. But, in the South African drafting, an executive decision was made by the chairperson of the Constitutional Assembly, Cyril Ramphosa, to employ “women and men” throughout.25 Even the provision governing the appointment of the national commissioner of the police service refers to the appointment of a “woman or man.” In this particular provision, Murray states, “the point is really driven home.” 23 24 25

The fact that this section has proven to be hollow in upholding the right it appears to confer is not a function of the form of the wording. Murray, “A Constitutional Beginning: Making South Africa’s Final Constitution,” supra note 19, at 828–829. See Articles 46(1), 86(1), 105(1), 174(1), 175(1), 193(1) and (3), 196(10), 207(1), and 209(2). See Christina Murray, “A Constitutional Beginning: Making South Africa’s Final Constitution,” ibid, at 829.

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What is the point here? Why should the order of words matter? The days in which a constitution’s reference to a “person” would be interpreted to exclude women are, one might think, long gone. The rule of interpretation that “words importing the masculine gender” embrace the female gender (unless the contrary is clearly intended) has been operating for more than 150 years. “Man” and “mankind” are used all the time in ordinary language without anyone believing that they literally include only men. As we have seen from Petersson’s work, gender neutrality in the use of masculine language is illusory. Masculine words do not genuinely embrace the feminine either in practice or epistemologically. Furthermore, it is not accidental that the masculine has been identified with the universal, nor is the choice of the masculine innocent. If, as previously suggested with respect to pronouns, one performs a mental exercise of substituting “woman” and “womankind” for the usual alternative, and tries to imagine that these nouns refer, innocently and unproblematically, to men, one may begin to appreciate that it is scarcely through the throw of the historical dice that the masculine has been used to “embrace” the feminine – or rather that the masculine is claimed to embrace the feminine. There is another, more confronting example that may “drive the point home.” Consider the old expression “white man,” used in the past to indicate that someone was decent or honorable, or reliable.26 The actual skin color of the person was not intended to matter. No one these days could seriously believe, however, that the expression was genuinely equitable in its meaning or that it really extended innocently to colored persons as well as whites and had nothing to do with the historical subordination or perceived inferiority of the former. Using “man” to include “women” is similar. It is less obvious and less evidently culpable, only because we are still not free of it.

Are Women People?

Many constitutional preambles include invocations of a transcendent sovereign power or authority by invoking “the people” and making declarations 26

As exemplified in Rudyard Kipling’s poem “Gunga Din” (1865), where the Indian regimental water carrier, Gunga Din, is described as being, “for all ‘is dirty ‘ide/ . . . white, clear white, inside.”

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that “the people” have authorized or ordained the constitution, or consented to its adoption. Here are some examples: We the people of the United States . . . do ordain and establish this Constitution of the United States of America. (1787) Whereas the people of [the Australian colonies] . . . have agreed to unite in one indissoluble Federal Commonwealth . . . under the Constitution hereby established . . . (1900) ´ . . . Do hereby adopt, enact, and give to ourWe, the people of Eire. selves this Constitution. (1937) We, the people of India, [have] solemnly resolved to constitute India into a sovereign socialist secular democratic republic. (1950) The irony in such majestic language has not been lost on those who note the historical absence of women from the framing and authorizing processes of their country’s constitution, and who also question its genuine inclusiveness. The majority of women, wrote the South Australian suffragist and temperance campaigner, Elizabeth Nicholls, in 1897, “believe that the laws for the people should be made according to the voice of all the people (and women are people).”27 Such simple observations can be rhetorically powerful. They can express protest, or they can reappropriate language and serve to underline the fact that the term “the people” is capable of expansion, inclusiveness, and genuine neutrality. In interpreting the language of a constitution, however, one should avoid anachronisms. One cannot, for example, expect women to have been directly included in the U.S. Constitution framing process at the end of the eighteenth century. It is futile to express outrage that they were not. Rather, what the example and the “interrogation” of the term “people” can do is draw attention to the power of the idea that constitutions require popular consent for their legitimacy, and reinforce the need for an approach to interpretation that understands history but is not shackled to it. (This is discussed later in this chapter.) Whether preambulary invocations of the sovereign people have anything more than symbolic force (although symbolism is far from insignificant) will depend on the legal status of the particular preamble, or the 27

Quoted in Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (Cambridge, UK: Cambridge University Press, 1997) , at 171.

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justiciability of its parts. Traditionally, constitutional preambles have been treated as analogous to statutory preambles for purposes of interpretation; that is, having no independent authority or interpretive priority, and thus only relevant where a fundamental ambiguity in the constitution needed to be resolved.28 In the U.S. Constitution, despite its noble, aspirational (and, notably, nongendered) language, the preamble has been given little legal recognition and “has never been regarded as a source of substantive power.”29 These days, some preambles are drawn upon to guide interpretation of individual provisions of the relevant constitution, or even more broadly, of the constitution as a whole (for example, in directing attention to the “mischief” that the constitution was designed to overcome, elucidating the intentions of the constitution’s framers, or illuminating the broad “spirit” and purpose of the constitution). The preamble to the South African Constitution is frequently adverted to by the South African Constitutional Court. For example, the 1993 case of Bhe and Others v. Magistrate30 concerned a constitutional challenge to the customary rule of male primogeniture in inheritance as codified in the South African Black Administration Act. Referring to the commitment in the Constitution’s preamble to “[i]mprove the quality of life of all citizens and free the potential of each person,” Deputy Chief Justice of the Constitutional Court, Pius Langa, found (with the Court) in Bhe’s favor. The removal of gender discrimination in inheritance was consistent with this commitment, the judge stated, because we “vest in our children our hopes for a better life for all.”31 Where a constitution’s preamble includes a reference to “the people,” an accompanying commitment to gender equality will guide a broad and 28 29

30

31

Anne Winkler, “The Contextual Role of a Preamble in Statutory Interpretation” (1999) 23 Melbourne University Law Review 184. Jacobson v. Commonwealth of Massachusetts 197 U.S. 11, 22 (1905). In Doe v. Bolton 410 U.S. 179, 210 (1973), Douglas J. referred to the “catalog” of rights that falls under the preamble’s phrase “blessings of liberty.” This, however, has not been adopted as doctrine. Bhe and Others v. Magistrate, Khayelitsha and Others CCT49/03; Shibi v. Sithole and Others CCT69/03; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another CCT50/03; CCT49/03; CCT69/03; CCT50/03 (2005) (1) BCLR (CC); brought by Ms. Nontupheko Bhe (on behalf of her daughters), as well as the South African Human Rights Commission and the Women’s Legal Trust Centre (acting “in the public interest”). The Commission for Gender Equality, provided for in the South African Constitution, was admitted as amicus curiae. Bhe, Ibid., at 33.

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inclusive understanding of this expression. When the preamble is empowered to assist interpretation, such invocations will be meaningful, and will cease to be facades behind which historical absence is disguised. In this event, the words will cease to be platitudes, and their choice will become more significant in constitutional design. The interpretive role of a preamble may be expressly provided for in a constitution, or may arise from broader principles of interpretation. (These are discussed later in the chapter.) Are Women Persons?

The proposition that gender-neutral words may actually be gendered and that “innocent” language requires historical interrogation is powerfully illustrated by the celebrated Canadian Persons Case.32 In this case (which concerned the constitutional right to be appointed to the Canadian Senate), the Supreme Court of Canada ruled that the word “Persons” in Section 24 of the Canadian Constitution (the British North America Act of 1867 [BNA Act]) did not include women. The judgment was subsequently overturned on appeal to the Judicial Committee of the Privy Council in London.33 In 1927, Emily Murphy, who had been appointed in Alberta in 1916 as Canada’s first woman magistrate, joined with four other women – making up the “famous five” – to petition for a Supreme Court interpretation of the Constitution on women’s eligibility to serve as Senators.34 Murphy, whose right as a woman to serve as a magistrate had already been unsuccessfully challenged in the Supreme Court of Alberta, had been proposed as a Senate appointee on more than one occasion, but it was assumed by the government that the Constitution precluded a woman’s appointment. Acting on the petition, the Minister of Justice asked the Supreme Court to rule on the question: “Does the word ‘Person’ in section 24 of the British 32

33

34

Edwards v. Canada (Attorney-General) (1928) S.C.R. 276. In South Australia in 1959, a challenge on similar grounds against women’s status as “persons” entitled to sit in parliament was unsuccessful. Marian Sawer, “Women and Government in Australia,” Yearbook of Australia (Canberra, Australia: Australian Bureau of Statistics, 2001). The Privy Council, as it is known for short, was the highest court of appeal in the British Empire. Reference to Meaning of Word “Persons” in Section 24 of British North America Act, 1867: Edwards v. A.G. of Canada (1930) A.C. 124. A provision in Canada’s Supreme Court Act allowed five persons to petition the government on constitutional interpretation.

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North America Act, 1867, include female persons?” The following year, the Supreme Court answered in the negative. Although it may seem astonishing today that anyone could read the word “person” to mean “man”35 (notwithstanding that many people are apparently comfortable with the questionable assertion that “man” can be read to mean “person”), the Supreme Court’s conclusion was not unreasonable in light of its own methodology of constitutional interpretation. Given its natural meaning, the word “person” includes both men and women. However, the meaning of the BNA Act resided, the Court held, not in its natural meaning but in the intent of the legislators, understood in the light of the law at the time of its adoption in 1867. There was no doubt, the Court acknowledged, that many women in Canada met the express qualifications set out in the act (British subject status, minimum age of 30 years, residency in the relevant province, and ownership of property worth a minimum of $4,000). Even in 1867, many women were qualified.36 However, the Supreme Court was not concerned with the plain or natural meaning of the provision. Instead, it sought historical meaning in the word “qualified” and found that under the common law in 1867 women were incapable of holding public office. This, it concluded, was decisive.37 The Court emphasized that it was “in no wise [sic] concerned with the desirability or the undesirability of the presence of women in the Senate”; its duty 35

36 37

This case is far from unique. In two U.S. cases where women unsuccessfully challenged their disqualification on the ground of gender from admission to the bars of, respectively, Illinois and Virginia, it was held, among other things, that the word “person” used in the relevant statute to refer to those qualified for admission was not intended to extend to women: Bradwell v. Illinois , 83 U.S.130 (1872), and Ex parte Lockwood, 154 U.S. 116 (1894). Applications to the Supreme Court for certiorari on the ground that the statutes, thus construed, were in breach of the Fourteenth Amendment were unsuccessful. The only possible disqualification – the holding of property – had been removed in 1859 with the Married Women’s Property Act (UK). An Act for Shortening the Language Used in Acts of Parliament 13–14 Vict., ch. 21 (1850) (known as “Brougham’s Act”) that applied to the colonies, including Canada, did not assist here. The 1850 act included a provision stating that statutory “words importing the masculine gender” were to be read to include the feminine, unless the contrary was intended. The irony was that “person” was not a word “importing the masculine.” It was gender neutral! In addition, as the Supreme Court pointed out, a British case, Chorlton v. Lings (1868) L.R. 4 C.P. 374, considered the application of Brougham’s Act to the British Representation of the People Act of 1867, which conferred the right to vote on “every man” possessing certain qualifications. It was contended that “every man” must include women, by virtue of Brougham’s Act; the Court of Common Pleas concluded, however, that the term “man” was used expressly to designate the male gender, with the effect that this amounted to a contrary intention. Edwards (1928), supra note 32.

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was, rather, “to construe . . . the relevant provisions of the B.N.A. Act.” This process required the judges to give the words “the same construction which the courts would . . . have given to them when they were first enacted. If the phrase ‘qualified persons’ in s. 24 includes women today, it has so included them since 1867.” However, “by the common law of England . . . women were under a legal incapacity to hold public office” in 1867, and therefore, the proposition that they were qualified in 1927 was false. In reaching this conclusion, the Supreme Court drew on many historical-legal sources and, undoubtedly, its history was accurate. It also acknowledged that “the rights and privileges of women have not been, as in former times they were, asleep.” It concluded, nonetheless, that if such a “striking constitutional departure from the common law” were intended in 1867, at a time when women had no rights to sit in any British legislative house or to vote for candidates to the Canadian House of Commons, the legislature would have made this clear: “When Parliament contemplates such a decided innovation it is never at a loss for language to make its intention unmistakable.” In a concurring judgment, Justice Lyman Duff rejected the majority conclusion that women’s incapacity to sit in the Senate arose from what he called the “general presumption against the eligibility of women for public office.” He noted the interpretive principle that a statute “expressed in general terms” was not to be read as supporting fundamental legal or political change without clear and unmistakable evidence that this was the intention of the legislators; the “‘policy of centuries’ would not be reversed by Parliament, by the use of a single general phrase.” Such reasoning, the judge observed, “was applied by the Supreme Court of the United States in reaching the conclusion that the 14th Amendment of the United States Constitution did not compel the States to admit women to the exercise of the legislative franchise.”38 Nevertheless, Duff cautioned against arguing from “extraneous evidence” drawn from statutes not having the same status as a constitution and stressed that evidence must lie in the Constitution itself. He found that the BNA Act, construed as a whole, included provisions demonstrating that the legislative intention was to exclude women from the Senate. This distinction between a statute and a constitution, although not conclusive here, was to be critical in the case that followed on appeal. 38

His reference here is to Minor v. Happersett, 88 U.S. 162 (1875).

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Canadian Prime Minister William McKenzie King referred the case to the Judicial Committee of the Privy Council. The Privy Council reversed. The judges’ reasoning gives us a powerful example of the substantive differences in outcome that may result from substituting one method of interpretation for another. Before looking at this further, we need a short excursion into constitutional interpretation.

Interpretation

Although it cannot be said that any single methodology of constitutional interpretation necessarily produces a “feminist reading” (or that others necessarily produce a “patriarchal reading”), there are traceable differences in gender impact between methodologies, and thus, interpretive choices to be made. For many (perhaps most) constitutions, it is left to the individual judge to choose a method of interpretation in the course of judicial review. Some constitutions, however, include an express guide to their own interpretation. Section 39 (1) of the South African Constitution gives detailed interpretive instruction.39 When interpreting the Bill of Rights, a court, tribunal or forum a. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; b. must consider international law; and c. may consider foreign law. It also sets out a test for balancing the purpose of a law against that of a constitutional provision. This is not so much a methodology of semantic interpretation as a guide to testing the limits of the constitutional rights. Because rights cannot be absolute and some limitations on rights will always be necessary, a means is needed for determining whether and, if so, how a law exceeds acceptable limitations. Such tests have often been developed by constitutional courts in the course of judicial review and are less often 39

It also gives guidance about the interpretation of statutes. Section 39 (2) provides: “When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” Also, Section 233 provides: “When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.”

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set out in the relevant constitution itself. The South African Constitution also does the latter, in a way that frames interpretation. It states that The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including a. the nature of the right; b. the importance of the purpose of the limitation; c. the nature and extent of the limitation; d. the relation between the limitation and its purpose; and e. less restrictive means to achieve the purpose.40 The Canadian Charter of Rights and Freedoms incorporates a similar balancing test for determining whether a law violates the Charter. Charter provisions are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”41 As with the South African provisions, this requires a broadly “purposive” approach to interpretation. Whether a constitution’s framers will choose to entrench a particular interpretive methodology in such a manner will depend not only on whether agreement can be reached about the appropriate methodology, but also on a question, the answer to which itself depends on one’s approach to interpretation: is it better to leave the methodology of interpretation open, or is it better to fix it in time? Should interpretation itself be allowed to evolve or new approaches emerge? Is a single method of interpretation appropriate to all constitutional questions that come before the courts? Do different constitutional provisions require different approaches? Should interpretation be adapted to the particular dispute or the nature of the case at hand? Are the interests of justice served by a uniform or a flexible approach? In practice, constitutional interpretation is rarely performed in a clear, methodical fashion, and even dedicated proponents of one method or another do not adhere systematically to their professed approach. To do so would be difficult. Often, if not always, judges will seek interpretations 40 41

South African Constitution, Section 36 (1). Canadian Charter, Section 1.

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that produce normatively attractive results, further the stability and coherence of the law, or are faithful to the principle of stare decisis, among others. They may thus find themselves applying different methodologies to different cases. Nevertheless, some judges do at least avow a commitment to, or preference for, one method over another. Interpretation is not chaotic and unclassifiable; it is possible to identify and name several distinct “schools” of interpretation. “Original intent” aims to recover the specific intentions of the constitution’s framers. Its aim is to determine, historically, what they had in mind in making the particular choices they made. The meaning of the constitution, according to such “intentionalists,” does not change. It is, and remains, the meaning its framers intended it to have at the time they wrote it. Meaning is fixed at a historical point in time, and authority lies in authorial intention. Intention is personalized, and intention and meaning are taken to be the same thing. What we might call “statutory analogism” treats a constitution as analogous to an ordinary statute and applies the regular rules or “canons” of statutory interpretation to uncovering the meaning of constitutional provisions (these rules may lie in the common law, or they may be set out in interpretation acts). This approach resembles originalism to the extent that it seeks to understand the “mischief” the legislators (or framers) intended to overcome, and in doing so, it sometimes draws on extraneous sources, including historical accounts of the drafting or framing of the instrument being interpreted. However, statutory interpretation does not seek subjective or personal intention in uncovering legislative history; rather, it seeks “legislative intent.” That is to say, its purpose is to find what the legislation (or constitution) was designed to do, rather than what the legislators (or framers) wanted or thought it would do. This approach is close to “textualism.” Textualism seeks meaning in the words of the text and eschews a search for meaning outside or behind the words. Textualists assume that the legislators’ intent lies in the words they chose (and that any other intent is irrelevant). They treat the text as dispositive of meaning, and they confine their historical search to the meaning of the text at the time it was written. So, extraneous sources of meaning may be drawn on, but these (in principle) should be confined to legal opinions, legal dictionaries, or similar law books, written or published at the relevant legislative time.

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A “purposive” approach to constitutional interpretation has, again, something in common with both forms of intentionalism (both originalist and textual) in that it seeks meaning in the purpose that the legislation (or constitution) was designed to serve, but it does so at a level of abstraction or generality that allows the purpose to be broad, liberal, and sufficiently flexible to embrace new or modern ways of fulfilling an original purpose. As the former chief justice of the Israeli Supreme Court, Aharon Barak, writes, the purposive approach brings together “the goals, interests, and values – at various levels of abstraction – that the author of the text sought to actualize” with “the goals, interests, and values – at various levels of abstraction – that a text . . . is designed to actualize. It is not related to the actual intent of the author. Rather, the author’s hypothetical intent determines objective purpose.”42 In constitutional interpretation, Barak adds, “considerations relating to the essence of the constitution and its role in social life prevail. This role – of guiding public behavior over the course of generations – warrants preferring objective purpose in constitutional interpretation.”43 It has something in common, thus, with what is known as “moral” intentionalism, a theory of interpretation advanced by Ronald Dworkin, which treats the meaning of a constitution as being the normatively best meaning, bringing together an (assumed) original moral intent with its appropriate expression in the present. “The moral reading,” Dworkin writes, “proposes that we all – judges, lawyers, citizens – interpret and apply [the] abstract clauses [of a constitution] on the understanding that they invoke moral principles about political decency and justice.”44 “Progressivism” (known variously as “living constitutionalism,” or the “living force” or “living tree” approach) is similar, but more pragmatic. It is driven more by considerations of the result or outcome than by fidelity to the constitution’s meaning (however adduced). Its basic principle is that a constitution should be adapted and updated to current values, modern ways, and modern standards (that is to say, desirable or progressive modern values, ways, and standards). It is this approach that gives us the conclusion to the Canadian Persons Case. 42 43 44

Aharon Barak, Purposive Interpretation in Law (Princeton, NJ: Princeton University Press, 2005), at xiii. Ibid., at xv. Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996), at 2.

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The Supreme Court’s decision that women were not “persons” for the purpose of appointment to the Canadian Senate went on appeal to the Judicial Committee of the Privy Council. The Privy Council agreed that women had historically been excluded from public office (how could they have found otherwise?), but drew from this a different conclusion. The judges were not persuaded that the history of exclusion was dispositive. The “exclusion of women from all public offices,” they stated, “is a relic of days more barbarous than ours.” Customs “are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared.” Extraneous legal history was not applicable to the interpretation of the BNA Act, which, as a constitution (and not an ordinary statute) was to be given “a large and liberal interpretation.” The act, the judges said, had “planted in Canada a living tree capable of growth and expansion within its natural limits.”45 The word “person” could now include both sexes. “To those who ask why the word should include females, the obvious answer is why should it not.”46 Although the originalism of the Supreme Court had led to the conclusion that women were not “persons,” the application of a progressivist methodology produced the opposite conclusion. Women, henceforth, were entitled to sit on the Canadian Senate.47

Interpretation and Gender

It is extremely unlikely that any framer of the U.S. Constitution in 1787 had the goal of equality between men and women in mind, or believed that women were included in the class of persons to whom the political offices described in the Constitution were to be open. Certainly, the so-called “founding fathers” – an uncomfortable expression for feminists, as suggested, but one that makes sense for strict originalists – debated whether white men and black men were to have an equal place in the constitutional community. The status of slaves (and slavery as an institution) was a major issue at the Philadelphia Convention of 1787, and ultimately, these 45 46 47

Emphasis added. Edwards (1928), supra note 32. The first Canadian woman was appointed to the Senate in 1930. Murphy herself never became a senator.

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issues would split the United States. However, if one were to interpret the Constitution in light of the original intentions of its framers, women would scarcely feature at all as members of the constitutional community. The Constitution was amended after the Civil War to incorporate an equal rights provision. An originalist interpretation of this amendment is a little more complex with respect to gender. Almost certainly, the original “intention” behind the Fourteenth Amendment (ratified in 1868) was equality between men, but (as shown in the Introduction) women activists at the time challenged this as the exclusive interpretation. They drew parallels between their own servitude and the institution of slavery; they used the rhetoric of universal equality and inalienable rights to extend the ambit of rights to both women and men. They were, of course, unsuccessful at the time. Would originalism always produce such an outcome? One of the issues for the originalist position is identifying exactly who the founders were. If the term is broad enough to embrace the whole “founding generation” – comprising all the people who lent their support, tacit or overt, to the enterprise of constitutional design or amendment – then women need not be excluded. However, if the term is treated as coterminous with framers, and the latter is confined to members of constitutional conventions or Congress, or even extended to the members of ratifying conventions, then the result is quite different. This type of originalism will have little positive to say to women. To this day, with the exception of the Nineteenth Amendment, which prohibits gender-based suffrage disqualification, the U.S. Constitution is silent on gender equality. Again, if an original intent methodology were consistently applied (and confined to the persons who directly wrote or voted on the Constitution or its amendments), the Constitution would probably rule out any other laws mandating gender equality. It might also, by implication, prohibit the striking down of laws that arbitrarily discriminate as to gender. In contrast, no democratic constitution written after 1980 (of which I am aware) is silent on gender equality or intentionally exclusive of women’s membership in the constitutional community. (This is not to say that no modern, democratic constitution is indirectly adverse in its impact on women.) The point here is that, for a country with an old constitution, historical originalism is not good news for women.

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Textualism – although less focused on the historical actors – may be similarly problematic (that is, unless an interpretive distinction is made between “essential” and “inessential” textual meaning48 ). It is doubtful, for example, that the legal meaning of the expression “equal protection of the laws” (or their equivalent) anywhere in the mid-nineteenth century would have prohibited legal discrimination against women. Statutory analogism is similar if one follows the rule of statutory interpretation that the words in a statute bear the meaning they had at the time of the statute’s drafting; although it will not have this result if another rule of statutory interpretation, the “plain meaning” rule, is applied first. The plain meaning rule gives the words of the statute (or constitution) the meaning that they have “on their face,” without looking behind or beyond that meaning unless the words are ambiguous or unclear. In contrast, both the purposive approach and interpretive progressivisim are deliberately open to new ways of understanding or reading constitutional provisions, so that “equal protection of the laws” could not possibly be read at the start of the twenty-first century to extend only to men. One should be skeptical, however, of assumptions that progressivism will always produce progressive results, and that originalism (whether textualist or historical) will always be regressive. Historically, progressivism has lent much support to those seeking a constitutional meaning consistent with the expansion of rights. Indeed, Adam Winkler argues that the women who campaigned in the mid-nineteenth century against an originalist reading of the U.S. Constitution and promoted an interpretation compatible with women’s evolving roles in society – were themselves the founders of “living constitutionalism.”49 48

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For example, in Cheatle v. The Queen (1993) 177 CLR 541, the High Court of Australia was asked to determine whether the Australian Constitution’s provision regarding “trial by jury” (Section 80) mandated unanimous verdicts. The Court held that unanimity was an “essential” part of the meaning of jury trial at the time the Constitution was enacted. They considered other indicia and concluded that some characteristic of a jury in 1900 were not “essential.” These included the exclusion of women from serving as jurors. The Court stated: “Neither the exclusion of females nor the existence of some property qualification was an essential feature of the institution of trial by jury in 1900. The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community. . . . [I]n contemporary Australia, the exclusion of females and unpropertied persons would itself be inconsistent with such a requirement.” At 560. Winkler argues that “living constitutionalism” was developed by American suffragists at this time and not in the “Progressive era,” or specifically in the jurisprudence of Oliver Wendell Holmes, as commonly claimed by constitutional historians. The women, Winkler writes,

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However, new social needs and values are not necessarily progressive. What is to stop a constitutional court, reasoning from current values, from winding back rights or conceptualizing rights in a way that is regressive from the perspective of a previous generation? What if the original values were progressive, but the current are not? It is obvious that original intent applied to a constitution written in the 1780s will produce a result quite different for gender equity from the same method applied to a constitution written 200 years later. The Canadian Charter of Rights and Freedoms was adopted in 1982. Might one not want to insist on an originalist reading of the equality provisions in the Canadian Constitution? A purposive approach, bringing together the historical purpose with “the interests, goals, values, aims, policies, and function that the constitutional text is designed to actualize in a democracy,”50 may provide the best compromise between the historical goals or purposes that one wants to retain and current interests that one wants to promote. It is, importantly, sensitive to context. It brings purpose and context together, allowing the object of the former to find new expression in the latter. Contextualization of the experience, circumstances, and status of women is a core component of gender equity in constitutional design. Former judge of the Canadian Supreme Court, Bertha Wilson, argues further that purposive interpretation follows from the very purpose of constitutional rights: The anti-majoritarian nature of rights provides valuable guidance to the courts in interpreting the constitution. . . . [T]he true test of rights is how well they serve the less privileged and least popular segments of the society. Thus, constitutional interpretation should be purposive. Rights should be interpreted in accordance with the general purpose of having rights, namely the protection of individuals and minorities against an overbearing collectivity.51 She is careful to point out, however, that more is at stake with respect to interpretation than constitutional rights. Purposive interpretation places

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engaged in “sustained effort to promote adoption of an evolutionary constitutional interpretive methodology,” thus shaping the constitutional interpretation “that became dominant in the twentieth century.” Adam Winkler, “A Revolution Too Soon: Woman Suffragists and the ‘Living Constitution’” (2001) 76 New York University Law Review 1456, at 1457–1458. Barak, Purposive Interpretation in Law, supra note 42, at 377. Bertha Wilson, “The Making of a Constitution: Approaches to Judicial Interpretation” (1988) 71 Public Law 334, at 181.

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the constitution and the experience of the individuals who are subject to it in social context: “[W]omen’s interests in the constitution extend beyond equality rights. The whole constitution should be available to women since its various guarantees are meant to be applied not to different groups but to different harms.”52 Here, we need to take a further step to disentangle “purposive” interpretation from an approach that derives meaning from the purpose of the relevant law. Wilson illustrates her preference for purposive methodology with a comparison between U.S. and Canadian understandings of constitutional breaches. Unlike in the United States, “the Supreme Court of Canada has held that it is not necessary to prove an intention to discriminate in order to establish a violation of [Charter] equality rights. . . . It is sufficient that a law have a discriminatory impact on a protected group.”53 A group-based approach to interpretation, Mark Kende explains, looks to the effect of the law, not its purpose.54 Kende’s analysis concerns the South African case of President v. Hugo,55 where a presidential pardon in 1994 of women prisoners with young children was challenged by a male prisoner alleging breach of the South African Constitution’s prohibition on gender discrimination. The Constitutional Court majority accepted that the presidential act was facially discriminatory between men and women, but held that it recognized a social reality (that women are, in most cases, the primary carers of young children) and gave relief to a third group, the children who suffered by being deprived of their mothers. An alternative jurisprudence, such as is dominant in the United States, focusing on the discriminatory purpose and gender-based classification in the act, Kende argues, would have reached the opposite conclusion. The Court in Hugo, in Kende’s words, applied “a group-oriented equality norm, an anti-dominance principle, and a pragmatic interpretive 52 53 54

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Bertha Wilson, “Women, the Family, and the Constitutional Protection of Privacy” (1992) 17 Queen’s Law Journal 5, at 12. Ibid., at 10–11. Kende draws this from Owen Fiss’s analysis of the U.S. Constitution’s Equal Protection Clause. Mark Kende, “Gender Stereotypes in South African and American Constitutional Law: The Advantages of a Pragmatic Approach to Equality and Transformation” (2000) 117 South African Law Journal 745, at 757. The President of the Republic of South Africa and the Minister of Correctional Services v. John Phillip Peter Hugo, CCT 11/96.

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philosophy.”56 In doing so, he argues, it arrived at the correct decision. I share his conclusion. How then can I reconcile it with a defense of purposive interpretation? How can one be purposive and outcome oriented at the same time? As is suggested in Bertha Wilson’s analysis,the focus of purposive interpretation is on the purpose of the constitution; at the same time it requires an examination of the impact of the law. A purposive methodology draws out constitutional purpose at a high level of principle and finds in it a normative standard, awaiting expression in law. The point of the constitution is to guide or frame law making along the channels of the purpose embodied in the constitution’s provisions, including by prohibiting certain forms of law. Law must conform to the constitutional purpose, but conformity is tested by the law’s impact or effect. This is the essence of purposive interpretation: the meaning it draws from the constitution lies in both senses of “meaning,” both intention and consequence. The intention is explored in the consequence, the purpose in context. This is well recognized in the concept of substantive equality, which allows for unequal treatment by the law (e.g., in affirmative action programs for women, or in entitlements such as maternity leave that are not available to men), in order to give effect to the constitutional purpose of gender equality. My point here is not to open up an extended debate about the complexities of different interpretive methods or their relative merits. It is to suggest that constitutional interpretation is significant for gender equity and that careful consideration needs to be given to whether a particular method of interpretation should be constitutionally entrenched, or whether gender equity is best served by leaving the choice of interpretation open and flexible. It may help if the statement of purpose itself is expressly set out in the constitution and if a commitment to following the constitution’s purpose is also entrenched. The Swiss Constitution expressly states its own purpose, under the section in Article 2 headed “Purpose.” This includes the protection of “the liberty and rights of the people,” the independence and security of the country, the common welfare, sustainable development, inner cohesion, cultural diversity, equal opportunities, preservation of natural resources, and the promotion of a “just and peaceful international order.” The preamble 56

Kende, supra note 54, at 746.

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to the U.S. Constitution indirectly expresses purpose through its opening words “in order to.”57 Similarly, the South African states that the people have adopted their constitution “so as to.”58 However, as we have previously seen with respect to constitutional preambles, such expressions of purpose may lack independent legal force and may not necessarily even assist interpretation of other provisions. A provision clarifying the status or function of the stated purpose(s) in a constitution will thus be useful (perhaps even necessary) for purposive interpretation. Section 39 (2) of the South African Constitution plays this role: “When interpreting any legislation and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” Such provisions do not necessarily avoid disagreements about interpretation, including different understandings of the statement itself, but they provide focus for disagreement and require its expression in purposive terms. Conclusion

Even if it is highly unlikely that masculine-gendered language in a ruleof-law constitution would be interpreted literally to exclude women today, the symbolic significance of this language remains. One would like to say that it remains in constitutional language as nothing more than a remnant of past history, but the reality to which it symbolically refers is one in which women are still far from enjoying full membership of the constitutional community, or in which, where they are full members in a formal sense, they remain far from enjoying it fully or with the certainty of retaining it. The question is, essentially, how much should a constitution “speak to” the members of its community? Even by the simplest of majoritarian standards, a constitution that spoke only or mostly to men, could not be considered democratic. In framing, reading, and interpreting a constitution, 57 58

“. . . form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. . . .” “Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.”

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the power of language should not be underestimated, either legally or symbolically. It is one of the central principles of modern constitutionalism that the legitimacy of a constitution will depend, significantly, on the degree to which the people included in its jurisdiction believe that it “belongs” to them. This is more than just a matter of getting the right language so the words are genuinely inclusive; it is also a matter of getting the language right, in the active sense. By being actively engaged with the choice or words, or by reclaiming and rhetorically appropriating faux-neutral words, women can insert themselves into the constitutional community. Those seeking gender equity also need to recognize that a constitution does not speak for itself. Interpretation will shape the meaning of words, however carefully chosen, and may produce perverse outcomes. A constitutional gender audit should begin with an examination of the language, on its face, in its use, as a form of representation, and in its hermeneutics. Throughout this process, skepticism in the face of claims that masculine language is inclusive cannot be abandoned.

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3 Federalism

A constitution is built on single words, but these are framed by large structures. Major “architectural” choices between models of government are, however, rarely available to framers of a constitution. Even following regime change, with a few historical exceptions, the alternatives of parliamentary or presidential government, republic or monarchy, theocratic or secular state are, in most cases, already determined by culture, history, and r´eal politique. This is not to say that they are free of gender implications. For reasons of scale, as much as utility, however, models of governance are not discussed at length in this book. There is one exception. Of the one hundred twenty or so countries in the world with written constitutions, around one-fifth are federations. This group, however, includes some of the most populous of the world’s countries, with the result that an estimated 40 percent of the world’s population lives today in a federation.1 Federalism as a constitutional model thus has a major impact upon many women’s lives. Although the choice between a unitary or federal state is also overdetermined and rarely at large, the model has already been subject to feminist analysis, and serves as a useful example of how “architecture” and “interior design” (especially with respect to interpretation) have a gendered character and relate to each other in practice. In a federal constitution, public power is distributed vertically between a national government and the governments of the territorial regions into which the nation is divided. Two levels, national and subnational, enjoy 1

Forum of Federations, see http://www.forumfed.org/federalism/whatisfederalism.asp?lang=en.

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parallel institutions of governance, and perform functions that are both independent and interconnected.2 The federal model is thus one of matching, parallel, and separate spheres of power. These powers may be cooperative, coordinate, or merely coexistent. In principle, the federal arms of government make, administer, and enforce laws with respect to subjects are that are national in scope and character. In principle, too, the institutions of state government deal with subjects that are local or regional. Laws made pursuant to the powers granted by the constitution to the federal government operate across the whole nationstate, whereas the states’ individual powers and jurisdiction are confined to each state’s own territory. Typically, there is a constitutional court, empowered to enforce the constitution through the exercise of judicial review, including by determining whether one or other level of government has exceeded the power constitutionally granted to it. Constitutional powers to make laws may be exclusive to one level or another. They may also be “concurrent,” that is, able to be exercised by both levels of government, subject to a rule that applies when there is conflict or inconsistency between otherwise valid laws made simultaneously by legislatures of both levels. A constitutional “tie breaker” provision will typically set down a prescribed means of resolving conflict or inconsistency between state and federal laws. It will provide for the law of one level of government to prevail in the event of inconsistency. Most commonly, although not always, it is federal law that “trumps” state law. Federal powers may be expressly limited, or limited by the fact that particular powers are allocated to a particular level of government. Some federal constitutions (e.g., the United States, Australia) give specific powers to the federal legislature and leave the residue of unspecified, non-enumerated powers to the states. Others (e.g., Canada) allocate exclusive powers to both levels and leave the residue to the federal. Federal systems are typically characterized by complex fiscal relations between the levels, with revenue-raising powers, exclusive or concurrent, 2

In different countries, the names given to the different levels of government vary. The territorial units in federal systems around the world are variously known as “states,” “provinces,” “cantons,” and “laender,” among others. In Australia, the national or federal government is called the “Commonwealth”; in Canada, in the past, it was called the “Dominion” government. Here, for simplicity, I refer generically to the national level as “federal” and the regional units as “states.”

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allocated to each. Frequently, the federal government has the power to make grants to the states; these may be made on the basis of an “equalization” principle, aiming for approximate equality in the services and conditions enjoyed by the residents of every state. Federal grants may be unconditional or come with strings or conditions attached. In federal systems such as the United States and Australia, conditional grants have expanded over the decades and have become a major element in the “nationalization” of federal policy and regulation in fields outside express constitutional powers. These are no more than the basic principles or foundations of the federal model. Many variations can be found on the way in which such principles are set out in a constitution or organized in practice, but this brief identification is intended to serve here as a point of departure in understanding the gendered character or impact of federalism. Federalism has experienced renewed popularity in recent decades as a form of government, and volumes of literature have been written about it. Relatively rarely, however, has the question been posed: how well does federalism serve the goals of gender equity and agency? Yet, federalism is a feminist issue.3 There are at least three interrelated ways to approach this: jurisdiction, policy, and impact. First, what guides the federal distribution of powers? Why do federal governments have jurisdiction over some subjects and the states over others? Why are some powers treated as inherently national, and others as inherently regional or “local”? What principles inform the choice made by the framers of a constitution to allocate certain regulatory subjects to the federal level of governance and grant or leave others to the states? Might these principles incorporate assumptions about masculine and feminine spheres? Second, what are the broader political and structural advantages of a federal, as opposed to a unitary, system? Are the parallel institutions of governance and the dual distribution of powers advantageous or disadvantageous when considered specifically from the perspective of women’s needs and interests? Third, how do laws made pursuant to powers exercised at the different levels of government impact differentially as to gender? That is, what difference, in practice, does it make to women, whether they are subject 3

Helen Irving, “Federalism Is a Feminist Issue” (2008) 28 Adelaide Law Review.

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to national or uniform laws on a particular subject, or whether there are multiple, diverse, and varying laws on the same subject? Federalism is a constitutional scheme for recognizing and accommodating differences – differences in needs and interests arising from geography, variations in expectations, opinions, and cultural identities. To ask whether it adequately serves other types of difference, such as gender, is doing no more than exploring it within its own logic. Jurisdiction

If we compare the powers, both concurrent and exclusive, given to the federal government in the U.S. Constitution (written in 1787) with those given to the Australian (1900), and then again with the Nigerian (1999),4 we immediately notice something. The U.S. federal legislature has fewer powers than the Australian, and the Australian has fewer than the Nigerian. Article I gives U.S. Congress powers with respect to twenty or so subjects; Sections 51 and 52 of the Australian Constitution give the federal parliament power with respect to forty-three subjects; and Parts I and II of the Second Schedule of the Nigerian Constitution give the Nigerian National Assembly sixty-eight exclusive powers, plus several further concurrent powers. These countries’ legal systems and constitutions are at least sufficiently similar in structure to support a textual comparison of this sort. Our initial observation thus follows what we know from history. The idea of what comes within the scope of the “national” has enlarged over time. There are several reasons for this. The growth in federal power is due in part to the growth of government tout court, a well-recognized phenomenon of modernization around the world. The very idea of what is political – of what belongs to government in the first place – has enlarged in the past 200 years. The sphere of government has grown, and the sphere of the “private” has narrowed. Many things that were believed to be nonpolitical are now routine subjects for policy and regulation. Industrial relations, the economy, education, welfare, and social security, for example, were not generally regarded as political subjects until at least the late nineteenth century. They were considered private matters, either left unregulated or governed only by the rules and practices of private institutions. As the twentieth century progressed, other subjects, including some that had not been on the 4

Full copies of these constitutions are available online at http://confinder.richmond.edu/ country.php.

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regulatory radar at all, or not even “named,” became routine matters for government and laws. The environment is the most obvious example. The process continues; governments around the world are debating the boundaries of legal regulation or political control with respect to subjects like cyberspace or reproductive technologies. Shifts have occurred in the other direction, too; sexual and intimate relations, once regarded as matters for close governmental interest and regulation are now more often relegated to the private in the Western world. But, overall, the political has expanded. At the same time, the scope or idea of the “national” and the identification of certain subjects with the nation have also enlarged. This accretion of power arises in part, paradoxically, because of the parallel growth in international law and in demands made on nations as members of the international community. Our purpose here is not to trace the growth of the regulatory state, but to understand its relevance to an analysis of the gendered character of a federal distribution of powers. Notwithstanding the historical expansion in subjects of federal power (as well as several significant exceptions, discussed later in this chapter), there is something consistently familiar among the powers in the three constitutions previously identified. Federal or national powers tend to be those traditionally associated with the masculine sphere: external or outward-looking, bellicose powers; territory-defining powers; trading powers. Thus defense, immigration, external affairs, treaties, and exports are typically found among the federal powers, and identified as national. The traditional feminine spheres of education, health, welfare, and family matters are far less commonly represented, if at all, in the constitutional class of the “national.” The non-national is either “private,” in the sense of non-political, or “domestic,” in the sense of politically local or regional. The effect of this taxonomy has been either to place women outside the discursive sphere of the constitutional community, or to confine their interests and needs to the local. The historical tendency, as Sally Goldfarb observes, has been “to regard . . . legal matters involving women as domestic relations matters.”5 Power is both normative and functional. Historically, the masculine sphere has been more highly valued than the feminine. In government, this applies not only to the legislative and executive branches, but also to the 5

Sally F. Goldfarb, “The Supreme Court, the Violence Against Women Act, and the Use and Abuse of Federalism” (2002–2003) 71 Fordham Law Review 57, at 67.

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judicial, where the status of federal courts is routinely superior to the state courts. As Judith Resnik writes, “federal jurisdiction is assumed to be a mark of a matter’s import.”6 The national is the level of international recognition, of larger, more powerful, and better remunerated offices, the level where big ambitions are realized and where service takes a person farthest from home. In 1890, speaking at a conference where delegates from the separate Australasian colonies met to discuss federating under a common constitution, Sir Samuel Griffith (a Queensland member of parliament who later became the first Chief Justice of the High Court of Australia) set out the advantages of nation building. “The energies of men,” he declaimed, “are cramped when they are confined to matters which, although of considerable magnitude in themselves, are nevertheless, to a great extent, local in their character.”7 We can be confident that he did not mean “men” generically or with any intention to be neutral with regard to gender. It is not necessary to claim that all federal powers are gendered for this tendency or pattern (masculine/national/powerful/superior) to be recognized. A good number of subjects found in any constitutional list of federal powers appear genuinely neutral and probably have a gender-neutral impact in practice. Thus, although postal services, currency, copyright, quarantine, and lighthouses, among others, are common national powers, their legal relevance to gender is likely to be weak. At the same time, some subjects that appear facially neutral as to gender (or only weakly gendered) may, in practice, operate differently. The 2000 case of United States v. Morrison8 illustrates the latter. Unlike almost any other case, it put gendered federalism on trial. Its resolution is revealing both of gender classifications in federal powers and of the tendency to conflate the national with the masculine sphere.

What Is Truly National?

United States v. Morrison concerned the validity of a section of the 1994 federal Violence Against Women Act (VAWA). This section purported to 6 7 8

Judith Resnik, “Reconstructing Equality: Of Justice, Justicia, and the Gender of Jurisdiction” (2002) 14 Yale Journal of Law and Feminism 393, at 408. Official Record of the Proceedings and Debates of the Australasian Federation Conference (Melbourne, Australia: Robert S. Brain, Government Printer, 1890), at 59. United States v Morrison 529 U. S. 598 (2000).

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create a federal civil cause of action for gender-based crimes of violence, defined as crimes “of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim’s gender.”9 Its purpose was to provide victims with the opportunity to bring actions against alleged perpetrators of gender-motivated violence, where state criminal procedures had failed or state civil actions were unavailable. In 1994, Christy Brzonkala, a young student at Virginia Polytechnic Institute (Virginia Tech), reported that she was raped, assaulted, and verbally abused by two fellow students, including Antonio Morrison. Morrison was charged by police, but prosecution did not follow; he was “sentenced” only to two semesters of suspension by Virginia Tech’s Judicial Committee and, subsequently, succeeded in having his suspension lifted. Relying on Section 13981 of the VAWA, Brzonkala sued both Morrison and Virginia Tech. In 2000, after several appeals, the matter reached the Supreme Court. Section 13981 of the VAWA was held to be ultra vires federal legislative power, and thus constitutionally invalid. In addition to the private cause of action, the VAWA also provided for state educational programs, emergency accommodation for women threatened with violence, and other measures. The federal constitutional power to enact these was derived from the Fourteenth Amendment’s provision for equal protection of the laws. However, the Fourteenth Amendment does not extend to private actors or private remedies. As the Supreme Court stated in 1948, it “erects no shield against merely private conduct, however discriminatory or wrongful.”10 Given this, and in the absence of an equal rights provision (see Chapter 7), Congress had leaned on its federal power over commerce, where no such limitation lies, in its attempt to create a private, federal cause of action respecting gender-motivated violence. The “commerce clause” gives the federal legislature power over interstate commerce, but it has a limitation. It does not extend to intrastate commerce, at least, not directly. Here, then, the issue of federalism arose. Violence against women, the United States argued in its defense of Section 13981, was a national matter, having a detrimental impact on interstate commerce. Sociological data supported this proposition. It included 9 10

VAWA s 13981(d). Shelley v. Kramer 334 U.S. 1 (1948), at 13.

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statistics about the rate of violent attacks on women and the inhibiting impact of violence or the fear of violence on women’s ability to seek employment or to travel for reasons of employment. It added up, the U.S. Congress claimed, to substantial impact on women’s ability to take part in interstate economic or commercial activity. Notwithstanding the rate and impact of violence, state laws were inadequate. Perpetrators of sexual assault were rarely prosecuted under state law; those who were prosecuted were rarely convicted. If convicted, they were rarely imprisoned, and if imprisoned, were rarely imprisoned for a significant period of time. Victims very rarely collected damages. Thus, the United States argued, a federal measure was needed and the Constitution provided for one. The Supreme Court demurred. In a five–four judgment, it held that the federal legislature lacked the power to pass such a law and that, not withstanding the data, the connection between gender-motivated crimes and interstate commerce had not been made out. ‘‘Gender-motivated crimes of violence,” wrote Chief Justice William Rehnquist for the Court, “are not, in any sense of the phrase, economic activity.”11 Furthermore, “the Constitution requires a distinction between what is truly national and what is truly local.”12 The suppression of crime and the vindication of its victims were truly in the latter category. The Supreme Court had not always held such a view. Injurious private conduct against vulnerable individuals had been successfully regulated via the commerce clause in the past. In 1964, in Heart of Atlanta Motel,13 the Court upheld a federal law prohibiting racial discrimination in a case concerning the provision of motel accommodation. In Katzenbach v. McClung,14 it upheld a prosecution under this law for racial discrimination in the denial of restaurant service. In both cases, Congress successfully argued that, even where the custom was almost entirely local, the conduct in question had an impact on interstate commerce, thus bringing it under the subject matter of the commerce clause. 11

12 13 14

Morrison, supra note 8, at 613. There was robust dissent, it should be noted. Justices Souter, Stevens, Ginsburg, and Breyer found the connection between commerce and violence motivated by gender animus to be adequately demonstrated. They found that Congress had a “rational basis” for concluding that there was a substantial economic impact. Morrison supra note 8, at 599. 379 U.S. 241 (1964). 379 U.S. 295 (1964).

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In Wickard v. Filburn,15 a federal law regulating the domestic consumption by individuals of wheat grown on their own farm was also held to be valid under the commerce clause. Although the individual action was, as in this case, confined to the intrastate, it was the aggregate effect on interstate commerce of such individual, domestic, and private acts, so the Court reasoned, that brought the acts validly within federal power. Indeed, in Wickard, it was the negative aggregate effect; the connection with interstate commerce was established through reasoning about the effect of removing homegrown wheat from the commercial market. Thus, discrimination against individuals on the grounds of their identity or status, and localized, noncommercial activities (even “negative” activities) had been successfully regulated by federal law supported by the commerce clause. It did not seem far fetched to maintain that gendermotivated violence (injurious and discriminatory) was significantly and similarly related to interstate commercial outcomes, and to attempt to regulate it through federal constitutional power. However, in this case, not only was violence against women regarded by the Supreme Court as wholly unconnected to interstate commerce (indeed, commerce tout court), it was considered not national. Furthermore, although Section 13981 purported to provide a remedy for gendermotivated violence where state laws were inadequate, it applied uniformly around the nation, although the problem (lack of state remedy), Rehnquist stated, did not exist in all, or even most, states. If local matters could be regulated by powers intended to be exercised in respect of matters that were “truly national,” this “would allow Congress to regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption.” Even more than this, “gender-motivated violence, as a subset of all violent crime, is certain to have lesser economic impacts than the larger class of which it is a part.”16 Violence against women, it seemed, was neither sufficiently commercial nor sufficiently national to be brought under a federal power. Failure of a state to provide or enforce a remedy against such violence (in other words, negative action or neglect on the part of the state) was not action on the part 15 16

317 U.S. 111 (1942). Morrison, supra note 8, at 615.

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of the states, and therefore did not come under the Fourteenth Amendment. Women’s common experience of either violence or the inhibiting fear of violence was too private to attract a public remedy; as well as insufficiently systemic or interconnected for its impact to be aggregated and for it to acquire a national character in support of a private remedy. Congress thus lacked powers to make this a national matter. It is important to note several things here. What Morrison illustrates is not lack of will on the part of U.S. Congress to treat gender-motivated violence as a national matter, nor its total failure in doing so. It illustrates, rather, a particular issue in interpretation of the powers granted to Congress by the Constitution, an interpretation driven by a categorical understanding of the distinction between the national and the local. Morrison, then, invites the larger question: Just what, if anything, is essentially, or truly, national, and where is women’s place in the federal scheme? For the framers of a federal constitution who also have gender equity and agency among their goals, this question will be central. The core idea behind the constitutional model of federalism, as noted previously, is that the national legislature should be empowered to do those things that are best done at the national level and best regulated uniformly, whereas those matters best regulated at the local or regional level should lie outside national powers. Jurisdiction should be distributed accordingly. There are two ways of thinking about this classificatory scheme: one, as a matter of fixed or “true” identity, as if identifying an objective form or category; the other, with respect to impact or interest, so that national issues are identified via shared, rather than dispersed, needs and interests. According to what Judith Resnik calls “categorical federalism,”17 federalism is presumed to be built on a single distributive logic. Some subjects are treated as naturally and inevitably a matter for federal regulation, and others for the states. This is problematic in a number of ways for the goal of gender equity. Historically, as observed, what is identified as national has tended to exclude the traditional feminine spheres of family, welfare, and education. This exclusion has been treated as natural or inevitable. The advantages of national or uniform regulation of “feminine” subjects 17

Judith Resnik, “Categorical Federalism: Jurisdiction, Gender, and the Globe” (2001–2002) 111 Yale Law Journal 619.

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(discussed later in this chapter) are therefore withheld and, if the categorical logic is followed, withheld in perpetuity. For the Morrison Court family law was an example of something “truly local.” Indeed, one of the “blank check” fears it expressed followed from this conclusion. To accept that gender-motivated violence could come under the commerce clause, the Court said, would lead to the conclusion that all family law could be regulated, nationally, in like manner. A constitutional category mistake would effectively be made. What was categorically a matter for state laws would come to be improperly regulated by federal government. However, although categorical federalists deny the mutability of categories, exceptions illustrate that there is nothing categorical about the federal distribution of powers, and nothing “truly,” in the sense of inherently, either national or local with respect to spheres of regulation. The Australian Constitution, written 110 years after the American, tends to follow a similar masculine-national/feminine-local taxonomy. However, it also reflects a more modern notion of both the sphere of government and, specifically, the sphere of national government. It significantly includes powers with respect to family law. Sections 51 (xxi) and (xxii) give the federal legislature power to regulate, respectively, “Marriage” and “Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants.” The framers of the Constitution closely followed U.S. constitutional history and jurisprudence, and were well aware that marriage was not a subject of federal jurisdiction in the United States. This was, stated John Quick and Robert Garran (framer of the Constitution and secretary to the Constitution’s drafting committee, respectively), the most “conspicuous defect” of the U.S. Constitution. The Congress lacked the power to pass uniform legislation “on subjects of such vital and national importance as marriage and divorce.”18 Historically, even in the United States, family law has at times been accepted as a national matter. In the words of Catherine MacKinnon, “[t]he Morrison . . . court[’s] conception of family law as an inviolable preserve of the states blinkers rulings like Loving v Virginia, . . . and Orr v Orr,” in which in 1960s state laws banning interracial marriage, and governing alimony 18

John Quick and Robert Garran, The Annotated Constitution of the Commonwealth of Australia (Sydney, Australia: Angus & Robertson, 1901), at 610.

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payment to divorced wives were struck down for breach of the Fourteenth Amendment. Such cases, MacKinnon notes, “assert the pre-eminence of constitutional equality over state family statutory and case law.”19 These cases, however, are not quite as federally transgressive or declassificatory as they might appear. They concern the family, but only from the perspective of formal male-to-female relations and interests, rather than women’s interests in themselves. Coming three decades later, Morrison suggests that the historical tendency to regard women’s lives and experiences as a matter for the private realm is continuous. Jurisdictional Reclassification

At moments in history, women themselves have resisted this tendency. Along with the growth in both the sphere of government and in the scope of the national in the late nineteenth and early twentieth centuries came an extension of political rights to hitherto excluded groups. Little by little, women in modern democracies gained at least some recognition as political actors in their own right, both in civil society (through the formation of women’s political organizations, and through individual initiative and activism), and formally, through the grant of political rights. Once women’s views were heard in the political arena and their voices began to count, women’s interests and experiences could begin to be “politicized.” The story of the Eighteenth Amendment of the U.S. Constitution concerns a subject – the trade in liquor – which was once a state matter, was then reclassified as a national matter and then, 14 years later, was returned to its prior status. The role of women in this story is significant. The regulation of trade in liquor was left to the states at the time of the U.S. Constitution’s framing. However, in the nineteenth century, state powers over liquor came under threat because of judicial interpretation of the federal commerce clause. This clause, it was held, contained a guarantee of freedom of interstate commerce. In 1890, Iowa’s laws prohibiting the sale of liquor were struck down for breach of this freedom.20 A federal statute, the Wilson Act, was quickly passed, allowing state laws to regulate liquor, and thus permitting prohibition to persist in several states. 19 20

Catherine MacKinnon, “Disputing Male Sovereignty: On United States v Morrison” (2000– 2001) 114 Harvard Law Review 135, at 170. Leisy v. Hardin, 135 U.S. 100 (1890).

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But constitutional barriers still confronted the prohibitionists. Following Rhodes v. Iowa21 in 1898, state laws could no longer restrict the direct shipment of liquor to consumers. A battle between Congress and the Supreme Court over this loophole then followed. By the second half of the century, liquor consumption and trade had become a major political issue, and temperance societies had emerged as among the most active organizations in civil society. By World War I, they had achieved significant success, with restrictions on liquor sales and consumption in force in many of the individual states. Temperance was far from exclusively a feminine issue, but the temperance movement offered a powerful way of articulating women’s experiences, and attracted women adherents from the start. The saloon, a masculine institution associated in particular with frontier life, was identified as a site of moral corruption. The suffering and privations inflicted on dependent women and children by intemperate husbands and fathers were no longer regarded merely as a private experience to endure, but were reclassified, becoming an issue for political debate and regulation. In the temperance discourse, poverty, neglect, family abandonment, domestic violence, and sexual abuse were attributable overwhelmingly to liquor consumption by men. The impact, women argued, extended well beyond the personal or domestic, but was profoundly social and indeed national. One of the major temperance organizations, the Woman’s Christian Temperance Union (WCTU), established in the United States in 1873, soon became an international organization through which many women developed political careers. The political then became constitutionalized. The U.S. Constitution, it was quickly recognized, obstructed the goal of full prohibition. Constitutional amendment was needed. In the 1890s, at the height of the temperance movement, the framers of the Australian Constitution also faced pressure from prohibitionists. Well before the Constitution’s completion in 1900, an agreement had been reached across the colonies that it would include an express guarantee of “absolutely free” trade and commerce within the new nation, as well as giving the federal legislature powers over interstate trade and commerce. The U.S. Supreme Court’s interpretation of the commerce clause and its negative impact on prospects for prohibition were well understood. Australian temperance advocates, including the Australian WCTU, thus petitioned 21

179 U.S. 412 (1898).

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the Federal Conventions of 1897–1898 expressly for the states to be granted an independent power to regulate the importation and sale of liquor. The framers were urged to recognize this as a “local” matter, something outside federal control. A motion directed from the Victorian state parliament to the Federal Convention closely followed the wording of the Wilson Act. The campaign succeeded, with the inclusion in the new Constitution of Section 113, permitting any state to regulate all “fermented, distilled, or other intoxicating liquids . . . as if such liquids had been produced in the State.” In the United States, the campaign moved in the opposite direction, seeking national prohibition, via concurrent federal and state powers. In 1919, it succeeded with the ratification of the Eighteenth Amendment, which declared that, within a specified period, “the manufacture, sale, or transportation of intoxicating liquors” within the U.S. was to be prohibited. Congress immediately employed its newly won federal powers to pass the National Prohibition Act (the so-called “Volstead Act”). The experience of national prohibition proved a failure; although liquorrelated mortality initially declined, the rates soon rose again,22 and the social evils identified by temperance advocates did not abate. Women’s groups soon joined the growing public opposition to prohibition. The Woman’s Organization for National Prohibition Reform (WONPR) was established in 1929 on a platform that combined calls for further constitutional amendment with a social analysis of the jurisprudence of federalism. In April 1930, the WONPR Convention resolved that national prohibition was “fundamentally wrong,” 1 (a) Because it conflicts with the basic American principle of home rule and destroys the balance established by the framers of our government, between powers delegated to the federal authority and those reserved to the sovereign states or to the people themselves . . . [and] 2. . . . National Prohibition, wrong in principle, has been equally disastrous in consequences, in the hypocrisy, the corruption, the tragic loss of life and the appalling increase of crime which have attended the abortive attempt to enforce it . . . 23 22 23

U.S. Department of Commerce, U.S. Census Mortality Statistics 55 (1924), available online at www.druglibrary.org/Schaffer/LIBRARY/studies/nc/nc2a.htm. Available online at httpr://www.wonpr.org/missionstatement.htm. The WONPR was resurrected in 2004, to campaign against national drug prohibition, on similar grounds.

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Notably, this campaign did not aim at reversing prohibition in principle, but sought to return the regulation of liquor to the states; in other words, it sought a federal recategorization. The Twenty-First Amendment was ratified in 1933, repealing the Eighteenth Amendment and identifying liquor expressly as a matter for state jurisdiction. The shifting fortunes in the conceptualization of a social experience and its governing constitutional power are revealing. Here, we can recognize the rhetorical and normative significance of a subject’s classification within the federal scheme, and glimpse what is entailed in thinking about federalism in terms of gender taxonomies. Other federal shifts have occurred in which women’s experiences and perspectives are recorded. With the rise of the “welfare state” in the post– World War II years, national powers were expanded with respect to social matters that had once been reserved for state regulation (and even earlier had been classified as essentially private). In Australia, in 1946, a constitutional amendment gave the federal legislature new powers, extending to subjects that were traditionally feminine. Section 51 (xxiiiA) empowered the federal legislature to make laws for “The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services . . . [and] benefits to students and family allowances.” Such developments challenge the classification of a subject as “truly” or categorically federal or state. They create an opportunity for understanding what is entailed in the “woman question” applied to federalism. To reach a conclusion about the choices that might be made in designing a constitution with both federalism and gender equity in the constitutional “cookbook,” we need to keep this contingent history in mind, and draw it together with other empirical and normative questions. Decisions about jurisdiction based on gendered experience are not new. In the framing of the Australian Constitution in the late nineteenth century, the federal parliament was given legislative power with respect to interstate industrial disputes.24 This power was classified as national, in part because of the recognition by the framers of the itinerant nature of the lives of many working men at that time. Similarly, old age and invalid pensions were added to the list of federal powers, despite “blank check” fears among 24

Section 51 (xxxv).

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some of the Constitution’s framers that this would lead to federal regulation of the sick and the poor generally. The power was included so that national laws could be made protecting men who moved from one state to another in search of employment from becoming destitute when no longer able to work. Federal pensions, it was said, would mean that a man “who has fulfilled all the obligations of citizen, husband, and father” would be protected “from becoming a pauper in his declining days.”25 The common experience of women is no less deserving of reasoning of this kind. In determining where the power actually lies in a federal system, including whether a subject is national or local, one must also look beyond the express distribution of powers. A constitution may appear to grant very limited powers to the federal level of government – as the U.S. Constitution does, for example – and yet, the federal government may be, in practice, much more powerful than the states. National or uniform laws may exist in many spheres where no express federal power lies. This is certainly the case in both the United States and Australia. In the latter, for example, federal laws govern health and hospitals, universities, and the environment, sometimes virtually exclusively and, at other times, in conjunction with state laws, despite the lack of any express federal powers over these subjects in the Australian Constitution. There are a number of ways in which this asymmetry may arise, the principal of which are fiscal powers. The overriding question to ask when considering a federal constitutional arrangement is who has the money? Where a constitution gives the federal government significantly greater access to revenue or a greater revenueraising capacity than it gives the states, then the potential lies for national control over matters that would otherwise be constitutionally ultra vires if the federal legislature purported to regulate them. Constitutional provisions, such as the “grants” power in the Australian Constitution or the “spending” power in the United States,26 permit the federal government to make grants to the states on terms and conditions that can force the states to comply with federal laws and, thus, achieve federal control over matters that are not expressly provided for in the constitution. In a federal system, decentralization of power will often result in the provision of state or regional services or programs; federalism may thus increase 25 26

Official Record of the Debates of the Australasian Federal Convention, Vol III, Sydney 1897 (Sydney, Australia: Legal Books, 1986) at 1086. Section 96 of the Australian Constitution; Article 1, Section 8 of the U.S. Constitution.

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the opportunities for community input and access. Women, who are typically underrepresented in national centers of power and who may work more confidently in local decision-making forums, may benefit most from access to, and control of, decentralized programs. Working against this, federal control gained through the wielding of fiscal powers may undermine, and even destroy, decentralization and thereby community autonomy. At the same time, one of the disadvantages of decentralization lies in the likelihood that the distribution of wealth and fiscal capacity around the nation will be unequal and often inequitable. Federal grants may be used to overcome this. Thus, instead of centralizing and controlling, federal governments may assist state governments and regional communities to provide services and programs at a level that could not be guaranteed from the state revenue base alone. From the perspective of gender equality and equity, this constitutional power will be vital. However, the federal power to make grants should not displace a carefully considered distribution of powers over specific subjects. A close examination of the principle on which these are distributed between federal and state levels will still be needed. Once again, the question to be asked is this: how will the decision to make a particular subject either a federal or a state power facilitate or obstruct gender equity? Policy

Federalism is increasingly popular. Why is this? The purported advantages can be summarized as pluralist counterfragmentation, institutional accessibility, individual choice and exit, and jurisdictional experimentation.27 How do these apply, if at all, to the interests of women? Most recently, federalism has been favored as a counterfragmentation strategy for dealing with regionally clustered ethnic and linguistic communities. Communities that are too small or poor, or incapable of constituting separate nations for historical reasons, may come (or remain) together in a federal nation, with devolved governance and political autonomy, within a framework for national cohesion. This was the original justification for federalism in the American colonies in the eighteenth century, as it was 27

See Geoffrey de Q Walker, The Ten Advantages of a Federal Constitution and How to Make the Most of Them (St. Leonards, New South Wales, Australia: Centre for Independent Studies, 2001).

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100 years later in the Australian colonies. Separate political communities, with existing institutions of self-government and regional identity, could be brought under a national government, gaining the advantages of national membership, while relinquishing no more powers of self-government than necessary for, and compatible with, membership of the nation. The regional logic of federalism has since been adapted to ethnic and linguistic subdivisions. Federalism is a constitutional alternative to fragmentation; it may hold communities together, while protecting minorities from overbearing majorities by constitutionally guaranteeing equitable representation in the national government. Along these lines, it has little direct application to women. Women may be underrepresented, but they are not a minority. As discussed in Chapter 5, women are an equal majority for whom institutional recognition must rest on different principles. Women’s interests and needs cross borders and transcend boundaries. As Jill Vickers observes, the territorial principle in federalism does not merely fail to take account of this fact, but it “suppresses interests and needs which are not territorially contained.”28 Institutional accessibility is more frequently promoted as a gendered advantage of federalism. Women, it is believed, respond better to local opportunities for participation. They often feel more confident in local forums and may be disadvantaged or discouraged from taking part in government where it is distant from their families and homes. This argument corresponds to a significant reality, and to the extent that it does, a constitutional solution should be sought, for example, in institutional rules and practices in all levels of government that minimize disruption to families where parents participate in national government (also discussed in Chapter 5). However, the type of thinking on which this argument rests tacitly reproduces the traditional logic behind the federal distribution of powers, in which national equals masculine, and local equals feminine. To push the federal logic of difference into gender analysis is to unravel this categorical binary. We may account for women’s underrepresentation at the national level along such lines, but if we count numbers in order to test whether 28

Jill Vickers, “Why Should Women Care About Federalism?”, quoted in Louise Chappell, “Federalism and Social Policy: The Case of Domestic Violence,” (2001) 60 Australian Journal of Public Administration 59.

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federalism works for women’s representation at the subnational level, the evidence is not encouraging. Studies tend to find that the subnational representation of women is not significantly enhanced by federal devolution of government. It “is influenced in important ways by the proportionality of the electoral system and the country’s level of economic development but not by the unitary/federal character of the state, party magnitude, or size of the electorate.”29 The opportunity to travel from one state to another in search of a sympathetic regulatory regime is one of the well-recognized advantages of a federal constitution. The winner-takes-all situation in a unitary government is avoided. Women who live in a state where, for example, abortion laws are restrictive will have the opportunity to seek abortion services in a more liberal legal regime. No legal alternative would be available in a restrictive, nationally regulated regime.30 The right of choice and exit, as well as the opportunity to “jurisdiction shop” or “vote with one’s feet” by leaving one jurisdiction for another in a federal system, are theoretically splendid freedoms. However, these are highly individual, and even atomistic, freedoms. They are best enjoyed by those who are not dependent, those with portable skills, those who are free from economic or emotional ties to a particular locality, or unencumbered by children’s perspectives on moving. Many men do not enjoy such freedoms; even fewer women do. Women with children are often embedded in networks of emotional and interpersonal dependence. Moving away from such networks, or from relatives, can make life difficult, particularly for women with young children.

29

30

Richard Vengroff, Zsolt Nyiri, and Melissa Fugiero, “Electoral Systems and Gender Representation in Sub-National Legislatures: Is there a National-Sub-National Gender Gap?” (2003) 56 Political Research Quarterly 163, at 171. We need to bear in mind that an absence of federal legislative powers with respect to a subject does not rule out national judicial regulation, especially where limitations or prohibitions on the exercise of power – both federal and state – lie in a country’s constitution. The alternative to national regulation is not necessarily a simple return to state regulation. Richard Fallon sets out the complex constitutional issues that would still lie for the U.S. Supreme Court if the decision in the abortion case Roe v. Wade 410 U.S. 113 (1973) were overruled. These involve conflict of laws questions, including whether an individual state would be constitutionally permitted to prosecute a resident of that state under its own criminal laws for undergoing an abortion in another state where abortion was legal. “If Roe were overruled: Abortion and the Constitution in a Post-Roe World” (2007) 51 Saint Louis University Law Journal 611. Roe is discussed further in Chapter 8.

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Besides, in a federal democracy, governments at both national and state levels may change from time to time at elections, even with regularity. It is unrealistic to imagine a pattern of family relocation, following one’s preferred government or regime of laws, as state electoral fortunes shift. State variations in laws may also, perhaps just as often, be disadvantageous for those who relocate across federal borders for routine reasons, such as a job posting. Differences in educational entry standards, school curricula, or time tables, among other things, may create disadvantages for families. The right of temporary exit – crossing borders to obtain services (e.g., safe, legal abortions) that are unavailable in one’s home state – may appear attractive. The cost of travel to the nearest opportune border can, however, obliterate this advantage, and for those who live in remote parts of a state, travel itself can be difficult (especially in winter or the wet season) – even for those who are financially able. Here (given the need for expeditious action in obtaining an abortion), choice is not a meaningful measure of what is at stake. Jurisdictional experimentation is available in a federal system; it is less likely in a unitary state. It may allow one state to introduce new or progressive laws whereas others watch and wait for results. If the experiment is successful, progressive laws that might have appeared too risky ever to introduce in a unitary system may spread. On the other side of the coin, federalism may be deployed to insulate local communities from transnational “contamination” or the influence of international law.31 Progressive laws may be available in some states but remain perpetually withheld in others. As with the federal distribution of legislative powers, no single normative principle can be derived from the power to experiment.

Impact

What practical difference does it make whether a subject is regulated federally or by state government? Which works best in practice for women, local or national? The answer, like the classification itself, cannot be categorical. Federalism is an institutional structure for law making; it does not in itself dictate the content of the laws. 31

Resnik, “Categorical Federalism: Jurisdiction, Gender, and the Globe,” supra note 17.

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In determining whether to centralize a particular power or to leave it in the hands of the states, we are faced with a difficult choice. If the federal legislature has powers to make uniform national laws with respect to abortion, for example, we cannot know, abstracted from constitutional provisions for reproductive autonomy, whether the laws passed pursuant to those powers will be liberal or restrictive. Uniform laws surrounding access to abortion are valuable for women as long as these are progressive. If not, variable laws made by different state legislatures are a better scenario, even if jurisdiction “shopping” is difficult. Opportunities for experimentation and flexibility in laws are valuable in a policy of prudence, where the risk is that uniform national powers might produce adverse results. However, centralization has some inherent advantages, in particular with respect to the provision of services. A federal government will have national fiscal powers to draw on and, in almost all cases, greater funds than a state or regional government. Federal services are likely, thus, to be better funded, in particular, where equalization principles are followed, giving poorer regions a better and more equitable level of funding than they are capable of sourcing from their own revenue base. In contrast, centralized authorities may not have the knowledge or capacity to respond flexibly to regional differences and the needs of plural communities. However, services that are localized and variable may themselves produce inequitable results. For example, in the United States since the mid-1990s, welfare responsibilities have been significantly transferred from federal authorities to the states, with federal funding attached to compliance obligations and state performance bonuses. These new programs prioritize training and “personal responsibility” rather than the provision of cash aid for disadvantaged families.32 In the abstract, localized and devolved services may appear more responsive and accessible to local needs, but variations in location, tied to other variables, such as availability of public transport or child care, will result at times in inequitable welfare distribution. Because rates of car ownership are lower in poorer families and alternative child care arrangements are more difficult in single-parent households, these variables compound existing disadvantage. 32

Scott W. Allard, “The Changing Face of Welfare during the Bush Administration” (2007) 37 Publius: The Journal of Federalism 304.

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As Scott Allard writes, “[t]he distribution of services in a particular community will be a function of how nonprofit organizations and public agencies locate within that community. . . . However resources and agencies are distributed, living near a service-provider is critical to receiving help.”33 For those who live further away, information will be less readily available and the burden of commuting to attend training or education classes will be increased, as will problems of coordinating family arrangements and child care when visiting a service provider. “Simply put, in a service-based welfare system . . . inadequate availability or accessibility of social services is tantamount to being denied aid.”34 What we know of the feminization of poverty and its counterpart, the statistical dominance of female-headed households in single-parent families, suggests that women are more likely to suffer these effects than men. An alternative perspective is offered by Louise Chappell, with respect to social programs designed to reduce domestic violence in Australia. The 1992 National Strategy on Violence Against Women and its successor, the 1996 Partnership Against Domestic Violence, were jointly developed by federal and state governments. Legislation and administrative processes were harmonized across the federation, with major funding drawn from federal revenue. The program, Chappell finds, has had particular value for the less populous states, where governments have been able to select their own projects and address localized needs. The lesson, she concludes, is that “federalism does not always present obstacles to social policy-making but, under specific circumstances, and operating in conjunction with a particular configuration of other political institutions, provides opportunities for advancing such policy.”35 From a feminist perspective, the federal power to make conditional grants to the states may thus work positively or negatively. It may assist the states in a cooperative fashion, providing funding for equitably distributed services or programs Alternatively, it may act coercively, forcing reluctant states to follow federal policy through the threat of withholding much needed financial assistance. As Resnik writes, “[o]ne cannot essentialize particular 33 34 35

Ibid., at 311. Ibid. Chappell, “Federalism and Social Policy: The Case of Domestic Violence,” supra note 28, at 67.

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forms of federated governance as guarantees of certain outcomes.”36 No single distributive logic governs federal constitutional design choices from a feminist perspective. Contextual Federalism

If federalism is a constitutional value, and gender equity remains a goal, how would congruence between the two be accomplished? The core idea behind the constitutional model of federalism, as we have seen, is that the national legislature should be empowered to do those things that are best and most efficiently regulated uniformly, whereas those matters best regulated at the local or regional level should be left to the states. However, what if we approached the federal distribution of powers not by searching for what are national subjects, but by exploring national impact and national interests? Needs and interests that are shared across or common to the national population require national regulation, or at least national funding, whereas those that are particularized or regionally dispersed may best be regulated by the states (perhaps with assistance from the national pool of revenue). The distribution is not immutable; it may change in character, with shifts in demographics, technologies, and values. Practical experience, as with prohibition in the United States, may lead to the “reclassification” of a subject if the impact of laws turns out differently from what was intended when the legislative power was allocated to one level rather than another. However, instead of requiring constitutional amendment, which is inherently difficult and inflexible, a flexible, purposive approach to interpreting the scope of existing powers may permit this. We may think of federalism as contextual rather than categorical. Thus, instead of asking about the “true” identity of legislative subjects, the courts, in the words of Sally Goldfarb, should “focus on whether [the federal legislature] has a rational basis for concluding that federal intervention was justified because the problem being addressed lay beyond the capacity of the states to resolve.”37 Rather than imagining a single set of normative principles, we should conceptualize federalism as a scheme that 36 37

Resnik, “Categorical Federalism: Jurisdiction, Gender, and the Globe,” supra note 17, at 680. Sally Goldfarb, “The Supreme Court, the Violence Against Women Act, and the Use and Abuse of Federalism” (2002) 71 Fordham Law Review 57, at 147.

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permits either devolution or centralization of powers where the choice best serves relevant interests and needs. If we think in terms of national impact, national issues, and national interests, adding to this a consideration of whether the federal legislature had a “reasonable basis” for concluding that there was such a connection, and we frame our understanding of the “national” to include women (who are, after all, one-half of the population), and if we do not rule out “negative” action or absence from a field of conduct, we may find that some laws are supported by a federal head of power, whereas confining ourselves to a categorical understanding of the scope of the power, we would find otherwise. This involves, principally, an interpretive strategy that is suited to existing federal constitutions. For the design of a new federal constitution, the Australian Constitution has an unusual provision that may assist in conceptualizing how contextual federalism might also be expressly constitutionalized. Section 51 (xxxvii) permits the states to “refer” to the federal legislature their power(s) to make laws with respect to subjects, where there is no express federal constitutional power. Thus, where a matter is identified as beyond the capacity of one or more states, the problem created by an absence of federal power may be overcome. Such a “reference” can be flexible. The states may offer it, the federal government may request it, but it cannot be coerced. It may be open or have conditions attached to it; it may be temporary and/or include a provision allowing its repeal at any time. This Section has been employed many times in Australian history to compensate for a constitutional distribution of powers that reflects nineteenth-century thinking about the appropriate national/local divide. In 1975, it was drawn on by the states to refer their power over “parental rights, and the custody and guardianship” of ex-nuptial children, thus, addressing the deficiency of the Australian Constitution’s marriage and divorce powers (Sections 51(xxi) and (xxii)). These existing heads of power confined federal power to the children of a legal marriage alone. They reflected the nineteenth-century view that the custody of illegitimate children was a social welfare matter, and that welfare was a matter for the states. With this particular reference of power, custody and guardianship disputes over children whose parents are not legally married are able to be heard in the Federal Family Court of Australia.

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The idea of contextual federalism is not exclusively feminist, although its “vision” is especially compatible with an understanding of the relationship between feminism and federalism, bringing together national experiences – on a scale that requires national remedies – and localized events or experiences. Such is the character of much that relates specifically to women’s lives.

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4 Citizenship

To be a citizen is to be a member of the political community. To acquire and retain citizenship in one’s own right, and to be able to transmit that citizenship to one’s children, are central to such membership. For the individual, much rests on this. Citizenship can give rise to legal entitlements; it can serve as a source of security and stability, and even a type of dignity. It entails, essentially, the recognition of a person’s capacity to be part of the public sphere and to take part in the public decisions that shape the course of one’s life – to be counted in the constitutional community. Until the nineteenth century, women were denied the personal citizenship that was available to similarly situated men. Citizenship was far from universal. Not all men were entitled to the status or entitlements of citizens, but some men at least were. No woman was. Women were unable either to hold citizenship outright (they were excluded from the class of persons defined as citizens) or, where they came within the definition of citizens, they were commonly incapable of acquiring, retaining, or transmitting their citizenship in their own right. Women’s citizenship, to the extent that it was recognized, was derivative, derived from that of their fathers or husbands. The maturity that is conveyed in the very concept of citizenship – the full, adult capacity to make and take part in decisions – was denied to women. What we recognize today as the entitlements of citizenship were withheld. Historically, although women began to gain legal and political rights in the nineteenth century, at least in some parts of the world, the recognition of women as citizens has been partial, incomplete, and unstable. Even constitutional “guarantees” have turned out at times to be illusory. Yet, constitutional provisions protecting citizenship integrity – that is, not only 90

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access to citizenship as a foundation of equality, but also as source of agency, even selfhood – are of special importance to women. Normative Citizenship

What, however, do we mean by “citizenship”? For our discussion of the constitutional recognition of citizenship to be fruitful, we need first to identify our subject. Since the 1980s, in particular, there has been an upsurge of interest in citizenship as a normative or ideological category. Feminists have been part of this; they have sought to use the language of citizenship as a rhetorical means of exposing women’s inequalities, comparing the richness of the concept with the impoverished, real-world situation of women, as well as making claims for true equality of “citizenship” status. However, despite the high normative status of such claims, those who promote equality and social justice, and feminists, in particular, should be wary of such rhetoric. In much literature, claims about the value of citizenship in restoring the public sphere, creating community, encouraging responsible behavior, and promoting “civic” or “republican” virtue have been central. The “good citizen” has become a type of abstract ideal among the range of human types. This is problematic for women. Access to legal citizenship and the constitutional recognition and protection of citizenship are fundamental to equity and agency. They should not, however, be conditioned on individual conduct. They remain fundamental, regardless of any measures of “virtue” or “citizenly” behavior. But, even if personal conduct could be shown to have relevance in a constitutional concept of citizenship, there is another reason for setting aside such claims. Because the social role historically performed by women has tended to be excluded from definitions of the civic or public sphere, normative theories that tie citizenship to a particular notion of public activity, conduct, or qualities need to be treated with caution. This is not to claim that there is no distinction, both conceptual and functional, between the public and the private, or that feminists should seek to conflate or merge the two. It is rather to question the identification of the “citizen” as a particular type of public person. The problem resides both in the manner in which the public is defined and in a discourse of citizenship that ties the citizen to this particular public. Theories of “republican” citizenship, for example, as Susan Moller Okin argues, involve a concept of

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the public that excludes or overlooks the realm of women’s experience and contribution.1 Such theories, she writes, fail to acknowledge the domestic sphere. In making this argument, Okin defends a distinction between the domestic and the “private.” This is a valuable distinction, and it is particularly important to any discussion of rights. Separating the public and the private (both legally and conceptually) has been disadvantageous to women, because, in the words of former Justice of the Supreme Court of Canada, Bertha Wilson, it “shielded men’s private lives against intrusion by the state. At the same time, however, it shielded women’s private lives in the family context from the beneficial intervention of the state.”2 But privacy, in the sense of personal autonomy, denotes a sphere of limitation on government in which intimate conduct and bodily integrity can be protected from intrusive regulation. It recognizes the sphere of selfhood as, to use an expression drawn from the law of evidence, “privileged,” that is, confidential, protected from the scrutiny or examination of others, and sheltered from forced disclosure. In the words of Iris Marion Young, the private is “that aspect of [a person’s] life and activity that any person has the right to exclude from others.”3 Young, however, conceptualizes the exclusion of others from this aspect of one’s life as a matter of individual choice rather than institutional policy. Although the private, I suggest, may entail choices, it should not be conflated with choice. Choice is problematic, especially for women. Many private matters cannot be identified as matters of choice or resolved in the sphere of individual choice. (This is discussed further in Chapter 8.) What is usefully described as “private,” to adapt the well-known distinction drawn by John Stuart Mill in On Liberty (first published in 1869), is the sphere of moral choices and “self-regarding” conduct. Government has no business invading this sphere. In contrast, “domestic” may be employed to describe the sphere of “other-regarding” but interpersonal conduct, located in the home. So, private conduct should be free of government interference, whereas domestic conduct, which may occur “in private” but is 1 2 3

Susan Moller Okin, “Women, Equality, and Citizenship” (1992) 99 Queen’s Quarterly 56. Bertha Wilson, “Women, the Family, and the Constitutional Protection of Privacy,” 17 (1992) Queen’s Law Journal 5, at 30. Iris Marion Young, Justice and the Politics of Difference (Oxford, UK: Princeton University Press, 1990), at 119–120.

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essentially other-regarding, should not be immune. The domestic is as much a matter for public concern and public recognition as the otherregarding sphere outside the home to which the term “public” has traditionally been given. To rephrase a slogan from the women’s liberation movement, the domestic is political (whereas the personal is private). To separate the public from the private and to protect the private in women’s lives is, among other things, to recognize women as adults, capable of separate (nonderivative) identity and personal agency. In contrast, separating the public and the “domestic” works against women’s interests. Not only does it remove “domestic” relations from the sphere of regulation, leaving women vulnerable to interpersonal abuse without legal recourse, it also marginalizes the realm of material and bodily sustenance and nurturance from among the activities counted as contributing to the public. Regardless of whether it is intended, normative theories of citizenship that promote civic virtue as a way of expanding the concept of the public beyond the formal and political (by including civil society in the definition of the public), reproduce the dichotomies that assume women’s traditional contribution to social life as caregivers and nurturers to be insignificant and not “citizenly.” Furthermore, the normative universality of citizenship fails to accommodate the reality of gender difference. Ruth Lister asks: “Are we seeking a gender-neutral conception of citizenship which enables women to participate as equals with men in the public sphere or a gender-differentiated conception which recognizes and values women’s responsibilities in the private [or, as I suggest, “domestic”] sphere?”4 The answer must be both, and neither. However, even if we could reconcile such theoretical tensions, the fact remains that many, if not most, normative theories of citizenship have little relevance to constitutional questions about women as citizens, whereas the constitutional framework for citizenship is central to women’s real lives. Normative claims about the qualities and virtues of the citizen are mostly abstract. They fail, among other things, to make clear whether legal (or any) consequences follow from the norms they establish. They also fail to examine the scope or logic of their own language. For example, they do not explain whether their norms are intended to apply to legal citizens only, 4

Ruth Lister, “Dilemmas in Engendering Citizenship,” in Barbara Hobson, ed., Gender and Citizenship in Transition (Basingstoke, UK: Macmillan, 2000), at 46.

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or also to aliens or other classes of person. They fail, for the most part, to recognize that when we speak of citizens, by definition, we exclude aliens. The discourse of citizenship is exclusionary. Try as one may, however, when it comes to actual consequences in people’s lives, it is impossible to avoid the fact that citizenship is defined by law. Alienage, being a category of noncitizenship, is also defined by law, both expressly and by exclusion. Socially worthy conduct, or measures of “civic virtue,” are irrelevant to legal tests for citizenship or membership of the body of citizens in the modern world. Citizenship and Rights

Our concern, then, is the constitutional dimension of citizenship. Many people might assume that this begins with the identification of rights. Many assume, indeed, that citizenship and rights go hand in hand, automatically or self-evidently, and that to be a citizen itself generates and guarantees certain rights. This proposition is questionable. The rights one might assume to be “citizenship rights” have all been denied to citizens or classes of citizens at some stage in the life of constitutional democracies. Many are still.5 This is not merely a matter of unconstitutional legislation or the unlawful exercise of executive power. It concerns an historical record in which, without breaching a country’s constitution, legal distinctions have been drawn between citizens who are entitled to “rights” and citizens who are not. For example, the Fourteen Amendment of the U.S. Constitution grants automatic citizenship to all persons born in the United States. It also includes an express protection of the “privileges and immunities” of citizens. As we saw in the Introduction, for more than 50 years, this provision did not entitle American-born women – constitutional citizens – to vote or stand for political office. Female citizens had to wait until the Constitution was amended in 1920. These days, felons or prisoners, and even ex-felons, are commonly denied the vote in many jurisdictions, regardless of their citizenship status. (This, as we see in Chapter 5, has a gendered impact, disproportionately affecting men.) Child 5

Many such rights are also enjoyed by noncitizen legal residents in many countries. Alex Aleinikoff, “Theories of Loss of Citizenship” (1986) 84 Michigan Law Review 1471.

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citizens are unable to vote, as are those who are “by reason of being of unsound mind incapable of understanding the nature and significance” of voting, to use the words in the Australian Electoral Act.6 Other putative “citizens’ rights” – the right to acquire and hold a passport,7 to enjoy diplomatic protection abroad, and to serve on a jury – are all denied to some classes of citizen in every comparable democratic jurisdiction. These rights, in other words, are contingent and alienable. There are some cases where a particular right can be reasonably described as a “citizen’s right,” not because citizenship in itself gives rise to it, but because it is available only to citizens (holding a passport is an example). Certain specific “citizen’s rights” guaranteed by the constitution in some jurisdictions may also have that character. For example, Section 3 of the Canadian Charter of Rights and Freedoms, states: “Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.” Section 6 (1) provides that “Every citizen of Canada has the right to enter, remain in and leave Canada.” As with all Charter rights, however, these are derogable, being subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”8 From an historical and comparative perspective, the right to live, secure from the threat of deportation, in one’s country of citizenship may be the closest one can find to a genuine citizen’s right. This, as is discussed later in this chapter, is particularly significant for women. However, even this must be qualified: it is the right to live in the country of one’s primary 6 7

8

Commonwealth Electoral Act 1918 (Cth) s. 93 (8) (a). In countries such as Australia, Canada, and the United Kingdom, the grant of a passport is not recognized as a “constitutional” right, but as an entitlement of citizens, subject to executive discretion, and deniable on political grounds, among others. In the United States, political grounds for denying a passport have been the subject of constitutional challenge on more than one occasion. In Kent v. Dulles 357 U.S. 116 (1958), the Supreme Court ruled that the State Department’s denial of a passport to communists on the ground that their travel was contrary to national interests was unlawful. Although the grounds for finding in favor of the plaintiff were nonconstitutional, the Court recognized the right to travel as a liberty protected by the Fifth Amendment. In subsequent cases, the Supreme Court has affirmed this decision, but held that the right to travel is not absolute and that restrictions may be legitimate. Executive discretion to withhold a passport in order to restrict travel is, nevertheless, more constitutionally limited in the United States than in comparable countries. Charter of Rights and Freedoms 1982, Section 1.

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citizenship that may qualify as the single “citizenship right.” There are significant examples in which the right of residence does not come with second nationality, or what one might think of as “historical” citizenship. For example, more than 3 million persons in Hong Kong currently holding British citizenship, as “British Nationals (Overseas),” do not have the right to live in Britain. They can hold a British passport, but they cannot live in the country that issues it. The Hong Kong example is not unique. We should be careful not to conflate citizenship and rights in a manner that assumes that noncitizens or aliens have no rights and that, in practice, renders aliens vulnerable to a loss of rights. There are contexts in which the assumption that aliens are not entitled to rights has particular relevance to women. Female noncitizens are often especially or doubly vulnerable to abuse and exploitation, and this is multiplied by fear that legal reprisals against them will follow its exposure. The U.S. Violence Against Women Act (VAWA) (discussed in Chapter 3) recognizes this in its provision allowing for noncitizen victims of domestic violence to leave their family home without jeopardizing their immigrant visa status.9 Certainly, there are many legal and political entitlements that do extend to the majority of citizens, and the arbitrary denial of rights to a class of citizens cannot be defended. Citizenship may indeed serve as a qualification for certain rights or entitlements, and this gives it a dynamic lacking in other legal categories. As Leti Volpp writes with respect to women’s historical loss of citizenship through marriage (discussed later in this chapter), “[w]hile recognizing that formal legal citizenship may not guarantee that one can exercise or enjoy citizenship’s other dimensions . . . the history of marital expatriation should make apparent both the importance and the historically precarious nature of formal legal citizenship.”10 The entitlements of citizenship have been historically contingent, alienable, and insecure. Protection against deportation from the country of one’s (primary) citizenship, although not inalienable, remains the firmest, and in many respects, the most essential of all the “rights” held by citizens. However, regardless of what follows in a legal or material sense, to be a citizen is valuable, not merely as a means to an end. To be a citizen is, a priori, to be the legal equal in status to other citizens, to enjoy a presumption 9 10

VAWA (2000), Title V, Battered Immigrant Women. Leti Volpp, “Divesting Citizenship: On Asian American History and the Loss of Citizenship through Marriage” (2005) 53 UCLA Law Review 357.

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of legal maturity. A citizen has a legal “name” in common with other members of a national community, and with that comes a type of status dignity.11

Citizenship Integrity

The value of citizenship is most clearly appreciated through understanding what it means to lack citizenship. Usually (although not always), citizenship brings with it a degree of security and stability with respect to one’s country of residence. Security of homeland is particularly important for women. For reasons of history and reproductive biology, women suffer disproportionately from dislocation and homelessness compared to men. Women are overwhelmingly the carers of children; their fate and conditions are closely tied to those of their children. Giving birth is a dramatic and physically immobilizing experience, and the vulnerability it creates is multiplied in situations of residential insecurity; caring for a young child doubles this insecurity. Furthermore, insecurity of abode increases the particular vulnerability of women to poverty, physical violence, and sexual abuse. Territorial displacement exacerbates it further. Women refugees or displaced persons are especially at risk.12 To hold legal citizenship does not, in itself, protect or relieve those who are driven from their country, but it gives the citizen a focus for her future hopes, as well as the prospect of opportunities to protest against the state from which she has been driven and to which, in principle, she is entitled to return. Even where bodily security is not at risk, statelessness is a tragic condition. As Hannah Arendt wrote of the experience, the “calamity” of statelessness lies “[n]ot the loss of specific rights . . . but the loss of a community willing and able to guarantee any rights whatsoever.”13 11

12 13

Aleinikoff, supra note 5, asks his readers to imagine waking up one morning to learn that they had been stripped during the night of their American citizenship. Far more alarming, he suggests, than the prospect of difficulties in traveling or the loss of voting privileges would be the experience of “nakedness,” the sense of having lost a part of oneself. Women refugees are especially vulnerable to attack, starvation, and abuse. UNHCR Population Statistics, at www.unhcr.ch/cgi-bin/texis/vtx/home?page=statistics. Hannah Arendt, The Origins of Totalitarianism (1958), quoted by Volpp, “Divesting Citizenship: On Asian American History and the Loss of Citizenship through Marriage,” supra note 10, fn 340, at 478.

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The calamity, we may add, also lies in the loss of name, home, and refuge. Statelessness is particularly calamitous for women who, in the main, have less economic power than men, and a lesser capacity to relocate to other places in search of employment and economic security. Women are less likely to be property owners in their own right and, especially in the poorer parts of the world, more likely to depend on their homes for subsistence or income earning.14 None of this is to say that formal citizenship is, of itself, an adequate or complete goal for women. There are many examples, both past and present, in which legal citizenship has failed either to protect or empower women. Notwithstanding this, the denial to women of the capacity to acquire and retain citizenship on an equal footing to men is a fundamental status injury.

Citizenship and Marriage

Women’s access to citizenship needs constitutional protection. This protection cannot be unidimensional. It must take into account the mutability of citizenship status, particularly with respect to gender. Marriage, for example, must always be factored into assessing a woman’s ability to retain her own citizenship. Many women in the past, in many countries, lost their birth citizenship on marriage to an alien. This occurred principally because the citizenship law of their country of birth mandated such a loss. In some cases, loss occurred because the country of which a woman’s husband was a citizen granted automatic citizenship to alien wives, and her own country did not permit dual citizenship. Constitutionally ruling out the automatic acquisition of a husband’s citizenship is not the answer. For one thing, this will have no direct effect on the citizenship law of another country and will, therefore, have limited impact on the women citizens of the first country. Other countries are free to grant or withhold citizenship on their own terms. However, even if constitutional protection of a woman’s citizenship is recognized by the law of another country, there may still be problems. Where women who live in their husband’s country are precluded from acquiring their husband’s citizenship, they may be placed at a disadvantage regarding security of 14

International Center for Research on Women (ICRW), Property Ownership for Women Enriches, Empowers and Protects: Toward Achieving the Third Millennium Development Goal to Promote Gender Equality and Empower Women, ICRW Development Goal Series, a reportin-brief. Available online at www.icrw.org/docs/2005 brief mdg-property.pdf.

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abode in the event of widowhood or divorce. A constitution that rules out the automatic granting of its country’s citizenship to alien women who marry its male citizens will reproduce this effect with respect to the outside world. Women need constitutional security within their own country, as well as the protection of their capacity to acquire their husband’s citizenship in his country. Men also need such protection, although historically, automatic loss of citizenship at marriage has never been a man’s problem. In the past, many countries have granted, and some still continue to grant, citizenship to alien women on marriage to their nationals, or make it easier for alien women than men to acquire citizenship after marriage. From the mid-nineteenth century until 1922, the United States granted automatic “naturalization by marriage” to alien women who married U.S. citizens and who were otherwise eligible to be naturalized. (Asians as a class were ineligible for naturalization, and Asian women were, thus, excluded.) Alien men did not enjoy parallel rights. Such laws, manifestly, are contrary to principles of gender equity. After 1868, women born in the United States acquired citizenship on the same footing as men and, until the twentieth century, women’s rights to retain their birth citizenship was legally (although not constitutionally) protected. This did not go without challenge. In 1830 in Shanks v. Dupont, the Supreme Court was asked to rule on whether marriage to an alien annuled an American woman’s own citizenship; such marriages, it held, “produce[d] no dissolution of the native allegiance of the wife.”15 However, in 1907, 40 years after the ratification of the Fourteenth Amendment, the Expatriation Act was passed. It included the provision that “[a]ny American woman who marries a foreigner shall take the nationality of her husband.” A woman born in the United States who married an alien, thus, lost her constitutional birthright citizenship. Similar laws applied in many countries, including Britain, and these extended to the Dominions. Frequently, a loss of other rights followed. Women rendered aliens in their own country by marriage were in some cases disentitled from voting. In other cases, they were denied the right to own property.16 Loss of citizenship brought with it the potential for deportation. Women who lost their citizenship but were 15 16

28 U.S. 242 (1830), at 246. Discussed in Volpp, “Divesting Citizenship: On Asian American History and the Loss of Citizenship through Marriage,” supra note 10. Volpp, ibid.

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subsequently unable to acquire their husband’s citizenship found themselves stateless. Indeed, the largest group of stateless persons in the United States in the interwar years consisted of American women with alien husbands.17 In the event of widowhood or divorce, women were entitled to resume their citizenship, subject both to registration and their return to live in the United States. Yet, women of Asian origin, regardless of birth in the United States, were excluded; although they once held U.S. citizenship as a constitutional “right,” they were, thus, effectively exiled. In 1922, the Cable Act modified the Expatriation Act, allowing women who had lost their American citizenship through marriage to be renaturalized as U.S. citizens. Not all women were able to take advantage of this act. Those whose racial origins would have excluded them from naturalization had they never been U.S. citizens were ruled ineligible to renaturalize, although they were citizens by birth. The target of this act was, primarily, women of Asian origin. It was repealed in 1931.18 Citizenship by Descent

In addition to insecurity of citizenship at marriage, women have historically been unable to transmit their citizenship to their children. Laws that recognize only the father as the source of a child’s citizenship are not merely offensive to women. They may also result in differences in citizenship between mothers and their children and, from that, further vulnerability in abode and restriction of movement. In 1991, Unity Dow, a Batswana woman married to a U.S. citizen, challenged the 1984 Botswana Citizenship Act, which provided for citizenship to be transmitted to children in a marriage through the father alone.19 Dow claimed that the act breached several sections of the Constitution of Botswana, including Section 14 (1), which protects a person’s “freedom of 17

18

19

Linda K. Kerber, “Toward a History of Statelessness in America” (2005) 57 American Quarterly, at 735. As Kerber points out, even the daughter of Ulysses Grant lost her American citizenship on marriage to an Englishman; “it took a special act of Congress to reinstate her citizenship when she was widowed.” A Restoration of Women’s Citizenship Act was put before Congress in 2001. Its aim is retrospectively to restore citizenship lost on marriage between 1907 and 1922. For reasons that are not entirely clear, it applies only posthumously. The act provided that citizenship could be transmitted through a mother to children where, “in the case of a person born out of wedlock, [the] mother was a citizen of Botswana.” Citizenship (Amendment) Act of 1984, Section 4 (1) b.

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movement” and prohibits their expulsion from Botswana, as well as Section 3, which provides that “every person in Botswana is entitled to the fundamental rights and freedoms of the individual . . . whatever his race, place of origin, political opinions, colour, creed or sex. . . . ” Among other things, as Dow pointed out, in the event of her family leaving Botswana, their return would depend on the grant of residency visas to the children. If visas were not granted, she would face the invidious choice of exile from her country or separation from her children. Effectively, she would suffer expulsion from Botswana, a fate that would not confront a similarly situated Botswana man. A similar outcome will arise where a country does not recognize the right of residence of noncitizen parents whose children are citizens. In such cases, women will suffer insecurity of abode, especially when raising children in the children’s paternal country without, or in the absence of, their father. Citizenship, as Betty de Hart has argued, “loses its meaning if it does not include the right to establish a family in the country where one is living.”20 Both the ability to transmit citizenship to one’s children and the role played by gender in transmission may be affected by the place of a child’s birth. Although citizenship by jus soli (by virtue of birth in a territory, or “soil”) may be relatively rare now, most countries recognize jus sanguinis, that is, the acquisition of citizenship through a citizen parent, even when born in a foreign country. Citizenship, in other words, is derivative – acquired by descent. The historical pattern of the laws surrounding derivative citizenship has been and, in some places remains, deeply gendered. The inability of women to transmit citizenship to their children on the same terms as men has been the reality in many countries and, even now, remains a common source of inequity. For example, children born abroad to a British citizen parent acquire British citizenship by descent. Until recently, under United Kingdom law, this citizenship descended automatically only from British fathers. From 1979, British mothers who gave birth abroad could transmit their citizenship but only by registration before the child reached the age of 18. Descent through fathers in similar situations was automatic, requiring no action. Since the adoption of the UK Human 20

Betty de Hart, “Women’s Right to Domicile,” in Sarah van Walsum and Thomas Sgijkerboer, eds., Women and Immigration Law (New York: Routledge-Cavendish, 2007), at 156.

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Rights Act of 1998 (which became operational in 2000), such gender distinctions are open to legal challenge. The citizenship law was subsequently amended, giving women similar entitlements as men in transmitting citizenship to their children. Gender discrimination still lingered for some years, however, with the adverse effect this time falling on men. Where the parents were unmarried, British mothers alone were permitted to transmit citizenship to children born abroad. This law was finally amended in 2006. Under U.S. law, only the foreign-born children of U.S. citizen fathers acquired citizenship by descent until 1934. Since 1952, ex-nuptial foreignborn children of citizen mothers are able automatically to acquire citizenship, whereas children with citizen fathers (but noncitizen mothers) may acquire citizenship by descent only where the father satisfies extra criteria for establishing and registering paternity before the child is 18 years old. This law was challenged in 2001. Nguyen v. I.N.S21 concerned the deportation (for criminal offenses) from the United States of a 21-year-old man, born in Vietnam to an unmarried Vietnamese mother and a U.S. citizen father. Tuan Anh Nguyen, a lawful permanent resident of the United States, had been raised by his father in Texas since early childhood. His father, however, had failed to follow the necessary procedure for establishing paternity as a condition for the transmission of his citizenship to his child, and the statutory time to do so had passed. Nguyen now claimed that the law was unconstitutional in breaching the equal protection guarantee embedded in the Fifth Amendment. He claimed the right to acquire paternal citizenship by descent, equal to the right he would have enjoyed had his mother been a U.S. citizen. He claimed, thus, to be an American citizen and, therefore, incapable of deportation. (Nguyen’s appeal failed, and he was, subsequently, deported to Vietnam.) The issue of gender classifications in U.S. law and the tests for determining their constitutional invalidity are considered in Chapter 6. Here, we need only note the survival of gender differentials in the law governing citizenship by descent in the United States. This law, the Supreme Court held in Nguyen, rested on a real distinction between women and men. What the law required was the demonstration of a true biological relationship 21

533 U.S. 53 (2001).

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between child and parent; women, who are unavoidably present at the birth of their children, do not need to furnish extra evidence of this relationship. The requirement imposed on fathers to take extra steps within a fixed period of time in order to demonstrate paternity met the relevant constitutional standard of scrutiny for gender classifications in law. Even if DNA testing were accepted as definitive of paternity at any time in the child’s life, removing the rationale of requiring registration before the child turns 18 (as Justice Sandra Day O’Connor insisted in her dissenting opinion), the legislation had a second goal. It required a genuine, not merely biological, relationship between father and child and, thus, a genuine connection with the United States in order for citizenship to be granted. This requirement, the Court said, would not be met by mere genetic proof. Not, at least, with respect to the genetic father. This decision attracted much criticism. Among other things, it was argued that the law’s emphasis on the potential for a genuine relationship between parent and child rested on the stereotype of mothers as carers and assumed that the mother was the parent most likely to develop a caring relationship with her children. Such a stereotype, Jacqueline Barrett suggests, is “representative of a time in history where women were primarily responsible for the welfare of children born to unwed parents.”22 This may well be the case. However, although the possibility of unmarried fathers caring for their children is far more widely recognized these days, the reality is that, when the parents do not live together, women still remain the carers in almost all cases. This reality presented itself most starkly in the South African case of Hugo. As we saw in Chapter 2, President Nelson Mandela issued an order in 1994 releasing women prisoners with children younger than the age of 12.23 Mandela’s action was challenged on the grounds, among others, that it breached the South African Constitution’s prohibition on gender discrimination, by failing also to release male prisoners with young children. The Court acknowledged that the act was discriminatory, prima facie, but held that the distinction it drew between mothers and fathers was fair. It 22 23

Jacqueline Barrett, “Nguyen v INS: Are Sex-Based Classifications of Citizenship Laws Really Constitutional?” (2002) 16 Temple International & Comparative Law Journal 391, at 409. The President of the Republic of South Africa and the Minister of Correctional Services v. John Phillip Peter Hugo, CCT 11/96.

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recognized, as the president had done, that women were the primary carers of children. It accepted the view, furthermore, that the bond between young children and their mothers is stronger in most cases than that between young children and their fathers. In any case, the presidential act included a provision allowing for an application for remission of sentences of male prisoners in special circumstances. Was this, as a dissenting judge of the Supreme Court claimed, an act that reproduced the very stereotype that “relegates women to a subservient, occupationally inferior yet unceasingly onerous role[:] . . . a relic and feature of the patriarchy which the Constitution so vehemently condemns” 24 ? Or was it a positive response to the reality of inequality? The pardoning of prisoner-mothers was a positive, compensatory act, not committed against men, but in recognition of the harm suffered by children deprived of their mothers. It recognized a reality; it did not entrench that reality in the law. For Nguyen, the failure to grant automatic paternal transmission of citizenship was a negative response to the reality that the majority of illegitimate children fathered by Americans and born overseas are raised by their non-American mothers. Although both the burden and the loss fell on Nguyen’s father in this instance, the operation of this law is more likely to burden noncitizen mothers by having the effect of exempting the father (and the United States) from legal responsibility for their foreign-born children. Because it is the father who must actively take steps to establish paternity, his failure to do so may free him both from the responsibility for, and the presence of, his child in the United States. These cases raise a primary question for constitutional design. Is a constitution compensatory or transformative? Should it reflect, or be interpreted to reflect, social reality? Should it be made to accommodate or compensate for that reality? Or should it rise above reality and attempt to promote an alternative, to transform one reality into another? The ideal answer avoids a stark choice between the two. The words of the constitution should be framed so as not to rule out compensatory laws, even where these may appear to reinforce stereotypes. At the same time, laws that facilitate, even encourage, a departure from oppressive stereotypes should be able to survive constitutional scrutiny. However, a constitution cannot perform only a transformative role. It must also balance competing interests and 24

Kriegler J, Hugo, Ibid., at 73.

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facilitate the resolution of conflict between values and priorities in concrete circumstances. On its face and in operation, the law under which Nguyen failed to acquire U.S. citizenship is discriminatory. However, in considering a constitutional solution to such inequality, we need to take account of the wider effect. Among the issues Congress took into account in framing the law was the risk of statelessness for children born to unmarried noncitizen mothers in countries where a child’s American citizenship would not be recognized.25 Where the mother’s ability to transmit her own citizenship to her child is compromised by the automatic acquisition of the father’s citizenship, the balance of interests between the parents, of whom – stereotypes notwithstanding – the mother is, in reality, far more likely than the father to be the child’s carer, must fall in the mother’s favor. It is well recognized that formal equality may create inequalities between persons who are differently situated; the likelihood of this being the case is relatively high when a child is born outside the United States to an unmarried noncitizen mother and citizen father, in circumstances in which legal disputes over paternity may arise. Automatic acquisition of American citizenship through either parent may result in inequities. What was inequitable in Nguyen’s case was not the differences in circumstances he would have experienced had his mother been an American citizen, but the inflexible application of a policy of deportation to a person whose identity and personal history were exclusively American. The solution did not lie in an automatic reversal of the law. What was needed, among other things, was a parallel provision to that found in the South African law challenged in the Hugo case, permitting applications for exceptions on special grounds.

Constitutional Protection

Although automatic citizenship of the country in which a person was born (jus soli) was once widespread, including as a right of the English common law, it is relatively rare now. It is even rarer for an express grant of citizenship by birth to be provisioned in a constitution. The Irish Constitution once 25

Clay M. West, “Nguyen v INS: Is Sex Really More Important Now?” (2000–2001) 19 Yale Law & Policy Review 525.

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included such a provision. This was deleted in 2004, when the TwentySeventh Amendment was passed by referendum. Article 9 2.1 now states: Notwithstanding any other provision of this Constitution, a person born in the island of Ireland, which includes its islands and seas, who does not have, at the time of the birth of that person, at least one parent who is an Irish citizen or entitled to be an Irish citizen is not entitled to Irish citizenship or nationality, unless provided for by law. The U.S. Constitution is now in a minority with respect to transmission of citizenship. In 1868, following the Civil War, the simple rule of jus soli was incorporated into the Constitution in the Fourteenth Amendment. Since then, as we have seen, “All persons born . . . in the United States . . . are citizens of the United States.”26 This amendment, designed to “naturalize” the ex-slave population, has been a cornerstone of America’s commitment to equality of opportunity. However, as previously discussed with respect to the marriage of women citizens to aliens, the protection it provided was historically insecure. The Fourteenth Amendment does not make citizenship by birth inalienable, nor does it prohibit the state from stripping citizenship from a native-born citizen. It was formerly held to guarantee only that citizenship would be acquired by birth, not that it would be retained. Since the 1960s, this provision has been interpreted as providing a firmer foundation for security of birthright citizenship (albeit not in cases in which gender discrimination was at issue.27 ) The memory of the historical insecurity suffered by American women, however, does not allow for complacency. To take account of the variables discussed in this chapter, a constitution needs to offer a range of protections. It must guarantee citizenship by birth, equal parental transmission of citizenship to children, or the opportunity for parents to transmit citizenship equally without adverse results, and protection from loss or deprivation of birthright citizenship. It must also guarantee that its citizens may hold dual nationality. 26 27

The amendment reads “born or naturalized.” I want to emphasize birthright citizenship here. In Afroyim v. Rusk 387 U.S. 253 (1967), the Supreme Court held that a U.S. citizen cannot be stripped of citizenship without consent. In Vance v. Terrazas 444 U.S. 252 (1980), the Supreme Court ruled that intention to give up U.S. citizenship had to be indicated explicitly.

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The 2005 Iraqi Constitution, for example, does all these. Unique among Arab countries in allowing mothers to transmit citizenship,28 and unusual in the world in the range of protections it offers, Article 18 provides that 1st – An Iraqi is anyone who has been born to an Iraqi father or an Iraqi mother . . . 3rd – (a) It shall be forbidden to withdraw Iraqi citizenship from an Iraqi by birth for any reason . . . 4th – Every Iraqi has the right to carry more than one citizenship. Conclusion

Citizenship is a legal and normative realm in which women have largely, if not entirely, been especially vulnerable to disadvantage and in which they have especially needed stability and security. Citizenship is both necessary as a means to other things and valuable in its own right. However, historically, it has also been insufficient and hollow with respect to both its own stability and the entitlements or rights that have come in its train. However, to be an alien renders vulnerable people even more susceptible to abuse, insecurity, and deprivation. The stakes attached to citizenship in developed countries have grown high in recent years. Even where other rights are detached from citizenship, the benefits of abode and the protection from deportation that it brings (at least for most citizens) are incalculable. At the same time, the acquisition of citizenship has become more restrictive in many developed countries. Derivative citizenship is increasingly displacing the inherent citizenship of birthright. The gendered dimension of this shift should not be overlooked. Fathers are ceasing to be the sole or essential source of citizenship jus sanguinis, at the same time as citizenship jus soli is becoming rare. This shift has advantages for women, but it also rules out the “conferral” of citizenship by women on their children through the choice of place to give birth. To deter pregnant women from traveling to Ireland for this purpose was, indeed, the major motive behind support for the Irish Twenty-Seventh Amendment. 28

Lina Abou-Habib, “Gender, Citizenship and Nationality in the Arab Region,” at www.oxfam. org.uk/what we do/resources/downloads/gdc abouhabib.pdf.

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Women’s bodies have often been used as proxies in battles over territory and national identity. In designing a constitution with gender equity in mind, one must be careful to avoid such an effect. It is probably unrealistic these days, where “border security” (both for reasons of immigration control and defense) sits high on the agendas of most developed nations, to advocate a return to citizenship jus soli. It is for this reason, among others, that citizenship and rights need to be conceptualized separately. Those most vulnerable, among whom women are disproportionately numbered, should not be denied protection and security of abode because they are ineligible for or disqualified from the right to citizenship.29 Citizenship integrity must not be bought at the price of alien exclusion. This means that constitutional citizenship must not only be protected in itself, but also that constitutional rights and opportunity structures must be designed with a close eye to the citizenship question. At each moment, the framer must ask whether a particular right is one that only a legal citizen is entitled to enjoy, or whether a particular opportunity is one that should only be available to legal citizens. These, in addition to questions about how citizenship should be acquired, transmitted, and retained, are questions about the status of aliens, just as much as about citizens. Alienage and citizenship are two sides of the same coin. Historically, at each toss of the coin, the effect has been gendered, frequently falling most heavily on women. This effect, too, must be added in seeking answers to these questions. 29

In Khosa and Others v. Minister of Social Development CC12/03, the South African Constitutional Court ruled on the constitutional validity of provisions of the Social Assistance Act 1992 that purported to extend certain welfare grants, including child support, exclusively to South African citizens. The applicants, permanent residents of Mozambican origin, claimed that the act breached equality rights, social security rights, and the rights of children, provided for in South Africa’s Constitution. The Court held in their favor, and “read in” the words “permanent resident” to follow the words “South African citizen” in the relevant provisions of the act. The Court noted that the socio-economic rights were, in the words of the Constitution, guaranteed to “everyone,” and that the differentiation between citizens and noncitizens was not a reasonable limitation. Among other things, the act “failed to distinguish between those who have become part of [South African] society and have made their homes in South Africa and those who have not.” Per Justice Yvonne Mokgoro, at 36. This example highlights the legal consequences of employing the word “citizen,” avoided only this instance by the non-exclusionary words of the relevant sections of the Constitution and the ingenious remedy of “reading in.”

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5 Representation

To be full members of the constitutional community, women need be represented and take part in the processes of law making. This means inclusion in all its dimensions, formal and informal, central and surrounding. Such processes include recruiting, preselecting, electing, influencing, and removing the law makers, as well as becoming law makers in their own right. Once again, the issues relating to these processes cannot be addressed merely in terms of rights. Many are structural, arising prior to the enactment and enforcement of rights. Indeed, structures and institutions will, to some extent, determine the very way in which rights are conceptualized and the form in which they are adopted in a jurisdiction. Structures, institutions, and processes are not merely the preconditions for gender equity in legal rights; rather, they are fundamentally embedded in the way in which a country’s constitutional system responds to, represents, and advances the needs, interests, and potential of its members. Institutions of representation and participation are not merely a means to an end, or simply facilitative of rights and goods; they are also transformative and generative of capacities and goals.1 Institutional practices shape human outlooks, expectations, and capabilities as much as they give voice to them. Rights are certainly relevant. A sine qua non of inclusion – it goes without saying – is the right of women to vote and to run for election to their 1

Gay Seidman makes a similar point regarding South Africa (albeit using the language of “citizenship,” which, for reasons outlined in Chapter 4, is problematic). Seidman, “Gendered Citizenship: South Africa’s Democratic Transition and the Construction of a Gendered State” (1999) 13 Gender & Society 287.

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country’s legislature on the same democratic footing as men. This is a fundamental political right, without which a country could not validly claim the title “democratic” or assert democratic legitimacy. The acceptance of this standard is, however, relatively recent. No country allowed its women to vote at the national level before the twentieth century.2 The struggle for the vote has been among the hardest and most significant political struggles in history. In the United States, it took more than 40 years from the 1870s, during which time what ultimately became the Nineteenth Amendment was introduced in each session of Congress, before American women achieved even this level of constitutional equality. Over many decades, spanning two centuries, women in many countries organized, campaigned, suffered imprisonment, and even died for this right. In many cases, the right to vote, once acquired, was not immediately accompanied by the right to run for office. Frequently, that required a further struggle. Still, no modern country today excludes women from such political rights. In the few remaining countries (e.g., Saudi Arabia) where women cannot vote, constitutional reform informed by the goal of gender equity and agency (or even simple equality) would immediately need to begin with such a right. In some democratic countries, especially with older constitutions, the right to vote is not constitutionally entrenched. It is conferred by statute alone. This does not necessarily render it precarious. In a democratic polity, the protection is embedded in the process. It is inconceivable, if only from the perspective of self-interest and constitutional coherence, that a majority of women would vote for a political party that intended to amend or repeal existing legislation in order to disenfranchise those same women. This level of protection may be sufficient, although whether to entrench the right to vote still remains an issue in such countries. This issue may be 2

New Zealand enfranchised its women in 1893, but it was a self-governing British colony at that time, not yet a nation-state. Similarly, South Australia (1894) and Western Australia (1899) also enfranchised their women before the twentieth century. These two colonies became states of the Commonwealth of Australia, established in 1901. Women gained the national (federal) franchise in Australia in 1902. Several American states and territories (New Jersey, Washington (albeit briefly in both cases), Wyoming, Utah, Colorado) permitted women to vote in the nineteenth century. American women gained the federal franchise in 1920. South Australia alone permitted women to run for parliament in the nineteenth century, although in the United States and the United Kingdom, some nonlegislative political offices were open to women candidates.

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raised, either as a proposal for actual amendment or in the abstract, as a means of understanding wider constitutional choices regarding democratic provisions. In the drafting, or even where the right to vote is already constitutionally entrenched, there are a number of matters to take into account regarding its form or expression. This may seem surprising because a constitutional guarantee of the vote may appear, prima facie, to be one of simplest of provisions to draft or interpret. However, as with the constitutional guarantee of citizenship discussed in Chapter 4, the constitution maker needs to be mindful of the “flowchart” effect. Even if one begins with the simple proposition that women must be entitled to exercise the right to vote and to run for office on exactly the same footing as men, further questions and choices must follow. The footing, of course, must be fully democratic; it would scarcely assist the goal of gender equity and agency for women and men to be equally disenfranchised (even if this was technically a measure of equality), or equally restricted by, for example, property qualifications on the right to vote or run. Thus, we take the “universal” franchise, and with it the right to run, as the democratic norm or point of departure. However, and here is our first real choice, do we really intend these rights to be universal? Most people agree that children cannot be entitled or expected to vote.3 The expression “adult suffrage” has been used historically as code for women’s equal right to vote, as well as to refer to the fact that legal minors are disqualified. This is reasonably uncontroversial. More significantly for our choices, do we want the right to vote (and run) to extend to all male and female adults? Or do we want it to extend only to adult citizens? If so, we need to look carefully at the legal framework for citizenship and, in particular, at whether it has differential effects as to gender. There is limited value in a constitutional guarantee of the citizen’s right to vote if citizenship itself is not constitutionally protected, and protected in such a way as to resist 3

Sylvia Ann Hewlett and Cornel West, however, advocate children’s enfranchisement, with their voting rights to be exercised on the part of their parents: The War Against Parents (Boston: Houghton Mifflin, 1998). Even without accepting this, there is a choice to be made about what defines a child for such purposes, and in most democratic countries in the world, the legal definition of child has shifted in the late twentieth century. With regard to political and legal rights, a person now ceases to be a child at a younger age than in the past. Whether the legal age of adulthood has a gendered impact is an interesting question, one that I am not capable of exploring here.

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perverse, “disenfranchising” outcomes, such as those that have historically disadvantaged women (see Chapter 4). If we choose to grant the vote to legal citizens alone, do we also want to extend it to all citizens? If the constitution includes an unequivocal guarantee of the citizen’s right to vote, expressed in the form of a positive and unqualified right, a further choice will present itself. We will need to consider whether this right should be included among the nonderogable, fundamental, or “basic” rights – those that are constitutionally quarantined from limitations that are otherwise permitted. Alternatively, will it be subject to such limitations? For example, Section 1 of the Canadian Charter states that the rights and freedoms it guarantees are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Canadian right to vote, which extends to “[e]very citizen of Canada” may, thus, legitimately be subject to some limitations.4 A constitutional right to vote that is absolute and unqualified may, for example, prohibit the legal disenfranchisement of prisoners (a common disqualification in many countries). This may or may not be regarded as desirable or compatible with principles of democracy; in deciding this, it is worth also noting that such a disqualification, although neutral on its face is, in its effect, gendered. It adversely and disproportionately affects men because the statistical majority of prisoners in every country in the world is overwhelmingly male.5 A commitment to gender equality might lead to the conclusion that constitutional protection of the right to vote and run for office should extend to those currently incarcerated and/or those with a past record of imprisonment. There may be other reasons for wanting to disenfranchise some citizens or disqualify them from running as candidates for election, but one needs to look sharply at these from the perspective of gender equality. Some constitutions reserve offices of government to persons with specified levels of education. For example, Articles 75 (1st) and (2nd) of the 2005 Iraqi 4

5

Section 3, Charter of Rights and Freedoms (1982). However, the right to vote is protected from a more major limitation – the “notwithstanding” clause – Section 33 – that otherwise permits the federal or provincial legislatures to pass legislation overriding a Charter right. Section 33 is only applicable to certain enumerated rights (those set down in Section 2 and Sections 7–15). Women currently only constitute between 2 and 9 percent of all prisoners in the world (although the percentage is growing) (www.penalreform.org/women-in-prison.html).

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Constitution specify that the prime minister and ministers of state must, among other qualifications, “have a university degree or an equivalent.” Educational qualifications for senior office, such as age qualifications, may be justifiable on grounds relating to competence (at least competence measured in a certain way), but any justification would need to be balanced against the disproportionate effect on women who tend to have lower levels of education than men, particularly in underdeveloped countries. The raw numbers of governmental offices are, of course, very low compared to the total population. Thus – or so it may be argued – even where women’s general level of education is low, sufficient numbers of qualified women will always be found. However, one should be wary of such an argument and aware that the impact is not merely statistical. As we have seen with constitutional language, where the indirect effect of masculine terms is to convey an assumption that positions of authority are to be filled by men (even where rules of interpretation clearly require the masculine to include the feminine), the indirect effect of such facially neutral disqualifications may be similar. However, back at the starting point, where we make our choice of whether the right to vote should be constitutionally extended to all citizens, we need also to consider whether we want this to be a right exclusively exercisable by citizens. If the threshold qualification for voting and running for the legislature is legal citizenship, the exercise of these rights by persons who are not citizens but are, for example, permanent residents, will be ruled out. Should noncitizens who work, pay taxes, and send their children to local schools be constitutionally prevented from voting or running for office? This question goes well beyond considerations of gender equality and cannot be pursued here. However, it is worth again briefly drawing attention to the conditions under which citizenship itself is acquired, retained, and transmitted. If, as has historically been the case, these conditions are gendered and more often (although not always) act disadvantageously for women, the constitutional protection of citizens’ voting and running rights may have the perverse, indirect effect of disenfranchising women who might otherwise have a valid claim to “citizens’” rights. If, for example, women who are married to citizens of the country in which they live are unable to obtain citizenship of that country (either through its laws or those of their own country, such as laws prohibiting dual citizenship), the ability of such women to participate in the law-making

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process – to participate as full members of the constitutional community – would be constitutionally restricted. This may also work disproportionately against men in some countries where women automatically acquire the citizenship of their husbands under the law, but where the reverse does not occur. Such effects would need to be closely monitored with regard to patterns of intercountry marriage, immigration, and gender – both globally and at the relevant national level. Finally, in light of the previous discussion: Is an expressed constitutional guarantee of the right to vote necessary? Or, is it sufficient to rely on a general constitutional guarantee of gender equality and/or prohibition against discrimination on the ground of gender in order to protect women from legal disqualification for voting or running for office? Voting is different from other rights. It is a structural right. It works like a master key, creating access to all other democratic rights. It is, I suggest, both legally and symbolically important that it should be given a special place in a constitution. However, because of problems associated with expressing the right to vote in a positive form, including the paradoxical potential for a disenfranchising effect, the most appropriate constitutional form may be “negative.” For example, the Nineteenth Amendment of the U.S. Constitution provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” In framing a new constitution with gender equity and agency in mind, this might be a useful point of departure. Still, one would want to supplement this provision by (1) adding the right to run for office; (2) adding several words so that the enfranchisement of noncitizens is not constitutionally prohibited either expressly or by implication; and (3) adding the word “gender,” as well as “sex.”6 The specific virtue of the negative formula, as illustrated in the Nineteenth Amendment, is that it avoids circularity or constitutional tautology. A provision that stated, either expressly or effectively, “all citizens are entitled to vote, unless otherwise disqualified under law,” would be little better than a legislative provision in which the disqualifications were set out. Where the Canadian formula requires a special and narrowly focused justification 6

Thus, the reworded provision might read: “The right of citizens and other persons as determined by law, to vote and to run for elected office shall not be denied or abridged . . . on account of sex or gender.”

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for limiting rights and is expressed in terms that apply generally to all rights and freedoms,7 a provision such as the Nineteenth Amendment also has the virtue of setting out specifically that the right to vote cannot be denied on grounds of gender or sex. Furthermore, it prohibits both denial and abridgement of the right, and thus provides an important double protection. The British franchise, for example, was extended in 1918 to women age 30 years and older, whereas men were entitled at that time to vote from the age of 21 (in 1928, all adult women were finally enfranchised). This type of law “abridges” the right and, one may be confident, would not be permitted under America’s constitutional formula.

More than the Vote

Although the right to vote and run for office are often conflated with “citizenship” in political discourse, membership of the constitutional community involves much more than this. It requires, broadly, a political culture that affirms participation. It requires structures and processes that support this affirmation. In almost all democratic countries in the world, even where they have been enfranchised and eligible to run as candidates for election for many years, women remain underrepresented in the legislature – sometimes grossly underrepresented – compared to men. There are two (not mutually exclusive) ways of addressing this problem. One seeks to identify the range of positive disincentives and, as far as possible, determine which are suited to constitutional remedies. This involves treating all women hypothetically as potential candidates for legislative and governmental office and attempting to understand what it is that deters any of them from entering politics (or even from contemplating doing so). The other is to identify positive mechanisms or “triggers” that, of themselves, are likely to increase the actual number of women in office. This approach aims at producing a particular numerical outcome, without directly targeting the broader background disincentives. “Mechanical” remedies or triggers will directly benefit a small pool of women, those 7

It therefore needs to be supplemented by Article 15, which prohibits discrimination on the ground of inter alia, gender, a right that itself is subject to the limitation in Article 1.

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to whom the general disincentives do not directly apply or who are, for one special reason or another, not deterred by them. Thus, gender quotas (discussed later in this chapter) will often be successful in dramatically increasing the raw number of women on party candidature lists and in the legislature itself. However, even large increases in the number of women elected will draw on only a tiny minority of all women in the relevant population. For constitutional design with gender equity and agency in mind, both approaches will be necessary. It is not enough to focus on the known triggers for increasing numbers, if the majority of women still remain structurally deterred from entering politics in the first place. For one thing, the result will be representation only by exceptionally placed women. For another, membership of the constitutional community will not be maximized. Membership is both a matter of actual participation and a sense of genuine inclusion, even among those who do not directly participate. Will a simple increase in the number of women representatives stimulate that sense of membership? Studies increasingly cast doubt on the “critical mass” theory, that is, on the belief that significant increases in women’s participation in the legislature will “feminize” politics more broadly.8 Nor does the critical mass theory address the structural or institutional disincentives that operate even before a woman decides to run for the legislature. Remedies for underrepresentation cannot be provided simply by counting heads. Participatory rights are thin where the political culture disparages or discourages the presence of women in legislative processes. Of course, a constitution will not, of itself, be able to alter attitudes. However, discouragement is not merely a matter of attitudes. It is also structural, and relates closely to the rules and practices that surround the legislative and electoral process. These rules may be informal and unwritten; they may also be embedded in formal practices, in rules of procedure, and in other institutional formalities. In considering the rules, structures, and procedure surrounding representation, we need to take account of a range of matters. These include party 8

Sarah Childs, “The House Turned Upside Down? The Difference Labour’s Women MPs Made,” in Marian Sawer, Manon Tremblay, and Linda Trimble, eds., Representing Women in Parliament: A Comparative Study (London: Routledge, 2006), at 162.

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selection of candidates, electoral systems, legislative “standing orders,” and election or appointment of government members and officers. The first two of these – party selection and electoral systems – have received by far the most attention in the literature, and have the greatest direct claim to a constitutional “solution.” As subsets of these topics, gender electoral quotas have attracted the most attention.

Gender Quotas

The evidence from around the world is clear. To achieve even remotely equivalent numbers of women and men in a national legislature, formal equality with respect to voting and running for office is not sufficient. In 2007, out of 180 countries surveyed by the Inter-Parliamentary Union, not one enjoyed “parity,” that is to say, genuine numerical equality between female and male representatives in the lower (or single) legislative house of the national legislature. Rwanda came close, with the highest score of 48.8 percent. Sweden was next with 47.3 percent; Costa Rica third with 38.6 percent, followed by Finland 38 percent, Norway 37.9 percent, Denmark 36.9 percent, and the Netherlands 36.7 percent. Several other countries were clustered around the mid-30 percent range; these included Cuba, Spain, Argentina, Mozambique, and Belgium.9 The record elsewhere is even worse, and some countries with long histories of democratic constitutionalism and relatively early enfranchisement of women still have a very poor record. In Australia, first in the world to permit women both to vote and run for parliament at a national level, women members accounted for only 24.7 percent of the House of Representatives in 2007. Canada had 20.8 percent;, the United Kingdom 19.7 percent, and the United States 16.3 percent. All were lower than many countries (e.g., Afghanistan, with 27.3 percent) where women have enjoyed formal political rights only in recent times. No single factor can be identified in explaining these low results. They suggest a combination of historical, cultural, structural, and constitutional disincentives or obstacles. However, one mechanism is known to contribute to the higher scores. Although neither sufficient nor even necessary, gender quotas impact dramatically and positively on the likelihood of women’s 9

Inter-Parliamentary Union, Women in National Parliaments: www.ipu.org/wmn-e/classif.htm.

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election to their country’s legislature. Many countries in the world now have gender quotas for their elections. The form varies. Quotas may be constitutional or statutory, voluntary or mandatory, aspirational or directive, permissive or prescriptive, transitional or permanent. They may target or set proportions of total numbers in the legislature, or they may designate reserved seats. Quotas may target women specifically, or they may be gender neutral, setting a maximum and a minimum for either female or male representatives. The fifty–fifty (what we might call “Noah’s Ark”) rule, as practiced in Sweden, may be intuitively desirable, but it has the disadvantage of setting an inflexible upper limit on the representation of both women and men in a country’s legislature,10 and lacks responsiveness to numerical variations in gender in a country’s population (e.g., where women constitute more than 50 percent). A 40/60 percentage minimum/maximum, for example, largely avoids these disadvantages. Around forty countries in the world have gender quotas in their constitutions. Article 76 of the 2003 Rwandan Constitution reserves twenty-four of the eighty seats in the Chamber of Deputies for women. Article 82 specifies that women are to represent at least 30 percent of the twenty-six members of the Senate.11 Rwanda, as we have seen, is at the top of the international “league table” for female representatives in the national legislatures. This result, however, is not entirely attributable to the constitutional quota. In the 2003 Rwandan elections, 15 percent of the members of the Chamber of Deputies elected from the free list were women. The 2005 Iraqi Constitution also includes gender quotas. Article (151) provides that “A proportion of no less than 25 percent of the seats in the Council of Representatives is specified for the participation of women.” Unlike the Rwandan constitutional quota, however, the Iraqi quota is not permanent and is found among the Constitution’s Transitional Guidelines. (Transitional quotas are discussed later in this chapter.) As an alternative, the constitutional quota may be directed at political parties. Legislation may be employed, as in France, to put constitutional 10 11

International Institute for Democracy and Electoral Assistance (IDEA) and Stockholm University, “Global Database of Quotas for Women,” at www.quotaproject.org/aboutQuotas.cfm. Approximately nineteen African countries had adopted gender quotas by 2003. Their various forms, including reserved legislative seats for women, are set out in Aili Mari Tripp, “The Changing Face of Africa’s Legislatures: Women and Quotas,” IDEA, November, 2003, available online at www.quotaproject.org/cs/cs Tripp 2004.pdf.

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directives into effect. Alternatively, legislation may set reserved seat quotas, as can be observed in Uganda, where one seat in each of the Uganda’s electoral districts is reserved for women candidates alone.12 Legislation may require political parties to preselect and list a specified number of women candidates in each election. A further alternative is for parties to adopt affirmative action quotas voluntarily (as South Africa’s African National Congress and the Australian Labor Party have done). But neither a constitutional nor a legislative quota is, of itself, an automatic path to higher numbers of women representatives. The 1958 French Constitution, as amended in 1999, includes two “parity” provisions: Article 3 provides that “Statutes shall promote equal access by women and men to elective offices and positions,” and Article 4 requires political parties to “contribute to the implementation of the principle set out in . . . article 3 as provided by statute.” In 2007, notwithstanding these provisions, women constituted only 12.2 percent of the lower house of the French national legislature. In contrast, Denmark, without a gender quota (constitutional, legislative or voluntary) for elections, sat relatively high on the table, with 36.9 percent. Around fifty countries in the world currently have party quotas. For these to be effective, something further is needed if the commitment not merely to women’s candidature but to women’s successful candidature is to be genuine and the gender quota is not to be subverted. Such a commitment includes “placement mandates,” that is, requirements surrounding the ranking or ordering of candidates. Parties must be prevented from “bunching” women at the bottom of lists, thus making their election much less likely than that of male candidates higher up the list. In supporting the constitutional requirement found in Article (151) of the Iraqi Constitution, the 2005 Iraqi electoral law required each party to select at least 30 percent female candidates, with no less than one woman among each three candidates on the parties’ electoral lists. This “double quota” can also be found in Argentina and Belgium. Placement quotas are relevant where there is a multimember electoral system, that is to say, where more than one representative is elected at a time from the same electoral district. In countries with elections for singlemember electoral districts (discussed later in this chapter), the choice of 12

Ibid.

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women candidates is not sufficient. In addition to a quota of women among the total number of candidates, parties that are serious about increasing women’s representation must also commit to preselecting women candidates in districts or constituencies where there is a reasonable chance of winning. The Australian Labor Party did this in 1994, announcing a target of women candidates for one-third of all winnable constituencies by 2000 (a target it did not, however, meet). The goal of increasing women’s representation in the legislature remains abstract and even insincere unless it is supported by such commitments. Furthermore, unless there are mechanisms for compliance and sanctions for noncompliance that are enforced, quotas remain voluntary and aspirational. For example, under the French electoral law of 2000, each party is required to have an equal number of male and female candidates at each general election, and a party’s list may be rejected by the electoral administration if it fails to do so.13 Many other factors (including national perceptions about how equality is measured) have to be taken into account.14 Importantly, a country’s electoral system must be compatible with the quota system. The failure of France to achieve any higher than 12.2 percent female representation in its National Assembly, notwithstanding its constitutional and statutory gender quotas, may be attributable to incompatibility between quotas and the electoral system.

Quotas and Equality Rights

Where adopted, quotas must not be frustrated by (other) constitutional provisions, for example – paradoxically – those prohibiting discrimination on the ground of gender. As Drude Dahlerup notes, in “various parts of the world legal gender quotas have been judged unconstitutional by the courts. The reason given by the judges [has] either been that quotas violate the principle of equality between men and women in the constitution, or that quotas are against genuine principles of fairness and equality.”15 13 14 15

Noelle Lenoir, “The Representation of Women in Politics: From Quotas to Parity in Elections” 50 International and Comparative Law Quarterly 217 (2001) 219. Drude Dahlerup, “Comparative Studies of Electoral Gender Quotas,” IDEA, Stockholm, 2003. Drude Dahlerup, ed., “Conclusion,” Women, Quotas and Politics (London: Routledge, 2006), at 299.

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Constitutional protection can be found in examples where substantive equality measures are permitted as derogations from formal equality. Section 15 (2) of the Canadian Charter of Rights and Freedoms, among other examples, exempts from its equality guarantees, “any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of . . . sex.” This provision would presumably permit gender quotas for Canadian elections (although the wording may suggest that quotas would need to be temporary or transitional). In the absence of such constitutional provisions, special legislative exemptions may be needed. For example, in the United Kingdom, the Sex Discrimination (Election Candidates) Act of 2002 was passed in order to preempt a constitutional challenge to gender electoral quotas under the gender equality provisions of the UK Human Rights Act of 1998.16 The 2002 act, it is worth noting, includes a “sunset clause,” with its provisions expiring at the end of 2015 (a span of time covering three general elections). Where such surrounding conditions are satisfied, gender quotas are known to increase the numbers of women in a country’s legislature. It is, of course, perfectly possible to support the goal of increasing women’s representation without supporting gender quotas. Even feminists may be uneasy about quotas, regarding them, among other reasons, as an interference in the democratic process, or as appearing to cast doubt on the ability of women to be elected in their own right. Noelle Lenoir considers this argument with respect to the French Constitution.17 The goal of parity, she writes, is a means of achieving equality, and is comparable to the right to vote and the separation of powers. These laws and structures are the basis of democracy. Laws supporting parity “merely reflect the observation that the spontaneous development of political practise does not suffice to secure quick enough progress in the situation of women in politics.”18 Quotas are “an operational mechanism” and, indeed, are “only a minor departure from the principle of universal suffrage.”19 This principle, perhaps, is best 16

17 18 19

Judith Squires, “The Implementation of Gender Quotas in Britain,” International IDEA Project on Electoral Quotas for Women, March 2005, available online at www.quotaproject.org/ publications/wps 2004 1.pdf. Lenoir, “The Representation of Women in Politics: From Quotas to Parity in Elections,” supra note 13. Ibid., at 243. Ibid., at 245.

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constitutionalized in the minimum/maximum quota, noted previously, where equitable male representation is also mandated. The case for other types of quotas has long been accepted in many constitutional systems around the world. In the most common example, federal systems typically involve geographic or regional quotas (even if it is not widely recognized that they do this). They do so by mandating a fixed number of places in the legislature for each state, regardless of population. The principle of federalism is a departure from simple majoritarian democracy. It recognizes the place of minorities in the constitutional community, and creates constitutional structures for their recognition and protection. The equal representation of women does not even require the same type of normative justification that the constitutional protection of regional minorities requires in a federal system. Women are not a minority. They are an equal majority and, in some countries, even an outright majority. The institutionalization of principles of gender equality is, as Lenoir observes, similar to other “operational” structures found in democracies. Transitional or Permanent Quotas?

Those who remain uncomfortable about gender quotas may find temporary or transitional quotas more acceptable. The idea that there is something inherently problematic in permanent quotas is captured in the provision in the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Article 4(1) states that the “Adoption by State Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination,” but, it continues, “these measures shall be discontinued when the objectives of equality of opportunity and equal treatment have been achieved.” If, however, the transitional is favored because it is believed that the process, once “kick-started,” will result after several years or several electoral cycles in lasting equality, then it is difficult to see the democratic defect in permanent quotas because the permanent and the transitional will achieve the same thing. One should be wary of treating constitutional structures as a means to an end, since to do so overlooks the fact that democratic constitutionalism is as much a process as an end point. We do not, for example, abandon elections or give members of government life terms, simply because the government of the day is particularly popular. Democracy

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is certainly a means to the greater public welfare and common good, but the good also includes the processes of democracy itself; democracy is both facilitative and a component of human enjoyment of the good. Whether to include a gender quota in a constitution or leave it to legislation may also be dictated by how much one accepts the proposition that quotas are, essentially, “operational” or structural aspects of democracy, requiring continuing protection. Notwithstanding CEDAW’s commitment to transitional measures, its preamble captures the link between continuous democracy and women’s representation. It states that the “full and complete development of a country, the welfare of the world and the cause of peace” require the “maximum participation of women on equal terms with men in all fields.” The transitional, thus, may become the permanent. The idea that quotas should be transitional also rests on the concept of the “critical mass,” that is, the theory that the election of women in sufficient numbers will eventually settle the legitimacy of their being in the legislature, and will mean that women will routinely be elected in more or less equal numbers to men in future. It also supposes that the impact of women representatives will, at a certain numerical point, be registered in a “feminization” of the political and in an embedded support for prowomen policies. This concept, as mentioned, is now seriously questioned by feminists, both empirically and theoretically. Sarah Childs, writing about the unprecedented number of women elected to the House of Commons in the United Kingdom in 1997 and 2001, suggests that it might be time to give up on the concept. Among other things, she writes, it abstracts women representatives from the political context in which they act, once elected.20 This observation also applies to questions about the constitutionalization of quotas, including whether quotas should be transitional or permanent. It reinforces the view that democracy is a process, not an end point. It is not merely about the individuals who take part in it; it requires not merely opportunities, but “opportunity structures.” These cannot be abandoned at any one moment, “critical” or otherwise. However, just as we cannot assume that the election of women will produce feminist politics, nor should we assume that gender quotas are automatically democratic or motivated by democratic objectives. As Aili 20

Childs, “The House Turned Upside Down? The Difference Labour’s Women MPs Made,” supra note 8, at 162.

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Mari Tripp shows, quotas can be found in some authoritarian regimes; they may also be employed (especially when they mandate reserved legislative seats) as a means of building up power bases for authoritarian party leaders.21 In considering the constitutional place of quotas as a mechanism for addressing the underrepresentation of women in legislatures, we need thus to treat quotas as only one piece among many in the whole democratic constitutional puzzle. The choice of quotas (and the form we want these to take) is also bound up with questions about the nature of representation. What do we mean by “representation”? What do we want from our representatives? Should they resemble us? Should they be our “mouthpieces” and follow our instructions? Or should they act independently in light of what they believe to be our welfare (so that it does not matter whether they are like us)? Should representation be “descriptive” or “substantive”? Can men “represent” women, or can women alone do so?22 Is the demand for gender equality in legislative positions a form of “identity politics,” competing with the politics of ideas and values? Are quotas designed, thus, to give us a particular type of representation? Or are they, as I have suggested, a democratic mechanism, like adult suffrage, structured to maximize participation in policy formation and law making, increasing the pool of democratic wisdom, and assuming nothing about the content of policies and laws? If so, everything points to constitutional entrenchment of permanent quotas, with constitutional provision for legislative support for their enforcement, for compliance, and for their effective operation. Electoral Systems

For all this, as Dahlerup notes, quotas will be ineffective where the electoral system is not “aligned” with the quota goal.23 Electoral systems are also important in their own right in contributing to women’s presence in a 21 22

23

Tripp, “The Changing Face of Africa’s Legislatures: Women and Quotas,” supra note 11. Anne Phillips offers what she calls “the politics of presence” as an alternative way of seeing women’s representation. Rather than specifically entailing the representation of women by women, as such, and assuming that this entails a particular type of representation, she considers the presence of women to add to the overall pool of perspectives and experience in a legislature. The Politics of Presence (Oxford, UK: Clarendon Press, 1995). Drude Dahlerup, ed., Women, Quotas and Politics, supra note 15.

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legislature. Those based on multimember, as opposed to single-member, electorates or constituencies – namely, proportional representation (in any of its varied versions) – are, all else being equal, known to increase women’s chances of election.24 There are a number of explanations for this correlation. In a single-member constituency, where electors must choose one winner from a number of candidates, the major parties (if unconstrained by gender quotas) tend to prefer male candidates, or, alternatively, men tend to offer themselves more frequently than women as candidates. The reasons are primarily cultural and historical, although there are some constitutional factors to be taken into account (discussed later in this chapter). In contrast, where more than one member is to be chosen at a time (assuming women’s equal eligibility to run alongside men), parties appear more willing to choose at least some women as candidates, even if they choose men at the same time. In multiple-member electoral systems, minor parties will commonly also have more of a chance of success than they have under a single-member system. Because minor parties are often more likely to select women candidates, the overall numbers of women elected to the legislature may increase. The question involves more than the choice between multi- or singlemember districts. It takes in different electoral systems as well. The “firstpast-the-post”/plurality electoral system in single-member constituencies achieves the election of the candidate who receives the numerical majority of primary votes. This is notably less favorable to women’s chances of being elected. The single transferable vote (STV), or preferential voting system, corrects the principal defect of first-past-the-post, which arises when a candidate whom the majority of voters did not want as their first choice wins. The STV allows second and subsequent preferences to be indicated in the act of voting, aggregating preferences and resulting, at least in principle, in the election of the candidate least disliked. This system allows minor parties to influence the outcome, but rarely gives minor party candidates a victory, and thus only has an indirect advantage to offer women candidates. Certainly, proportional representation emerges as the winner among the 24

The literature on this is summarized in Richard Vengroff, Zsolt Nyiri, and Melissa Fugiero, “Electoral Systems and Gender Representation in Sub-National Legislatures: Is There a National–Sub-National Gender Gap?” (2003) 56 Political Research Quarterly 163.

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electoral systems in facilitating the election of women. That is, all else being equal. However, as other things are rarely equal, this is far from the end of the story. Although the proportional electoral system found in Denmark, Norway, and Sweden may appear to explain these countries’ relatively high level of women legislators, Rwanda – the top-performing country for numbers of female representatives, as we have seen – has a first-past-the-post electoral system. Its winning performance is attributable to gender quotas and not to proportional representation. Nor, in reverse, can the proportional electoral system found in Brazil be easily reconciled with its small number of female legislators (8.2 percent). On its own, the electoral system is not sufficient if gender equity in representation is the goal. Elections will only produce women legislators if political parties list women candidates. In many cases (although not all), political parties – at least at present – will tend not to choose equal numbers of females and males as candidates unless they are forced to do so. So, should a particular electoral system be constitutionally entrenched if our goal is gender equality in legislative representation? On balance, there may be an advantage in leaving such details out of a constitution and allowing for greater flexibility and development in their design, as debates continue about what we consider “representation” to mean and as notions of representation evolve. Constitutional entrenchment creates rigidities, not only by making amendment more difficult in a technical sense, but also through establishing a normative hierarchy in which policies that are given constitutional (rather than legislative) recognition acquire priority, even sometimes normative inviolability. Entrenchment inhibits the evolution of values. Sometimes, of course, this is desirable, but only where there is clear consensus and clear evidence of the relationship between outcome and process or structure. With respect to gender equality, the correlation between a particular electoral system and a particular outcome is less obvious than is the case with gender quotas. The issues of quotas and electoral systems are, however, just one way of considering the problems surrounding women’s membership of the constitutional community. Although, as discussed previously, mechanical triggers such as gender quotas are often (although not always) successful in increasing the number of women in legislatures, they do not in themselves address

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a wider problem. Sufficient raw numbers of women may always be available to run for office and to fill quota-mandated seats, but if the pool of potential female candidates remains smaller than the male pool, then the raw numbers will, in themselves, be only a partial solution to the problem. Why, even where the chance of success is relatively high, do fewer women still want to take it? In championing gender quotas or “gender-friendly” electoral systems, are we ignoring the masculine character of legislatures themselves? House Rules

Legislatures have long been dominated by men, and not merely numerically. Legislative practices and structures are therefore likely to reflect, indeed incorporate, the assumption that the members are men. An analysis of the gender of representation, in other words, does not begin and end with processes of preselection or election. Quotas and electoral systems may closely affect women’s chances of becoming legislators in the first place, but once inside the legislature, women’s experience continues. This experience is recursively relevant to their election. Knowledge and anticipation of what it is like to serve as a member of the legislature are likely to impact women’s willingness to run and their personal orientation toward the legislature. For women to be full members of the constitutional community, the legislature itself needs to represent them, not merely to number them as representatives. The unwillingness of women to run for election has been principally explained through theories of socialization.25 Women, it is claimed, have been raised from early childhood with the socially constructed view that politics generally, and legislative roles specifically, are masculine, and that their own “natural” role in life lies outside these spheres. Such sociological explanations are undoubtedly correct in part, but what they do is focus on women’s incapacity, suggesting that women’s orientation is a product of false consciousness, that it is socially reflexive, rather than autonomous and rational. They suggest, also, that the appropriate response is for women to “correct” their orientation to politics and rid themselves of the disabling 25

See Lois DukeWhitaker, ed., Women in Politics: Outsiders or Insiders? (Upper Saddle River, NJ: Prentice Hall, 1999).

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ideas they hold. However, the extent of women’s representation in their country’s legislature, and thus their membership in the constitutional community, cannot merely be explained sociologically or epistemologically. These are structural and institutional issues. Rules, practices, and standing orders in a country’s legislature may assist or, alternatively, obstruct women’s representation. The rules, for example, may require members of the legislature to be absent from their homes for long, unbroken periods of time, or to sit in the legislative house or chamber late into the evening, even overnight. In the Australian House of Representatives, for example, Standing Order number 2926 sets out meeting and adjournment times that require members to be in the chamber (or available to be called at no notice to vote in the chamber) four nights per week during parliamentary sessions, including two nights a week until 9.30 pm, and a further night until 8.00 pm. Adjournment may, under some circumstances, be extended beyond this time. Parliamentary sessions are scheduled throughout the year, without regard for school holidays or other family timetables. In geographically large nations, travel to the national capital, where the legislature sits, may take many hours even by airplane, and the opportunity to return home during sessions is almost nonexistent, except for those who live in or near the capital itself. For many women, the prospect of working under such conditions, with long absences from their children and other family members, is sufficiently unappealing to prove a disincentive. These conditions are not merely unattractive; they also assume a culture in which the lives of politicians take place predominantly outside the home, indifferent to, and even contemptuous of, the daily realities of nurturance and sustenance. It is a culture of traditional, elite masculinity. It is not enough to respond that women’s involvement in law making would be facilitated by men’s taking a greater share in domestic responsibilities and/or by greater access to affordable child care. Certainly, such adjustments in domestic culture would help women in all areas of their lives. However, even if these adjustments were simple to achieve (which they are not), the problem of participatory disincentives cannot be solved without examination of the institutional variables. It is not in the interests 26

www.aph.gov.au/house/PUBS/standos/pdf/chapter5.pdf.

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of gender equity for institutional rules and processes to be perpetuated where these strain or subvert human relationships outside the institution, and where these systematically devalue family life, or only create genuine opportunities for the participation of those without families. These issues have been recognized institutionally in adjustments to some countries’ legislative timetables. In the new Scottish parliament (where women constitute around 37 percent of members), the daily hours of sitting are limited, with family responsibilities in mind. The parliamentary recess, during which no sittings or committee business take place, is linked to school holidays.27 How much are such practices relevant to constitutional provisions? In the Australian Constitution, Section 49 states that the “powers, privileges, and immunities” of the two Houses of Parliament shall be those of the House of Commons of the U.K. Parliament. This meant that at the start of its life, in 1901, the Australian parliament adopted British standing orders. The latter had evolved over a long period of time in a nonegalitarian society and were characterized by a culture of elite masculinism. They incorporated the assumption that a member of parliament was not just typically a man, but was analytically a man, with few daily commitments to the domestic, a man for whom the service of others was readily available and whose interests (in all senses of the word) lay predominantly in the company of similarly situated men. Although, under Section 50, the Australian parliament was constitutionally free to make its own rules and orders (and ultimately did so), the original entrenchment of tradition has served as a fetter on thinking about alternative parliamentary rules and practices, including through the lens of gender egalitarianism. This very fact, however, sounds a warning against entrenchment of detailed rules and practices. It is quite possible that the recognition of how rules and practices may serve or disserve women’s interests will itself develop and will progressively generate new demands, or identify new structural obstacles. Flexibility and openness may produce new values or allow the emergence of new understandings of structural impact. In pursuing 27

www.scottish.parliament.uk/home.htm. Also provided, among other initiatives, is a free cr`eche for the children of visitors to the parliament, the only facility of this kind in Europe. See also Fiona Mackay, “The Case of Scotland,” in Marian Sawer, Manon Tremblay, and Linda Trimble, eds., Representing Women in Parliament: A Comparative Study (London: Routledge, 2006).

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the goals of gender equity and agency, we must strike a balance between entrenching the fundamental norms or principles that are essential to the democratic processes and allowing flexibility in the detailed content of these norms. Elections, regular legislative sittings, and voting, among other things, are fundamental institutions built on foundational norms. By very definition, democracy requires these to be permanent, to be entrenched. One of the foundational norms of democratic constitutionalism is equality. This makes no sense unless it includes gender equality. A commitment to gender equity arises from the principle of equality. The institutions that are built on this foundational norm also need to be entrenched. However, flexibility with respect to particular legislative rules and practices will best serve this fundamental constitutional commitment. The South African Constitution provides a useful, analogous example in which a balance is struck. Section 57 (1) (b) states that the rules and orders concerning the business of the National Assembly should be made “with due regard to representative and participatory democracy, accountability, transparency and public involvement.” Here, the fundamental values of democracy are entrenched, to serve as a guide to detailed rules and orders of the legislature, allowing content to be given flexibly to the inflexible normative foundations. We might imagine a similar provision, built on the foundational norm of gender equity. It might, for example, be worded so that the rules and orders of the legislature should be made “with due regard to gender equality and equity, and the responsibilities of members in their family and domestic lives.” Women in Government

Even where the rules and practices of the legislature are gender friendly or where women are not otherwise discouraged, and even in cases where women occupy a relatively large number of seats in the legislature, a disproportionately smaller percentage of women is found in government offices. Accession to a ministerial portfolio is surrounded with difficulties for women. Appointment in a system of parliamentary government is frequently determined by the traditions or rules of the party in power, for example, by election from among the parliamentary caucus or by the

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choice of the party leader. The appointment of nonelected ministers or secretaries of state in a presidential system will commonly rest on the choice by the president (subject, inevitably, to lobbying and factional pressures). Both are likely to reduce the chance of women’s inclusion because of what might be called the “endogenous recognition rule,” whereby individuals making selections for appointments, including political office, recognize merit most readily in persons who resemble themselves. Where accession to office depends on the choice or preferences of those already in power, the culture will tend to perpetuate what is already entrenched. Are there constitutional solutions to such hurdles? A limited number of examples exist. The “Fundamental Principles” of the Rwandan Constitution (Chapter II, 4) include a commitment to “equality of all Rwandans and between men and women reflected by ensuring that women are granted at least thirty per cent of posts in decision making organs.” Article 40 of the Colombian Constitution 1991 states that “[a]ny citizen has the right to participate in the establishment, exercise, and control of political power . . . ” It also expressly stipulates that, “[t]o make this decree effective,” among other things, “[t]he authorities will guarantee the adequate and effective participation of women in the decision making ranks of the public administration.” This, Morgan and Buitrago suggest, “could be the new Constitution’s most significant provision with respect to women’s equality.”28 The principle of equal representation in the branches of government has been litigated in Costa Rica, where, in 1998, the Constitutional Court held in favor of a challenge against the failure of both the president of Costa Rica and the Legislative Assembly to include women candidates for political appointment to boards of directors of the Public Services Regulatory Authority.29 Nevertheless, gender quotas for governmental positions are a very novel idea, and – in contrast to electoral quotas – we have little empirically to 28

29

´ Martha I. Morgan and Monica Mar´ıa Alzate Buitrago, “Constitution-Making in a Time of Cholera: Women and the 1991 Colombian Constitution” (1991–1992) 4 Yale Journal of Law & Feminism 353, at 381–382. Ruth Rubio-Marin and Martha I. Morgan, “Constitutional Domestication of International Gender Norms: Categorizations, Illustrations, and Reflections from the Nearside of the Bridge,” in Karen Knop, ed., Gender and Human Rights (New York: Oxford University Press, 2004), at 136.

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draw on in assessing not only their effect in practice, but their desirability in a system of democratic constitutionalism. As an alternative, an express constitutional “reminder” may be more acceptable. Section 174. 2 of the South African Constitution provides a useful model from which to draw an analogous provision. It states: “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.” A similar provision for government positions might read: “The need for the executive to reflect the equal numbers of women and men in [the country] must be considered when executive officers are appointed.” Does a particular type of executive model contribute, structurally, to women’s greater or lesser chance of executive appointment? Paula Monopoli argues that the republican presidential system is inherently masculine and inhibiting of women’s ascension to office.30 Her argument is advocacy for a different style of authority, rather than a different model of government, but the two are closely connected. The parliamentary cabinet model has been recommended as a better alternative to the presidential system, for a more collegial form of governance, and for avoiding the “winner-take-all” scenario. It is, Arend Lijphart writes, optimal for power sharing in divided societies.31 The statistical and historical evidence does not support the conclusion that parliamentary systems are any more likely than presidential systems to produce women heads of government. However, if our concern is not merely to see women in positions of national leadership, but to see women represented in government, including in the institutional culture of governance, parliamentary government and “consociational democracy”32 may have the upper hand. As already noted, large architectural choices, as between presidential and parliamentary government, are rarely available, and so many systemic and institutional variables surround the governance models currently in 30 31 32

Paula A. Monopoli, “Gender and Constitutional Design” (2006) 115 The Yale Law Journal 2643. Arend Lijphart, “Constitutional Design for Divided Societies” (2004) 15 Journal of Democracy 96. Ibid, fn 1, at 107, describes this as a system of power sharing that has, as its “secondary characteristics,” proportionality and “a minority veto on the most vital issues that affect the rights and autonomy of minorities.” If we substitute “equal majority” for “minority” and conceptualize women’s voice in government as one that systematically contributes a perspective on women’s experience to policy (rather than a veto), we may find in this a useful parallel.

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practice in the world, that a meaningful conclusion about the better model for the goal of gender equity is beyond this discussion at least. With the exception of federalism (explored in Chapter 3) what we can do, or can do better at least, is to focus on the design choices that arise at the subarchitectural level, where common issues lie across the different models.

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6 The Constitutional Court

Women cannot achieve legal equality or exercise agency as members of the constitutional community unless they are able to own and enforce their country’s constitution on both sides of the bench, as judges on the constitutional court, as counsel appearing before the court, or as applicants seeking remedies for breaches. It goes without saying that gender neutrality in the rules of judicial appointment or in access to the courts, as well as broad equality rights, are important. On their own, however, these are superficial measures. Even where express constitutional provisions appear favorable, inadequate constitutional opportunity structures or adverse processes can obstruct women’s part in the justice system. Again, constitutionalized gender equity and agency require systemic attention. Getting on the Bench

There is no rule-of-law democracy (as far as I know) with a constitution that expressly or directly prohibits the appointment of women to the judiciary. Indeed, it would be very surprising, to say the least, if one did exist (these days). However, there are ways in which constitutional provisions may indirectly discriminate against women for appointment or inhibit their nomination to the judiciary. Even with no discernible constitutional limitations or inhibitions (express, implied, or apparent), a constitutional court on which no, or very few, women sit or have ever sat is a matter for concern; even more than this, it is constitutionally “suspect.” This, however, is the reality in most developed countries today. In contrast, women comprise close to, or even more than, half the law school 134

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graduates in such countries and have done for many years. For example, by 1991, in Australia, 52 percent of law graduates were women. In the United States in 1994, women represented 45 percent of the graduates, rising to 50 percent in 2002. The record is one of approximate equality in legal qualifications, yet inequality on the judiciary. Perhaps, as the “parity generation” of law school graduates becomes more senior, the judiciary will naturally become a parity microcosm. However, as we have seen with respect to female representation in the legislative and executive branches, natural evolution is far from reliable. Positive constitutional steps are needed. What then, is the constitutional record of opportunities for women’s judicial appointment? To explain why relatively few women currently sit on the constitutional courts of most countries would require a deep analysis of history and sociocultural influences. The explanation, that is to say, does not lie simply in constitutional opportunities. Nevertheless, a constitution’s provisions are important in either reinforcing the historical-sociocultural inhibitors or assisting in mitigating them. In designing a new constitution, one needs to understand, in particular, the indirect impact of constitutional provisions on recruitment and appointment of women judges. If women are to be adequately represented on their country’s constitutional court (meaning, broadly, the court or courts at whichever level where constitutional questions are decided), the means of selecting and appointing judges will be a critical consideration in framing a constitution with gender equity and agency in mind. A range of models for selection and/or nomination of judges can be identified across comparable countries, and several variables are to be found within these models. They include simple executive prerogative (with or without formal confirmation of the nominee), or nomination or appointment by a judicial committee. Recruitment, appointment, or confirmation may occur in private or public. In Australia and Canada, executive prerogative is exercised in the choice of judges for the constitutional court. In Australia, the attorney-general makes a recommendation to cabinet following statutorily required consultation with state attorney-generals and informal consultation in the legal community. He or she is not obliged to follow, or even take account of, this advice.

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In Canada, the prime minister makes appointments after informal but extensive consultation.1 Again, there is no formal obligation to follow advice; in 2006, however, a process was introduced whereby Canadian Supreme Court appointees are required to appear before a televised twelvemember parliamentary committee, not for confirmation, but (so it is said) to assist the prime minister in making a final decision. In the United States, executive prerogative lies only at the nomination stage. When a vacancy occurs on the Supreme Court, the president chooses a nominee, but is constitutionally required to obtain the “advice and consent” of the U.S. Senate for appointment to follow. In South Africa, appointments are made by the president, but the exercise of executive prerogative is limited. As required by the Constitution,2 a Judicial Service Commission composed of members of the judiciary, representatives of the profession, legal academics, and politicians, supplies names to the president for appointments to the Constitutional Court. Interviews of potential nominees may be conducted by the commission in public, with proceedings receiving media coverage.3 India provides yet another model. The Supreme Court of India itself plays a central role in appointments. Supreme Court judges are appointed by the president, in consultation with a collegium of the most senior justices.4 In weighing these alternative models, we should recognize that the process does not begin with nomination or appointment. Potential nominees must first be identified. The way in which this happens may structurally encourage or, alternatively, deter women, by exacerbating the structural inhibitors. Open-ended executive selection, as in Australia and the United States, where appointment or nomination is not governed by formal guidelines or rules (other than rules respecting formal eligibility), may encourage 1 2 3

4

Canadian Federal Court judges are chosen by cabinet on recommendation of the Minister of Justice, after private screening by judicial appointments committees. Section 174 (3) and (4). Saras Jagwanth and Christina Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa” in Beverley Baines and Ruth Rubio-Marin, eds., The Gender of Constitutional Jurisprudence (Cambridge, UK: Cambridge University Press, 2004), at 232. There are eighteen High Courts in India. Judges to these courts are also appointed by the president, in consultation with the chief justice of the Supreme Court and the governor of the relevant state.

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identification of nominees principally from within the pools known to the responsible executive member. A process that allows wide executive prerogative in the choice of nominees will encourage informal inquiries and consultation. What I called in Chapter 5 the “endogenous recognition rule” – the human tendency to recognize merit best among those similar to oneself – will encourage executive members to believe that those known to them, or highly regarded by those known to them, have greatest merit. This is not to imply that such appointments are nepotistic, but rather that the process itself does not encourage exploration outside a familiar group. In a constitutional system where executive officers are more likely to be male, as is the case in the majority of democracies today, executive nomination or appointment of members of the judiciary will thus be skewed toward selection of male candidates. This is not to overlook the fact that women currently sit and have sat on constitutional courts in systems where the executive plays a central role in choosing judges, including in the United States and Australia, but it is to suggest one institutional reason that may contribute to their relatively low numbers. A judicial committee or commission, as in South Africa, which has the role of compiling a list of potential names from which the nominating or appointing officer makes a choice, may appear to add no more value to the process than occurs when an attorney-general makes inquiries among leading legal figures, as in Australia, or senators ask probing questions during a confirmation hearing, as in the United States. What such a judicial commission can do, or do better, however, is to take a proactive role. For reasons that are both historical and enduring, women who are similarly situated to men will still tend to be more reluctant to promote themselves for potential high-level service.5 A commission can stand as a nonpublic buffer between the potential nominee and the appointing or confirming body, and in doing so, it can serve the function of persuading individuals who are qualified but otherwise reluctant to consider entering the pool of potential nominees. However, if a judicial commission or “collegium” is composed of existing judges, as in India, it may still follow the endogenous-recognition 5

Margaret Marshall, Chief Justice of the Supreme Judicial Court of Massachusetts drew my attention to the fact that this tendency operates even with respect to the most qualified and meritorious women in the legal profession.

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rule. It may do little either to enlarge its own perspective or overcome such reluctance. These issues serve to remind us that obstacles to appointment to the judiciary are not merely procedural, but also lie in the surrounding culture and extraprocedural practices. Ideally, a judicial commission may function, among other things, to encourage candidates to allow their names to be put forward. This, however, is only the start. We also need to consider the impact of scrutinizing candidates after they have been nominated (or identified as nominees), but prior to actual appointment. In the United States, as noted previously, the Constitution requires the president to obtain the “advice and consent” of the Senate in confirming the appointment of a nominee for the Supreme Court (and other federal courts). This has developed into a practice (not itself required by the Constitution) of conducting public hearings – indeed grillings – of nominees by partisan Senators. It has become a test of “nerve” and media competence as much as an examination of constitutional knowledge or judicial philosophy. The public/televised examination, however, does not stop here. Before and during the confirmation hearings, both the media and lobby groups are highly active in scrutinizing, reporting, denigrating, or promoting the nominee, both in the regular media and in paid advertisements. Searches of the nominee’s personal background are undertaken by opponents, many of them hopeful of turning up something morally or personally discreditable. This process “affects who is willing to put their name forward for consideration and who the President and his advisers decide to put through the appointments crucible.”6 To hold concerns about the gender impact does not require the conclusion that women are more timid or less capable of handling the media. Although two female judges – Sandra Day O’Connor and Ruth Bader Ginsberg – have “survived” confirmation and gone on to serve on the U.S. Supreme Court, the experience of another woman, Harriet Miers, is cautionary. White House Counsel, Miers was nominated in 2005 by President George W. Bush, to fill the vacancy created by O’Connor’s retirement. The nomination was highly controversial. Intense criticism in the media and questioning in legal circles culminated, 10 days before confirmation hearings were due to begin, in Miers’s request to the president to withdraw her nomination. 6

Claire Heureux-Dub´e, “Outsiders on the Bench: The Continuing Struggle for Equality” (2001) 16 Wisconsin Women’s Law Journal 15

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Most of the criticism leveled at Miers quite reasonably concerned her legal competence and experience, especially in the area of constitutional law. It was, in this respect, little different from what might occur with any nominee. However, comments and reports went beyond this. Bush had once described Miers as a “pit bull terrier in size 6 shoes.” Jokes about her shoes were added to comments about her appearance. It was said by some, for example, that she looked “old” and “unattractive.”7 Although the appearance of male nominees does not go without comment, it is difficult to believe that responses would have been similar had the nominee been a man. One need not imagine that Miers withdrew because of such criticism in order to feel uneasy about the prospect of similar scrutiny on potential women nominees. As we have seen, public scrutiny of candidates, albeit of a lesser degree, also occurs in South Africa and now in Canada. These processes may serve a useful function, especially in educating the public about the court and about constitutional matters broadly. Among comparable countries, Canada currently has the highest ratio of female to male judges on its constitutional court. It also has a woman chief justice. It is too soon to tell whether the 2006 Canadian innovation will have a traceable impact on the gender of the Canadian Supreme Court. From the current proportion of women on relevant constitutional benches, we cannot conclude one way or another whether public hearings are a general disincentive to women candidates.8 What may be significant, however, is public scrutiny that takes place in a party-political setting, within an adversarial, partisan process. This occurs in the United States where Republican and Democratic senators take turns questioning the nominee during confirmation hearings. Partisan confirmation is an invitation to politicize appointments and to open them to scrutiny going well beyond the nominee’s judicial potential. In the current culture of courts in virtually all countries, women who sit on the bench are treated as “outsiders”; they are seen as judicial “interlopers” and expected to demonstrate their credentials and “prove that they have earned their 7 8

I heard such comments personally while living in the United States during the period of Miers’s nomination. The South African Constitutional Court currently has three women members out of eleven; the Canadian Supreme Court, four out of nine; the U.S. Supreme Court, one out of nine; Australia, two out of seven; India has none.

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appointments” in a way that is not expected of men.9 Partisan or personal scrutiny has the potential to reinforce, if not deepen, this culture. Whatever the process, constitutional provisions that remind the appointing officer or body to think more widely about what constitutes merit, or that require them to look beyond their own circles, will be valuable. Women may thus come onto the nomination radar. Section 174.(2) of the South African Constitution (as we saw in Chapter 5 with respect to executive appointments) may serve as a useful model: “The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.” Other rules or practices in appointment may have a gendered impact. For example, recruitment on the basis of seniority in the legal community or in the judiciary is likely to disadvantage women as long as there are fewer women already in senior legal positions. In India, where seniority among serving High Court judges is a central qualification for appointment to the Supreme Court, no women have been appointed, and “at present few women have sufficient seniority to be considered.”10 Rules surrounding tenure on the bench, although neutral on their face, may have a disparate gender impact. If seniority, either as an express or informal rule, is a core criterion for appointment to the court, so long as women rise to senior positions more slowly than men, short periods of appointment or early retirement rules for serving judges may disadvantage women. Australia has the youngest retirement age among the examples we are considering. Under Section 72 (iii) of the Constitution, all federal court (including High Court) judges must retire at age 70. Three women only have been appointed to the seven-member High Court of Australia since its establishment in 1903. Justice Mary Gaudron, the first, appointed in 1987 at the relatively young age of 44, retired early, leaving the Court in 2003. (Justice Susan Crennan was appointed in 2005 at the age of 60, and Justice Susan Kiefel in 2007 at 53. Both are currently serving.) The Canadian retirement age of 75 for Supreme Court judges has been reached by only one woman, Justice Claire L’Heureux Dub´e, of the three 9 10

L’Heureux-Dub´e, “Outsiders on the Bench: The Continuing Struggle for Equality,” supra note 6, at 21. Martha C. Nussbaum, “India, Sex, Equality and Constitutional Law,” in Beverley Baines and Ruth Rubio-Marin, eds. The Gender of Constitutional Jurisprudence (Cambridge, UK: Cambridge University Press, 2005), at 175.

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who have retired from the total of seven who have served, or are currently serving on the Court. Justice Bertha Wilson, the first to be appointed (in 1982), left the Court before turning 75, as did Justice Louise Arbour, who left in 2004 at the age of 57. Setting a retirement age will require a balance between opportunities for individual appointment and opportunities for judicial development. In a system with a late retirement age or life tenure, “turnover” is slow. Under the U.S. Constitution, Supreme Court judges may stay on the Court for life if they choose.11 Only two women have ever been appointed to the nine-member Court in its life of more than two centuries. Open-ended tenure means that, absent early retirement, judges appointed in a long-gone era will continue to shape their country’s constitution when the standards and values of the past have significantly changed. This goes for women appointees, of course, just as it does for men. However, women’s equality is a relatively recent public value and it remains far from accomplished. Elderly judges may well be capable of accepting new and evolving standards or of bringing their own approach up to date (including with respect to gender equality), but feminists cannot be complacent about this. The South African Constitution addresses the balance between individual life opportunity and judicial turnaround. Section 176 (1) provides for a retirement age of 70 years or a maximum nonrenewable 12-year term for Constitutional Court judges.12 Is there a lesson we can draw, so far, from these alternative models to derive an optimal form of constitutional design respecting appointment to constitutional courts? The raw numbers are too small, on their own, for us to draw a clear conclusion. In principle, however, a nonpartisan judicial commission, charged with thinking about gender equality in its choices of nominees, is most likely to be productive. In contrast, partisan public scrutiny in either selecting candidates or confirming appointment is a matter of concern; it may have the tendency to reinforce the expectation that an extraordinary demonstration of worth is needed of women judges. In such a process, “worth” is more likely to be measured by hegemonic standards deriving from a legal culture dominated by men. 11 12

By legislation, they may retire with a salary at age 70 after 10 years of service or at age 65 after 15 years of service. With provision for an Act of Parliament to extend the term of a constitutional court judge.

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The experience of women who appear before the court as legal practitioners supports this observation. In her analysis of the difficulties facing women on the judiciary, Wilson has drawn on the work of Dianne Martin, who argues that it is easier for women counsel to appear before women judges.13 Thus, once women judges appear in great numbers on the bench, the pressure on the women who appear before them as counsel to demonstrate extraordinary merit is likely to be tempered. This may, ultimately, filter through to the judicial culture, as women who start out as counsel come to be appointed judges. Again, a constitutional “reminder” to consider gender balance in judicial appointment may assist. The Judicial “Voice”

There is a long and intense epistemological and psychological debate in feminist literature over whether women and men have different ways of knowing, thinking, and speaking,14 and if so, whether this makes a difference in institutional and legal decision making.15 With respect to judicial roles specifically, the question of whether women “perform” differently from male judges remains without a conclusive answer, although women judges themselves tend to suggest that some degree of difference is evident. Wilson, for example, asks whether “women judges really make a difference.”16 She concludes that there are some areas of law “on which there is no uniquely feminine perspective” and others – in particular, criminal law – where a distinctly male perspective is evident.17 She finds merit in the view that women are more attuned to context, relationships, and complexity, and suggests that evidence for this can be found in the judicial records of U.S. Supreme Court Justices Sandra Day O’Connor and Ruth Bader Ginsberg. The woman’s perspective, Wilson concludes, is particularly relevant to “the universalistic doctrine of human rights,” which 13 14

15 16 17

Madam Justice Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28 Osgoode Hall Law Journal 507, at 518. The theory of difference in “voice” is associated in particular with the writings of Carol Gilligan, who identifies an ethic of care as its defining quality: In a Different Voice: Psychological Theory and Women’s Development (Cambridge, MA: Harvard University Press, 1982). Heather Elliot summarizes much of this literature in “The Difference Women Judges Make” (2001) 16 Wisconsin Women’s Law Journal 41. Wilson, “Will Women Judges Really Make a Difference?,” supra note 13, at 511. Ibid., at 515.

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“must include a realistic concept of masculine and feminine humanity regarded as a whole.”18 Women may thus be able to “bring a new humanity to bear on the decision-making process.”19 Some 14 years after Wilson’s appointment, Elizabeth Halka found that Wilson’s own judicial record supported this conclusion. In Halka’s view, Wilson’s judgment in the landmark case R v. Morgentaler (discussed in Chapter 8) was the clearest example of a “different epistemological voice” in Canadian jurisprudence.20 The male members of the Supreme Court majority struck down impugned legislative restrictions on access to abortion on the grounds that these were procedurally offensive to the rights to life, liberty, and security of the person guaranteed by Section 7 of the Charter of Rights and Freedoms. In contrast, Justice Wilson, although concurring with the decision, held that the restrictions substantively breached women’s rights. They did not only restrict a woman’s liberty in decision making, but also interfered with her personhood by treating her as “as a means to an end which she does not desire but over which she has no control,” thus violating “human dignity and self-respect.”21 In reaching this conclusion, Halka observes, Wilson placed the moral dilemmas surrounding abortion in the context of the pregnant woman’s subjective experience. In this, as well as in other judgments, she “inject[ed] a new humanism and contextualism to the decision-making process of the Supreme Court of Canada.”22 Claire L’Heureux-Dub´e, the second woman appointed to the Supreme Court of Canada, finds that women “have certainly made a difference on the bench: especially in areas such as family law, children’s law and sexual assault.”23 Justice Ruth Bader Ginsberg, delivering her U.S. Supreme Court inauguration speech, also questioned whether “women judges decide cases differently by virtue of being women”; she concluded that they contribute to “a distinctive medley of views influenced by difference in biology, cultural impact, and life experience.”24 Kathryn Mickle Werdegar, Justice of the 18 19 20 21 22 23 24

Ibid., at 521. Ibid., at 522. Elizabeth Halka, “Madam Justice Bertha Wilson: A ‘Different Voice’ in the Supreme Court of Canada” (1996–1997) 35 Alberta Law Review 242, at 253. Wilson quoted in Ibid., at 255. Ibid., at 265. L’Heureux-Dub´e, “Outsiders on the Bench: The Continuing Struggle for Equality,” supra note 6, at 30. Ginsburg quoted in Sandra Berns, To Speak as a Judge: Difference, Voice and Power, (Aldershot U.K., Ashgate 1999), fn 89, at 199.

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Supreme Court of California, also finds that the “different voice” theory of judging is borne out by her experience in the context of cases that especially affect women: sexual assault, domestic violence, and family relationships.25 Whether this difference in women’s life experience will lead women judges to a particular result, she comments, is a separate question. Empirical studies in the United States have produced mixed results, but have tended to support Werdegar’s perspective. They reveal little genderbased difference in case outcomes in many areas of law. However, a correlation between the gender of the judge and outcomes in employment discrimination cases is “fairly well documented,” Theresa Beiner notes, and women’s experience plays a direct role in recognizing such discrimination.26 Not all feminists embrace such conclusions. Heather Elliot challenges the “feminine voice” theory as itself resting on gender stereotypes. She emphasizes, instead, gender difference in experience.27 Sandra Berns also rejects the application of the theory to the act of judging. The language of the law, Berns writes, “is explicitly the language of justice rather than care.”28 Drawing on the work of Martha Fineman,29 Berns also emphasizes experience (potential and actual) as the differentiator between women and men and the source of different perspectives, rather than a difference of essence. A jurisprudence of context30 fits with this emphasis on difference in experience. Susan Williams argues that much of the U.S. Supreme Court’s jurisprudence embodies a (white, male) “universalist assumption” of knowledge and truth, unaltered by context.31 The feminist challenge to this view, 25 26 27 28 29

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Kathryn Mickle Werdegar, “Why a Woman on the Bench?” (2001) 16 Wisconsin Women’s Law Journal 35. Theresa M. Beiner, “Female Judging” (2004–2005) 36 University of Toledo Law Review 821, at 824. Elliot, “The Difference Women Judges Make,” supra note 15. Berns, To Speak as a Judge: Difference, Voice and Power, supra note 24, at 197. Martha Fineman, “Feminist Legal Scholarship and Women’s Gendered Lives,” in M. Cain and C. B. Harrington, eds., Lawyers in a Postmodern World: Translation and Transgression (New York: New York University Press, 1994). Suzanna Sherry, “Civic Virtue and the Feminine Voice in Constitutional Adjudication” (1986) 72 Virginia Law Review 543, at 543. Sherry makes an express distinction between “feminine” and “feminist” thinking. See also, Susan H. Williams, “Feminist Theory and Free Speech Theory” (1993–1994) 68 Tulane Law Review 1563, who distinguishes between the “feminine” republican phase of early constitutionalism in the United States, and the “masculine” individualist liberalism of the phase postdating the ratification of the Bill of Rights in 1791.

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Williams writes, involves recognition that knowledge is socially created and shaped by cultural context. Legal doctrine and legal categories have often failed to acknowledge these aspects of experience and forms of knowledge. The law assumes unattainable epistemological neutrality and a single interpretive perspective. Questions of constitutional validity, Williams concludes, should not be answered with a decontextualized standard or rule, but require an examination of the context in which the impugned law operated. These debates cannot be overlooked, but it does not fundamentally matter to mechanisms for appointment and tenure whether women judges should be appointed because they bring different experiences to the bench or simply because the goal of equality requires equal access to positions of power. The constitutional significance lies elsewhere. Methodologies of constitutional interpretation rather than expected outcomes are the issue. In the context of a general agreement that the judge’s experience is relevant to her (or his) approach to judging, as well as a recognition that the part played by personal experience is not incompatible with the goal of justice, we should seek a methodology that permits experience to enliven and enrich interpretation, so that the constitution better serves justice. I suggested in Chapter 2 that, of the recognized approaches to constitutional interpretation, a purposive approach – one that brings together the “framers’” original purpose with an understanding of the way in which that purpose may be served in the present, and takes into account the impact or outcome of the individual law in doing so – supports the feminist constitutional project best. The value of drawing on women’s experience on the judiciary is consistent with this methodology. Justice does not automatically require that women applicants should be vindicated and their grievances remedied. Nor does it require the test of reasonableness to be abandoned. It does, however, rest on a full understanding in light of the constitution’s own purpose, of the context and circumstances – subjective and objective – in which the purported breach of the constitution was experienced. Standing

Justice in the courts involves a relationship between those sitting at the judicial bench and those appearing before it. Rules of standing (locus standi) govern the recognition by a court of a person as a competent party to bring

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an action. These rules determine who may and who may not initiate a legal process in a court, with confidence that their claims will be heard. Standing rules are usually expressed in gender-neutral language, but their impact is not neutral. They may facilitate, or alternatively, obstruct women’s access to justice as an aspect of gender equity and agency. The ability to bring an action before a constitutional court, alleging breach of a constitution or challenging the constitutional validity of legislation or executive action, is central to the effectiveness of constitutional powers. A constitution, even one that is exemplary in other respects, will have little effect if the ability to enforce it is limited. Equity in access to the other side of the bench – as applicants (to use a generic term) – is essential for women’s full membership of the constitutional community. The history of standing underscores this point. Historically, women (sometimes only married women) were treated as “persons who lacked the capacity to appear and sue or defend in court.”32 They shared this incapacity with minors (and others, such as slaves). In other words, standing arose from personal identity or status. Lack of standing was not merely a barrier to bringing a suit; it signified exclusion from the judicial or constitutional community. From the late eighteenth century, standing generally shifted to a test of “interest” in a legal dispute and involved the identification of aggrieved individual persons as the proper parties to bring an action. Gradually, women came to be included among such persons. It is noteworthy, however, that it was not until the twentieth century – in some cases, well into the twentieth century – that service as jurors was available to women. Thus, even in constitutional democracies, exclusion from the judicial community on the ground of gender was practiced until relatively recently. It should not be assumed, however, that standing is now “gender neutral.” The gendered character of rules or tests for constitutional standing should be assessed along several lines: with respect to the applicant acting for herself, the applicant acting on behalf of women as a class, and the intervener or amicus curiae who supports the applicant or extends the scope of her action. Whether a fetus or a child in utero has standing separate from the mother will also be important. 32

Neil H. Cogan, “‘Standing’ before the Constitution: Membership in the Community” (1989) 7 Law and History Review 1, at 5.

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A narrow test confines standing to persons (natural or corporate) who have a direct economic or material “interest” in the matter or who (as in the United States) have suffered “concrete and particularized” and “actual or imminent” injury.33 That is, a narrow test confines standing to a person who has directly and personally suffered tangible adverse consequences from the law or from another party’s conduct.34 The definition of personal may itself be problematic, even where no demonstration of economic or material adversity is required. The Unity Dow case35 (discussed in Chapters 4 and 7) concerned the claim that the Botswana Citizenship Act breached, among others, the Botswana Constitution’s provisions for gender equality, in permitting transmission of citizenship to children in a marriage through the father alone. Because Unity Dow’s husband was an American citizen, their children could not be Botswana citizens. At the start of the case, the respondent, the attorney-general of Botswana, argued that Dow had no standing to bring this action. Section 18 of the Botswana Constitution gives standing to any person who alleges an actual or apprehended contravention of the Constitution in relation to that person him- or herself. The relevant persons, it was claimed, were the children whose citizenship status was at issue, not their mother. Dow, the attorney-general said, had suffered no personal injury, “nor does she apprehend any, arising out of the Citizenship Act. In fact she is not touched personally by the Act at all.”36 Happily, in the Court of Appeal, Judge Martin Horwitz rejected this argument. To treat Dow as having no personal interest in the issue, he said, overlooked “the important and fundamental fact that having her children declared aliens in her land must obviously affect a mother.”37 A broad test of standing would not define “interest” as purely material; nor would it require the applicant personally to have suffered adverse 33 34

35

36 37

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The plaintiff must have suffered or will suffer an injury: City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Exceptions to the nonrecognition of third-party standing in the United States include: where the injured party is unable or unlikely to be able to sue; where there is a close or intimate relationship between the third party and the injured party; First Amendment challenges; and associations bringing claims on behalf of their members, subject to certain limitations. Erwin Chemerinsky, Federal Jurisdiction, Fourth Edition (New York: Aspen Publishers, 2003), at 83– 88. Unity Dow v. Attorney-General, High Court. Attorney General v. Unity Dow, CA No. 4/91 Court of Appeal. Both unreported, published by Unity Dow, 1995: www.law-lib.utoronto.ca/ Diana/fulltext/dow1.htm. (‘Unity Dow Case’) Unity Dow Case, Ibid., at 14. Ibid., at 37.

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consequences. Where rules of standing are very broad, the different roles or capacities – applicant in person or applicant acting on behalf of another – are effectively covered by the same test. The broader the test for standing, the greater the opportunity for those who suffer disadvantage to seek legal redress and, by extension of this principle to the class of persons who disproportionately suffer disadvantage, the greater the opportunity for women. Where standing is not confined to material or economic interest, those with little property (as women tend to be, compared to men), but whose interests may be nontangible or whose disadvantage may arise from the lack of property, will not (at least a priori) be excluded from seeking legal redress. More important, where standing is not confined to the sufferer in person, but extends to persons acting on her behalf, those with greater resources – financial, intellectual, and contextual – will be able to support a petition alleging violation of rights or breach of the constitution that might otherwise remain unaddressed. Indeed, the likelihood of a person’s suffering deprivation of rights is, in many cases, inversely related to the capacity to bring an action to assert this. Constitutions do not often expressly make provision for rules of standing regarding constitutional controversies. These rules are more commonly found in the common law or in legislation. There are some exceptions. Section 38 of the South African Constitution lists those persons who have “the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened.” These are a) persons acting in their own interest; b) persons acting on behalf of another who cannot act in their own name; c) anyone acting as a member of, or in the interest of, a group or class of persons; d) anyone acting in the public interest; e) an association acting in the interests of its members. Section 167 (6) states that national legislation or the rules of the Constitutional Court “must allow a person, when it is in the interests of justice and with leave of the Constitutional Court” to bring a matter directly or on appeal to the Court. Section 172 (2) (d) provides that a person with “sufficient interest” can appeal or apply directly to the Court for an order of constitutional invalidity.

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The Canadian Charter also expressly sets out a very broad test for standing. Section 24 (1) gives to “[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied” the right to apply to a court for redress. The Supreme Court, furthermore, has discretion to allow standing for parties who do not have a direct interest in the controversy before the Court. In addition, it permits parties who are not directly affected by legislation to bring an action alleging constitutional invalidity of legislation. In a case regarding a challenge to the Canadian Criminal Code’s provisions for abortion, the Court held that as long as there is a serious issue as to the validity of the legislation a “person need only to show that he [sic] is affected by it directly or that he has a genuine interest as a citizen in the validity of the legislation and that there is no other reasonable effective manner in which the issue may be brought before the Court.”38 The more accessible a court, the more likely it is to create opportunities for the underprivileged to pursue claims. In Costa Rica, where the rules of standing and other rules of court have recently been amended to “create one of the most open constitutional courts in the world,” the court is open 24 hours a day, all year, with one magistrate always on duty. Anyone, regardless of citizenship, age, or other classification can file a case. Legal representation is not required, and there are no filing fees.39 “Weak, marginalized groups do not require financial support, collective action, or political allies, since they need not engage in long, expensive legal battles.”40 The judicial recognition of interveners is also an important element in achieving equity in access to justice. Interveners seek to protect their interest where it is perceived to be different from the interest of the parties in an action or where it requires an alternative perspective, by becoming joined with cases they have not, themselves, initiated. (They are to be distinguished from amici curiae, or “friends” of the court, who have no personal interest, but assist the court with information.) In the United States, as in Australia, interveners must have a direct interest or be substantially affected by the issue. In Canada, interveners (including the Legal Education Action Fund [LEAF]) have played an important role in gender equality cases. There 38 39 40

Minister of Justice of Canada v. Borowski [1981] 2 S.C.R. 575. Bruce M. Wilson, “Claiming Individual Rights through a Constitutional Court: The Example of Gays in Costa Rica” (2007) 5 International Journal of Constitutional Law 242, at 243. Ibid., at 256.

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standing granted to persons seeking intervener status is broad, but in recent times it has become more restrictive. The Supreme Court “has begun to insist interveners must contribute something new, and not simply reinforce arguments by parties.41 The intervener, broadly, should not be a “mere busybody.” The role of intervener adds perspectives that are otherwise unavailable and, thus, may assist the pursuit of justice. In most cases, it serves the interests of justice for the full picture of injury or damage to be given, for the courts to learn of the relevant experience of many persons, and for support to be given to those less able to bring or defend an action. Interveners, Wilson suggests, are valuable in assisting the social contextualizing of the law in purposive interpretation: “These groups have given the Court the benefit of their firsthand experience of the hurdles they face in our society.”42 The recognition of interveners is usually a matter for judicial discretion, or for the rules of court (sometimes found in legislation), rather than provided for in a constitution. However, where constitutional rules of standing are very broad, these will extend to persons other than the parties. The South African constitutional provision that grants standing with respect to the Bill of Rights extends to many types of person. As we have seen, among those who may approach the courts, those acting on behalf of another or in the interest of a group or class of person are included. Disadvantages in Broad Standing

The general principle that broad or liberal rules of standing assist the weak or disadvantaged is not unqualified. The potential for standing to be sought by groups motivated by animosity toward the applicant43 must also be borne in mind. Stronger or better-resourced opposing parties (including opponents of gender equity) will also have access to the courts, even where they have no personal interest in a relevant matter. 41

42 43

Beverley Baines, “Using the Canadian Charter of Rights and Freedoms,” in Beverley Baines and Ruth Rubio-Marin, eds., The Gender of Constitutional Jurisprudence (Cambridge, UK: Cambridge University Press, 2005), fn 32, at 53. Bertha Wilson, “Women, the Family, and the Constitutional Protection of Privacy” (1992) 17 Queen’s Law Journal 5, at 8. Matt Handley, “Why Crocodiles, Elephants, and American Citizens Should Prefer Foreign Courts: A Comparative Analysis of Standing to Sue” (2002) 21 The Review of Litigation 97.

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For example, in Ireland in 1988, the Society for the Protection of the Unborn Child (SPUC) was granted standing (in a relator action44 ) concerning abortion rights.45 SPUC was required to have “no greater interest in the action than that of a member of the public.”46 The broad test for standing thus gave opponents of women’s rights equal access to the courts and an equal opportunity to obstruct the case. A narrower test for standing may filter out the “busybody,” including those whose interest is indirect or purely ideological. In the 2002 Australian case of McBain,47 the federal attorney-general initially granted standing to the Australian Catholic Bishops Conference to bring an appeal to the High Court against a federal court ruling that state legislation prohibiting doctors from providing in vitro fertilization services to single women was unconstitutional.48 The High Court rejected the claim for standing, on the grounds, among other things, that the Catholic Bishops Conference was not an “aggrieved party” in the case. No rule of exclusion, however, can be drawn from these examples. Constitutional processes open to some members cannot be used to exclude access to others. “Ideological” or indirect interest is not necessarily improper. It would be unreasonable (not to mention strategically risky) to advocate a test for standing that recognized “profeminist” groups, but simultaneously denied standing to opponents. What is critical here is the total constitutional picture. If a constitution is designed with gender equity and agency among its core goals, and includes provisions for equality rights, personal freedoms, privacy, and dignity (among others), then broad rules of standing will support this goal. Certainly, these provisions will 44

45 46 47 48

“An action commenced by the Attorney-General, at the request of a member of the public who does not have standing to sue, to give effect to the public interest in having laws enforced.” Butterworths Australian Legal Dictionary (1997), at 1005. Att. Gen. (SPUC Ltd) v. Open Door Counselling Ltd and Dublin Well Woman Centre Ltd [1988] IR 593. Noel Whitty, “Law and the Regulation of Reproduction in Ireland: 1922–1992” (1993) 43 University of Toronto Law Journal 851. Meskell v. CIE [1973] IR 121. Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 324. It was ruled unconstitutional for inconsistency with a federal act, the Sex Discrimination Act of 1984 (Cth) that prohibits discrimination on the grounds of, among others, marital status: under Section 109 of the Australian Constitution, state laws that are inconsistent with federal laws passed in the exercise of concurrent powers are invalid to the extent of the inconsistency.

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create opportunities for both the well-resourced applicant and the weaker applicant to bring an action, but they will not be content neutral. We also need to recognize that broad rules of standing – based, for example, on a simple demonstration of “sufficient interest” – may give wide scope for judicial discretion in recognizing an applicant. Richard Pierce argues that this translates, at least in the United States, into a reality that “judges provide access to the courts to individuals who seek to further the political and ideological agendas of judges.”49 If the previous conclusion is correct that women judges are more contextor experience-oriented in their approach to law, it may be that female judges are able to recognize “interest” in a constitutional matter more broadly than male judges, and thus be less influenced by their own political or ideological agenda. However, if Pierce’s analysis is accurate, this suggests that the judge’s political orientation is the most likely determinant in the grant of standing. Is there a way of circumventing discretion that is potentially restrictive of women’s access to standing (at least in a context where male judges and conservative outlooks dominate)? Would, for example, the case of Doe v. Wade (a companion case to the leading abortion rights case of Roe v. Wade50 ) have been decided differently under a broader test for granting standing? “Doe” challenged laws restricting access to abortion on the grounds that she feared the detrimental effect of a future pregnancy where she had no recourse to legal termination. She was denied standing. Her claim, the Supreme Court held, did not lie in a concrete injury, but in a hypothetical injury, one that was not judicially cognizable, and did not fall under the constitutional category of “cases and controversies.” Measuring a justiciable or “cognizable” injury in this way – as an “injury in fact,” as something that must have already happened – is problematic, in particular, when it comes to women’s experiences. The reality is that, as things stand, women, more than men, must organize (and often restrict) their lives around the need to prevent adversity or harm. They must routinely take measures to avoid pregnancy or sexual harassment or assault. They must anticipate these experiences, not as a reasonable matter of risk management associated with the human condition, but as a consequence, 49 50

Richard J. Pierce, Jr, “Is Standing Law or Politics?” (1998–1999) 77 North Carolina Law Review 1741, at 1742. Roe v. Wade, 410 U.S. 113 (1973).

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often tragic, of simply being female. Inaction on the part of governments in providing support or failing to reduce the necessity of individual prevention, will compound the anticipated injury or disadvantage. This was the reality faced by “Doe.” Where the injury is anticipated, and where the responsibility of the party against whom an action is brought lies in inaction, those most vulnerable to the effects of inaction – that is, those who are often not able to take action on their own behalf or demonstrate that their injury is particular to their person – may have difficulty establishing standing. Although this experience is far from one confined to women, standing jurisprudence in the United States has thrown up a number of cases where injuries common to women have been denied judicial recognition. For example, in a class action representing mothers of ex-nuptial children, a woman sought the enforcement of a Texan statute that punished fathers for failing to support their children.51 Rejecting her claim, the Supreme Court held “that the plaintiff had not alleged a sufficient nexus between her injury and the government [in]action she was attacking”; the relief she sought (support payments from her child’s father) was “speculative” because enforcement would only result in imprisonment.52 In United States v. Morrison53 (discussed in Chapter 3), the claim was made that federal legislation permitting private actions for gender-motivated violence legitimately regulated (interstate) commerce by addressing the fear of sexual assault that served to inhibit women’s participation in economic activity. It was unsuccessful. Here again the experience of lack of legal enforcement was reinforced by a failure to recognize a type of class injury or harm common to women: passive or anticipatory harm, compounded by constitutional nonrecognition.

Remedies

Remedies for official inaction are not unfamiliar in law. The writ of mandamus, ordering a public officer to perform his or her duty, provides a longestablished, comparable example of a remedy for inaction or nonfeasance. 51 52 53

Linda R. S. v. Richard D., 410 U.S. 113 (1973). Jerry W. Markham, “Standing in the Political Arena” (1980–1981) 45 Albany Law Review 932, at 936. United States v Morrison 529 U. S. 598 (2000).

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Some constitutions (for example, the Australian Constitution, Section 75 (v)) entrench the constitutional courts’ power to issue such a writ. Article 32 (1) of the Indian Constitution goes further with respect to inaction. It provides that “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by [the relevant part of the Constitution] is guaranteed.” This, Martha Nussbaum writes, “creates a remedy for non-enforcement of rights . . . [that] has proven valuable to women, especially in the area of sexual harassment.”54 The remedies available will often be tied to the tests for standing; indeed, the grant of standing may depend on the identification of a remedy. Where remedies are primarily personal and are required to be quantifiable, public interest litigation enforcing the constitution may be seriously limited.55 Relevant nonmaterial remedies, such as injunctions, certiorari, mandamus, and prohibition, and, most important, declarations of rights, will broaden legal opportunities to enforce the constitution, and may even have an “empowering” effect. In addition to declarations of invalidity, a further range of nonmaterial remedies is available to the South Africa courts. These include declaratory orders, mandatory orders (requiring governmental action), structural interdicts (requiring governmental reporting on programs that have been mandated), and “reading in” to legislation those persons who are, on the face of the law, not otherwise included among the class entitled to a benefit or a right.56 In Canada, there is the right to challenge the constitutionality of a statute, even where applicants “are not themselves impacted by it,”57 and even where “the only relief sought is a declaration that a statute is invalid.”58 Even without progressing to a hearing, the right to petition a court, as Nussbaum points out with respect to the legal system of India, can be valuable: “The Court receives thousands of petitions and hears only a tiny fraction of them. Nonetheless, the right has been important to women.”59 54 55 56 57 58 59

Nussbaum, “India, Sex, Equality and Constitutional Law,” supra note 10, at 197. Erwin Chemerinsky, Constitutional Law: Principles and Policies 2nd ed. (New York: Aspen Law & Business, 2002). As in Khosa and Others v. Minister of Social Development CC12/03. Baines, “Using the Canadian Charter of Rights and Freedoms,” in Baines and Rubio-Marin, eds, The Gender of Constitutional Jurisprudence, supra note 41, at 51. Peter W. Hogg, Constitutional Law of Canada (Toronto, Ontario, Canada: Carswell, 1997), quoted in Baines, Ibid. Nussbaum, “India, Sex, Equality and Constitutional Law,” supra note 10, at 178.

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What are the remedies, if any, for socioeconomic inequalities or deprivation of constitutionalized socioeconomic rights?60 The South African Constitutional Court, as we see in Chapter 7, has faced this issue with respect to constitutional rights to health and housing. It has been careful, however, to tie orders to governments to take remedial action for deprivation of such rights to “available resources.”61 As William Trengrove observes, damages and injunctions are not effective in violations of socioeconomic rights: [T]he pattern of violation may be too widespread and diffuse to stop by a single order . . . It follows that the only possible way . . . to put a stop to widespread violations of socio-economic rights, would often be to bring about far-reaching institutional and structural reform over a period of time in a manner determined by the legislative and executive branches of government.62 In other words, the enforcement of socioeconomic rights can only work with the cooperation of the legislative branch. If Trengrove’s analysis is correct, the recognition of socioeconomic rights in a constitution will operate in much the same way as the constitutional recognition of rights in the United Kingdom. There, under the Human Rights Act of 1998, the courts may not invalidate legislation but may make a declaration of “incompatibility” between UK law and the rights recognized under the act, thus requiring the government to act or explain and justify the difference. The remedy is, effectively, a judicial reprimand. The critical issue for constitutional design, if this is the principal remedy for “public injuries,” will be whether a member of the public has standing in seeking such a remedy. A constitution designed with gender equity and agency as its goal, I have been arguing, should do more than entrench personal rights. It is therefore important also for it to facilitate extrajudicial mechanisms of compliance. These may include, for example, legislative committees which have the function of scrutinizing laws in light of relevant rights instruments or standards (national or international or both). Broad tests for “standing” 60 61 62

See Dennis Davis, “The Case against the Inclusion of Socio-Economic Demands in a Bill of Rights Except as Directive Principles” (1992) 8 South African Journal of Human Rights 475. Section 26 (2), Constitution of South Africa. William Trengrove, “Judicial Remedies for Violations of Socio-Economic Rights” (1999) 1 (4) Economic and Social Rights Review 1, at 3.

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to appear before such committees and unlimited opportunities to make written submissions will be essential. We note here Section 59 of the South African Constitution, which requires the National Assembly to “facilitate public involvement in the legislative and other processes of the Assembly and its committees; and . . . conduct its business in an open manner, and hold its sittings, and those of its committees, in public. . . .” Public access is subject both to reasonable limits and security measures. However, according to Section 59 (2), “The National Assembly may not exclude the public, including the media, from the sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.” Standing in Utero

In Chapter 8, I argue that a woman’s reproductive health requires governmental and legal protection and that this protection must be facilitated, or at least not obstructed, by a country’s constitution. Where does this place the fetus, or the child in utero, with respect to standing to bring an action alleging breach of the constitution? A child/fetus, while in the womb, is rarely recognized as having a separate legal identity. Its well-being is legally attached to the well-being of the mother. In most countries, neither the fetus nor even the child after birth, has standing to sue its mother for prenatal damage. Children commonly have the right to sue a third party for injury suffered while in utero; however, this is generally regarded as a derivative right, owed not to the child, but to the mother or the parents, whose interests extend to the fetus. With a few exceptions, the general rule remains that standing attaches to a living, born person. In the United Kingdom, mothers cannot be sued for prenatal injuries, except in the case of motor accidents, where mandatory motor insurance schemes cover such eventualities.63 In the United States, the common law doctrine of parental immunity prevents children from suing their parents in tort. This, however, has been modified in certain states. Some state courts hold that a child has standing to sue his or her mother for prenatal injuries; others do not accept such a cause of action. This notwithstanding, in Roe v. Wade, the Supreme Court rejected the 63

Erin Nelson, “One of these Things Is Not Like the Other: Maternal Legal Duties and the Supreme Court of Canada” (2000) 12 Supreme Court Law Review 31.

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antiabortion argument for constitutional protection of the fetus, and concluded that the fetus is not a person “within the language and meaning of the Fourteenth Amendment.”64 Broad rules of standing, I have argued, may assist gender equity and agency. However, for the fetus to be recognized as legally competent and separate from its mother would have dramatic consequences. This was confronted in the Canadian case of Dobson v. Dobson,65 where the Supreme Court considered the social impact of creating a new prenatal duty of care in tort law. The case concerned an action on the part of a child born with permanent disabilities as a result of a motor accident that occurred while his mother, the driver, was pregnant. Were the child/fetus to be granted standing and accorded the right to sue the mother for negligence, women’s privacy and autonomy during pregnancy would be dramatically curtailed, and women’s full membership of the constitutional community would be compromised. Reproductive autonomy is fundamental to the latter (see Chapter 8). Here, we may note that standing to bring an action for breach of the constitution would rarely, if at all, concern the relationship between a child in utero and the child’s mother during her pregnancy. It is difficult to imagine a scenario where a child might assert a constitutional right against her or his mother, even where the constitution permitted actions against private persons, and was not confined to actions against public actors. Where positive or substantive constitutional rights permit actions against government for inaction – for example, for failure to provide adequate health services resulting in injury to the fetus during pregnancy – the relevant object of a constitutional action would be the government, not the mother. The child’s and the mother’s/parents’ legal interests would coincide. The conceptualization of the rights of a fetus as derivative rights against third parties remains, in constitutional cases as in tort, the preferable solution. Costs of Actions

The rules of standing act as legal gateways to constitutional litigation, but equal in importance are constraints and opportunities that lie outside the 64 65

Roe v. Wade, supra note 50, at 157. Dobson v. Dobson (Liability Guardian), (1999), 174 D.L.R. (4th) 1 S.C.C.

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law. Litigation is expensive. In addition, it requires resources of time, physical and emotional energy, confidence, and knowledge. These are the very things disadvantaged persons (among whom women are overrepresented) commonly lack. Major asymmetry between parties is common, and this is compounded by the fact that the party against whom a constitutional challenge is brought is frequently the state: powerful, well resourced, and intimidating. The capacity of parties to bring actions in their own right or on behalf of others, even where permitted by broad standing rules, may thus be limited by the costs and complexities of legal challenges. Although a number of the world’s constitutions contain provisions guaranteeing legal aid or legal counsel to indigent defendants in criminal trials, none (that I know of) entrenches a guarantee of assistance for constitutional or public interest challenges. This reality may have the perverse effect of “privatizing” the enforcement of public law and, at least in principle, of making enforcement depend on individual wealth or assistance, pro bono and philanthropic. Without public funding for legal actions, private philanthropy is often the only recourse, but the well of philanthropy may prove shallow or even run dry over time. Liberal rules of standing should not serve as an excuse to pass on the responsibility for publicly funded legal aid to the private sector. In South Africa, where standing is very broad, “[m]ost cases on behalf of disadvantaged groups have been brought before the Constitutional Court by public interest law firms or NGOs which in turn rely heavily on foreign donors.”66 However, as Jagwanth and Murray note, there are “few of these institutions in South Africa and the number of cases that they are able to take is very limited.”67 In Canada, the broad rules of standing have encouraged the growth of public interest advocacy groups, including LEAF, established in 1985 to bring actions on behalf of Canadian women alleging breaches of the Charter of Rights and Freedoms. This organization, notably, has been assisted by funds made available through the Canadian government’s “Court Challenges” program, which was initially established in 1978 with the purpose of supporting litigation surrounding language rights, and then expanded in 1985 to include “equality rights guaranteed under Canada’s 66 67

Jagwanth and Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa,” supra note 3, at 254. Ibid.

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Constitution.”68 The program has had a checkered career. Its level of funding, its funding policy, and indeed, its existence, are at the whim of government. It was cancelled for a period in 1992, reinstated in 1995, and withdrawn again in 2006. An express constitutional guarantee of funding for constitutional challenges cannot be the only solution. The resource implications would be dramatic. Unlimited demands on public funds may result in either inequitable distribution of the available public money or in depletion of support for vulnerable groups, or, if distributed evenly, in inadequate shares of the funds for all. An alternative, or supplementary, mechanism for bringing public actions without the financial burden falling on private individuals lies where governments or members of the executive have constitutional standing. An attorney-general or minister for justice in many systems is regarded as protector of the public interest. He or she may have automatic standing in all constitutional cases, as well as the power to issue a “fiat” granting standing to persons or groups who may otherwise be unable to satisfy the rules of standing. If the executive is also empowered financially to support public interest litigation, this may provide a supplement to a constitutional guarantee of financial aid, while restraining frivolous cases. Legal Aid

Legal aid is far from exclusively a woman’s issue, but in light of the feminization of poverty in every part of the world, it is a matter of special interest to women. Guarantees of legal aid are to be found in many constitutions. These are almost always in respect of criminal prosecutions. The Sixth Amendment of the U.S. Constitution, for example, guarantees the “Assistance of Counsel” for the defense of criminal prosecutions. Sections 35 (2) (c) and 35 (3) (g) of the South African Constitution guarantee to every person who is detained or accused, the right “to have a legal practitioner assigned . . . by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” The 2005 Iraqi Constitution has similar guarantees for defendants charged with a felony or misdemeanor who cannot afford their own counsel (Article 19 11th). 68

Court Challenges Program of Canada: www.ccppcj.ca/e/ccp.shtml.

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A constitutionally entrenched guarantee of legal aid or of the provision of legal counsel will, all else being equal, prevent governments from allowing funding for aid to fall below a certain threshold or from seriously restricting its availability. However, because crime is overwhelmingly a masculine activity, women are unlikely to gain much benefit where the guarantee is confined to criminal cases. A requirement to provide legal aid specifically for criminal cases may even work disadvantageously for women. In 1992, the High Court of Australia held that, in cases involving serious criminal offenses, the right to a fair trial may be compromised if assistance for legal representation is not available to indigent defendants.69 As Regina Graycar and Jenny Morgan note of this decision, “[n]o reference was made to the gendered distribution of legal aid funding – that is, to the fact that legal aid in criminal cases overwhelmingly goes to men, while women are more likely to seek legal aid in family or civil matters.” Partly as a result of the decision, “the availability of aid in the latter categories continues to decline.”70

Conclusion

That the enjoyment of legal rights is significantly dependent on financial resources is scarcely an original observation. The extent to which women are included in any of the various roles across the judicial constitutional community will depend, albeit in different ways, on financial capacity. Legal careers are expensive, and the cost of litigation is not only high, but also literally prohibitive in many cases. Although access to justice and membership of the constitutional community go hand in hand, gender equity is a much larger canvass. Where justiciable rights are foregrounded in the constitutional system, the imperatives of appointing women to judicial positions and equitably facilitating constitutional litigation, both through rules of standing and financial aid, are prioritized. No constitution that obstructed or impeded women’s access to justiciable rights would pass a gender audit. However, designing opportunity structures for both practitioners and applicants in an equitable manner is only one of many ways to constitutionalize gender equity and agency 69 70

Dietrich v. The Queen (1992) 177 CLR 292. Regina Graycar and Jenny Morgan, “Women,” in Tony Blackshield, Michael Coper, and George Williams, eds., The Oxford Companion to the High Court of Australia (Melbourne, Australia: Oxford University Press, 2001), at 719.

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(and equalize membership of the constitutional community). Recognition of the resource implications and the common inequities in access to constitutional justice will, however, alert us to the need to look critically at a concept of equality and equity that rests on a constitutional rights paradigm. In the following chapters, I sketch both a broader critique of rights and a way of strengthening the rights one wants to include in a constitution.

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7 Equality Rights

The jurisprudence of rights has overwhelmingly dominated the literature on gender and constitutional law. This is understandable, but problematic. Express constitutional rights are, without a doubt, immensely significant for the goal of gender equality, and no modern constitutional designer could overlook this. However, despite what might seem to be the uncontroversial character of rights and the attendant simplicity of their drafting, the issue is far from simple. In contemplating constitutional design, both the language of rights and the near-exclusive concentration on constitutional rights need to be questioned. To begin with, such concentration has the effect (as discussed in Chapter 1) of distracting attention from questions of design that arise prior to issues associated with rights. These are questions relating to structure and process, to women’s access to positions of power and agency, and to their ability to take part in decisions about the shape and application of the law. Such questions arise well before issues of whether the law conforms to rights, or surrounding the establishment of standards for determining a breach of rights. Women’s membership of the constitutional community is closely affected by the extent to which equality rights are given recognition, but many other factors are important. As argued in previous chapters, constitutional “opportunity structures” – the ability of a constitution to enable change-oriented collective action and to facilitate women’s part in the process of making and implementing change (both political and legal) – require close consideration, separately from textual rights. It is also important to take into account the ways in which rights may be protected through other means than constitutional entrenchment. International norms on 162

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one side and ordinary legislation on the other, may serve as sources of rights, even in the absence of express constitutional provisions. To place all of one’s eggs in the constitutional rights basket is to ignore this. Furthermore, to begin with a constitutional rights paradigm is to prioritize litigation over other means of achieving rights in practice. It is to place the onus on individual women to initiate and sustain actions in the courts in order to enforce or change the law. The party (the woman) whose very claim for enforcement of rights relates to, or arises from, a position of disadvantage is required to marshal resources against the party (often the government) in the position of advantage. The asymmetry is more than financial; legal challenges, as we have seen, also require intellectual resources, cultural and legal knowledge, and physical and emotional resilience. In a number of countries where gender rights are constitutionalized, nonofficial organizations for assisting women with rights litigation have emerged to support and supplement the rights conferred on women by their country’s constitution. In Canada (as we saw in Chapter 6), LEAF was formed by feminist lawyers in 1985, after it was found that constitutional litigation under the Charter of Rights and Freedoms over the first 3 years of its operation had been dominated by male litigants. Furthermore, only 10 percent of the equality rights challenges in that period had concerned gender equality, and, of these, most actions were brought by or on behalf of men.1 In South Africa, as we also saw, disadvantaged groups have frequently had to rely on the support of public interest groups or NGOs, and thus, on good will, either through pro bono assistance or financial donations.2 A constitutional protection of rights that depends on private infrastructure and voluntary support is inherently unstable. It cannot promise justice or guarantee equity. Starting with the gender equity “cookbook” and the empty “constitutional kitchen,” it would be unrealistic and self-defeating, however, to suggest that rights might be left out of the recipe. International standards, as well as modern expectations and practices, create pressures for the 1

2

Beverley Baines, “Using the Canadian Charter of Rights and Freedoms,” in Beverley Baines and Ruth Rubio-Marin, eds, The Gender of Constitutional Jurisprudence (Cambridge, U.K.: Cambridge University Press, 2005). Saras Jagwanth and Christina Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa,” in ibid, at 254.

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inclusion of express rights in a new constitution. Nevertheless, in the process of designing a constitution, it is useful to think about both the downside of constitutional rights and about alternative ways in which rights may be protected. It is also important to keep in mind that assertions of rights are not all that law makers must respond to. Interests, needs, capacities, and visions do not necessarily correspond to rights. Imagine, for example, a national program to encourage girls’ participation in sports. It might be a response to the “mischief” of the underresourcing of girls’ sports compared to boys’, and thus, equality rights might be implicated. But there might be much more behind it than this. Even where the previous level of public financial support for boys’ and girls’ sports was identical, data may show that girls participate less frequently in sports, and an assessment of their current and potential well-being, factoring in the physical and psychological benefits of exercise and structured activity, may encourage official action. The government may also hold the view that general public benefit lies in the pursuit of individual excellence, it may want to increase its popularity for electoral reasons, or it may find excitement in the prospect of the nation winning more medals at future Olympic Games. The language of “rights” would not be adequate for talking about how such a program might be facilitated or encouraged, or about why it should take place at all. Individual, social, and national well-being; a belief in human excellence; and visions of greatness may drive a program built around gender equality, quite independently of rights. A constitution that expressly protected equality rights but did not anticipate or enable such programs would be inadequate. The focus on constitutional rights as the point of departure in following the goal of gender equity and agency may also, paradoxically, devalue rights through a “shopping list” effect, in particular where substantive rights create demands on resources that the government cannot meet. This is not necessarily negative, of course, since unfulfilled expectations often drive progressive change. However, it is, again, suggestive of the need to diversify the means of achieving rights outcomes. Constitutional rights are intended to be stable and lasting, and listing them in a “bill” increases their appearance of authoritative finality. Yet, care should be taken not to create perverse outcomes in doing this. Legal redress may be limited or even unavailable for breaches or denials of rights that lack a constitutional identity. Common law rights, for example, may

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coexist with constitutional rights, but the former do not enjoy equal solidity. Lacking constitutional entrenchment, the common law will enjoy no protection from legislative abrogation. Also, the written word may “freeze” the conceptual imagination, so that injustices or experiences of unnamed discrimination are not articulated or even conceptualized in terms of rights. This may be particularly significant for persons or classes of person (notably, women) who at the time of the constitution’s framing, lacked what we recognize now as “rights.” The now-familiar concept of reproductive rights, for example, would have been both conceptually puzzling and legally noncognizable until well into the twentieth century. In the United States, its absence from the “list” of constitutionally protected rights gives it an insecure foundation compared to, for example, the right to free speech. Where there are constitutional rights provisions, these should be supplemented by others or framed in such a way as to mitigate such effects. For example, the Ninth Amendment of the U.S. Bill of Rights states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Such a statement goes some way toward protecting the “identity” of nonentrenched rights, but one should not be overly sanguine. It is not clear what such a provision actually includes or means in practice. Partly because of this uncertainty, Ninth Amendment jurisprudence has scarcely developed, and there is significant scholarly disagreement about what it would look like if it did.3 Section 39 (3) of the South African Constitution is similar, but gives more guidance as to where the “silent” rights might be found. It states: “The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.” However, such rights must still be “consistent” with and thus subordinate to, express constitutional rights. Unenumerated rights do not, and perhaps cannot, have the solidity and agency of the enumerated. If a constitution is to include express rights, as is desirable (albeit with certain caveats), there must be constitutional mechanisms for ensuring as far as possible that the rights work as they are intended and that perverse 3

See Randy E. Barnett, “The Ninth Amendment: It Means What it Says” (2006) 85 Texas Law Review 1; also Randy E. Barnett, “Who’s Afraid of Unenumerated Rights?” (2006) 9 University of Pennsylvania Journal of Constitutional Law 1.

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or negative outcomes are, also as far as possible, avoided. These mechanisms include, among other things, constitutionally mandated support for litigation, constitutional duties placed on the state, and a commitment to a conducive methodology of constitutional interpretation. Also, a constitutional guide to a rights hierarchy or order of priority, and a means of reconciling clashes between rights, are of central importance. None of this, I emphasize, is an argument for overlooking constitutional rights. In South Africa, as Jagwanth and Murray observe, “feminists put enormous effort into securing a strong right to gender equality in the Constitution and, in important ways, it has borne fruit. . . . [B]oth state and private institutions have paid unprecedented attention to equality and women’s rights.”4 The South African Constitution is an exemplary document in its coverage of all of the currently recognized rights, both formal and substantive. It is also careful, as we see in this chapter, to surround these with many safeguards and qualifications. Express Rights

Almost all democratic constitutions written since 1980 include either a reference to gender equality rights or a prohibition against discrimination on the ground of gender. As more than 100 constitutions have been written during this time, the field is very large (with, however, many similarities in the wording and composition of the relevant constitutional provisions across the field). The majority recognize formal rights. A minority also makes provision for substantive rights, for the recognition that formal equality – formally identical treatment or prohibition of differential treatment – is insufficient for achieving equality and it may also be used by those already advantaged to “piggyback” on, or undermine, legal protections offered to the disadvantaged. In Canada Section 15 of the Charter of Rights and Freedoms states (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on . . . [among other things] sex . . . 4

Jagwanth and Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa,” in Baines and Rubio-Marin, eds, The Gender of Constitutional Jurisprudence, supra note 1, at 254.

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(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of . . . [among other things] sex. Furthermore, Section 28 states: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” This section is important in its recognition that equality cannot be confined to, or quarantined in, express equality rights. That is, it cannot be achieved merely by protecting persons from a denial of protection or benefits specifically on status grounds. A gendered constitutional audit therefore needs to consider far more than the express recognition of gender equality, whether formal or substantive, or the express prohibition of gender discrimination. It also needs to take account of the way in which “facially neutral” rights may disparately or differentially affect women, either advantageously or detrimentally. This issue is also caught up with the problem of prioritizing rights where (inevitable) collisions arise. The right to free speech or freedom of expression may, for example, have a detrimental effect on women by permitting the production and publication of pornography degrading to women. How should such a right – which appears neutral on its face – be balanced against a right purportedly protecting women against sexual discrimination, or another affirming the right to “dignity”? If it is not possible to harmonize these rights, which should take priority? As I suggest, it is critical for a constitution to provide a guide to reconciling such clashes of rights, both in indicating a rights hierarchy and setting down a test for legitimate limitations on rights that, at the same time, does not allow limitations effectively to cancel out the rights’ protection. An important choice must also be made in the language and grammar of constitutional rights. The grammatical voice may be positive, affirmative, and personal, stating, for example, that “Everyone has the right to. . . .” Alternatively, it may be passive or “negative,” expressed as a prohibition or limitation on particular conduct or state action, for example, “No one may be denied the right. . . .” These forms correspond to the well-recognized distinction between negative and positive rights, between rights in the form of freedom from and

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rights in the form of entitlements to. There is no single or simple key to choosing between these, other than to ask in each instance whether the relevant purpose of the right, relating to the foundational norm of gender equality, is best served by one or the other. Particular examples will make this clearer as our discussion progresses. Substantive Rights

Given demographic and sociological gender patterns, certain positive or substantive rights are particularly relevant to women, even if at first glance they appear gender neutral. Women are, for example, overrepresented among the poor in virtually every country in the world. In most countries, they are overwhelmingly likely to be the responsible parent in single-parent households. Although they live longer than men in Western countries (although not in the less developed world), women still have greater health needs than men, significantly relating to their reproductive biology. In the poorer parts of the world, women are overrepresented among the illiterate. In every part of the world, they are relatively less well educated than men and less skilled. Women are many times more likely to be victims of domestic violence than men. Thus, laws, policies, and programs that either mandate progress in, or serve as a restraint on, demographic and sociological disadvantage with respect to health, literacy, education, domestic violence, and homelessness (among others) will have particular significance for women. So, for example, the South African Constitution’s protection of freedom from “all forms of violence from either public or private sources” (Section 12 (1)) has particular resonance for women, despite extending its protection to “everyone.” Section 26 of the South African Constitution also includes the provisions that (1) everyone has the right to have access to adequate housing, and (2) the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right. South African constitutional jurisprudence illustrates the indirect but highly relevant relationship between substantive rights – in this case, to housing – and gender equity. The Grootboom case concerned the circumstance of 900 or so people living in a squatter camp in Wallacedene on the Western

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Cape, on land that was partly water logged and entirely lacking in basic services.5 The large majority of these people were women and children. One woman, Irene Grootboom, led the eventual litigation and gave the case its name. After waiting unsuccessfully for years for low-income housing, the squatters decided to move onto privately owned adjacent land. In response, the landowner obtained an eviction order, and the squatters, demanding that the municipality meet its constitutional obligations to provide accommodation, then moved onto the local sports field. They applied to the Cape High Court, claiming that the municipality was constitutionally obliged to provide temporary accommodation. At first, the Court rejected this particular line of argument, but it did acknowledge that another substantive right – the constitutional right of children to shelter (Section 28 (1) (c)) – placed an obligation on the state to provide shelter if the parents were unable to do so. Because it was in the best in interests of the children not to be separated from their parents, the judges concluded, the shelter must be provided for them as well. This decision then went on appeal to the South African Constitutional Court, where the constitutional obligation was regrounded in Section 26, and led to a finding in the squatters’ favor. The national government, it held, was constitutionally obliged to ensure that the state complied with its Section 26 obligations, including that a “reasonable” part of the national housing budget should be directed to housing relief. Significantly, the Court recognized the close relationship between the right to housing and socioeconomic factors shaping the need for such relief. As a South African women’s budget analysis has noted, although housing “is not exclusively a ‘women’s issue,’” the reality is that women’s circumstances have significantly made it so.6 For reasons of lower education, poorer employment skills, and higher levels of unemployment, compounded by patriarchal laws and practices, women’s independent access to housing has been substantially lower than men’s. The majority of singleparent households are headed by women, and yet discrimination against 5 6

Government of the Republic of South Africa & Ors v. Grootboom & Ors 2000 CCT/11. IDASA Budget Information Service, “The Grootboom Case and Women’s Housing Rights,” Budget Brief No. 111, 2002. Available online at www.idasa.org.za/bis.

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single mothers in housing allocations is common. Many other factors, including the greater likelihood of women’s working for income from their home, women’s particular vulnerability to domestic violence and, in South Africa, to HIV and AIDS, make women’s need for security and adequate housing, along with basic services and tenure of abode, all the greater. The principle arising from this case is relatively straightforward. Substantive rights may appear gender neutral, but, in designing a constitution with gender equity and agency in mind, nonneutral, gendered impacts must be recognized. However (to restate from Chapter 1) a constitution cannot be a manifesto of ideals. A balance must be struck between competing rights and finite resources. The question of resource capacity is necessarily implicated in any program for substantive rights, and in particular, where deep socioeconomic disadvantage needs to be addressed. In Grootboom, the Constitutional Court recognized that Section 26 required the state to take “reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right . . .”7 Availability of resources, it observed, is an important factor in determining reasonableness. Legislative measures alone, however, are not enough. These, said the Court, “must be supported by appropriate, welldirected policies and programmes”; they must be flexible and responsive to “those whose needs are the most urgent and whose ability to enjoy all the rights [is] most at risk.” Relevant indicators of a reasonable program, the Court stated, include “whether significant segments of society have been excluded or not.” Although Section 26 (1) did not create a right “to claim shelter or housing immediately upon demand,” it did create constitutional obligations to provide a reasonable housing program. The state was obliged to take measures, including devising, funding, implementing, and supervising the provision of relief to those in desperate need.8 In South Africa, as in the rest of the world, those most desperate and those whose enjoyment of socioeconomic rights is most fragile are overwhelmingly women. Both in the United States and in other countries’ constitutions, other facially neutral but gender-resonant rights have also been drawn on to support gender equity. The most significant – in particular, with respect 7 8

Section 26 (2), Constitution of South Africa. Government of the Republic of South Africe & Ors v Grootboom & Ors 2000 CCT/11., at para 96, per Yacoob J.

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to reproductive rights – have been rights such as “privacy,” and “bodily integrity” and “security of the person.” These are discussed in greater detail in Chapter 8. Feminists also need to be conscious of the overdetermined character of language, and recognize the potential, not only for harnessing facially neutral rights to gender equity, but also for perverse or undesirable meanings in language. The constitutional protection of the right to “privacy,” for example, may be a double-edged sword, both valuable and at the same time dangerous for women. The right to privacy is particularly significant for women because their reproductive capacity has historically been used as a means of, and reason for, invasive regulation and control of their bodies. As discussed in Chapter 4 with respect to theories of citizenship, government has no business invading this sphere. If, however, the right to privacy is understood as coterminous with the right to “domestic” noninterference, this may effectively prohibit the regulation of interpersonal relations, closing the domestic door against public scrutiny and serving as a cloak over interpersonal violence or domestic tyranny, of which the majority of victims are women. If the right to privacy is constitutionalized, it needs, therefore, to be qualified or supplemented, so that it does not have the effect of ruling out regulation of domestic relations. The Iraqi Constitution, for example, provides, in Article (17): 1st, that “[e]ach person has the right to personal privacy as long as it does not violate the rights of others or general morality.” In Article (17): 2nd, it also provides that “[t]he sanctity of the home is protected. [The home] cannot be entered or searched or violated except by judicial decision and in accordance with the law.” The potential for domestic abuse or tyranny, constitutionally sheltered by such provisions is high. Notably, however, Article 29: 4th states that “[v]iolence and abuse in the family . . . shall be forbidden.” The express prohibition may qualify the right to domestic “sanctity.” However, to be certain of this, it may be more useful to include an express link between the propositions contained within these provisions, for example, guaranteeing the right to privacy, “but not so as to permit violence and abuse in the home.” The South African Constitution makes a similar link, with respect to “security of the person.” In Section 12 (1), it states that everyone “has the right to freedom and security of the person, which includes the right . . . to be free from all forms of violence from either public or private sources. . . .”

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Who is Bound by Rights?

Whether constitutionally protected rights bind the legislature only or all arms and officers of government, whether in a federal system they bind either federal or state levels of government or both, and whether they also bind private persons (both natural and corporate) in their own right or only those acting on behalf of government will clearly make an important difference in the scope of rights protection (and litigation). In framing a constitution, a choice is thus needed between rights that limit the exercise of governmental power and those that constrain all relevant conduct. The former is typically expressed as qualifications on grants of power: the legislature, for example, is empowered to make certain laws, but “not so as to. . . .” Alternatively, it may be expressed as a constraint on power: the legislature “may make no laws respecting. . . .” Where negative rights limit governmental power, it is important that these apply to all arms of government, and not merely the legislature. The Bill of Rights in the U.S. Constitution, for example, constrains “Congress” and does not expressly limit the power of the executive to restrict or abrogate rights. At the time of its framing, it was believed that the separation of powers would serve to restrain the executive and that the requirement of legislative authorization for appropriation of money by the government would limit executive powers. As an alternative, when the Australian Constitution was being framed, 100 years later, the British model of “responsible government,” entrenched in the Constitution, was believed to be an adequate check on executive power. The executive government, formed from among the elected members of the parliament, would, it was believed, remain subject to, and accountable to the parliament. However, in both the United States and Australia (as in many countries), executive power has grown substantially, and these constitutional safeguards may no longer serve their original purpose. If constitutional rights were taken seriously, the framers of a new constitution would need to extend their protection against erosion by all arms of government. The South African Constitution is unequivocal in doing so. Chapter II, Section 8 (1) states: “The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.” A further choice will lie between enforceability of constitutional rights against both private persons and government, or only against government. In Canada, the Charter of Rights and Freedoms may be asserted against

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both federal and state (provincial) government, but “not against private actors unless they are carrying out a governmental function.”9 The South African Constitution, in contrast, applies to both public and private rights. Section 8 (2) provides that “A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.” Thus, it also allows for a degree of judicial discretion in cases concerning private actions. Silent Rights

Few constitutions written before World War II made express reference to principles of gender equality.10 Among those still in operation from that era, some have been amended, adding such references. However, a significant number of constitutions still exist in which gender equality rights are not mentioned at all, and thus might not appear to be constitutionally protected. Notwithstanding this, no modern, democratic polity, at least in principle, freely permits laws or practices that are openly discriminatory purely on the ground of gender. Therefore, express constitutional protection is not the only avenue to gender equity. A range of ways can be identified in which otherwise silent constitutions can support (or at least not obstruct) such rights. The Australian Constitution, as we have seen, does not include a bill of rights. It contains only a few rights provisions scattered throughout its text and is altogether silent on matters relating to identity or status equality.11 Yet 9 10

11

Baines, “Using the Canadian Charter of Rights and Freedoms to Constitute Women,” supra 1, at 48–49. There are some exceptions. Austria’s 1934 Constitution, Article 16 (2), stated that “[w]omen have the same rights and obligations as men, except when the law decrees otherwise.” Article 109 of the German Constitution of 1919–1933 – the Weimar Constitution – provided: “All Germans are equal in front of the law. In principle, men and women have the same rights and obligations.” Article 122 of the 1936 Constitution of the Soviet Union provided: “Women in the U.S.S.R. are accorded equal rights with men in all spheres of economic, state, cultural, social and political life. The possibility of exercising these rights is ensured to women by granting them an equal right with men to work, payment for work, rest and leisure, social insurance and education, and by state protection of the interests of mother and child, prematernity and maternity leave with full pay, and the provision of a wide network of maternity homes, nurseries and kindergartens.” It does include “federal” rights, both protecting the states from discriminatory federal laws and prohibiting states from discriminating against individuals on the ground of residence in another state. It protects property holders from compulsory acquisition without “just terms,” and

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(as discussed in Chapter 9), Australia has had federal antidiscrimination laws for more than two decades, and these make it unlawful to discriminate arbitrarily on the ground of gender or marital status, among other things. Australia’s federal Sex Discrimination Act of 1984 is indirectly facilitated by the Australian Constitution. This Act is sourced from Section 51 (xxix) of the Australian Constitution – the “external affairs” power – and implements Australia’s obligations as a signatory to the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Its effect, in practice, is little different from that which might arise from a constitutional guarantee of gender equality, combined with constitutional “approval” for legislation to enforce this guarantee.12 The difference lies in the fact that legislation is easily amended or repealed, whereas constitutional amendment is usually more difficult. However, this difference may be more apparent than real. Certain legislative acts (e.g., New Zealand’s Bill of Rights Act of 1990) can, over time and by force of their correspondence to or expression of fundamental norms, become virtually “entrenched”; a government would seek to alter or repeal them at its peril. Although gender equality has a high normative status in modern democracies, historically it has been precarious, and women’s rights have often been abandoned or relegated to a secondary place when claims over competing rights have been made in circumstances of pressure or limited resources. A constitutional provision for gender equality (as long as it is nonderogable) is more likely to be stable than legislation and therefore preferable. Whether a constitutional equal rights provision is necessary in a country where equal rights are indirectly protected through other constitutional means has been a long-standing question in the United States. Like the Australian Constitution, the U.S. Constitution is silent on gender rights. It, too, has an alternative provision that, at least more recently, provides the source for legislation prohibiting gender discrimination. The Fourteenth Amendment, ratified in 1868 in the aftermath of the Civil War, extended “equal protection of the laws” (in the form of a prohibition on its denial by

12

protects religious and nonreligious persons alike from laws prohibiting or requiring religious worship. For example, the Nineteenth Amendment of the U.S. Constitution states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex,” and it adds, “The Congress shall have power by appropriate legislation to enforce the provisions of this article.”

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the states), without naming the type of person to whom equal protection might otherwise be denied. Its historical purpose was to prohibit the states from discriminating in their laws against former slaves and other African Americans on the ground of race. The Fourteenth Amendment also prohibits the states from abridging the “privileges or immunities” of American citizens. As we saw in the Introduction, women’s campaigns for equality in the nineteenth century revolved around this clause. With the failure of this strategy, women turned to constitutional amendment. Amendment of the U.S. Constitution is, however, difficult, requiring the cooperation of the (male-dominated) legislative branches of government.13 In 1920, after decades of campaigning, their work was finally rewarded with the ratification of the Nineteenth Amendment, guaranteeing women the right to vote in both federal and state elections. Encouraged by this success, women now began a new campaign, this time for a constitutional provision guaranteeing women full equality. The Equal Rights Amendment (ERA) was presented to Congress in every session from 1923 for the next 49 years.14 It was passed by both Houses of Congress in 1972, and then sent for ratification by the state legislatures, with a deadline of 7 years. Initially, ratification appeared certain and looked likely to be swift. However, as the pace of ratifications slowed, the deadline was eventually extended until 1982. In the end, the ERA failed, falling three short of the thirty-eight states required for ratification. There is little likelihood of the adoption or ratification of such an amendment in the foreseeable future. Yet, for all this, a constitutional guarantee of gender equality has been affirmed by the Supreme Court. It arises from the Fourteenth Amendment, and its “discovery” occurred just before the ERA was passed by Congress in 1972. 13

14

Under Article V, it requires (1) support by two-thirds of both Houses of Congress, and (2) ratification by three-fourths of the state legislatures. Alternatively, two-thirds of the state legislatures can apply to Congress for a convention to be held for the consideration of proposed amendments, which would then have to be ratified by three-fourths of the state legislatures to take effect. The original wording (drafted by Alice Paul) was “Men and women shall have equal rights throughout the United States and every place subject to its jurisdiction.” The wording substituted in 1943 was “Equality of rights under the law shall not be denied or abridged by the United States or any State on account of sex.” The latter, thus, was expressed as a prohibition on governmental action and would not restrict private conduct. The Fourteenth Amendment, however, empowers Congress to make laws prohibiting gender discrimination in private conduct, such as employment. Its prosecution, thus, becomes a matter of ordinary law enforcement rather than exclusively of judicial review of constitutionality.

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Legal protection of gender equality was not entirely absent in the United States before then. Various legislative initiatives had already been taken, without constitutional defeat. Both the 1963 Equal Pay Act and Title VII of the Civil Rights Act, which list sex among the impermissible bases for employment discrimination, had been passed.15 Several of the states had adopted equal rights provisions in their constitutions. However, these were piecemeal measures, and the federal ERA, it was believed, would create a common national standard. Furthermore, it was anticipated that the same test would be applied to sex-based classifications in law as the courts had applied since 1964 to race-based classifications. Known as “strict scrutiny,” this standard treats all such classifications as “suspect” and requires the impugned law to be the least restrictive means available to achieve a compelling governmental interest. At the same time, Fourteenth Amendment jurisprudence expanded to take in gender under “equal protection of the laws.” In 1971, one year before the ERA was sent for ratification, the Supreme Court in Reed v. Reed16 struck down an Idaho law that gave men priority over women as administrators of deceased estates, even where the relationship with the deceased was the same (as in this case, the relationship between both parents and their deceased adult child). To some people, Reed v. Reed signaled that the Constitution already contained the equivalent of an ERA. To others, the case did not deliver what was expected of an ERA. The discriminatory state law did not attract a “strict standard” of scrutiny, but instead attracted what is known as the “rational basis standard.” That is to say, the Supreme Court asked whether the impugned law demonstrated a rational relationship between its objectives and its discriminatory provisions. Whether the standard of scrutiny would evolve further was uncertain for a time, partly because of what looked to be the imminent ratification of the ERA, presaging clearer constitutional guidelines for a higher level of scrutiny.17 In 1976, while the ratification process was still under way, in a case concerning an Oklahoma law that permitted low-alcohol beer to be sold 15 16 17

In 1972, Title IX of the Education Amendment was also passed, including prohibition of gender discrimination in federal assistance to educational institutions. Reed v. Reed 404 U.S. 71 (1971). Joan Lukey and Jeffrey Smagula, “Do We Still Need a Federal E.R.A?” (2000) 44 Boston Bar Journal 10.

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exclusively to women younger than age 21, the Supreme Court developed an “intermediate scrutiny” standard, requiring the government to show that gender classifications must serve important governmental objectives and be “substantially related to the achievement of those objectives.”18 Under this new standard, however, few laws were invalidated.19 Other discriminatory laws passed through the net: a reduction in the amount of property tax to be paid by widows (not widowers),20 a Californian law that made men alone liable for the crime of statutory rape,21 and a federal law exempting women from the requirement to register for national military service22 were held to pass the intermediate scrutiny standard. In 1982, in the year when the ERA’s ratification finally failed, in a case concerning the exclusion of men from a nursing training college in Mississippi, Supreme Court Justice Sandra Day O’Connor signaled a strengthened level of intermediate scrutiny. The government’s burden, she said, was to demonstrate “exceedingly persuasive justification” for the gender classification.23 Subsequently, in 1996, in a case concerning the exclusion of women from the Virginia Military Institute,24 O’Connor’s standard was applied by the majority. Justice Ruth Bader Ginsberg, for the Court, stated that the justification offered by the government must be “exceedingly persuasive”; furthermore, it must be genuine, not hypothetical or invented post hoc in response to litigation. This standard is now described as “heightened intermediate scrutiny.” Feminist opinion about its effectiveness, including whether it does in practice represent a higher level of scrutiny than before, is divided.25 Significantly, for the issue of constitutional design, the Court sketched a “framework for evaluating the constitutionality of sex-based state action”26 18 19

20 21 22 23 24 25 26

Craig v. Boren 429 U.S. 190 (1976), at 197, per Brennan J. Laws that were invalidated include a Utah law requiring parents to support their sons until the age of 21, but their daughters only until 18: Stanton v. Stanton, 421 U.S. 7 (1975); and a Louisiana law that gave husbands a unilateral right to dispose of property jointly owned with their wives: Kirchberg v. Feenstra, 450 U.S. 462–463 (1981). Kahn v. Shevin 416 U.S. 351 (1974). Michael M. v. Superior Court of Sonoma City 450 U.S. 464 (1980). Rostker v. Goldberg, 453 U.S. 57 (1981). Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). United States v. Virginia et al., 518 U.S. 515 (1996). Mary Anne Case, “‘The Very Stereotype the Law Condemns’: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies” (1999–2000) 85 Cornell Law Review 1447, at 1471. Reva Siegel, “Gender and the United States Constitution,” in Baines and Rubio-Marin, eds., The Gender of Constitutional Jurisprudence, supra note 1, at 317.

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that resembles the exemption from formal equality for affirmative and substantive programs in Section 15 (2) of the Canadian Charter. “Sex classifications,” wrote Justice Ginsberg for the Court, may be used to compensate women “for particular economic disabilities suffered,” to “promote equal employment opportunity,” to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.27 More recently, it has been suggested that the Supreme Court may be regressing to a “rational basis” standard,28 which, if correct, suggests in turn that the failure of the ERA was a substantial setback for which developments in judicial review have not compensated (notwithstanding views to the contrary29 ). However, even if an ERA might guarantee strict scrutiny (or at least a level of scrutiny stricter than “rational basis”), such a standard would not necessarily require the courts to strike down all sex-based classifications. Classifications based on physical or reproductive differences (discussed in Chapter 8) are not “proscribed.”30 Limits on Rights

No right can be absolute or unqualified. Rights clash or “collide” and, in particular, substantive rights addressing inherent differences, or compensating for disadvantage, may clash with the formal equality rights of the noncompensated. How, thus, might a test for review of sex-based classifications be framed so that the isolation and denial of arbitrary classifications or distinctions are enabled, while the goals of equality and equity are 27 28 29

30

United States v. Virginia et al., 518 U.S. 515 (1996). The citizenship case that gave rise to this concern, Nguyen v. I.N.S, 533 U.S. 53 (2001), is discussed in Chapter 4. See Lisa Baldez, Lee Epstein, and Andrew D. Martin (who suggest themselves that the effect of the ERA would have been indirect) for a range of these views. “Does the Constitution Need an E.R.A?” (2006) 35 Journal of Legal Studies 243. David Strauss, notably, argues that the amendment would have been irrelevant because social changes in women’s roles, work patterns, and expectations would have produced a similar result. “The Irrelevance of Constitutional Amendments” 114 (2001) Harvard Law Review 1457. Compare Jane Mansbridge, Why We Lost the E.R.A. (Chicago: University of Chicago Press, 1986), who argues that the ERA would almost certainly have made gender a “suspect classification,” subject to strict scrutiny. United States v. Virginia et al., 518 U.S. 515 (1996).

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preserved? What are the appropriate principles for balancing rights against each other, and thus limiting or restricting rights? Furthermore, in cases where gender rights are themselves asserted on the basis of history or custom, how might a constitution provide a guide for assessing their compatibility with “modern” constitutional standards (and thus restricting both inter se)? The answers to such questions involve both the choice of words and choices about their interpretation. In Chapter Two, it is suggested that, as a general guide, a purposive approach to constitutional provisions is to be preferred to other interpretive methodologies. Here, we consider a range of approaches to limits or restrictions on constitutionally protected rights, with an assessment of their respective application to gender equality rights. First, we need to consider whether there should be distinctions between some rights and others, so that some are offered a higher level of protection. In such cases, limitations would either be extremely difficult to justify or not permitted at all. If this distinction is made, which rights should be covered? This is partly a question of language. It is useful, here to separate fundamental normative principles or commitments from “rights.” When we talk about “rights,” we generally use language that cannot be absolute in law. We must permit some derogation, some limits or restrictions, some ways in which rights can be balanced against each other. However, certain principles that are often referred to as “rights” are in fact fundamental and nonderogable. Rather than rights, I suggest, these are fundamental norms. They are “no-go” areas: free from either interference or erosion. They are the constitutional rules of the game; to change them or to depart from them, is to change, and even to destroy, the game. Their constitutional form is a prohibition on governmental (and, often, private) interference tout court. Thus, as I stressed in Chapter Five, we need to distinguish between the foundations and their manifestations, content, or operation. For example, the fundamental constitutional principle of the rule of law includes equality of all persons before the law. Giving content to this principle means, among other things, that the same legal procedures must apply to all accused persons regardless of their status and, even more specifically, that laws criminalizing the conduct of a named individual, or bills of attainder, are not permitted. The fundamental commitment to democracy includes the

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principle that people should have the opportunity to choose those who make the laws under which the people live. Giving content to this means that electoral processes need to be designed and put into operation. These fundamental principles or commitments do not change. They are (or should be) nonderogable; that is, there are no rules or standards for legitimate departure from them (even in a state of emergency). The details or content of the principles’ operation in practice will, however, necessarily vary within and from country to country, and will evolve. Some departures from or limits on these details will be necessary and must be permitted (e.g., voting is at the core of a democracy, but it is reasonable to limit this “right” and to deny it to some persons, while at the same time retaining the democratic foundation that requires elections). Some constitutions draw an express distinction between provisions that can be amended or are subject to derogation, and others that are fundamentally protected. The German Constitution, for example, states in Article 79 (3) that amendment to certain provisions of the Constitution “shall be inadmissible.” These include, among others, the federal and democratic nature of the German state, and the protection of human dignity and human rights. The South African Constitution also includes a list of “nonderogable” rights. These include equality rights that are protected against “unfair discrimination solely on the grounds of race, colour, ethnic or social origin, sex, religion or language.”31 Democracy and the rule of law, I suggest, demand a commitment to equality as a foundational constitutional norm. We cannot say, for example, that some degree of racial inequality is permitted, notwithstanding a general commitment to equality; we cannot set out to identify the standards or rules of “legitimate” derogation. Affirmative action – laws or programs designed to overcome disadvantage or discrimination based on race – are not limits on the principle of racial equality. They are an affirmative means of giving it effect or giving it content. Such laws or programs may, however, have the effect of limiting other rights; standards of scrutiny or rules for rights reconciliation are needed where decisions have to be made about whether such limitations are legitimate. The Swiss Constitution captures the distinction between inviolable foundations and derogable rights, in a section setting out permissible limitations 31

Section 37, Table of Non-Derogable Rights.

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on the content of fundamental rights. Any such limitations, Article 36 provides, must be justified by the public interest, the protection of the fundamental rights of others, or cases of “clear and present danger.” Any limitations must have a “legal basis” and must be proportionate to the goals pursued. However, “[t]he essence of fundamental rights is inviolable.”32 The “essence” is an aspect of, or alternative way of describing foundational norms, as distinct from the adaptable, or porous rights, that give these norms or foundations their content. Gender equality has not historically been regarded as a foundational norm. However, for those who are serious about gender equality and equity, it must be no less foundational or normatively nonnegotiable than others. Similar to race equality, gender equality is not just one “right” among others, to be balanced in cases of clashes. As with race equality, affirmative laws or programs designed to achieve gender equality, or to mitigate disadvantage based on gender, are not derogations from the principle; rather, they are ways of giving it effect. Balancing Rights

Many constitutions, in particular, the older ones, do not include express provisions for balancing rights or determining whether limits on rights are legitimate. Constitutional courts have mostly had to devise tests and create rules or measures for legitimate limits. The “heightened intermediate” standard of scrutiny, as applied in the United States to sex-based classifications, is a formula developed by the Supreme Court in the course of judicial review and is not found in the Constitution. In contrast, some constitutions, especially the more modern, include express guidelines for legitimate limits. These are often expressed generally, and are applicable to the full range of constitutional rights or freedoms. For example, Section 1 of the Canadian Charter states that the rights and freedoms it guarantees are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This elegant formula is expressed negatively, that is, it limits what government can do in limiting rights. On its face, it places the onus on government 32

Constitution of the Confederation of Switzerland (2000, as amended in 2004), Article 36 (4), italics added. French: “L’Essence,” German: “Der Kerngehalt.”

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to justify any limits; the justification must involve demonstrating that these are “reasonable” in light of standards found in a free and democratic society. As with all constitutional provisions, interpretation will be decisive. Despite guidelines developed in the course of Canadian Charter litigation (establishing a purposive approach to interpretation), the interpretation of this provision “remains controversial,” and the Canadian Supreme Court has in recent years moved toward an approach that is more deferential to the legislature’s defense of its impugned legislation.33 Section 36 of the South African Constitution adopts the Canadian formula, adding greater detail, and providing tighter guidance for judicial review of limits and restrictions: 1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) (b) (c) (d) (e)

the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.

2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. South Africa’s constitutional prohibition against both direct and indirect discrimination on the grounds of gender and sex “implicitly acknowledges the invidiousness and tenacity of institutionalised discrimination.”34 Section 37 “permits emergency derogation from the constitutional protection of equality with respect to gender, though not sex, and reflects a certain reticence on the part of the constitutional drafters to upset prevailing 33 34

Baines, “Using the Canadian Charter of Rights and Freedoms to Constitute Women,” supra note 1, at 51: refers to Hunter v. Southam (1984) 2 S.C.R. 145. Penelope Andrews, “Striking the Rock: Confronting Gender Equality in South Africa” (1991) 3 Michigan Journal of Race & Law 307, at 323.

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stereotypes about the role of status of women.”35 As we have seen, Section 8 (2) states that the Bill of Rights “binds a natural or juristic person,” but it also qualifies this broad application by adding, “if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.” Thus, tests not only of reasonableness, but also of purpose and proportionality, guide judicial review. The section also suggests that there may be different tests for different rights, and that levels or standards, or even criteria, might vary. It hints, thus, at a hierarchy of rights (considered later in this chapter). An alternative is to set out individual tests or standards for individual rights. This produces a cluttered constitutional text and may create inflexibilities, but it limits judicial discretion or law making through judicial review. Chapter 2 of the Swedish Constitution, for example, lists and defines in detail the “fundamental rights and freedoms”: expression, information, assembly, protest, association, worship, and movement, among others. Rather than a general test, later provisions set out in detail the manner in which these rights and freedoms may legitimately be restricted. Freedom of expression and information, for example, may only be restricted having regard to the security of the Realm, the national supply of goods, public order and public safety, the good name of the individual, the sanctity of private life, and the prevention and prosecution of crime. Freedom of expression may also be restricted in commercial activities. Freedom of expression and freedom of information may otherwise be restricted only where particularly important grounds so warrant. . . . 36 Gender equality is not given the status of a fundamental right in the Swedish Constitution, but Article 16 of Chapter 2 prohibits gender 35

36

Penelope Andrews, “From Gender Apartheid to Non-Sexism: The Pursuit of Women’s Rights in South Africa” (2001) 26 North Carolina Journal of International Law and Commercial Regulation 693, at 700. Chapter 2, Article 13. It is given double protection in the paragraph that follows: “In judging what restrictions may be introduced by virtue of paragraph one, particular regard shall be had to the importance of the widest possible freedom of expression and freedom of information in political, religious, professional, scientific and cultural matters.”

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discrimination, and includes both protection of affirmative action and negative exceptions: No act of law or other provision may imply the unfavourable treatment of a citizen on grounds of gender, unless the provision forms part of efforts to promote equality between men and women or relates to compulsory military service or other analogous official duties. Whether laws prohibiting pornography, for example, would fall under the exceptions to freedom of information or constitute part of the effort to promote gender equality is not clear on the face of these provisions, despite their level of detail. It is, however, evident that freedom of expression is a higher-order right than freedom from discrimination on the ground of gender under the Swedish Constitution. Limits or restrictions on rights, including those that arise from a rights collision, are never likely to be listed exhaustively. “Important” or “reasonable” or “legitimate” exceptions outside those enumerated in a constitution, however detailed the provisions, are always likely to arise, if only due to changes in public policy over time. A general test or standard, as a guide to judicial review, may be more flexible and is no more likely to permit adverse restrictions or limits on rights protection than a detailed provision. More important in reconciling rights is a constitutional indication of the relative importance of rights inter se. Rights Hierarchies

Constitutional provisions for restrictions on rights and tests for determining the validity or legitimacy of such restrictions do not necessarily solve the problem of collisions between rights. The framers of a constitution need to consider whether each constitutional right is equal in value to each other, or whether there is a normative hierarchy, requiring certain rights to enjoy a greater level of protection, not only against legislative intrusion, but against the competing claims of other rights. As suggested previously, in designing a constitution with gender equity and agency as the goal, gender equality rights must be among the fundamental or nonderogable: those accorded priority in an otherwise equally weighted contest, and those for which the level of protective scrutiny applied by the courts is at its highest.

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There are at least three constitutional design choices implicated in a rights hierarchy: (1) whether certain rights will be “quarantined,” (2) whether an order or hierarchy of rights will be given express recognition, and (3) whether and how unexpressed rights will gain protection. As noted, fundamental or foundational principles or normative commitments are expressly recognized in a few constitutions as nonderogable and inalienable. Alternatively, or in addition, some constitutions accord certain rights a higher level of protection from legislative limits than others, raising them on the rights hierarchy and indicating, if only in this manner, an order of priority. Section 33 of the Canadian Charter (known familiarly as the “notwithstanding clause”) permits legislative derogation from some constitutional rights, but excludes others. It empowers the federal or provincial legislatures to declare that an act or provision in an act “shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of [the] Charter.”37 The rights excluded from override and thereby prioritized are the democratic rights, mobility rights, and language rights. However, to the dismay of feminists who had fought for the recognition and protection of gender equality during the Charter’s framing, Section 15 of the Charter – which includes prohibition on sex discrimination – was not exempted from Section 33. A further provision, Section 28, was included, however, specifically asserting gender equality: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.” In the light of its uncompromising wording (“notwithstanding anything”) and its exemption from the provisions covered by Section 33, this might appear itself to be an “override” of the later section. However, as Beverley Baines writes, although its definition is not yet certain, “the [Supreme] Court has indicated that it is an interpretive, rather than substantive rights-bearing, provision. Thus, its exemption from the override provision is of questionable value.”38 At a distance from the processes of negotiation and compromise that gave rise to both Canadian provisions, the failure to indicate either the status of Section 28 or its relationship with Section 33 is surprising, and it 37 38

The override has a constitutional life span of only 5 years, although it may be reenacted (Section 33 (3) and (4)). Baines, “Using the Canadian Charter of Rights and Freedoms to Constitute Women,” supra note 1, at 51.

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stands as an unusually loose example of drafting. This lacuna serves as a general reminder that each provision in a constitution must be considered in its relationship to the whole. This is not easy, and there can scarcely be a constitution in the world where failure to clarify the relationship of constitutional provisions inter se does not arise. It is, however, especially important where issues of rights priorities and reconciliation between rights arise in disputes. Second, an order of priority should be expressly indicated, either in a list or in a provision indicating which right prevails in the event of an inconsistency or clash between laws passed to protect different rights. The latter is routine in a federal constitution with respect to inconsistency between federal and state laws on the same subject, but is rare in constitutions with respect to rights provisions. Gender equality must, I suggest, be high on the list. Third, as suggested previously, and illustrated by the Ninth Amendment of the U.S. Constitution, provision should be made to protect rights that are not yet identified or enumerated from the effect of the principle expressio unius, exclusio alterius and from the assumption that express rights exhaust the field. The “rule” of constitutional interpretation that express provisions prevail over implied or unwritten provisions means, however, that attempting to protect the unwritten or unnamed by alluding to their shadowy existence will not go very far in a clash. In an unusual U.S. case concerning the use of contraceptives, Griswold v. Connecticut,39 an implied right to privacy was found in the “penumbra” of express constitutional rights in the U.S. Constitution (although not sourced in the Ninth Amendment); it subsequently hardened into a “fundamental” right in American jurisprudence. This complicates the picture, but does not essentially alter the principle, because no clash with an express right was at issue. (This case and those that followed it are discussed further in Chapter 8.) The Case of Pornography

The clash between rights, as well as the impact of alternative constitutional models or assumptions on how such a clash should be resolved, are 39

Griswold v. Connecticut, 381 U.S. 479 (1965).

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starkly illustrated by the case of pornography. Pornography is regarded by many, both feminists and nonfeminists alike, as essentially degrading to women and as closely associated with women’s subordination, including in its relationship to, and incitement of, gender-motivated violence. Some feminists, however, reject this perspective; they hold that it implies that women are passive and weak, needing protection from sexual desires or fantasy, including their own. Others see the regulation of pornography as serving a socially puritanical purpose, or as denying the autonomy and agency of adult women and men.40 The distinction between pornography, obscenity, depictions of violence, and artistic expression, among other issues, also complicates this debate. This is not the place to survey these debates, or pursue them normatively or sociologically. Our question here is whether a constitutional form of words can be found that might balance or reconcile the various rights and interests involved. Regardless of the position one holds on the “merits” of pornography, it is well understood that censorship or other legal regulation of sexually explicit material clashes with freedom of expression or speech and illustrates the collision of rights. As Rae Langton, a critic of pornography, acknowledges, “[t]o prohibit or censor pornography would be to deprive some people of a liberty, in particular the freedom to speak.”41 A constitutional rights hierarchy will critically affect the resolution of this clash of rights. One of the difficulties in searching for a resolution, however, is that the freedom of expression or the right to free speech is “tangible”; that is, it is already named and historically scripted. But what is the right with which freedom of speech collides when pornography is the issue? Is it gender equality in general, the right to security of the person, the right to dignity, or another? In an older constitution where none of these alternative rights is expressly recognized, the claim for a clash of constitutional “rights” will be hard to make. Furthermore, the specific harm (if any) done to women by pornography is contested. In the United States, freedom of speech – recognized in the First Amendment of the Bill of Rights – has had historical preeminence, in part for reasons of simple positioning and in part for conceptual reasons, being 40 41

See Joan Kennedy Taylor, “Does Sexual Speech Harm Women? The Split Within Feminism” (1993–1994) 5 Stanford Law & Policy Review 49. Rae Langton, “Pornography: A Liberal’s Unfinished Business” (1999) 12 Canadian Journal of Law and Jurisprudence 109, at 110.

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regarded as the right without which other rights are nugatory. The Supreme Court has held that the law cannot censor or prohibit speech, or the expression of an idea, merely because it gives offense.42 It has treated pornography in a similar light, as “speech” or “expression” protected against suppression on the mere ground of offense, and has prioritized the right to free speech over the other rights (e.g., equality, and security) that its opponents claim it to threaten.43 The Court has, however, upheld several legislative prohibitions on sexually explicit expression (such as a state ban on nude dancing44 ) but has done so only through accepting that the regulation of public nudity is legitimate, in other words, not by confronting questions about whether pornography is harmless or harmful to women. Not all constitutions have been so reticent in directly and unequivocally identifying a gendered harm in pornography and exempting it from the protection extended to speech. The South African Constitution protects freedom of expression, but in Section 16 (2) (c), it expressly excludes expression that amounts to “advocacy of hatred based on . . . gender . . . that constitutes incitement to harm.” Under South African law, pornography is considered to fall within this definition. The Film and Publication Act strenuously prohibits pornography. The act’s preamble “conceptualizes [prohibition] as a means of securing gender equality – as is guaranteed in the Constitution.”45 This goal, Jagwanth and Murray write, “united women of the governing African National Congress and conservative opposition parties into a strong women’s lobby in Parliament.”46 The Canadian approach is similar, although the Charter of Rights and Freedoms does not include an express provision relating to gendermotivated harmful expression. In R v. Butler,47 the Supreme Court found that antipornography provisions of the Criminal Code violated the constitutional guarantee of freedom of expression but held that this breach was “demonstrably justifiable,” as permitted by Section 1 of the Charter of Rights and Freedoms, because its legal purpose was the prevention of social 42 43 44 45

46 47

Texas v. Johnson, 491 U.S. 397 (1989). American Booksellers, Inc. v. Hudnut, 475 U.S. 1001 (1986). Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). Jagwanth and Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa,” in Baines and Rubio-Marin, eds., The Gender of Constitutional Jurisprudence, supra note 1, at 239. Ibid. R v. Butler (1992) 1 SCR 452.

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harm, and not moral control. The law, which provided for exemptions for scientific, artistic, and literary works, was found to be proportional to this objective. Visual or recorded pornography harms or, at the very least, exploits the dignity and frequently the bodily integrity of the person it employs and depicts. Cass Sunstein has suggested that restrictions (albeit narrowly drawn) on “materials that combine sex with violence or coercion” may be legitimate, where restrictions on material that is merely offensive may not.48 For the purposes of legitimate regulation, therefore, visual (and, presumably, phonic) pornography that involves a living subject may be separated from written pornography. This seems to be a reasonable distinction. It also focuses on the inherent problem of classifying pornography as “speech” or “expression,” thus bringing it within a constitutionally protected class. Some visual or spoken expression is pornographic. This does not mean that all pornography is speech or expression, any more than is any action that is visually or phonically recorded. To classify it as expression because it is recorded is to confuse the medium with the action. Pornography that is not only sexual, but also abusive or degrading, is harmful to its subject (in a way that is similar, I suggest, to the harm done by many traditional or customary practices to which women will often submit willingly; see Chapter 9); pornography also normalizes or “approves” similar harm toward others. Is there a way in which such distinctions can be clearly drawn in constitutional form? The South African provision makes no distinction between “expression” and degrading actions that are filmed or recorded. However, it does, effectively, draw a useful line between permissible and impermissible sexual expression, and in doing so, indirectly provides a definition of pornography. It is a definition that equates “pornography,” analytically, with harmful representations of harmful action, and that allows for a distinction between the sexually explicit and the pornographic. If we refer, again, to the foundational norms on which a constitution is constructed, gender equality, rather than the right to free speech or expression, is the norm against which these distinctions are measured in the South African example, and against which they should be measured. Such distinctions, as with all those that separate constitutional from unconstitutional limitations on rights, require difficult choices to be made 48

Cass Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1995), at 209.

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by judges. However, the prioritizing of equality in the hierarchy of constitutional norms ahead of the freedom of speech, in addition to a purposive approach to interpretation of a constitution and an assessment of the impact of impugned legislation, will assist. Legislation (as in South Africa) that has the purpose of furthering gender equality (by preventing gender-motivated harm or degradation), and does not have the effect of regulating morality or silencing or prohibiting sexual expression, should, all else being equal, survive a constitutional challenge that is brought in the name of free speech or expression. Other rights, such as security of the person, dignity, and bodily integrity, may all be tested against the purpose of regulating pornography, if pornography is not merely conceptualized as a clash between freedom and unfreedom of speech or expression. This is not to downgrade freedom of expression (or of the media) as among the most precious of the principles that give content to the foundational norms of liberty and democracy. It is, rather, to question the classification of pornography as speech or expression, and to apply a different test to its legitimate regulation. It is also to recognize, again, that rights collide, but they do not collide on a level playing field. The rights that give content to the norm of gender equality are newer and less secure than the older rights that emerged during, and are associated with, the early development of liberal constitutionalism. This, however, would not be the first time that original liberal constitutionalism has had to accommodate other progressive ideas. Across history, democratic political rights came to compete with liberty rights, and over time, these became reconciled to each other. Gender rights should not sit lower on the rights hierarchy or be asked to give way to the older rights merely because the others got there first.

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8 Reproductive Rights

All women have in common the historical and persistent experience of subordination qua women. This distinguishes them from men, as a class, but with respect to the law, it is possible at least to imagine the ultimate success of remedies that are designed to eliminate this distinction. That is to say, as a status distinction, subordination is contingent, not inherent, and the goal of feminist law is to overcome it, not accommodate it. But are there inherent qualities or attributes that render gender differences permanent and that need to be addressed separately in constitution making? This question must be asked with a sharp eye to history. Many purported distinctions in capacity or temperament that were once considered inherent and unchangeable, and many of which were once incorporated into law, have proven illusory or mutable over time or, at the very least, have become irrelevant to law or policy. However (unlike in most other cases of status discrimination), even full achievement of formal equality and comprehensive demonstrations of equal capacity would still leave women different from men. A fundamental difference would remain. Women bear and give birth to children, where men do not. This is not a purely contingent difference that becomes inconsequential if abstracted from culture or history (as skin color, for example, does). It endures and remains significant at any time and in any part of the world. The reproductive role of women is, similarly, not merely commensurate with or complementary to the reproductive role of men. It endures, independent of the numerous arbitrary cultural practices and prejudices surrounding reproduction that have existed over time, and despite the fact that modern reproductive technologies have, in some respects and in some 191

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parts of the world, altered women’s orientation toward their own bodies, as well as extending the domain of legal regulation. This is not to claim that “biology is destiny,” or to overlook the fact that some women, either by choice or circumstance, never become pregnant, or the fact that postmenopausal women are nonreproductive. It is, however, to recognize a reality: women bear children, and the vast majority of premenopausal women in the world are capable of becoming pregnant. This biological difference, regardless of whether it is realized, remains critical. Notwithstanding objections that foregrounding reproductive capacity is “essentialist” or reductionist, it is impossible (and irresponsible) to approach constitutional design from the perspective of gender without recognizing the permanent significance of reproductive biology. A constitution that aims at gender equity must make provision, one way or another, for women as either potential or actual mothers. The well-recognized distinction between formal and substantive rights acknowledges that the goal of simply offering women and men “equality” under the law often fails to produce equality in outcomes. This effect is marked with respect to reproductive differences. In 1974, in Geduldig v. Aiello,1 for example, the Supreme Court of the United States upheld a state employment disability insurance program that covered individual employees’ wages lost as a result of undergoing medical procedures, but excluded procedures incurred during a normal pregnancy. It did, however, cover costs associated with procedures (e.g., circumcision) experienced only by men. The Court reasoned, inter alia, that gender discrimination was not implicated in the pregnancy exclusion because the distinction drawn by the law was not between women and men, but simply between pregnant and nonpregnant persons; it applied equally to men and women. In contrast, Justice William Brennan’s dissenting opinion held that “equal protection of the laws” guaranteed under the Constitution’s Fourteenth Amendment must recognize “physical characteristics inextricably linked to one sex.”2 To offer “equality” under the law to all, while failing to recognize, where relevant, that women are differently placed is to deny equality. A 1 2

Geduldig v. Aiello, 417 U.S. 484 (1974). Ibid., at 501.

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constitution that ignores or obstructs the recognition of such differences, even if it does so in the name of equality, cannot serve the goal of gender equity. Equal protection of the laws, if it is to serve its purpose, must be supplemented by “unequal,” substantive protections. Women should be protected from employment discrimination based on pregnancy. It should, for example, be incontrovertibly unlawful to dismiss a woman or downgrade her employment status because she becomes pregnant. Women should also enjoy positive or substantive rights or entitlements that are not available to men, such as paid maternity leave, the absence of which renders formal equality either illusory or detrimental to women. This much is well recognized in feminist literature. However, a further supplement is needed. Where women and men are intrinsically different, neither formal nor substantive approaches to equality, alone or in combination, are adequate. Equality rights and substantive equalizing measures will not suffice to address fully what arises from women’s reproductive capacity. What are needed, in addition, are both special recognition and special provisions that are unrelated to achieving equality with men per se. These are best conceptualized in the language of recognition and protection, rather than rights. Recognition involves an understanding of the situation or circumstances of people’s being, and of the impact these have on lives. It includes taking account of difference where it is relevant, respecting and validating the attributes that arise from difference, and giving it place and voice in institutions of decision making and power. It is a simple measure of equality and agency. It is not a claim for special consideration (which assumes a norm against which the “special” is measured, and, indeed, tolerated), nor is it a claim for inherent “identity” and the politics that is sometimes claimed to arise from identity. Personal identity is too complex to be reduced to any single aspect of being. The common experience of women, making them different from men (and men different from women) is existential or situational, not identic. Protection is part of what arises from recognition. It should not be confused with paternalism. This is easily done because the history of women’s subordination has often included paternalistic notions about women’s special weakness and consequent need for protection that are, in reality, a disabling affirmation of men’s power and authority. Protection involves the

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recognition of the particular vulnerability and particular needs of women when pregnant, during childbirth, when caring for babies and young children, and at other times of associated vulnerability. It should be offered by the state, both because the state has a duty to protect the vulnerable, and in recognition of the social and national contribution made in bearing children. It is a nonpaternalistic duty that falls on women as well as men. Protection should be offered to those in a position of vulnerability, and not based on the assumption of incapacity. How much can this principle be constitutionalized? We find the recognition of this principle in Article 13 of the Colombian Constitution (in a section concerned with equality and prohibition on discrimination): “The state will especially protect those individuals who on account of their economic, physical or mental condition are in obviously vulnerable circumstances and will sanction any abuse or ill-treatment perpetrated against them.” In conjunction with others, Article 13 has supported a judicial ruling that “women workers cannot be dismissed from their jobs without cause during pregnancy or the first three months after giving birth.”3 In 1996 (as we saw in Chapter 4), the Constitutional Court of South Africa heard a challenge (on appeal from a lower court) by a male prisoner to an executive act, promulgated by President Nelson Mandela, pardoning women prisoners with children younger than 12 years.4 The prisoner, John Hugo, claimed that the pardon amounted to discrimination on the ground of gender and, as such, was prohibited by the South African Constitution. The Court rejected the claim, holding that the president had exercised his constitutional power to pardon individuals or groups in a manner guided by principles of equality and with the best interests of the child in mind. It acknowledged that there was, prima facie, discrimination against male prisoners, but concluded that it was fair. As Penelope Andrews notes, the Court recognized “the apparent contradiction between the reality that mothers 3

4

Martha I. Morgan, “Emancipatory Equality: Gender Jurisprudence under the Colombian Constitution,” in Beverley Baines and Ruth Rubio-Marin, eds., The Gender of Constitutional Jurisprudence (Cambridge, UK: Cambridge University Press, 2005), at 83. The President of the Republic of South Africa and the Minister of Correctional Services v John Phillip Peter Hugo, CCT 11/96 . Those convicted of murder, drug trading, sexual abuse, child abuse, and certain other crimes were excluded. In all, 440 women were released. Disabled prisoners and young prisoners were also released. The pardon act also made provision for others to apply for remission of their sentences on grounds of special circumstances.

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bear the greatest burden of childrearing and the constitutional imperative that everyone be treated equally.”5 In a dissenting judgment, Justice Johann Kriegler objected that the generalization about women’s responsibility for childrearing was based on gender stereotypes, and was in itself, a root cause of women’s inequality in our society. It is both a result and a cause of prejudice: a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and feature of the patriarchy which the Constitution so vehemently condemns.6 Justice Kriegler asserted that “[r]eliance on the generalisation that women are the primary care givers is harmful in its tendency to cramp and stunt the efforts of both men and women to form their identities freely.”7 There are, he said “decided disadvantages to womankind in general in perpetuating perceptions foundational to paternalistic attitudes that limit the access of women to the workplace and other sources of opportunity.”8 However, as Andrews observes, the Court was “concerned not just with formal equality (equal treatment), which can at times lead to inequality, but also with substantive equality, which contextualizes the actual experiences and reality of women within the formal impediments to equality.”9 More is involved here, however, than substantive equality. In such a case, the distinction between equality and equity comes into its own. Equity is broader than equality. It incorporates fairness, justice, and decency, as well as equal treatment or technical correctness. Agency is also significant in this complex taxonomy. Women’s agency – the ability to act, to enjoy autonomy, to play a part in decision making, and to exercise power – is critically affected by the manner in which their reproductive experience, and its effect on their lives and those of their children, are treated, both legally and socially. 5

6 7 8 9

Penelope Andrews, “From Gender Apartheid to Non-Sexism: The Pursuit of Women’s Rights in South Africa”, 26 North Carolina Journal of International Law and Commercial Regulation 693 (2001) 700, at 705–706. Hugo, supra note 4, at 73. Ibid., at 74. Ibid., at 76. Andrews, “From Gender Apartheid to Non-Sexism,” supra note 5, at 709.

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Beyond Rights

Once again, the language of rights is not adequate for all of this. To speak principally of rights arising from difference conveys a scheme in which women (individually or collectively) must seek legal redress for status injuries – that is, for the denial or infringement of legally recognized rights suffered purely because of their status as women. This places the onus on women, with attendant resource problems (considered in Chapter 6) to initiate and sustain actions in the courts to enforce the law. It suggests that what the state or individual parties are required to do is no more than respond to actions initiated by women. It also suggests that women must assert their claims, rather than that the state must act, both in providing support and in recognizing women’s reproductive contribution. It is, in a loose sense, like imagining a scheme of criminal law in which the victim or the victim’s representatives are required to initiate and sustain the prosecution. The language of “reproductive health,”although still frequently couched in terms of rights, allows us to see the complexities. The Program of Action adopted at the International World Conference on Population and Development in Cairo in 1994, includes a lengthy definition of reproductive health as A state of complete physical, mental and social well-being and . . . not merely the absence of disease or infirmity, in all matters relating to the reproductive system and its functions and processes. Reproductive health therefore implies that people be able to have a satisfying and safe sex life and that they have a capability to reproduce and the freedom to decide if, when and how to do so. Implicit in this last condition is the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for the regulation of fertility that are not against the law. Also women should have the right of access to appropriate health-care services that will enable them to go safely through child birth and provide couples with the best chance of having a healthy infant.10 The Declaration and Platform for Action, adopted at the Fourth World Conference on Women in Beijing in 1995, affirms the Cairo Conference 10

www.iisd.ca/Cairo/program/p00000.html.

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definition. It treats reproductive health not merely as a woman’s right, but as a human right, and explains further that The human rights of women include their right to have control over, and decide freely and responsibly on matters related to their sexuality, including sexual and reproductive health, free of coercion, discrimination and violence. Equal relationships between women and men in matters of sexual relations and reproduction, including full respect for the integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and its consequences.11 Although these are too detailed and legally imprecise to serve as models for constitutional provisions, they are useful for discussion. They set out the intricate relationship between bodily health, integrity, sexual satisfaction, the desire to procreate, the choice not to do so, knowledge, and personal autonomy. They also acknowledge the fact that pregnancy and childbirth involve medical risks. They stop short, however, of the full range of issues surrounding reproductive “rights” or “health.” They need to be extended, to include women’s needs before pregnancy, including during menstruation,12 and after childbirth, both with respect to the physical injuries (often lasting, even in the developed world) produced by childbirth, and as caregivers of infants. A recognition of women’s special contribution to society as bearers of children is important, although it should not serve as a tool of oppression. A full account also needs to include nonreproductive women, those who are incapable of bearing children, either before or after menopause. Women should not be subject to discriminatory treatment, socially, legally, or medically, because they are infertile or postfertile. Nor, in the converse, should infertility be required as a criterion for entitlements.13 11 12

13

www.un.org/esa/gopher-data/conf/fwcw/off/a–20.en. Including privacy related to menstruation and other biological functions. For example, a 2007 Indian Civil Service plan would have required women employees to give details of their menstrual cycles as part of their regular health appraisal. Rules or laws of this kind should not be capable of surviving a constitutional challenge. In the event, the plan was dropped due to political pressure. Available online at http://news.bbc.co.uk/2/hi/south asia/6545115.stm. For example, the case of Christman v. American Cyanamid Co., 578 F. Supp (N.D.W Va. 1983) concerned a requirement by a U.S. chemicals company that women employees should submit to sterilization if they wanted to remain employed in jobs that were dangerous in pregnancy. Five women did.

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The Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)14 includes several relevant provisions that cover many of these issues and may serve as better guides to constitutional drafting: Article 12.1: States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning. Article 12.2: . . . States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation. Article 14. 2: States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas . . . and, in particular, shall ensure to such women the right: . . . (b) To have access to adequate health care facilities, including information, counselling and services in family planning. As these provisions suggest, instead of rights as our primary focus, we should flip the perspective and speak in terms of responsibility or duty. The international law language of “responsibility to protect”15 may be usefully adapted here. In simple terms, the state has a duty to recognize both women’s needs/interests arising from reproductive capacity and their special reproductive contribution to society; it also has a duty to protect mothers as a class of women. Although I will continue to use the well-established and economical expression “reproductive rights” in reference to the general discursive field, I will, thus, draw a distinction between rights and duties, between equality and protection, and between protection and noninterference. With respect to reproduction, women need both protection and noninterference in decisions regarding their bodily integrity. They must be guaranteed freedom from discrimination (a negative right) with respect to reproductive services 14

15

By 2006, 185 countries had ratified CEDAW. However, 24 of these entered reservations against provisions affecting reproductive rights. As of June 2007, only 88 have signed CEDAW’s Optional Protocol, which allows disputes to be referred to the UN Human Rights Committee. Gareth Evans, “Making Idealism Realistic: The Responsibility to Protect as a New Global Security Norm,” International Crisis Group, February 2007. Available online at www.crisisgroup.org/home/index.cfm?id=4658&l=1.

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and a legally enforceable (positive) protection of autonomy, as far as possible, over their own fertility. Whether such matters should be constitutionalized is our question. In responding, we need to distinguish between the rights of women (negative and positive), and the duties or responsibilities of the constitutional state. For the former, we need further to distinguish between sexual and maternal rights, contraceptive and pregnancy rights, and postreproductive rights. We also need to distinguish between provision of services and mechanisms of protection. (Some of these categories will overlap. Our point, in naming them separately, is to draw attention to the different angles of approach that are needed in constitutional design.) The political recognition of reproductive rights is new, and its constitutional recognition is both recent and rare. Although several constitutions include pregnancy or maternity among the grounds in respect of which discrimination is prohibited, and some others make reference to health care generally, there are few examples to draw on, where constitutional provisions make express positive reference to women’s reproductive health or capacity. No existing constitution of which I am aware addresses the full range of issues related to reproductive rights, needs/interests, and duties. The South African Constitution is unusual, perhaps unique, in the extent to which it sets out detailed provisions that recognize women’s reproductive capacity. In its provisions for formal equality, the South African Bill of Rights includes “pregnancy” among the impermissible grounds for discrimination: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including . . . pregnancy.”16 With respect to noninterference and bodily integrity, under the heading Freedom and security of the person (Section 12), it provides (among other things) that “Everyone has the right to bodily and psychological integrity, which includes the right (a) to make decisions concerning reproduction; (b) to security in and control over their body. . . .” With respect to duties or responsibilities of the state, under the heading Health care, food, water and social security, it provides in Section 27.1 that 16

The full provision reads: 9.3. “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

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“Everyone has the right to have access to . . . health care services, including reproductive health care. . . .” It also enjoins the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of . . . [such] rights.” There is, however, little case law arising from these rights, and little guidance therefore about whether their language adequately serves the purpose for which it was designed. Because there are few examples of express constitutional recognition of reproductive rights in other constitutions or, with the striking exception of abortion (discussed in the next section) and the lesser exception of contraception, even of constitutional jurisprudence surrounding reproduction,17 much of the discussion that follows is necessarily speculative. Because constitutional design for gender equity and agency also includes what not to include in a constitution, constitutional obstacles (and silences) will also need to be considered. Although express constitutional references (either negative or positive) to reproduction are few, the constitutional recognition of a range of other rights and freedoms may be directly relevant to (indeed may sometimes be code for) reproductive rights and freedoms. These include constitutional references to the “right to life,” protection of the family, privacy, freedom to travel, security, and liberty of the person. Such references have, in many cases, become sites of legal contestation regarding their implications for reproductive rights. Abortion and Contraception

Whatever else one might believe, normatively or morally, about contraception and access to abortion, it is a simple sine qua non of gender equality and agency that women should not be susceptible to unwanted or uncontrollable pregnancies. Where pregnancy cannot be controlled by women themselves, early, frequent, and repeated pregnancies are the stark reality in most women’s lives. In addition to the social and financial impact (which is variable across countries and cultures), repeated pregnancies often have a damaging 17

Beverley Baines and Ruth Rubio-Marin, eds., The Gender of Constitutional Jurisprudence (Cambridge, UK: Cambridge University Press, 2005) includes further discussion of the constitutional jurisprudence of reproductive rights in the constitutions of twelve different countries.

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effect on women’s health, both short term and lasting, even in countries where medical services are readily available and of high quality. Childbirth remains a medically risky experience, and maternal deaths are still a significant factor in world mortality demographics.18 Where contraception and medically supervised abortion are illegal or unavailable, and even where these are forbidden by religious doctrine, it is a simple, harsh reality that many women will resort to “backyard,” clandestine abortions, increasing the risk of obstetric ill health or death.19 When pregnancies are brought to term, repeated responsibility for feeding and caring for infants and children often dramatically affects women’s health, and almost always restricts their physical autonomy and financial independence over their lifetime. This is the reality, even in countries where women’s legal rights and economic bargaining power are otherwise protected, and even in an ideal situation where high-quality child care is fully available and men take appropriate responsibility as fathers of children. Even if one holds the (perfectly reasonable) view that bearing children and caring for others is no less valuable than enjoying personal autonomy, it is undeniable that these are the effects of uncontrolled pregnancies. It also cannot be denied that it is women, and not men, who suffer these effects. A constitution that, either directly or indirectly, prohibits or obstructs women’s access to contraception and/or abortion must fail, in the most fundamental of ways, to provide for gender equity. Although abortion is illegal or restricted in many countries, it is rare for a constitution, at least in the developed world, to entrench its express prohibition in so many words. Many constitutions, in contrast, entrench a “right to life” that may serve as an implied prohibition, in the absence of other provisions countermanding or qualifying prohibition. 18

19

The pattern of obstetric-related deaths is complex and very variable. In summary, in an assessment of risk “that takes into account both the probability of becoming pregnant and the probability of dying as a result of that pregnancy cumulated across a women’s reproductive years,” as many as 1 in 16 women in sub-Saharan Africa, where the risk is highest, risk maternal death in their lifetime, compared with 1 in 2,800 in developed parts of the world. World Health Organisation, Maternal Mortality in 2000: Estimates Developed by WHO, UNICEF and UNFPRA, WHO Geneva, 2004: www.reliefweb.int/library/documents/2003/who-saf-22oct.pdf. Global estimates are of up to 200,000 maternal deaths arising from unsafe abortions per year. Rebecca J. Cook, “Reproductive Health Law: Where Next, after Cairo and Beijing?” (1997) 16 Medicine and Law 169.

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Ireland provides one example of what is effectively a direct constitutional prohibition on abortion, expressed as the “right to life of the unborn.” The impact of this provision has been dramatic. As in many countries, abortion in Ireland has been illegal since the nineteenth century and, in common with many other Roman Catholic countries, Irish law and policy since the establishment of the Irish Free State in 1922 have been strongly pronatalist. Furthermore, the preeminence of the family was expressly recognized in the Constitution at its adoption in 1937. However, it was not until 1983 that a “right to life” was incorporated into the Constitution, through the Eighth Amendment, via referendum. This amendment (Article 40.3.3◦ ) inserted the following words: The State acknowledges the right to life of the unborn and, with due regard for the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. As a result, for close to 20 years, the rights of the unborn came to have absolute priority over other constitutional rights. Consistent with this approach, Irish abortion law made no distinction between stages of fetal development, or provision for exceptions based on threats to the pregnant woman’s health or pregnancy as a result of rape or incest. Women seeking medical termination of their pregnancy were forced to travel to countries (usually Britain) without such a prohibition. In Ireland, pregnancy counseling and the supply of information about abortion or the contact details of abortion clinics outside Ireland was prohibited,20 as was the publication of such information.21 The distribution in Ireland of books and magazines published in other countries containing information about abortion was suppressed. The situation came to a dramatic head in early 1992, when the Irish High Court received an application from the attorney-general for an injunction restraining a 14-year-old girl from leaving Ireland for the following 9 months. The girl, known as x, had become pregnant as the result of rape. Hearing the application, Justice Declan Costello of the Irish High Court was provided with medical evidence that x’s psychological health would be severely affected if she was required to continue her pregnancy and that 20 21

Att. Gen. (SPUC Ltd) v Open Door Counselling Ltd and Dublin Well Women Centre Ltd [1988] IR 593. SPUC v. Coogan (1989) IR 734.

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“the damage to her mental health would be devastating.”22 Nevertheless, the injunction was granted. Although Article 40.3.3◦ appeared to permit, even require, a balancing approach (with its references to “the equal right to life of the mother” and the defense of the unborn “as far as practicable”), and despite general principles of constitutional interpretation that require, among other things, that a constitution must be read as a whole, the Court asserted the absolute constitutional priority of the life of the fetus. The decision sent a shock wave through Ireland, and even those who had campaigned for the Eighth Amendment now “began to question the merits of incorporating a right to life of the ‘unborn’ into the Constitution.”23 Under great political pressure, the Irish government gave an undertaking to pay legal costs for an appeal by x to the Supreme Court. The girl appealed and the Court (with one dissent) found in her favor. The judges’ opinions stressed the need to harmonize and balance the various rights and principles contained in the Constitution. Article 40.3.3◦ , said the Chief Justice, should be read in light of the preamble of the Constitution “with its emphasis on interpreting rights in accordance with the concepts of prudence, justice, and charity.” Such principles, he said, “were particularly appropriate when discussing ‘the intimate human problem of the right of the unborn to life’ and the inter-relationship of constitutional rights.”24 Another judge compared the “right to life in being” with “the right . . . to a life contingent.” Although neither could have priority and both needed to be “vindicated,” it was the girl’s life that had moral priority, as a “life in being.”25 Abortion, the Court concluded, was justified in certain circumstances, as in the case where there was a real and substantial risk to a woman’s life, including the risk of suicide. It was a dramatic year for such constitutional issues in Ireland. Among other events, three constitutional amendments were put to the Irish people for approval in a referendum. The first failed. The wording of what would have been the Twelfth Amendment was It shall be unlawful to terminate the life of an unborn unless such termination is necessary to save the life, as distinct from the health, of 22 23 24 25

(1992) ILRM 401. Noel Whitty, “Law and the Regulation of Reproduction in Ireland: 1922–1992” 43 University of Toronto Law Journal (1993) 851, at 876. Ibid., at 878. (1992) ILRM 441, at 449.

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the mother where there is an illness or disorder of the mother giving rise to a real and substantial risk to her life, not being a risk of selfdestruction. This amendment was soundly rejected by a “novel” alliance of “antiabortion groups, who objected to the legalization of abortion in any circumstance, and pro-choice groups, who refused to recognise a distinction between a woman’s life and health.”26 In contrast, the Thirteenth and Fourteenth Amendments were successful. As a result, Article 40.3.3◦ was qualified so that it could henceforth no longer be held, respectively, to “limit freedom to travel between the State [Ireland] and another State,” nor “limit freedom to obtain or make available, in the State, subject to such conditions as may be laid down by law, information relating to services lawfully available in another State.” The matter did not end in 1992, however. In 2003, following further legal controversy, a proposed Twenty-Fifth Amendment attempted to reactivate the failed Eighth Amendment. The referendum sought to insert the words into Constitution: “the life of the unborn in the womb shall be protected in accordance with the provisions of the Protection of Human Life in Pregnancy Act, 2002.” Among other things, in entrenching the act in the Constitution, the amendment would have had the effect of removing the threat of suicide as one of the permissible grounds for legal termination. Termination of a pregnancy resulting from rape or incest would also have been excluded. The referendum was defeated. In a legal context where abortion is not unrestricted (and where it is unrealistic to assert that it should be), the record of such controversies powerfully demonstrates the confluences of issues surrounding access to abortions: the interdependency of rights to fertility control, information, and freedom to travel. Both x’s case and the failed Twelfth and TwentyFifth Amendments drew attention to the fact that the distinction between a “woman’s life” and a “woman’s health” may be critical in constitutional language or interpretation. To confine legal abortion to the purpose of saving a woman’s “life” is likely – as the wording of the unsuccessful Irish amendments intended – to permit it only in cases of medically proven morbidity. “Health” is wider and more permissive than “life” in this context. Still, to confine the test 26

Whitty, “Law and the Regulation of Reproduction in Ireland: 1922–1992,” supra note 23, at 886.

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(for permitted abortion) to threats to a woman’s “health” risks limiting it to cases of medically attested physical or psychological damage. It may rule out cases where a woman’s financial, material, or relational circumstances are profoundly detrimental or vulnerable to the effects of pregnancy or child rearing. It places the decision to terminate a pregnancy in the hands of the medical practitioner. It overlooks the woman’s own dignity, bodily integrity, and autonomy. Jurisprudence in other countries illustrates the importance of a clear protection of women’s reproductive autonomy, including where there is a generalized constitutional protection of life. In South Africa, for example, Section 11 of the Constitution includes the “right to life.” The Constitution also provides, as we have seen, for the right “to make decisions concerning reproduction.” In 1998, the Christian Lawyers Association of South Africa challenged the Choice on Termination of Pregnancy Act of 1996, which permitted abortion on request during the first 12 weeks of pregnancy, as contrary to the constitutional “right to life.”27 The High Court rejected the challenge, employing purposive interpretation and holding that the framers of the Constitution did not clearly intend Section 11 to extend to the fetus. Furthermore, the Court observed, no exceptions for protection of the fetus were included in the constitutional rights to security and autonomy over reproduction, and to find such exceptions by implication would violate rights that were expressly protected by the Constitution. The Termination Act’s own preamble, the Court noted, placed it “firmly in its constitutional context by highlighting the values of human dignity, equality, security of the person . . . and the constitutional right of persons to make decisions concerning reproduction and to have security in and control over their bodies.”28 The Canadian Charter of Rights and Freedoms also includes the “right to life.” Section 7 provides that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice.” The Charter, however, 27

28

Christian Lawyers Association of South Africa and Others v. Minister of Health and Others, High Court, Transvaal Provincial Division, Case No. 1629/97; (1998) (1) BCLR 1432 (T); (1999) (3) LRC 203. Saras Jagwanth and Christina Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa,” in Beverley Baines and Ruth Rubio-Marin, eds, The Gender of Constitutional Jurisprudence, supra note 17, at 239.

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does not include any specific references to women’s reproductive capacity, either in the form of legal rights or state duties. In the 1980s, Dr. Henry Morgentaler was repeatedly prosecuted for independently performing abortions, contrary to a Canadian law that permitted abortions to be performed only in designated hospitals approved by a therapeutic abortion committee.29 In return, Morgentaler challenged the law as contrary to the other guarantees in Section 7. The Supreme Court upheld his challenge, agreeing that the restrictive law profoundly interfered with women’s bodily integrity and had the potential to damage their psychological security. In the words of Chief Justice Brian Dickson and Justice Antonio Lamer, “[f]orcing a woman, by threat of criminal sanction, to carry a foetus to term unless she meets certain criteria unrelated to her own priorities and aspirations, is a profound interference with a woman’s body and thus an infringement of security of the person.”30 Here, the balancing of differently weighted rights against each other – “life” against “security of the person” – was the central issue. The Court had not yet confronted the question of whether the “right to life” extended to the life of the fetus. As is inevitable where a constitution includes the “right to life,” this question soon arose. In 1989, several constitutional challenges were brought by men seeking injunctions to restrain their pregnant former girlfriends from undergoing abortions.31 In response, the Supreme Court of Canada held that the right to life did not protect the fetus. As Martha Shaffer points out, recognition that the fetus is constitutionally protected would have implications going beyond the restrictive impact on the legality of abortion.32 It might, for example, permit laws prescribing or restraining women’s conduct during pregnancy, or requiring women to undergo particular medical procedures while pregnant or during childbirth, in the name of the protection of life. These, and other complexities need to be considered with respect to constitutional design. Where a constitution recognizes the right to life, it is contrary to principles of gender 29 30 31

32

Bruce Ziff, “Abortion and the Canadian Charter of Rights and Freedoms” (1989) 48 Cambridge Law Journal 165. R v. Morgentaler (1988) 1 S.C.R. 30, at 32–3. Murphy v. Dodd (4 July 1989) Ontario Supreme Court [unreported]; Diamond v. Hirsh (6 July 1989) Man. QB [unreported]; Tremblay v. Daigle (1989) 2 S. C. R. 530. See Martha Shaffer, “Foetal Rights and the Regulation of Abortion” (1994) 39 McGill Law Journal 58. Shaffer, Ibid.

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equity and agency for this to extend to fetal life, at least in such a way as to override women’s life choices, dignity, health, and autonomy, including relationship autonomy. Where other constitutional provisions do not expressly protect women’s reproductive autonomy, a constitutional protection of the right to life, absent a definition of “life,” is deeply troubling.33 A definition, however, is also problematic. Among other things, issues regarding the status or classification of persons without brain function, or the terminally ill, for example, would be implicated. These are notoriously difficult issues, and any definition would either evade certainty or would raise profound disagreement (or both). A specific definition referring to life in the womb – distinguishing, for example, between pre–viability and post–viability, or stages of pregnancy – would not avoid such complexities. Further definitions of viability would be required, and the shifting medical borderline between pre-viability and post–viability would need to be confronted. Flexibility is required in legal regimes surrounding medical and social assessment of “life,” and constitutional entrenchment creates inherent inflexibility What is necessary and helpful from the perspective of gender equity and agency is either a specific constitutional exemption for the unborn from the “right to life” or the South African approach, where women’s reproductive autonomy is expressly provided for, notwithstanding the coexisting constitutional right to life. The latter approach, I suggest, is preferable, both because it avoids the need to clarify when the life of the unborn or the moment of birth begins, and also to guard against the possibility that exemption for the unborn from the definition of “life” would have the perverse effect of undermining legal arguments for medical support and protection for pregnant women. The state has a legitimate interest in protecting both the pregnant woman and the unborn child after a certain stage of fetal development (usually 33

In many countries with a constitutional right to life, but no constitutional definition, the constitutional courts have provided such a definition. Among other examples, in Ireland, the constitutionally protected life of the unborn has been held to begin from the moment of conception. In Costa Rica, Article 21 of the Constitution states that “[h]uman life is inviolable.” In a case concerning the validity of a law regulating in vitro fertilization, the Constitutional Chamber held that life begins at the moment of conception and that the inevitable loss of embryos in this treatment amounted to a violation of Article 21. Alda Facio, Rodrigo Jimenez Sandova, and Martha I. Morgan, “Gender Equality and International Human Rights in Costa Rican Constitutional Jurisprudence,” in Baines and Rubio-Marin, eds., The Gender of Constitutional Jurisprudence, supra note 17.

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defined as viability outside the woman’s body). Indeed, my argument for protection suggests that it has a positive duty to do so. However, women’s bodies cannot be used as vessels for the interests of others, whether individual or social. The protection of autonomy and bodily integrity, at a stage where the fetus is still an integral part of the woman’s own body, is a critical component of gender equity. I consider this further in the next section.

Reproduction and Privacy

Justice Bertha Wilson observed in the Morgentaler case that the Canadian Charter erects “around each individual, metaphorically speaking, an invisible fence over which the state will not be allowed to trespass.”34 With respect to contraception and abortion, the negative liberty of noninterference, or the idea of a “no go” area for regulation, have been critical to constitutional jurisprudence. Access to contraception is inextricably caught up with issues of governmental “trespass.” In a number of countries with a pronatalist culture or with a long history of criminalization of abortion, the legal barriers against contraception have fallen more easily than those surrounding abortion. In the United States, in Griswold v. Connecticut,35 the first steps toward a constitutional protection of (limited) access to abortion were taken via this route. The case concerned a Connecticut law that made it illegal for anyone, including married persons, to use a drug, instrument, or article for the prevention of conception. The Supreme Court held, inter alia, that the law infringed a fundamental constitutional right. This was the right to privacy. It was not, however, an express right, but was found by implication. It remains an implied right (and, in constitutional interpretation, implied rights are usually subordinate to express rights where there is conflict or inconsistency). The right to privacy was found in the “penumbra” of other rights. Constitutional rights, the Court majority famously said, “have penumbras, formed by emanations from those guarantees that help give them life and substance.”36 Despite dissent and deep, unresolved controversy, the idea that privacy is a fundamental (albeit “negative”) value in a liberal constitution and that 34 35 36

Morgentaler, supra note 30, at 164. Griswold v. Connecticut, 381 U.S. 479 (1965). Ibid., at 484.

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it is relevant to personal and intimate matters, has endured. In 1973, in the landmark judgment of Roe v. Wade,37 it was applied to abortion. State laws that severely restricted access to abortion (at an early stage in pregnancy) were struck down for (among other things) breach of privacy. Numerous cases followed, in which the implications of this ruling were developed and played out. In Planned Parenthood v. Casey38 in 1992, the reasoning in Roe was reaffirmed and the right to abortion upheld. The right to privacy and the right to abortion, however, were not held to be unlimited. Roe also stands for the proposition that the state has an “important and legitimate interest in protecting the potentiality of human life.”39 In Casey, the Court held, further, that restrictions on access to abortion are permitted, as long as these do not place an “undue burden” on a woman’s privacy. Permitted are limitations on the stage of pregnancy at which abortion can be legally performed, waiting periods between requesting and obtaining an abortion, and some medical insurance limitations. Although Roe has been described as “perhaps the most important case decided by the United States Supreme Court furthering women’s autonomy [and] equality . . . in the twentieth century,”40 it is notable that the Court did not consider the issue of abortion from the specific perspective of its impact on women or gender equality (indeed, gender was scarcely mentioned). Rather, it treated privacy with respect to personal and intimate matters as a general, abstract entitlement of individuals in a system of constitutionally limited government. In a 2007 judgment, Gonzales v. Carhart,41 a federal law prohibiting a procedure known as “partial birth abortion” was upheld by the Supreme Court. No constitutional impediment to this law was identified, notwithstanding the absence of any exceptions in the relevant legislation for the procedure to be performed in cases where it was necessary to save or safeguard the woman’s life or health. Justice Anthony Kennedy for the Court stated, inter alia, that the government’s “legitimate and substantial interest in preserving and promoting fetal life . . . would be repudiated” if the Court were to find against the law.42 37 38 39 40

41 42

Roe v. Wade 410 U.S. 113 (1973). Planned Parenthood v. Casey, 505 U.S. 833 (1992). Roe, supra note 37, at 162. April L. Cherry, “Roe’s Legacy: The Nonconsensual Medical Treatment of Pregnant Women and Implications for Female Citizenship” (2003–2004) 6 U. Pa J Constitutional Law 723, at 726. Gonzales v. Carhart, No. 05–380, 18 April 2007. Ibid.

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A jurisprudence of equality, which prioritized the discriminatory impact of the law on women specifically, may have produced a different outcome. It would, at the least, have required the Court to begin its reasoning from the perspective of the woman’s experience. The failure to foreground equality is the flip side of a jurisprudence of privacy that is based on a general principle of governmental noninterference and is not centrally concerned with the actual person. In Casey, in attempting to clarify the “meaning and reach” of Roe, the Court turned its focus on this experience.43 It emphasized, among other things, the impact of the law on the pregnant woman’s “dignity and autonomy,” “personhood,” and “destiny.”44 This, however, was not the perspective adopted by the majority in Gonzales v. Carhart. Rather, the Court looked in detail and at length at the experience of the fetus during such procedures, but as no relevant constitutional test arose from this perspective (the unborn fetus has no constitutional rights), it rested its legal reasoning on measures of governmental interference or “negative liberty,” in the form of tests of the law’s facial vagueness or “overbreadth.” It found that the law, on its face, was neither vague nor disproportionate to its object, nor did it breach any constitutional provision. Is a constitutional right to privacy, therefore, inadequate and even risky as a means of furthering the goal of gender equality and equity? The matter is far from simple, and it may be that there is no way in which finality can be achieved in designing constitutional provisions that protect women’s privacy generally at the same time as recognizing the impact of a law on individual experience. The solution, however, is not to abandon a jurisprudence of privacy. Women need “privacy” with respect to their intimate and reproductive choices; they need to be protected from legal intrusion. They need this negative liberty, both as abstract generalizable individuals and specifically as embodied women. Interference in such matters denies autonomy, integrity, and maturity. Equality, equity, and agency are all compromised in the absence of such indicia of full personhood. However, women also need to be protected by positive measures, including those that recognize the impact of reproductive capacity and experience on their lives and well-being. They need both negative and positive rights; neither on its own will serve the interests of gender equity and agency. 43 44

Casey, supra note 38, at 845. Ibid., at 851–852.

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The protection of fetal life cannot be disregarded either in the complex matrix in which women’s reproductive health, reproductive autonomy, and regulatory liberty are given constitutional recognition. Nor can the right to privacy and autonomy be advanced as an excuse for state neglect of a duty to protect and facilitate (maternally desired) procreation. As Kathryn Kolbert argues with respect to the abortion debate, “society has a general interest in supporting women who choose to have children.”45 The state (or society) has an interest, too, in protecting the life of children and the life of the unborn, once viable. Constitutional provisions must be framed in such a way as to allow a balance between women’s bodily integrity and state duty. However, it is not merely a matter of balance; autonomy and protection are interdependent. Where state support is weak or nonexistent, women’s autonomy is diminished, and the likelihood that women will seek terminations is greater. The language of “choice” is not always appropriate for what is at stake here. To a significant extent, this language is normative. What it asserts is that women should be free to choose and should not be restricted by legal barriers. This seems incontrovertible. Yet, choice, even where it is legally free and unrestricted by undue burdens in procedure or administrative red tape, is often not available, socially, emotionally, relationally, or economically. Women often have no choice other than to undergo a termination, even where they have the legal “choice” to do so. Pressure from male partners, recognition of the impact of another child on existing children, and the woman’s own health are all often desperate imperatives, and to speak of “choice,” both trivializes the pressure and individualizes the decision, when the decision is rarely entirely personal. Although the decision cannot be made by others if the woman’s autonomy and dignity are to be protected, often – indeed, perhaps most often – it cannot be made by the woman alone (even if it is made on her own), and to base normative constitutional claims on the assumption that it can be (and should be) will create perverse and adverse outcomes. As Carl Coleman points out, at least in the United States, “not all deeply personal choices are constitutionally protected,”46 nor can they be. To treat 45 46

Kathryn Kolbert, “Two Steps Forward and One Step Back” (2003–2004) 6 U. Pa J Constitutional Law 685, at 691. Carl H. Coleman, “Assisted Reproductive Technologies and the Constitution” (2002) 30 Fordham Urban Law Journal 57, at 65.

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abortion primarily as a matter of choice is to give it equivalence to other “deeply personal” or subjective choices. It is to place it in a category that has no claim, a priori, to constitutional recognition. Access to safe abortions must be acknowledged as a social imperative as much as a matter of individual or subjective choice. Constitutional provisions merely asserting a woman’s right to choose would not adequately meet the reality, nor even express what is needed to achieve gender equity and agency. Protection of Maternity

Whether to become a mother often involves much more than the choice to continue or terminate a pregnancy. The capacity of women to have children – to become and remain pregnant and to bear a healthy child – is critically affected by many external factors, going well beyond a woman’s individual inclination or physical fertility. The desire to have children is not a lifestyle choice, or even a simple “choice,” any more than is the decision not to become or remain pregnant. It is a deep, human impulse, meaningful and valuable both to the individual and to society. Women and girls, thus, need protection from forced or coerced sterilization, from environmental pollutants that compromise their fertility, from customary practices that render sexual intercourse difficult or painful or that damage the reproductive organs, and from ideologies that either coercively promote or discourage reproduction. Because the health of the woman and the health of the fetus she carries are interdependent, care must be taken not to confuse the care of maternal health with an overriding fetal right to health. Women should not be forced or coerced into undergoing medical procedures or continuing their pregnancy under the guise (whether real or not) of threats to the health of the fetus.47 How far do these principles support a constitutional right to procreate? In the United States, it has been suggested by some that constitutional 47

In Thornburgh v. Am. Coll. of Obstetrics & Gynecologists, 476 U.S. 747 (1998), the Supreme Court held that “states may not intimidate women into continuing pregnancies under the guise of an asserted state interest in protecting maternal health or potential life.” Cherry, “Roe’s Legacy: The Nonconsensual Medical Treatment of Pregnant Women and Implications for Female Citizenship,” supra note 40, fn 23, at 727.

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privacy jurisprudence and Fourteenth Amendment liberties are likely to support such a right, even though the Supreme Court “has never explicitly recognized” this.48 With respect to legal restrictions surrounding access to reproductive technologies, some commentators have gone as far as to suggest that the Supreme Court would be obliged to apply heightened judicial scrutiny to governmental regulation of procedures necessary to achieve procreation. Heightened scrutiny would, thus, they suggest, require the government to show that it had a “compelling governmental interest” in a particular regulatory scheme or law that restricted access to such technologies.49 Others recognize a general “constitutional principle of procreative liberty . . . rather than a right to have a child per se” or tie questions of what might be protected regarding access to technologies to particular considerations, such as the right to marital and sexual intimacy, or childbearing imperatives (religious, genetic, social), rather than simple personal desire.50 They also warn against the use of reproductive technologies for socially adverse purposes such as eugenics. In his overview of such perspectives, Coleman concludes that, although it is “not unthinkable that the [United States Supreme] Court would extend the right to procreate to at least some forms of [alternative reproductive technologies] . . . it is doubtful that the Court would extend the right to procreate to all medical procedures resulting in the birth of a child.”51 Would a constitutionally protected right to procreate have the potential to create a positive duty on the part of the state to make reproductive technologies available? With respect to abortion, the U.S. Supreme Court has rejected the argument that public funding or public facilities must be provided to facilitate abortion, “even in the case of an indigent woman suffering from a medically abnormal pregnancy that could cripple her for life.”52 But what of the positive desire to bear a child? Where reproductive 48 49 50 51 52

Coleman, “Assisted Reproductive Technologies and the Constitution,” supra note 46, at 65. See John A. Robertson, Children of Choice: Freedom and the New Reproductive Technologies (Princeton, NJ: Princeton University Press, 1994). Coleman, “Assisted Reproductive Technologies and the Constitution,” supra note 46, at 64–65. Ibid., at 65. Eileen L. McDonagh, “My Body, My Consent: Securing the Constitutional Right to Abortion Funding” (1999) 62 Albany Law Review 1057. McDonagh refers here to Poelker v. Doe, 432 U.S. 519, 521 (1977). She also notes Maher v. Roe, 432 U.S. 464 (1977) (no constitutional right to abortion funding in the context of a medically normal pregnancy); and Webster v. Reproductive

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services or technologies are available, denial of access on the grounds of gender-related status is clearly inequitable. For example, in Australia, a law of the state of Victoria prohibited single women from receiving in vitro fertilization treatment, confining this service to women with a legal or de facto spouse. Following a challenge by a Victorian doctor, the law was struck down as unconstitutional, being inconsistent with a federal law that prohibited discrimination on the ground of, among other things, marital status.53 Courts around the world, however, have been generally reluctant to enforce or extend rights so as to require governments to make funding or medical services available. The South African Constitution includes the right to health care services, and a duty on the part of the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of . . . [such] rights.” In the absence of case law to draw on regarding access specifically to reproductive services, a case concerning access to particular (nonreproductive) medical facilities can serve as a probable guide. In Soobramoney v. The Minister of Health, Kwazulu Natal,54 the South African Constitutional Court held that the provision of medical services was “dependent upon the resources available for such purposes, and that the corresponding rights themselves are limited by reason of the lack of resources.”55 Emergency services, however, cannot be denied where a person “suffers a sudden catastrophe which calls for immediate medical attention.”56 Thus, Rebecca Cook concludes, “it would seem that under the South African Constitution . . . women seeking emergency obstetric care have a right of reasonable access to such treatment.”57 Lack of resources, plus a “compelling governmental interest” in regulating access to reproductive technologies would therefore be likely to mean

53

54 55 56 57

Health Services, 492 U.S. 490 (1989) (constitutionally valid to prohibit public funding to perform an abortion) fns 6 and 8. Harris v. McRae, U.S. 297 (1980), also held that the Constitution did not compel public funding of medically necessary abortions for indigent women. Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 324. Section 109 of the Australian Constitution makes federal law prevail over state laws where there is an inconsistency. CCT 32/97. Ibid., at 7. Ibid., at 12. Rebecca J. Cook, “Developments in Judicial Approaches to Sexual and Reproductive Health” (2002) 21 Medicine and Law 155.

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that the right to procreate would not be legally untrammeled, even where a constitution included an express right to make decisions concerning reproduction and established a corresponding state duty regarding health care. It is worth emphasizing that the South African Constitution includes language of limitation with respect to such a duty: the duty of the state lies “within its available resources” and the “progressive realisation” of such rights. Such language may serve as a way of preempting excessive pressure on the courts arising from individual constitutional litigation asserting a right of access to, or the provision of, medical services. Notwithstanding the uncertainties surrounding public policy and constitutionally protected reproductive rights, constitutional recognition and protection of maternity may have important roles to play in achieving what comes broadly under the heading of “reproductive rights.” That this is a double-edged sword will be obvious to any feminist, but it should not serve as a disincentive to consider the issue. Several examples can be found in which protection of maternity currently finds constitutional expression. Under Article 41 of the Irish Constitution, the state promises to “protect the Family” and its “imprescriptable rights, antecedent and superior to all positive law.” It also enjoins the state to ensure that economic circumstances do not oblige a mother to work outside the home. Article 41.2.1◦ provides that “[i]n particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.” Article 41.2.2◦ adds that “[t]he State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.” In addition, the Irish Constitution guarantees that in the event of divorce, adequate financial provision must be made for any children and for both spouses. Article 43 of the Colombian Constitution guarantees special state assistance and protection to women during pregnancy and after childbirth, including benefits “if they should thereafter find themselves unemployed or abandoned.”58 Article 53 lists protection for maternity among the fundamental principles to be considered by law makers in enacting labor laws. 58

See Morgan, “Emancipatory Equality: Gender Jurisprudence under the Colombian Constitution,” in Baines and Rubio-Marin, eds, The Gender of Constitutional Jurisprudence, supra note 17, at 80.

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Article (30): 1st of the Iraqi Constitution provides that “[t]he state guarantees social and health insurance . . . especially [for] women and children.” Article (29): 1st (b) provides that “[t]he state shall guarantee the protection of motherhood, childhood and old age. . . .” Such provisions have a deep regressive potential, unless supported by other provisions guaranteeing women’s autonomy and reproductive freedom. The constitutional challenge is to find a way to make one edge of the sword blunt, while sharpening the other. What is necessary is constitutional language that balances the individual autonomy captured in the recognition of a right to reproductive liberty with the state duty to recognize and protect. We find in the South African Constitution the provision that “Everyone has the right to bodily and psychological integrity, which includes the right to make decisions concerning reproduction,” and attached to it (as we saw previously), the right to health care services, and a duty on the part of the state to “take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of . . . [such] rights.” To address what is needed for gender equity, the protection of maternity needs to be added to the right to health care, as well as recognized as an aspect of reproductive autonomy. Together, these have the potential to put pressure on governments (subject to “available resources”) to fund or provide medical facilities or programs of public nutrition, to regulate environmental pollutants that damage fertility or obstetric well-being, to resist laws that discourage maternity, and to provide assistance for child rearing, among other things. Parents and Children

What, in all of this, should a constitution say about the role of men in relation to women’s reproductive capacity? After all, sperm is required for a woman to become pregnant. Should the state not acknowledge this, and even place duties and responsibilities on men? The state, and men, should recognize that sexual intercourse has disproportionate – sometimes dramatically disproportionate – consequences for women if a pregnancy results. They should acknowledge that this entails responsibilities. The reality is, however, that many men take little, if any, responsibility. However, even if they did, and even at the highest level

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on the scale of responsibility, a man will not experience the same impact as a woman in producing children. As Whitty notes, “the traditional perception . . . views pregnancy as analogous to a limited period of incapacitation, with no long-term effects beyond the point of birth and with no appreciation of the way that women are defined by motherhood and its irrevocable consequences.”59 Whitty is speaking specifically of Ireland, but this is more properly described as a global perception. It, too, must be confronted, along with questions of constitutional design for reproductive autonomy and the protection of maternity. Child care is often spoken of as the solution to the intractable disadvantage suffered by women as child bearers or to the tractable, but persistent reality that women, rather than men, overwhelmingly play the role of primary child caregivers. Lack of child care is, however, only one part of the problem. Institutional, indeed constitutional, processes and structures can inhibit women’s participation in the constitutional community, and some of these have a particular impact on women who are mothers. (Barriers to women taking political office are discussed in Chapter 5.) To assume that child care is the single solution will both distract from other factors associated with the disproportionate gender impact of childbearing, and will also obscure the interests and needs of women (and men) in their roles as parents. I note here the work of Sylvia Ann Hewlett and Cornel West in designing what they call a “Parents’ Bill of Rights.”60 Theirs is an interesting and unusual example, in which an attempt is made to find “constitutional” solutions for domestic unhappiness. They take their point of departure from the quotidian experience of families and seek a constitutional way of ameliorating the disadvantages currently found in this experience. They argue, for example, that the happiness of children contributes profoundly to the “social and human capital essential for the healthy functioning of . . . democracy.”61 Writing in the U.S. context, they seek to entrench family-friendly policies through constitutional commitments on government. Some of these commitments are structural and institutional, for example, to hold elections on public holidays instead of workdays (this 59 60 61

Whitty, “Law and the Regulation of Reproduction in Ireland: 1922–1992,” supra note 23, at 878. Sylvia Ann Hewlett and Cornel West, The War Against Parents (Boston/New York: Houghton Mifflin C., 1998). Ibid., at 231.

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already happens in some countries). Others are policy based, for example, to provide government assistance for housing. Many of Hewlett’s and West’s suggestions are political, rather than constitutional. That is, they are best understood as contestable policy claims, with resource implications, in respect of which no finality is possible or even necessarily desirable. Constitutional claims, in contrast, commonly concern “rules,” or fundamental norms, that are capable of taking structural or institutional form. The borderline between politics and constitutionalism is, however, narrow and shifting. Many matters that were once allocated to the realm of the political have in recent times been given constitutional expression. Many of these, furthermore, are matters that concern the experiences or interests of women in particular, as we have seen. Hewlett and West would probably find inspiration in the 2003 Rwandan Constitution. In addition to equality rights, it provides, in Article 27, that “[b]oth parents have the right and duty to bring up their children.” Further, “[t]he State shall put in place appropriate legislation and institutions for the protection of the family and the mother and child in particular in order to ensure that the family flourishes.” For all this, we must be wary of believing that a constitution can be the principal agent for social change, or law the only way of resolving conflict or overcoming inequalities. Much that concerns the status of parents generally and women as mothers specifically falls outside the realm of what can (realistically) be constitutionalized or even resolved by law (and the search for an alternative solution would take us well beyond the scope of this book). In the difficult process of constitutional design, we swing back and forth between over-inclusiveness and under-inclusiveness. This does not merely require restraint, however. Idealism and pragmatism work together as tools of change. This is well illustrated in questions surrounding the constitutional recognition of international law, the subject of Chapter 9.

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9 International and Customary Law

The provisions in a country’s legal instruments or body of case law do not exhaust the sources – potential or actual – of that country’s law. Alternative legal systems, both external and internal to the state, create pressure on or even directly shape national law. International and supranational instruments – treaties, conventions, and “soft law” (authoritative statements of principle, not yet incorporated into conventions or treaties) – are increasingly present in legal debate and decision making. Within many legal systems, subnational, nonstate laws – customary and religious – also require recognition. In considering constitutional design from the perspective of gender, these sources of law cannot be overlooked. The whole body of international law, without precision, encompasses a very wide range of types of supranational law, both customary international and treaty law, private and public. Since the 1980s, in particular, feminist analysis has been applied extensively to international law. Typically, this analysis has focused on a subsection of the body of international law, namely, the multilateral United Nations (or other supranational) conventions on human rights and, occasionally, universal human rights norms. The focus of this chapter is also on this sphere of international law. Although some constitutions, as we see later in the chapter, refer generically to “international law,” some others make this focus clear by expressly identifying international law as relevant to domestic law with respect specifically to human rights. For example, Article 93 of the Colombian Constitution provides that International treaties and conventions ratified by the Congress that recognise human rights . . . have prevalence in the internal order. 219

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The rights and duties consecrated in this Charter will be interpreted in accordance with international treaties on human rights ratified by Colombia. Such provisions are helpful, but the absence of reference to human rights in other constitutions is not fatal, as we will see. There are several ways in which international/human rights law is directly relevant to a constitution and several forms in which it can be incorporated into national domestic law. Ruth Rubio-Marin and Martha Morgan divide these into assimilation, supplementation, and adaptation.1 Assimilation involves the influence of international human rights norms in drafting constitutional provisions during constitution making or amendment. As they point out, it can be difficult to identify unless the constitutional text “directly parrots” the wording of international human rights provisions. Supplementation keeps domestic and international law separate, but involves an express or implied constitutional directive that international human rights norms should be treated as part of the constitution, either dominant or subordinate to national domestic law. Adaptation involves “a blending or hybridizing of international with domestic law through the process of interpretation” that is either required by the constitution itself or arises through the exercise of judicial discretion.2 These processes, they write, allow international law to shape domestic law, by expanding, complementing, or concretizing constitutional parameters. Rubio-Marin and Morgan’s analysis is remarkable, both for its jurisprudential acuity and the deep knowledge it reveals of the range of national constitutions. The writers are also virtually unique among feminists in exploring the gendered impact of international law on constitutional law specifically. In the discussion that follows, although I am also concerned with typologies of influence, for reasons of analytical economy and to prioritize design, I identify the influence of international law along more conventional lines. However, the work of Rubio-Marin and Morgan is highly recommended to readers wanting a more advanced discussion of the issues raised in this chapter. 1

2

Ruth Rubio-Marin and Martha I. Morgan, “Constitutional Domestication of International Gender Norms: Categorizations, Illustrations, and Reflections from the Nearside of the Bridge”, in Karen Knop, ed., Gender and Human Rights (Oxford: Oxford University Press, 2004). Ibid., at 115.

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We should note, first, that although there are various constitutional “mechanisms” in which international law can be recognized in national domestic law, there is a body of international law that, in principle, applies to all countries, regardless of their particular legal system. Jus cogens, universal law based on so-called peremptory norms, is the body of normative standards that are so historically entrenched or so normatively fundamental that they rise above and bind all individual nation-states. Jurisdiction with respect to these norms is not derived from territorial sovereignty or accession to a particular convention or treaty, but is universal and inescapable. Peremptory norms, binding on all states, arise from fundamental human principles. Crimes against humanity and genocide – the preeminent examples – are unlawful wherever they are committed, notwithstanding anything to the contrary in domestic law or the failure of a state to accede to international conventions that prohibit them. In principle, these acts can be prosecuted extraterritorially. In this chapter, I also consider whether jus cogens extends to acts committed against women, qua women, and the relevance this may have for constitutional design. Express Incorporation

A constitution may expressly incorporate international law, entrenching it directly in the constitution itself. Article 16 of the 2006 Serbian Constitution, for example, provides that “[g]enerally accepted rules of international law and ratified international treaties shall be an integral part of the legal system in the Republic of Serbia and applied directly.” Note, however, that the Article concludes: “Ratified international treaties must be in accordance with the Constitution.” This form of qualification is common in constitutions that incorporate international law. Alternatively, as with Article 93 of the Colombian Constitution, a constitution, either expressly or by implication, may incorporate international law by permitting (or requiring) it to assist in constitutional interpretation. Section 39 (1) (b) of the South African Constitution does this. It states: “When interpreting the Bill of Rights, a court, tribunal or forum . . . must consider international law.” Section 233, in addition, applies international law to the interpretation of legislation. An “aspirational” form of incorporation may also be found in constitutional provisions referring to the moral value of international law. Article 9

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of the Preamble of the Rwandan Constitution declares that the people of Rwanda “[r]eaffirm” their “adherence to the principles of human rights enshrined in” UN human rights conventions. It expressly refers, among others, to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Another example is found in Article 51 (c) of the Indian Constitution, which provides that “[t]he State shall endeavour to . . . foster respect for international law and treaty obligations in the dealings of organized peoples with one another . . . ” Derivative Incorporation

A country’s constitution does not require an express reference to, or recognition of, international law for the latter to be significant in shaping its law. Incorporation of international law into national or domestic law can arise “derivatively” via another constitutional route. Each nation-state will be endowed typically with the power (constitutionally provisioned, or at least not constitutionally obstructed) to accede to international treaties and conventions. This is scarcely controversial. Such a provision is even to be found in the Constitution of the United States,3 where ratification of international conventions occurs less often than in many other countries and reference to international law in judicial decision making is contentious. In a so-called “dualist” constitutional system, where an international convention/treaty is not self-executing and ratification by itself has no direct legal effect, legislative incorporation of international obligations will allow a national legislature to give effect to the provisions of international instruments that promote human rights, including specifically gender equality and antidiscrimination, even where there is no other relevant constitutional power. In other words, a simple constitutional reference to national legislative power with respect to “treaties” or “foreign” or “external” affairs, among other textual expressions, can extend the scope of a national constitution into the international field. Countries lacking a constitutional provision for gender equality (or other rights provisions that may be interpreted to support it), and even countries without a bill of rights at all, can derivatively enjoy constitutional support for international human rights. 3

U.S. Constitution, Article II, Section 2.

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Section 51 (xxix) of the Australian Constitution, for example, allows the federal legislature to make laws with respect to “external affairs” and thus to give effect in Australian legislation to treaty obligations entered into by the executive government. Australia’s Sex Discrimination Act was passed in 1984, expressly giving effect to CEDAW. In 1988, a constitutional challenge was brought against this act in the Federal Court of Australia. It was claimed that the provision prohibiting sexual harassment did not validly give effect to CEDAW and was therefore ultra vires federal legislative power.4 The claim was unsuccessful. The “external affairs” power gives very broad scope to the federal parliament to regulate matters of international character and to transform international obligations into domestic law. Thus, although Australia’s Constitution lacks relevant express rights, Australia has a very broad legislative protection of gender equality, facilitated by its Constitution. Blended Incorporation

None of these forms of incorporation – direct, interpretive, aspirational, or derivative – is necessarily exclusive of others, and some constitutions combine several or all forms. The UK Human Rights Act (1998) incorporates the European Convention for the Protection of Human Rights and Fundamental Freedoms into British legislation. Among its provisions, Article 14 prohibits discrimination with respect to the rights and freedoms set out in the Convention, on the grounds of (among other things) gender. Several other provisions have relevance to gender equality and equity. Although the United Kingdom lacks a single written constitution and the courts do not have the power of constitutional judicial review, they are empowered under this act to make a declaration of “incompatibility” if they find that British law departs from provisions of the Convention, and the government is required to justify this departure. The Bill of Rights Act (1990) in New Zealand incorporates the International Covenant on Civil and Political Rights (ICCPR), giving the courts very similar powers to the UK courts. This form of incorporation combines derivative, interpretive, and “aspirational” incorporation. 4

Aldridge v. Booth (1988) 80 ALR 1.

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The South African Constitution makes provision for both derivative and direct incorporation, in addition to providing expressly for reference to international law in legal interpretation. Section 231 (4) states: Any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless is it inconsistent with the Constitution or an Act of Parliament. No simple choice between these forms of incorporation, direct or derivative, can be recommended. Their respective value will depend, significantly, on other constitutional provisions, and in particular, on the balance struck or the priority allocated between national and international constitutional rights. Questions about the effectiveness or value of incorporating international law tout court will also need to be addressed.

Constitutional Recognition and Inconsistency

The South African and Serbian Constitutions, as we saw, provide for the incorporation of international law into their national constitutional law. At the same time, they set out an express requirement that there must be consistency between international law and the constitution. This, either expressly or effectively, allows national constitutional law to trump in cases of inconsistency and gives national law the final say over international law. From one perspective, such a provision is redundant. Where international law is entrenched, this is only possible if the constitution itself is paramount. A constitutional provision could not, logically, give paramountcy to international law and at the same time deny its own paramount power to do so. The national constitution, rather than international law, retains paramountcy. As long as the national constitution remains subject to amendment by the nation itself, there is no abdication or transfer of constitutional power to the international. If this perspective is correct, however, it sounds a warning to constitution makers regarding the goal of gender equity. Although a constitution may refer either indirectly or directly (as the Rwandan does) to instruments of international law such as CEDAW, this reference cannot be relied on to protect women’s rights or foster gender equality. A constitution itself needs

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to make provision for these, even where international law is read as part of the constitutional system. It is insufficient for a constitution to recognize gender equality in international law if the constitution itself is silent on the matter. Where, for example, international law “must be in accordance with the Constitution,” there is a risk that the silence of a constitution will trump the “noise” of an international law instrument, effectively silencing the latter. There should be no complacency regarding the power of international law to stand on its own in the face of an inconsistent constitutional provision. However, even where a constitution appears to give express priority to international law, this cannot be relied on. As we have seen, Article 93 of the Colombian Constitution incorporates international human rights law, and includes the statement that “[i]nternational treaties and conventions ratified by the Congress that recognise human rights . . . have prevalence in the internal order” (emphasis added). “Prevalence” may appear unambiguous, but while the Colombian Constitutional Court initially held this to mean that international human rights law “had ‘supra-national’ status in the internal legal order” the interpretation was later revised “to accord this body of human rights law the same status as fundamental constitutional rights.”5 In other words, “prevalence” was interpreted to mean “equivalence.” The power of international law in almost all cases depends (with some few recent exceptions6 ) on the willingness of a state to accede to it. For the most part, submission to the compliance and reporting demands of the United Nations or other international agencies, or to the rulings of international tribunals is voluntary, and enforcement arises primarily through political pressure rather than legal powers. The UN Human Rights Committee may make rulings regarding state breaches of the provisions of the ICCPR. Articles 2 and 3 in Part II of the ICCPR commit member states, respectively, to recognize rights without distinction as to gender (among other things), and to “ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.” 5

6

Martha I. Morgan, “Emancipatory Equality: Gender Jurisprudence under the Colombian Constitution,” in Beverley Baines and Ruth Rubio-Marin, eds, The Gender of Constitutional Jurisprudence (Cambridge: Cambridge University Press, 2005), at 80. The International Criminal Court, ad hoc special Criminal Tribunals, and the principle of jus cogens.

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The Committee, however, may only consider the national law of member states that have signed the First Optional Protocol of the ICCPR, allowing their own nationals to seek a hearing in the Committee. It can only give rulings with respect to breaches committed after the date of the state’s accession to the treaty. The rulings themselves have no legal force, although they may be used to “shame” a country or encourage it to change its law or practices. Still, the record of Committee decisions regarding claims about breaches of gender equality rights is limited. In 1996, however, “a significant turning point” occurred, with a Committee finding that Peru’s restrictive abortion laws subjected women to inhumane treatment, and amounted to a breach of human rights.7 Membership of certain supranational bodies may create opportunities for international human rights to wield some power, although the results in cases concerning women’s rights have been mixed. For example, in Ireland, in 1991, students who had been prosecuted for the distribution of information about abortion clinics in Britain sought a reference in the European Court of Justice (ECJ), claiming that Article 40.3.3◦ of the Irish Constitution (which, the Supreme Court had held in an earlier case, supported the prohibition of such information) breached a provision in European law guaranteeing the right to travel to obtain services in other member states.8 The students’ unions argued that this provision gave rise to a right to obtain and disseminate information about services available in other member states. In its reference to the ECJ, it sought clarification about whether abortion came within the definition of services in Article 60, as well as whether the distribution of information about services was protected by the Article. The ECJ recognized abortion as a service under the treaty, but rejected the students’ claim. As Brian Wilkinson states: “The central issue for the court was the lack of a commercial link between the students’ unions and the clinics which were mentioned in the information being distributed.”9 Although the Court included “medical termination of pregnancy” under the definition of a service, it held that a prohibition on the distribution of 7 8 9

Rebecca J. Cook, “Human Rights Law and Safe Motherhood,” (1998) 5 European Journal of Health Law 357, at 362. Article 60 of the Treaty of Rome. Brian Wilkinson, “Abortion, the Irish Constitution and the EEC” (1992) Spring Public Law 20, at 26.

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information about the identity and location of abortion clinics was not contrary to European Community law in cases “where the clinics in question have no involvement in the distribution of the said information.” That is, the Court emphasized an economic or agency relationship among the criteria for breach. The students were caught in a legal Catch-22, where their own country’s law had the effect of forbidding the commercial relationship that might have grounded their application to challenge the very same law. In the event, however (as we saw in Chapter 8), the resolution of this dispute was to come, not through the paramountcy of international or supranational law, but through the amendment of Ireland’s own Constitution. The European Court of Human Rights provides a more recent example of a supranational “defense” of women’s rights against restrictive national laws. The case10 concerned Poland’s law, which restricts legal abortion to instances where a pregnancy endangers the woman’s life or results from rape, or where the fetus will have severe, irreversible birth defects. A Polish woman, Alicja Tysia˛ c, suffered major optical damage and visual impairment as the result of a pregnancy carried to term. Despite medical warnings that this was likely, she had been unable to secure a legal abortion. The European Court ruled that Poland’s failure to make provision for safe abortion was contrary to Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court held, among other things, that “the State failed to comply with its positive obligations to secure to the applicant the effective respect for her private life.” Poland’s law, it observed, did not ensure that decisions about termination of a pregnancy could be made in time “so as to limit or prevent damage to a woman’s health which might be occasioned by a late abortion.” Although the Court ordered Poland to pay costs and damages to Tysia˛ c, it had no power to alter Polish law. However, further cases that have come before the European Court of Human Rights, concerning rape laws in Bulgaria, and the adequacy of French criminal law for dealing with cases of domestic slavery, have been encouraging, Beate Rudolf and Andrea Eriksson argue, in affirming that states “are obliged to take protective measures against human rights violations committed by private persons.”11 According to 10 11

Tysia ˛ c v. Poland (application no. 5410/03). Beate Rudolf and Andrea Eriksson, “Women’s Rights under International Human Rights Treaties: Issues of Rape, Domestic Slavery, Abortion, and Domestic Violence,” (2007) 5 International Journal of Constitutional Law 507, at 523.

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Rachel Cichowski, over the years, “[f]aced with little or no protection under domestic law, women experiencing discrimination have utilized general [European] gender equality laws to bring claims before their national courts.”12 Rulings in European Courts have then shaped and expanded national law, even where the national law itself is not directly altered. The message is mixed, but the “lesson” remains that, despite developments, and progressive and even profeminist provisions, one cannot rely on the legal supremacy of international or supranational law in such forums. Jus Cogens

Is there a level of normative supremacy, however, from which women can gain encouragement or even find legal support? Do crimes or practices against women violate international norms or create universal jurisdiction? In the view of Hilary Charlesworth and Christine Chinkin, “discussions of the norms that may have attained [the] elevated status” of jus cogens “indicate that what is regarded as fundamental to international society are based upon men’s experiences.”13 To the human rights violations of genocide, slavery, torture, prolonged arbitrary detention, systematic racial discrimination, and others recognized as contrary to jus cogens, they suggest a revised list, with the addition of breaches of rights to sexual equality, to reproductive freedom, to freedom from fear of violence and oppression, and to peace.14 “Until recently,” Julie Mertus and Pamela Goldberg wrote in 1993, “the very notion that women could have a claim to distinct and legally cognizable human rights was virtually unheard of in mainstream international dialogue.”15 Since then, pressure from women to expand the understanding of what constitutes a fundamental norm has seen some encouraging developments. Women’s human rights were recognized by the UN at the 12 13 14 15

Rachel A. Cichowski, “Women’s Rights, the European Court, and Supranational Constitutionalism” (2004) 38 Law & Society Review 3 489, at 507–508. Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist Analysis (Manchester: Manchester University Press, 2000), at 119. Ibid., at 120. Julie Mertus and Pamela Goldberg, “A Perspective on Women and International Human Rights after the Vienna Declaration: The Inside/Outside Construct” (1993–1994) 26 New York Journal of International Law & Policy 201.

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1993 World Conference on Human Rights in Vienna. The Vienna Declaration chose to focus on violence against women as the core breach of women’s rights. Although recognizing that gender oppression has a much wider foundation and is expressed in a myriad of intersecting ways, Mertus and Goldberg welcomed this move as representing a “basic, yet potentially transformative, premise that international human rights dialogue must be opened to include the diverse voices of women experiencing a broad range of human rights abuses.”16 Some years later, Resolution 1325 of the UN Security Council recognized the overrepresentation of women and children among victims of armed conflict, and affirmed “the need to implement full international humanitarian and human rights law that protects the rights of women and girls during and after conflicts.”17 The further recognition that certain acts committed against women, such as rape during conflict, are crimes against humanity suggests a movement, albeit incremental, toward an expanded and gendered understanding of fundamental norms and the scope of the “universal.” In the International Criminal Tribunals for Rwanda and for the former Yugoslavia, rape is defined as a crime against humanity. Article 7 (g) of the Statute of International Criminal Court (2002) also includes rape, as well as “sexual slavery, enforced prosecution, forced pregnancy, or any other form of sexual violence of comparable gravity” among the crimes against humanity that fall under its jurisdiction. Some feminists have argued for a definition of genocide that extends to the act of mass rape in war or conflict. In 1998, in the International Criminal Tribunal for Rwanda, a defendant was found guilty of rape as genocide, in the first case to incorporate this definition.18 Such a definition, however, has been controversial with other feminists who fear, among other things, that it might discount the personal experience of the victims of rape.19 Although this particular debate cannot be pursued here, it is important to understand and be wary of the historical tendency for women’s experiences 16 17 18 19

Ibid., at 207. www.un.org/events/res 1325e.pdf. Prosecutor v. J-P Akayesu, Case No. ICTR- 96-4-T, September 2, 1998. See Sherrie L. Russell-Brown, “Rape as an Act of Genocide” (2003) 21 Berkeley Journal of International Law 350.

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to be assimilated into nongendered experiences. Mass rape that is not “genocidal” in intent, must not, by virtue of an epistemological shift, be regarded as a less significant crime merely because it lacks the character of an already recognized crime against humanity, or because it fails to intersect with a crime (genocide) that, in most of its manifestations, is committed against men and women equally. The Gender of International Law

How much, then, is to be gained for gender equity in entrenching or even drawing on international law? Is international law itself “masculine”? This is a very large issue, and only a short account of the range of responses can be given here. Hilary Charlesworth has developed a comprehensive critique of international law from a feminist perspective. First, she concludes that it is “masculine” in several respects: the institutions of international law, such as the International Court of Justice, the International Law Commission, the UN Secretariat, and the UN human rights committees are all dominated by men. Second, the international law paradigm of rationality, objectiveness, and abstraction, and the attempt to import an adversarial approach into its processes, all follow a model of “maleness” found generally in the law. International law, Charlesworth writes, “is constructed upon the particular assumptions and experiences of life where men and the male are taken to represent the human experience”; priority is given to the economic and little interest is shown in women’s lives. Why, for example, Charlesworth asks, “is there a whole series of treaties obsessed with straddling stocks, when the use of breast milk substitutes, which is a major health issue for women in Africa, remains subject to voluntary W.H.O. codes?”20 Where states accede to an international convention, their ability to record reservations (i.e., “caveats,” exempting the state from the obligations of a particular provision or provisions in a convention) weakens the authority of international law. Notably, reservations to CEDAW have been 20

Hilary Charlesworth, “The Hidden Gender of International Law” (2002) 16 Temple International and Comparative Law Journal, at 97.

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entered by many states where Sharia law is practiced, releasing the state from compliance where there is incompatibility between the Convention’s provisions and Islamic law. Despite objections that such reservations defeat the object and purpose of the Convention, as well as adverse analysis by international lawyers,21 such reservations are still permitted. (The UN itself, however, has sought to review and reduce their number and breadth.) Rosa Ehrenreich Brooks identifies gendered distinctions between the male-dominated, male-discursive, “hard,” traditional areas of international law – sovereignty, international security, and territorial integrity – and the “soft,” feminine areas of humanitarian and refugee law.22 Even in the latter areas, women are underrepresented in positions of power. It is, she writes, “only when you get to the women’s rights and children’s rights divisions of [human rights] NGOs that leadership positions are consistently filled by women.”23 Rebecca Hillcock casts doubt on the correspondence between international law standards and actual practice, both in international law bodies themselves and in national laws. In response to the question of whether CEDAW has made any difference for women, her conclusion (comparing Egypt, which has ratified the Convention, and the United States, which has not) is negative.24 The Convention has failed to address the global oppression of women, Hillcock concludes. The answer to oppression, she states, “does not lie in ratifying and implementing more laws,”25 but in democracy, and in free and open national systems where women’s choice is possible. Caroline Nicolai also explores the inability of international law to protect women’s rights.26 She refers to Nigeria, where Sharia courts have convicted 21

22 23 24

25 26

Caroline E. Nicolai, “Islamic Law and the International Protection of Women’s Rights: The Effect of Shari’a in Nigeria” (2004) 31 Syracuse Journal of International Law and Commerce 299. Rosa Ehrenreich Brooks, “Feminism and International Law: An Opportunity for Transformation” (2002) 14 Yale Journal of Law and Feminism 345. Ibid., at 346. Rebecca L. Hillcock, “Establishing the Rights of Women Globally: Has the United Nations Convention on the Elimination of All Forms of Discrimination Against Women Made a Difference?” (2005) 12 Tulsa Journal of Comparative & International Law 481. Ibid., at 510. Nicolai, “Islamic Law and the International Protection of Women’s Rights: The Effect of Shari’a in Nigeria,” supra note 21.

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women for sexual offenses (e.g., fornication or adultery), whereas the men involved in these acts attract few, if any, penalties. The 1999 Nigerian Constitution includes provisions that prohibit torture, “inhuman or degrading treatment” (34. (1); (a)); guarantee religious freedom (Section 38. (1)); and provide that 42. (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:– (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria . . . to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject. The Constitution also includes, among Nigeria’s foreign policy objectives, the “promotion of international co-operation for the consolidation of universal peace and mutual respect among all nations and elimination of discrimination in all its manifestations” and “respect for international law and treaty obligations . . . ” (Section 19. (c)and (d)). Furthermore, Nigeria has ratified CEDAW, without lodging reservations. In addition, the Nigerian Constitution recognizes Sharia Courts, including a Sharia Court of Appeal (Section 260) and a general Court of Appeal that consists of a numerically unspecified mixture of secular and Islamic judges.27 The recognition of Islamic Courts has created conflict and confusion, as Nicolai writes. Sharia Courts have, for example, sentenced women to death by stoning for adultery, a sentence based on a law that manifestly breaches the relevant provisions of the Constitution, as well as international law. The case of Amina Lawal, sentenced to death in March 2002, after bearing a child more than 9 months after her divorce, attracted international attention and outcry. Lawal’s conviction was ultimately overturned in September 2003 by the Sharia Court of Appeal, not on the grounds of inconsistency with the Constitution, however, but because doubt 27

“[N]ot less than forty-nine [judges] of which not less than three shall be learned in Islamic personal law, and not less than three shall be learned in Customary law” (Section 237 (2) (b)). Hearing appeals from Sharia Courts, the Court of Appeal must consist of “not less than three Justices . . . learned in Islamic personal law . . . ” (Section 247 (1) (a)).

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existed as to whether her former husband might not be the child’s father after all.

Should International Law be Incorporated?

If these criticisms are valid, what, then, is the value (if any) of recognizing international law in a constitution where gender equity and agency are the goals? Hillcock’s conclusion is, in some respects, incontrovertible. However, it misses the chicken-and-egg factor. The U.S. Constitution was framed in a period when women had few choices, either personal or legal. Without overstating the role that a constitution can play in facilitating legal-cultural change, it is a reality that women’s democratic participation and political agency have evolved, albeit over a long period, in part because the Constitution created both rhetorical and legal “fissures” through which hitherto unconstitutionalized rights could be inserted or identified. The Constitution spoke to men and men’s rights, but its language of equality was ultimately appropriated and universalized. International law can, of course, do nothing on its own, even in states that have ratified its instruments, but it may similarly facilitate pressure or give individuals a vocabulary through which to advocate recognition and change. Notwithstanding her skepticism, Ehrenreich Brooks finds “transformative potential” in international law. This lies, paradoxically, in the very “silences” within it; these arise from its overriding recognition of national sovereignty and its traditional neglect of issues of justice within states. Human rights law, she suggests, has had the effect of focusing attention on the limits of sovereignty and insisting that “at least some of what states do within their own borders is properly of concern to the community of nations as a whole.”28 The role of non–state actors, as well as internal state actions or inactions, thus need to be factored into the human rights purview of international law. As yet, this critique has not been widely extended to “private” or internal breaches of justice suffered by women. The principle of noninterference in matters of national sovereignty “has had the effect of defining out of existence many of the most prevalent forms of female injury 28

Ehrenreich Brooks, “Feminism and International Law: An Opportunity for Transformation,” supra note 22, at 348.

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and oppression,” including violations of women’s human rights through domestic tyranny, sexual trafficking, and domestic near-slavery.29 All the same, Brooks concludes, the potential is there. The field of international human rights offers an inspirational discourse, and the universal language of international law allows Western women to make connections between the human rights abuses they recognize in other countries and the subordination of women in their own. Notwithstanding the limitations of international practice identified by many feminist critics, such developments in soft law, conventions, and jus cogens create pressure points and rhetorical opportunities, just as developments in national constitutional law have done in the past. However, what was important and remains important today is that the goals of gender equity are expressed in language that rises above the merely aspirational. International law judicializes aspirations; it speaks in the language of justiciable claims; and it provides a constitutional vocabulary, as well as a moral authority that, notwithstanding its limitations (both formal and informal), is recognized beyond borders. It allows women to speak and, in doing so, to identify their common experience of oppression in transnational, supraconstitutional terms. In claiming this, I am not naively imagining that international law creates, unproblematically, an international community of common purpose and a universal language of legal empowerment. The question for constitutional design is whether recognition of, or constitutional openness to, international law is better than nothing for the goal of gender equity. I suggest that it is.

Constitutionalized International Norms

Express constitutional provisions that mirror or exceed international norms may be even better. Such provisions can directly bind governments; they can be legally enforceable and amendable according to constitutional processes that are nationally accessible. In her critique of the limitations of international law, Ehrenreich Brooks notes the insistence by feminist lawyers that, among others, sexual 29

Ibid., at 349.

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“trafficking and violence against women must be viewed as proper subjects for international human rights and humanitarian law.”30 The Iraqi Constitution expressly incorporates this perspective, albeit without reference to international law. In its Chapter, “Freedoms,” Article 35: 3rd, states that “[f]orced labour, slavery and the commerce in slaves is forbidden, as is the trading in women or children or the sex trade.” This provision is worthy of note because it recognizes sex trafficking and sexual slavery as distinctive forms of slavery. It “engenders” and contextualizes constitutional freedoms, identifying this particular denial of freedom with the experience of women. Of course, the limited operation of the Iraqi Constitution since its framing in 2005 illustrates what this book has consistently observed: constitutions are only “cookbooks.” They can, ideally, be well written and carefully constructed so that the recipe is creative, subtle, and achievable, and the relationship between instructions and results is as close as possible. However, a cookbook does not act; it depends on the readiness and willingness of practitioners. It relies on the availability of ingredients, infrastructure, and “fuel.” Still, it is better to have a good cookbook than none at all because, when the time comes, it may serve its purpose. In the meantime, it may be inspiring, as long as the ingredients it calls for and the processes it requires are neither culturally inappropriate, prohibitively expressive, nor beyond the capacities of all but the prodigiously talented. The Iraqi sex slavery provision may encourage framers or amenders of other constitutions; it may provide constitutional language to describe a particular gendered loss of freedom that resonates with the language that feminists want imported into international law. It may do this, even where direct constitutional reference to international law is unlikely to be accepted. Just as constitutional provisions do not act by themselves, no constitutional provision can work alone. Nationally constitutionalized international norms may be more effective where these are subject to constitutional opportunities for judicial review and integrated with constitutionally structured opportunities. It may be even better to have all of these with an express recognition of international law norms and the binding force of 30

Ibid., at 352.

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international law instruments to which a state has acceded, plus express justiciable national provisions reflecting or exceeding these norms. The Grootboom case (discussed in Chapter 7) provides an example. In this case, drawing on Section 39 (1) (b) of the Bill of Rights, the South African Supreme Court considered guidelines from the UN Committee on Economic, Social and Cultural Rights, in seeking to identify “reasonable” national expectations for the provision of housing.

Customary Law

Subnational non–state law – customary and religious law – is significant in many countries and will often need to be taken into account in the drafting or application of national laws. Customary law, in particular, creates complex challenges for feminists. In 1998, the CEDAW Committee stated that the “coexistence of . . . legal systems, civil, religious and customary, makes it difficult to adopt and enforce laws which genuinely protect women’s rights.”31 However, despite this, and even where subnational law is not directly applicable to a country’s constitution, we are reminded that the goal of gender equity and agency must be articulated and achieved in real-world contexts. Custom is not known to embrace gender equality.32 Traditionally, by custom, women have been accorded secondary worth and treated as subordinate everywhere in the world. Legal systems have reflected this custom. However, modern understandings of the rule of law and constitutionalism incorporate the idea of equality between men and women, and at least in parts of the world, this has made its way into the legal system. Western feminists have long campaigned for the removal of the disadvantages derived from custom in their own countries’ laws. The gradual abolition of 31 32

Report of the Committee on the Elimination of Discrimination Against Women, 18th and 19th Sess., at 62. U.N. Doc. A/53/38/Rev. 1 (1998). Some customary laws, however, may be compatible with noncustomary standards or principles. That is, they produce a similar outcome, if for different reasons. For example, as Charles Ngwena points out, laws criminalizing abortion were originally imposed on African societies by the colonial powers in the nineteenth century. Postcolonial independent governments in Africa have often retained these laws. However, “[t]erminating an unwanted pregnancy was tacitly accepted in many traditional African cultures.” Charles Ngwena, “An Appraisal of Abortion Laws in Southern Africa from a Reproductive Rights Perspective” (2004) 32 Journal of Law, Medicine and Ethics 708, at 711.

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laws prohibiting women’s ownership of property, making marital rape an exception to rape laws, or giving women unequal access to divorce proceedings, among other things, has been more or less accomplished. In the abstract, therefore, it is not difficult to conclude from a feminist perspective that any custom perpetrating women’s subordination and underscoring legal inequality should be challenged. In approaching constitutional design from the goal of gender equity, a simple rule might thus be adopted: customary or religious law may be recognized constitutionally, but where these conflict with, or are antithetical to, gender equity, they should not be accommodated. In particular instances, they should be prohibited. This, broadly described (as we see later in this chapter), is the “solution” or formula found in the South African Constitution. However, this formula was adopted only after much debate and a painstaking process of balancing competing interests. As the South African constitution makers well recognized, the law does not operate in the abstract, and constitutional design must be sensitive to context, to conflicting goals and values, and to the complex and sometimes perverse effects of constitutional “modernizing.” I focus first on custom. Many aspects of customary law are concerned with family relations, with marriage and divorce, the transmission of property, and the custody of children. Thus, the sphere of women’s lives and experience is disproportionately shaped by custom and tradition. As Susan Moller Okin observes, “the defense of ‘cultural practises’ is likely to have a much greater impact on the lives of women and girls than on those of men and boys”; she also notes that “[t]he more a culture requires or expects of women in the domestic sphere, the less opportunity they have of achieving equality with men” in either the public sphere or the domestic sphere.33 However, simply to displace customary law with modern constitutional law may decontextualize women’s experiences and deprive them, in some cases, of a cultural system that provides meaning and stability, as well as, paradoxically, placing women at times under legal disadvantage. At the same time, if the goal of gender equity and agency is to find constitutional 33

Susan Moller Okin, Is Multiculturalism Bad for Women? [original article and responses] edited by Joshua Cohen, Matthew Howard, and Martha C. Nussbaum (Princeton, NJ: Princeton University Press, 1999), at 13.

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form, it cannot make way for oppressive or subordinating custom, merely out of a respect for custom as such. The challenge is to find a way in which custom, where it is nonsubordinating, can coexist with modern constitutionalism, while also protecting the supremacy of the latter. Customary law must not be permitted to abrogate constitutional rights or the rule of law generally. Where provision is made for its recognition, including for the creation of customary courts, this principle must be made clear, in express terms. Constitutional protection of cultural rights must not have the effect of limiting or eroding the foundational norm of equality among persons. One paradoxical way to approach this has been to apply threshold tests arising from the paradigm of liberalism itself in order to validate custom. Thus, some theorists hold that as long as customary or traditional practices are freely chosen by individuals and the choice of “exit” remains available to those inside a traditional cultural community, then both the individualism of modern values and the “communalism” of the traditional can be satisfied.34 Others hold that certain modern values cannot be left at the door, even if the choice of entry and exit is free. The traditional practices themselves must be modified to incorporate nontraditional standards of equality. The South African Constitution includes provisions that reflect such views. Section 30 states: “Everyone has the right to . . . participate in the cultural life of their choice . . . ” The right to culture is, thus, phrased in terms of “choice.” Choice, however, is a highly problematic concept when applied to legal and social relations, and even more so with respect to culture. To speak in terms of choice suggests a prior process of rational and objective calculation, weighing the pros and cons in deciding whether to follow cultural life. But choice itself is framed by culture. Culture is a way of life, a system of practices that affirm beliefs and shape choices from within. Cultural choice does not present itself prior to practice, as if in orderly sequence. Nor does ostensible choice validate all practices. Choice is, most significantly, inapplicable to the experience and circumstances of children who, for reasons of lesser capacity, lower status, and personal vulnerability, stand outside the paradigm. Yet, it is in childhood that cultural attachments and affinities are, in most cases, formed. 34

Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, UK: Oxford University Press, 1995), at 36.

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Indeed, the inability of individuals to choose whether to subject themselves to traditional culture is paradoxically a measure of the strength of the culture itself. The greater the priority given to traditional culture over modern standards of equality, the less likely it is that individuals in cultural communities will be free to choose alternatives, including gender equality. The prospect of “exit” is often illusory. Those who depend on it to reconcile liberal values with custom may fail “to address the substantive conditions that make the right of exit real,” as well as those factors that serve to obstruct exit or render it illusory, including financial, educational, and sociopsychological constraints.35 The conclusion must be that, where choice is the measure, practices that preempt an adults’ free or meaningful choices or damage their health or ability to develop their full capacity and potential (to a greater extent than is usual in childhood circumstances) should be prohibited. Thus, for this and other reasons, restrictive education for girls, female genital mutilation or genital cutting, child marriage or betrothal, and other similar practices should be prohibited, either by express prohibitions permitted as derogations from constitutionally recognized cultural or customary rights, or through a general constitutional formula for legitimate limitations on, or derogations from, rights, expressed in such a way as to make legislative prohibition of such practices unimpeachable. This much must be clear from a perspective that promotes gender equality, equity, and agency.

Reconciling Custom and Constitutionalism

Felicity Kaganas and Christina Murray write of the difficulty of reconciling customary and modern principles in the preliminary framing of the South African Constitution. In addition to normative challenges, the Constitution’s framers faced a divided “customary” community. Constitutional drafting in South Africa began with a framework of thirtyfour basic and nonnegotiable constitutional principles, including a commitment to equality that included, “at its heart,” gender equality. For the traditional leaders, this commitment proved to be “one of the most 35

Anne Phillips and Moira Dustin, “UK Initiatives on Forced Marriage: Regulation, Dialogue and Exit” (2004) 52 Political Studies 531, at 533.

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troubling features of the draft Constitution.”36 The attempt to subject customary law to scrutiny on the question of gender equality, Kaganas and Murray relate, “directly threaten[ed] the power that traditional leaders wield in their own communities.” The traditional leaders sought exemption for customary law from the provisions of the Bill of Rights. South African women, in return, organized across party, racial, and regional lines to oppose exemption. The outcome was a constitutional solution that left customary law “in the same position as South African civil law,”37 with a constitutional right to participate in one’s culture sitting alongside a guarantee of gender equality. The final version of the South African Constitution attempts to strike the balance reflected in this outcome. Section 15 guarantees, among other things, freedom of “conscience, religion, thought, belief and opinion.” It also qualifies this freedom, by providing that it cannot be invoked to prevent legislation giving recognition to “i. marriages concluded under any tradition, or a system of religious, personal or family law; or ii. systems of personal and family law under any tradition, or adhered to by persons professing a particular religion.” However, the section concludes, such recognition “must be consistent with [the whole of Section 15] and the other provisions of the Constitution.” Thus, the Constitution permits the recognition of traditional or religious marriages, or marriages concluded under “personal or family law,” but it expressly requires any system of marriage or family law to be consistent with the protection of the freedom of religion, belief, and opinion, and with the rest of the Constitution, including the Bill of Rights.38 The South African Recognition of Customary Marriages Act of 1998 gives a wife in a customary marriage, including a polygamous marriage, equal status to a wife married under civil law. This legislation attempts to reconcile tradition with modern legal protection. Although it appears to be a concession to patriarchal practices, it acknowledges that perverse, discriminatory effects can sometimes arise from a prohibition of custom. For example, the prohibition of customary marriage or denial of legal recognition of such a marriage will leave women who were married under customary 36 37 38

Felicity Kaganas and Christina Murray, “The Contest between Culture and Gender Equality under South Africa’s Interim Constitution” (1994) 21 Journal of Law and Society, at 409. Ibid., at 411. Jagwanth and Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa,” in Beverely Baines and Ruth Rubio-Marin, eds, The Gender of Constitutional Jurisprudence (Cambridge, UK: Cambridge University Press, 2005), at 234.

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law without legal protection, and unable to enjoy the status of wives in common with other married women. Recognition of customary marriage both protects women from denial of the status conferred by custom and ensures that they are equally entitled to modern legal protection. However, not all aspects of customary marriage laws are accepted under the South African Constitution. The view that modern equality values and the right of “exit” must be incorporated into customary practices is reflected in the Recognition of Customary Marriages Act. Like a civil marriage, “a customary marriage may be dissolved by a court on the ground of irretrievable breakdown. The Act also abolishes the customary law practice of treating women as minors, and gives women full majority status.”39 Similarly, cultural and religious rights are recognized in the South African Constitution, but they remain subject to other constitutional rights. The provision prioritizing the right of cultural choice reads, in full: 30. Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights. 31. (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to enjoy their culture, practise their religion and use their language; and to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights. Prioritizing and Balancing

To require cultural or religious rights to conform to the Bill of Rights is important, but the South African approach does not provide a clear guide to a hierarchy of rights. It suggests that a harmonization of competing rights is achievable, but does not expressly indicate how this is to be achieved. African customary law, note Jagwanth and Murray, “is indisputably based on patriarchal values and discrimination against women.” However, to 39

Ibid., at 240–241.

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interpret this constitutional provision as requiring simply that other rights prevail over custom when there is conflict, they write, “is an overly simple approach to the problem of the clash between the right to culture and other rights in the Bill of Rights.”40 The case law illustrates alternative outcomes in the competition between custom and women’s equality rights, absent a clear constitutional order of priority. Mthembu v. Letsela concerned the rights of female children to inherit property, contrary to African customary rules of succession based on male primogeniture.41 Customary law, as traditionally practiced, ruled out female inheritance,42 while also involving a duty on the part of the male heir to support the (disinherited) female dependants of the deceased. The applicant was the mother of two girls, facing the loss of her home and consequent destitution after the death of the girls’ father. In its rejection of her constitutional challenge, the South African Supreme Court of Appeal prioritized custom on the grounds that it had been in existence long before the adoption of the Constitution.43 At the same time, the Court overlooked the fact that the deceased father’s heir had failed to follow the parallel customary duty of care. Nor did the Court acknowledge the wider social fact that this aspect of the customary law had been deeply eroded. In other words, it prioritized a custom that no longer operated, except with respect to its gender discriminatory effects, and failed to apply modern constitutional standards in its place. (The case was ultimately resolved on the basis that the children in question were illegitimate, rather than female.) In contrast, in the case of Bhe, the Constitutional Court held a customary law unconstitutional on the ground of gender discrimination (see Chapter 2).44 In Mabena v. Letsoalo,45 the South African High Court heard a claim that a customary union was not a valid marriage because, contrary to custom, the mother of the woman in question rather than the woman’s father had negotiated the amount of bride price. The Court rejected the 40 41 42

43 44 45

Ibid., at 251. Mthembu v. Letsela, 2000 (3) SA 867 (SCA). The relevant law included a provision that the property in the estate of deceased blacks “shall be distributed according to black law and custom.” Regulations made under the Black Administration Act of 1927: 2 (e) of Regulations for the Administration and Distribution of the Estates of Deceased Blacks (1987). Jagwanth and Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa,” supra note 38, at 252. Bhe and Others v Magistrate, Khayelitsha and Others 2005 (1) SA 580 (CC). Mabena v. Letsoalo, 1998 (2) SA 1068 (T).

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claim and “found that it was possible for mothers to negotiate the terms of and consent to the marriage of their daughters.” It observed that customary law, “like other systems of law, is in a state of continuous development,” and that it, too, was a “living” law.”46 Thus, applying modern notions of progressive development of the law to traditional practices, a reconciliation was effected. It was a “reconciliation” that, in reality, gave priority to modern principles of gender equality. The Unity Dow case in Botswana in 1991 is another of many cases illustrating that traditional culture, regarded as integral to the “fabric” or “heart” of a culture, has the potential to entrench women’s subordination.47 This case (as discussed in Chapter 4) concerned a challenge to the 1984 Botswana Citizenship Act, which provided for the exclusive transmission of paternal citizenship to children in a marriage.48 The attorney-general of Botswana (the respondent) noted that the act gave recognition to customary law. Custom, he argued, must prevail over inconsistent provisions of the Constitution, having been incorporated in the Constitution via the Independence Order of 1966, which established the Constitution and, at the same time, provided for all existing laws to be preserved. It was thus, the attorneygeneral concluded, protected by (and, it seems, from) the Constitution itself. This claim for priority of customary law was not only chronological, but also moral and practical. To interpret the act in light of constitutional provisions prohibiting gender discrimination, the attorney-general argued, “would outlaw gender discrimination across the board.” However, because all forms of law preserved in the Independence Order were “gender discriminatory in numerous respects, . . . huge chunks of [Botswana] law would be liable to be struck down if this interpretation prevail[ed].” This, he observed, “could not be the intention of the Constitution.” Even in the absence of such an effect, the threat to customary law was of primary concern: “The whole fabric of the Customary Law in Botswana . . . is based

46 47 48

Jagwanth and Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa,” supra note 38, at 253. Kaganas and Murray, “The Contest between Culture and Gender Equality under South Africa’s Interim Constitution,” supra note 37 , at 412. The act provided that citizenship could be transmitted through a mother to children where, “in the case of a person born out of wedlock, [the] mother was a citizen of Botswana.” Citizenship (Amendment) Act of 1984, Section 4 (1) b.

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upon a patrilineal society, which is gender-discriminatory in its nature.”49 Notwithstanding this argument, Dow’s challenge succeeded in both the High Court and in a subsequent counter-appeal brought before the Court of Appeal. Constitutional rights were given priority over custom.50 A further example of a clash between customary laws and equality rights, which brings these together with questions about the efficacy of international law, can be seen in a 1997 challenge to the law of conferral of nobility titles in Spain. This law, based on principles of patrilineality, denied titles to female members of noble families. The Spanish Constitutional Court (overruling earlier decisions both of its own and of the Supreme Court) held that no breach of the gender equality provisions of the European Convention on Human Rights lay in these rules. This conclusion was not, however, based on a view of the rules as reconcilable with the Convention. Nobility titles, the Court said, are purely symbolic today; they have, as paraphrased by Rubio-Marin and Morgan, “their own pre-constitutional logic that needs to be respected.” To require such rules to be amended would introduce “anachronistic requirements into a practise moulded by history.”51 In 2001, a complaint that the nobility law breached the ICCPR was brought before the UN Human Rights Committee. With two dissenting opinions, the Committee held that “a hereditary title of nobility [is] an institution that, due to its indivisible and exclusive nature, lies outside the underlying values behind the [ICCPR’s] principles of equality before the law and non-discrimination.”52 This tendentious and circular logic led to the conclusion that the grievances of women who were denied titles could neither be heard nor remedied. Custom of its very nature is both premodern and molded by history. To complain that custom failed to conform to modern equality standards in the past would be anachronistic (and pointless), but the very purpose of progressive changes in the law must be contrary to the continued operation of past regressive practices. If a general defense of customary practices for breach of modern principles of equality lay in the fact of their antiquity 49 50 51 52

Unity Dow v. Attorney-General, High Court. Unreported, published by Unity Dow, 1995: www.law-lib.utoronto.ca/Diana/fulltext/dow1.htm. Ibid. The Citizenship Act was amended in 1995. In 2002, Unity Dow was appointed Botswana’s first female justice of the High Court. Rubio-Marin and Morgan, “Constitutional Domestication of International Gender Norms,” supra note 1, at 133. CCPR/C/80/D/1019/2001, 15 June 2004.

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or “indivisibility,” the very logic of progress would be turned on its head. What this case does is not only raise the question of whether some past practices are too localized and insignificant to be worth modernizing or worth troubling a court,53 but also of the extent to which “respect” for custom and tradition should shape constitutional jurisprudence. As one of the ´ dissenting Human Rights Committee members, Hipolito Solari-Yrigoyen, held, the legal protection of historical traditions and institutions, although permitted, must be accomplished “in conformity with the requirements of . . . the Covenant.”54 Customary laws and cultural traditions may be valued and protected, but only in so far as they do not perpetuate subordination, arbitrary discrimination, or oppression. A well-designed constitution (as discussed in Chapter 7) will make the test for legitimate limitations on rights clear and workable, and a constitution designed with gender equity in mind will resolve conflict between limitations and rights protections in a manner that prioritizes gender equality. The South African Constitution requires limitations to be justifiable in a “democratic society based on freedom and equality.” It also qualifies the right to culture by requiring its exercise to be consistent with the Bill of Rights. This gives priority to gender equality over cultural rights. As Kanagas and Murray point out, “the potential danger to women of privileging group-sanctioned cultural practises” is specifically acknowledged in the 1993 Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in 1993. “The signatories to this document adopt as a priority the protection of women and girls rather than culture.”55 Among other things, Article 49 of the Declaration urges states to “repeal existing laws and regulations to remove customs and practices which discriminate against and cause harm to the girl child.” If the protection of minorities from oppression deserves recognition, the protection of the individuals within minorities cannot be discarded. This is 53 54

55

Rubio-Marin and Morgan, “Constitutional Domestication of International Gender Norms,” supra note 1. Article 26 of the ICCPR states: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Kaganas and Murray, “The Contest between Culture and Gender Equality under South Africa’s Interim Constitution,” supra note 36, at 420, 421.

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why, in interpreting constitutional rights and balancing claims for cultural protection against individual rights in a purposive manner – contextual and flexible, but faithful to foundational norms – close attention must be given to the impact of cultural practices on children, especially girl children. Children, lacking legal capacity in their own right, must be protected by the law in the name not only of their physical well-being but also their future capacity to enjoy legal selfhood and equality. Religious Law

Similar principles inform constitutional design with respect to religious law. That is, the constitutional recognition or nonrecognition of religious law should be measured (among other things) by its legal impact on women. However, there is a significant difference. Religion has a constitutional presence unlike other forms of culture or custom, and religious freedom is a core principle in all modern, liberal constitutions. Religious rights are both positive and negative. Religious freedom means freedom to worship; it also means protection from being required to worship either a particular religion or any religion at all. Both the imperative of free choice and protection from lack of choice or coerced “choice” are implicated. There a large body of jurisprudence in the United States regarding legitimate limitations on religious practises. This, however, has rarely been concerned with the impact of religion on women. The prohibition of polygamous marriages in the Mormon Church is an historical exception. Reynolds v. United States,56 heard in 1879, involved a claim that laws prohibiting polygamy were in breach of the U.S. Constitution’s First Amendment protection of the “free exercise” of religion. The defendant was a member of the Mormon Church, which, at that time, prescribed polygamous marriage as a matter of religious duty. In its opinion, the Supreme Court made a distinction between religious thought and religious conduct, the second of which was not immune from regulation and could be prohibited where the conduct itself was socially subversive.57 The Court held that polygamous marriage was relevantly subversive, being associated with what it called “the patriarchal principle . . . which, 56 57

98 U.S. 145 (1879). Richard H. Fallon, Jr., The Dynamic Constitution: An Introduction to American Constitutional Law (New York: Cambridge University Press, 2004), at 68.

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when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.” However, despite the reference to “patriarchy,” the opinion contained no analysis of the situation of women or women’s perspective in polygamous communities. It was the impact of the practice on the social order generally that provided the grounds for its prohibition. Such reasoning may seem attractive, in providing a way of resolving the immensely difficult question attached to custom generally and religious custom in particular: that is, on what basis can it legitimately be regulated when those subject to it do not experience its discriminatory principles as harmful? The question has at times been answered via the “test” of choice. However, as suggested previously, choice may in some cases mask a type of cultural “Stockholm syndrome,” whereby members of closed cultural or religious groups experience their situation as a matter of personal choice rather than “captivity.” At the same time, the focus on choice has the value at least of considering the experience of the individual, where the “socially subversive” test will consider only the experience of the wider collective and may, indeed, sanction discriminatory practices contrary to individual choice on the grounds that these contribute to social stability. In a controversial article on multiculturalism published in 1997, Susan Moller Okin argued that traditional culture per se, including religion, was essentially antithetical to women’s equality. Responding to her views, Cass Sunstein notes the asymmetry in the law’s approach to customary institutions. Although it is considered “unproblematic to apply ordinary civil and criminal law to religious institutions,” he observes, it is thought to be “problematic to apply the law forbidding sex discrimination to those institutions.”58 Notwithstanding this, the alternative view that gender discrimination laws should apply to all religious institutions is, Sunstein concludes, “not in the end acceptable, because it would allow the state to subject religious institutions to laws that substantially burden those institutions, or even strike at their hearts, without at the same time serving a sufficiently important governmental purpose.” The legitimacy of applying gender discrimination laws to religion “depends on the extent of the interference with religious convictions and the strength of the state’s justification.”59 58 59

Cass Sunstein, “Should Sex Equality Law Apply to Religious Institutions?,” in Susan Moller Okin, Is Multiculturalism Bad for Women?, supra note 33, at 86. Ibid., at 93.

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Here, we see “conviction” (another form of choice) purportedly balanced against state justification (another way of talking about the identification of social harm). This cannot, however, be genuinely a matter of balancing, in the sense of placing equal weight on both halves of a scale (not, at least, for proponents of gender equity). Cultural/religious rights or laws may be constitutionally protected, but only as long as they do not breach or undermine equality rights. Note that to breach and to undermine may be different, and that the prospect of the latter needs separate consideration. Undermining entails departing from the spirit or purpose of a constitutional provision or constitution as a whole, even in cases where an actual breach may not be evident. Section 39 (2) of the South African Constitution recognizes this in its principles of interpretation: “When interpreting any legislation, or when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.” Constitutional recognition or establishment of a national religion does not, however, necessarily rule out constitutional recognition of women’s rights. In the framing of the 2005 Iraqi Constitution, it was well understood that Islam must be recognized, both for cultural acceptance and constitutional legitimacy. Thus, the Constitution recognizes Islam as the national religion. In addition, it makes provision for religious freedom and women’s rights.60 The Constitution also prohibits laws that are repugnant to Islam; at the same time, it prohibits laws that are repugnant to democracy or the values of the Constitution.61 What is missing is a hierarchy or order of priority among these principles, beyond a numerical order on the page. The Constitution itself gives no guidance as to how these fundamental values or alternative rights and freedoms are to be reconciled in the event of conflict. The constitutional court that will perform such reconciliation consists of both religious and secular judges. In the absence of guidelines, the approach to interpretation will become critical. Writing of the Constitution of Afghanistan, Niaz Shah claims that the constitutional recognition of Islam may, in some cases, give authority to decisions that are grounded in constitutionally sourced rights. She notes the controversial Indian case of Shah Bano, where the Supreme Court of India ordered a Muslim man to pay maintenance to 60 61

Articles 2 (2nd) and 14, respectively. Article 2 (1st) (a)–(c).

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his elderly divorced wife beyond the Islamic Iddat period of 4 months on the grounds that the woman had no one else to support her. Although the Court’s decision created anger (and led to a new Muslim women’s property law “nullifying the effect of the judgment”), the negative reaction was primarily aroused, Shah states, by the fact that the judges were nonMuslim, and the law they enforced was secular.62 In contrast, Article 53 of the Afghanistan Constitution guarantees special assistance, among others, to “needy elders” and “women without caretakers.” Because this provision appears in an Islamic Constitution, Shah suggests, a parallel to the Shah Bano judgment “should be welcomed” in Afghanistan.63 Niaz Shah also notes that some “neutral” provisions are also open to a positive construction, with beneficial effect for women. These include Article 27 (3) which provides that “[n]o person can be punished but in accordance with the decision of an authorized court and in conformity with the law adopted before the date of offense.” This, she writes, “could prove to be a strong constitutional shield in the case of honour killings in which the perpetrators commonly resort to taking the law into their own hands.”64 Interpretation, not only of the constitutional provisions, but also of customary or religious laws, is a critical consideration. Just whose interpretation are the courts to follow? Conflict within religious communities is commonplace between fundamentalists and moderates, traditionalists and modernizers, or the “orthodox” and the “liberal” church/synagogue/mosque. Gender discriminatory interpretations associated with fundamentalists or traditionalists may receive much publicity, but they are not the only, or necessarily the “correct,” approach to religious interpretation. Islam, Sajeda Amin and Sara Hossain argue, may be quite compatible with women’s equality and autonomy.65 If so, the principle applicable to the recognition of customary law may also be applied to religious law. Its constitutional 62 63 64

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Niaz A. Shah, “The Constitution of Afghanistan and Women’s Rights” (2005) 13 Feminist Legal Studies 239, at 247. Ibid., at 247. Ibid., at 245. The right to acquire property (Article 40), the right to education (Article 43), and the right to work (Articles 48 and 49) are also facially neutral rights that, interpreted against the principle of gender equity, could have particular value for women. Sajeda Amin and Sara Hossain, “Religious and Cultural Rights: Women’s Reproductive Rights and the Politics of Fundamentalism: A View from Bangladesh” (1995) 44 American University Law Review 1319; Azizah Y. Al-Hibri, “Western Patriarchal Feminism,” in Susan Moller Okin, Is Multiculturalism Bad for Women?, supra note 33.

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recognition may be acceptable as long as this does not perpetrate the subordination or oppression of women and as long as constitutional equality rights prevail in clashes or cases of inconsistency. Can a principle of interpretation be designed so that progressive or enabling interpretations of custom or religious law are favored by a constitutional court in its role of harmonizing group rights and general constitutional rights or principles? The uncertainty lies in the role of judges on the court, in particular, judges who are specialists in religious law. If, as we see in the South African Constitution with respect to customary law, a constitution requires the court to interpret religious law in keeping with its “spirit, purport and objects,” and if the constitution includes egalitarian principles and equality rights that are clearly recognized as lying at the core of its “spirit, purport and objects,” and these are prioritized against other principles, then this purposive and normative interpretation should flow into the interpretation of religious law. This illustrates, yet again, the importance of attention to the iterative effect of constitutional provisions, their dependence on each other, and the impossibility of relying on individual provisions alone in the pursuit of gender equity.

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Constitutional design can never be settled with finality. A constitution will always be liable to alteration, either expressly or through shifts in interpretation that arise through changes in methodological “fashion” or in response to social and technological developments. Gender auditing will need to continue, even if the goals of equity and agency have closely guided the original process of framing. Constitutional interpretation, tailored to the purpose of promoting and protecting gender equity, will involve a continuous commitment to bringing together purpose and current context. This will require continuous argument and advocacy, exploration of new ways in which the original purpose may find expression, and recognition of new forms of injury or harm for which constitutional remedies, attached to this purpose, may be applied. No matter how well designed, a constitution can never be a “machine that goes of itself”; it will always require rewinding, lubricating, and repairing. It will always need both enforcement and amendment. Enforcement cannot lie purely in the judicial process. For reasons argued throughout this book, to depend on individual litigation as the primary method of enforcing governmental compliance with constitutional provisions is both unsatisfactory and sometimes inequitable. It privatizes the enforcement of public welfare. It places the burden of doing so on the disadvantaged party, and reinforces the very asymmetry in power that gave rise to the disadvantage or injury. This, I stress again, is not to suggest that gender equality and equity rights should be absent from a constitution, nor that the power of judicial review with respect to these rights should be attenuated. It is to emphasize, rather, that other compliance mechanisms are needed to supplement or complement judicial review. 251

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The South African Constitution provides for nonjudicial institutions of compliance (in addition to a constitutional court). Section 181 lists several state institutions that “strengthen constitutional democracy in the Republic.” These include a Commission for Gender Equality (CGE). This, as with the other institutions, must be “independent, and subject only to the Constitution and the law.” It is accountable to the National Assembly, and required to report on its activities and functions at least once a year. Section 187 of the Constitution sets out that 1. The Commission for Gender Equality must promote respect for gender equality and the protection, development, and attainment of gender equality. 2. The Commission for Gender Equality has the power, as regulated by national legislation, necessary to perform its functions, including the power to monitor, investigate, research, educate, lobby, advise, and report on issues concerning gender equality. 3. The Commission for Gender Equality has the additional powers and functions prescribed by national legislation. The Commission was established by legislation in 1996 and began operating a year later. As required by the Constitution and the act, it submits annual and occasional reports on gender issues.1 It acts as an amicus curiae in gender-related actions in the Constitutional Court, and also makes a process available, including via Internet, for receiving individual complaints from the public. It conducts surveys of gender equality practices in public offices (e.g., a 2002 survey of magisterial courts and police stations), and frames gender equality guidelines for both public and private bodies. It organizes functions, including workshops and “gender dialogues,” aimed at educating the public in principles and practices of gender equality. It works with other independent organizations and governmental bodies, including the Office of the Status of Women with which it has cooperated on the formulation of a National Gender Policy. The CGE has not, however, been a great success. Its own web site records mixed results in working relationships with other government bodies, and 1

On, for example, gender equality in local governance (2006), gender experiences of older persons living in poverty (2005), femicide (2004), and gender-based violence (2003), among many others.

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operating constraints due to inadequate funding.2 Because of its constitutional status and political independence, it should be, Saras Jagwanth and Christina Murray write, “the most significant” of the bodies in South Africa concerned with gender equality. Instead, it is “little known and seems to have had little influence.”3 It is not clear, however, they conclude, how many of its problems “are related to the wisdom of establishing such an institution and how many have had other causes.”4 It is beyond the scope of this book to explore whether the establishment of the CGE was wise, or whether, problems notwithstanding, it has been successful in its goals overall (and, thus, the constitutional provision successful in its purpose). Gender commissions or offices are not uncommon in modern democracies. What makes the South African GCE unusual is its constitutional identity. Our question here is whether the entrenchment of such institutions is preferable to leaving their creation to government. In a culture or a time of constitutional noncompliance, provisions for enforcement will themselves be ignored. Such a situation lies beyond a constitutional solution. Setting aside such vicious circles, it seems reasonable to prefer constitutional entrenchment. Even in a culture of constitutionalism, and with a well-designed, gender-friendly constitution, governments may breach the constitution. This need not be intentional or direct. It may arise through neglect, failure to act, lack of inspiration with respect to programs, and absence of attention to purpose. An institution established by legislation may work to monitor such neglect and prompt governmental action, but on the legal and political hierarchy, it cannot be equal in status to a constitutionally authorized body. Where a constitution itself recognizes mechanisms of enforcement beyond, or in addition to, judicial review, the latter need not be prioritized; some of the problems associated with constitutionalizing rights may thus be mitigated. Ideally, political and judicial compliance will complement each other. The former will, at least in principle, work as a public process whereas, where appropriate, the latter will permit private enforcement. (Of course, I recognize that private actions 2 3

4

www.cge.org.za/. Saras Jagwanth and Christina Murray, “‘No Nation Can Be Free When One Half of It Is Enslaved’: Constitutional Equality for Women in South Africa”, in Beverley Baines and Ruth Rubio-Marin, eds., The Gender of Constitutional Jurisprudence (Cambridge, UK: Cambridge University Press, 2005), at 237. Ibid., at 235–236.

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may have public benefits and vice versa. My concern here is with where the burden falls.) Even with the best enforcement and compliance mechanisms in the world, it will become clear at times in a constitution’s life that it no longer adequately serves either its original purpose, or that the purpose itself needs to be supplemented or updated. Occasional amendment will always be necessary. “Ownership” of a constitution, indeed sovereignty, will ultimately lie in the hands of those able to amend it. For women to be full members of the constitutional community and to be equal owners of a constitution, they must be accorded an equal and equitable part in the process of amendment. The manner in which a constitution can be amended may itself have a gendered dimension. Where amendment lies with a body or institution that is male dominated for structurally or culturally prior reasons, women’s opportunity to take part in constitutional amendment will be reduced. Amendment by the legislature will, all else being equal, tend to have this effect compared to, for example, amendment by referendum because, as we have seen, women are typically underrepresented in legislatures, even in advanced democracies. The Australian Constitution is amended by referendum (Section 128). This would appear to give the whole constitutional community “ownership” of the Constitution with respect to its amendment. However, prior to the referendum, an “alteration bill” must first pass through both federal Houses of Parliament; thus the control of what goes before the Australian people for their approval lies in the hands of the numerically masculine legislature. Even more, in practice, it belongs to the male-dominated cabinet because only bills presented to the parliament by the government will have any chance of passage through the House of Representatives (where the government is formed). Although the Senate has coequal powers with respect to either the passage or rejection of bills, the Constitution reinforces governmental control of a constitution alteration bill by making provision for its adoption by the House of Representatives alone, in cases where the Senate is obstructive. The opportunity for women to take part in constitutional amendment on a genuinely equal footing to men may thus be more apparent than real. The logical conclusion to this line of analysis might appear to be that, in order to maximize women’s constitutional ownership through their power of amendment, citizen-initiated referendums (allowing for constitutional

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amendment to be initiated by the citizens themselves, usually through the collection of a specific number of signatures calling for a referendum) are the ideal. This, however, is too great a leap to make. One must be wary of unilineal logic, where single normative principles may drive perverse outcomes. Citizen-initiated referendums rest on a simple majoritarian principle that has at least two major, undesirable features. First, they systemically discount minority voices. They make no allowance for minority interests, and have the permanent effect of allowing the majority to prevail. A democracy, however, must balance majority and minority voices. It cannot institutionalize practices and processes that prevent the minority from ever achieving at least a compromise or concession from the majority. But, as I have stressed throughout, women are not a minority. They are an “equal majority.” They should have no need to ask for recognition or latitude from the majority. Why should they care about this fault in citizen-initiated referendums? The second undesirable feature provides the answer. Women have special interests (in both the instrumental and the normative sense) in certain constitutional issues, and these interests recalibrate the relationship between minority and majority status. Certain decisions about the exercise of power or policy will affect women disproportionately as a class, so much so that their voices have a normative claim to more than numerical equality. Decisions surrounding reproductive autonomy, as noted in Chapter Eight, will have an immeasurably greater impact on women than men. In a referendum, particularly if it is citizen initiated and is not filtered through legislative or executive compromise broking, the voices of those with a close stake in a matter will have no greater weight than those with virtually no stake or interest at all. Men will have an equal say in women’s reproductive autonomy, when the real prospect of autonomy depends on women’s own ability to make reproductive decisions for themselves. They will have an equal say in what are matters of women’s bodily health, without any repercussions for their own physical well-being and often without any impact at all. The principle of weighting voices along interest lines is nothing new. It is recognized in a range of ways, including, with little controversy, in federal constitutions. A federal system will typically make provision for the nation’s voices to be given a constitutional “handicap” against the voices of the states, often resulting in the latter having greater weight despite numerical

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weakness. This occurs both because states with small populations have an equal voice alongside states with larger populations and because the states, collectively, are accorded a disproportionate supermajority status against the nation. So, for example, the Australian Constitution requires a referendum vote to be calculated twice so that a “double majority” is achieved for the proposed constitutional amendment to succeed. The first majority is that of the electors of the whole nation (and because voting is compulsory in Australia, this is always a genuine national majority), and the second, a majority of the voters in a majority of states. The latter, in a nation with six states, amounts to a two-thirds majority of four and, in practice, allows a minority veto because the nation may vote “yes” for amendment, although a group of four small states may effectively override it. Such a mechanism eschews the equal count of voices and makes some voices – for interest-based reasons – count for more than others. I do not have a proposal, however, for ways in which referendums, which have the virtue of making constitutional amendment available to the widest membership of the constitutional community, might also be structured so that women’s voices are numerically weighted in cases where women’s interests are at stake. The federal models show that a formula is not technically difficult, and that regional interests have long benefited from a recalibrated majority principle. In Chapter Three, I suggest a gendered means of reclassifying federal-state legislative powers according to a calculation of national needs and national interests. Why not replicate the federalism approach for constitutional referendums, taking into account women’s interests? For one, it would be politically impossible to sell. For another, it would create the necessity for a further mechanism to determine which referendums should be subject to this process, and which should remain “ungendered.” It is beyond my constitutional imagination to suggest what such a process might look like and how it might function without perverse results or constitutional dramas, including potentially over the separation of powers. The Australian model, combining legislative initiation and popular judgment of proposed amendments, may therefore be preferable. Even while women are numerically underrepresented in the legislature, it allows a multipronged strategy, which can be cumulative or nuancing of interests, as opposed to a simple referendum that will work against interest gradation or nuance. First, women may participate in running for office or supporting

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candidates with a progressive agenda for constitutional amendment; second, they may lobby serving members of government or the legislature regarding proposed or current amendment processes; and third, they may take part in the campaign, including as voters, surrounding the referendum. At least in the first two strategic stages, they will have the opportunity to raise “existential” and not merely numerical voices. Similarly, for reasons that include the protection of minorities, it may be undesirable for amendment processes to be the same for all provisions of a constitution. As discussed in Chapter Seven, some constitutions include provisions that are quarantined or preserved from derogation; these may also be protected by allowing for no amendment at all or requiring extraordinary or especially difficult amendment procedures to be followed. The South African Constitution is amendable by the national legislature, but, as set out in Section 74, different majorities are required to amend different sections of it. Amendment of Section 1, in which the democratic nature of the republic and the fundamental values on which it rests are set out, requires a supermajority of at least 75 percent of the National Assembly, plus the vote of the National Council of Provinces, with support of at least six of the provinces. Thus, the principles of democracy, human dignity, equality, the supremacy of the Constitution and the rule of law, universal adult suffrage, and “nonracialism and nonsexism” are surrounded by a procedurally protective wall. (Other sections of the Constitution require a two-thirds vote of both legislative Houses.) This section also requires bills amending the Constitution to be published for public comment, and the public submissions received must be submitted along with the bill when it is introduced into the legislature. Such procedures reinforce the principle that simple numerical majorities are not appropriate where fundamental norms are at stake. If a constitution includes gender equality among such norms (as it must if it is to be genuinely democratic and egalitarian), it is in the interests of women to “own” the process of amendment in these ways, as well as directly. The gendered character of amendment mechanisms is not an abstract claim. It is illustrated historically, with respect to the prohibition question in the United States. As we saw in Chapter Three, the Twenty-First Amendment brought an end in 1933 to the national prohibition that was constitutionalized in 1919 by the Eighteenth Amendment. The amendment tested, for the first time, the question of whether another constitutional

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amendment could be repealed by a later amendment. It was also unusual in another way. Article V of the U.S. Constitution includes alternative processes for amendment. The first requires a proposed amendment to be supported by a two-thirds majority of both Houses of Congress and ratified by the legislatures of three-fourths of the states. Alternatively, if the legislatures of two-thirds of the states apply to the Congress, it must call a convention for proposing an amendment, followed again by ratification by three-fourths of the state legislatures. A further alternative is for ratification by conventions in three-fourths of the legislatures. Congress itself is empowered to determine which of these procedures to follow. The Twenty-First Amendment remains the only one to have been ratified by state conventions, rather than state legislatures. Gender, among other considerations, lay behind this course. The major campaigners for repeal of the Eighteenth Amendment, including the Association Against the Prohibition Amendment and the Voluntary Committee of Lawyers, were opposed not only to prohibition, but also to women’s (and black) suffrage. They took a stand against legislative ratification, believing it to have been misappropriated in both the previous amendments. “They contended that organized lobbying for the woman suffrage and prohibition amendments had resulted in the state legislatures ratifying amendments that their constituents did not support.”5 They sought a way of making amendments more difficult and found this in the hitherto unused mechanism in Article V for special ratifying conventions. State ratifying conventions, the antiprohibitionists believed, would be similar to state referendums: avenues for “popular” control of amendment, protected from the influence of special interests (such as women). These organizations saw in this process a means for limiting the growth of federal power, a growth that they attributed, at least in part, to the influence and politicization of women in the early twentieth century. As we have also seen in Chapter Three, paradoxically, women’s organizations used their own still-fresh political voices to support the same goal. Thus, we conclude as we began, by recognizing that women have long been present both in constitutional battles and in shaping a gendered 5

Richard F. Hamm, “Short Euphorias Followed by Long Hangovers: The Unintended Consequences of the Eighteenth and Twenty-first Amendments,” in David E. Kyvig, ed., Unintended Consequences of Constitutional Amendment (Athens: University of Georgia Press, 2000), at 183.

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constitutional hermeneutics. Constitutional opportunity structures lie in avenues for contestation as well as in the institutions and processes they entrench. Established constitutions may be difficult to amend, both because of the mechanisms of amendment themselves and because of the reverence that commonly attaches to old institutions. In the latter case, most striking in the United States, the battleground for gender equity and agency must lie in constitutional interpretation. Constitutional rigidity is not always a disadvantage, however. While equity principles derived from interpretation will grow incrementally, one may well want the full package upfront, instead of waiting for installments. However, the discursive and ideological opportunities in battles over meaning can themselves drive new understandings of equality and equity, where constitutional amendment closes the debate. Furthermore, although newer or less “sacred” constitutions may be easier to amend, amendment of fundamental norms, if these include gender equity norms (as they must), is unlikely to be desirable. Again, a purposive perspective is appropriate. Where a constitution has been well designed, its purpose must be protected. The laws that either derive from it or are limited by it must be assessed according to outcome or effect, bringing the constitutional purpose into the social context. Purposive constitutional interpretation is a process, as is democratic constitutionalism. The contextualization and equalization of women’s interests and women’s voices must be a central part of this. The analysis of constitutional design from the perspective of gender equity and agency is strategic and functional, discursive, and practical. This book, too, is designed as part of the process. It brings a feminist eye to the most significant source of national power, and sketches a scheme for understanding how that power, through the institutions, structures, and processes it creates, affects the lives of women and the opportunities available to them. It does not imagine itself to be the last word.

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Index

Abortion rights, 200–208 Adams, Abigail, 5, 6, 15 Adams, John, 5 Afghanistan Constitution, 248 percentage of women in legislature, 117 Afolabi, Akiyode, 17 Allard, Scott, 86 Allen, Judith, 15 Amar, Akhil, 7 Andrews, Penelope, 194 Anthony, Susan B., 10, 11 Arbour, Justice Louise, 141 Arendt, Hannah, 97 Australia apppointment to High Court, 135 constitution-making, 38, 88 judicial tenure, 140 parliamentary standing orders, 129 percentage of women in legislature, 117 right to legal counsel, 160 Sex Discrimination Act 1984, 151, 174, 223 women law graduates, 135 Australia, Constitution, 14, 46, 59, 223 amendment, 79, 254, 256 B.N.A Act. See Canada, Constitution Baines, Beverley, 31, 185 Barak, Aharon, 56 Barrett, Jacqueline, 103 Beijing Conference (Fourth World Conference on Women) 1995, 196 Berns, Sandra, 44, 144 Bhe case, 1993, 49 Botswana Citizenship Act 1984. See Dow, Unity Constitution, 100

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Bradwell v. Illinois, 1873 9 Bradwell, Myra, 9, 47 Brazil electoral system, 126 percentage of women in legislature, 126 Brennan, Justice William, 192 British North America Act. See Canada, Constitution Brooks, Rosa Ehrenreich, 231, 233, 234 Brzonkala, Christy. See United States v. Morrison ´ Buitrago, Monica, 43, 131 Burma Women’s League, 18 Bush, President George W., 138 Cable Act. See Citizenship, Marriage Cairo Conference (International World Conference on Population and Development) 1994, 196 Canada appointment to Supreme Court, 136 Charter of Rights and Freedoms, 16, 28, 29, 41, 54, 60, 95, 112, 121, 150, 154, 158, 163, 166, 167, 172, 173, 182, 185, 206 “notwithstanding clause,” 185 permissible limitations, 188 “right to life,” 205 judicial tenure, 140 percentage of women in legislature, 117 rules of standing, 149 CEDAW Convention on the Elimination of All Forms of Discrimination Against Women, 122, 123, 174, 198, 222, 223, 224, 230, 231, 232, 236 Charlesworth, Hilary, 34, 228, 230 Childs, Sarah, 123 Chinkin, Christine, 34, 228

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Index Choice on Termination of Pregnancy Act, South Africa 1996, 205 Christian Lawyers Association of South Africa v. Minister of Health 1998, 205 Citizenship by descent, 100–105 Marriage, 98–100 Rights, 97 Coleman, Carl, 211 Colombia Supreme Court, 24 Colombia, Constitution, 17, 43, 131, 194, 215, 219, 225 recognition of international law, 221 Commission for Gender Equality, South Africa, 252, 253 Constitutional amendment, U.S., 175, 258 Cook, Rebecca, 214 Costa Rica appointment of women to office, 131 percentage of women in legislature, 117 rules of standing, 149 Costa Rica, Constitution right to life, 207 Costello, Justice Declan, 202 Costs of constitutional actions, 157–159 Crennan, Justice Susan, 140 Crenshaw, Kimberl´e, 33 Critical mass theory, 116, 123 Currie, David, 39 Customary law, 236–246 Dahlerup, Drude, 120, 124 de Gouges, Olympe, 7, 8, 27 de Hart, Betty, 101 Declaration of Independence, 8, 25 Declaration of Sentiments 1840, 8 Denmark electoral system, 126 percentage of women in legislature, 117 Divorce, constitutional powers, 75, 88 Dobson v. Dobson, Canada 1999, 157 Doe v. Wade, U.S. 1973, 152 Domestic violence Iraqi Constitution, 171 South African Constitution, 171 Dow, Unity, 100, 147, 243 Duff, Justice Lyman, 52 Dworkin, Ronald, 56 Eighteenth Amendment, U.S. Constitution, 76, 78, 79, 257, 258 Electoral systems, 124–127

261 Endogenous-recognition rule, 131, 137, 138 Equal Rights Amendment (ERA), U.S., 175, 176, 177, 178 European Convention for the Protection of Human Rights and Fundamental Freedoms, 223 European Court of Human Rights, 227 European Court of Justice, 226 Expatriation Act, U.S. 1907. See Citizenship, Marriage Family Court of Australia, 88 Federalism “contextual,” 87–89 advantages, 84–87 impact, 87–89 Fifteenth Amendment, U.S. Constitution, 11 Fineman, Martha, 144 Finland percentage of women in legislature, 117 First Amendment, U.S. Constitution, 45, 187, 246 “Founding fathers” use of term, 44, 57 Fourteenth Amendment, U.S. Constitution, 9, 10, 11, 12, 43, 58, 71, 74, 76, 99, 102, 106, 174, 175, 176, 192, 213 France Constitution, 7, 119, 121 gender quotas, 118, 120 Freedom of expression, 186–190 Garran, Robert, 75 Gaudron, Justice Mary, 140 Geduldig v. Aiello, U.S. 1974, 192 Gender quotas legislative, 117–124 Gender quotas in national legislatures, 18, 35, 126 Germany, Constitution, 180 Ginsberg, Justice Ruth Bader, 138, 142, 143, 177, 178 Goldfarb, Sally, 69, 87 Gonzales v. Carhart, U.S. 2007, 209, 210 Graycar, Reg, 160 Griffith, Sir Samuel, 70 Griswold v. Connecticut, U.S. 1965, 186, 208 Grootboom case, South Africa 2000, 168, 169, 170, 236 Halka, Elizabeth, 143 Heart of Atlanta Motel, U.S. 1964, 72 Hewlett, Sylvia Ann, 111, 217, 218 Hillcock, Rebecca, 231, 233 Hugo’s case, South Africa 1996, 61, 195 Human Rights Act UK 1998, 13, 102, 121, 155, 223

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P1: ICD 9780521881081ind

CUFX261/Irving

262 ICCPR (International Covenant on Civil and Political Rights, 223, 225, 226, 244, 245 India appointment to Supreme Court, 136 India, Constitution rules of standing, 154 International law jus cogens, 221, 228–230 Interpretation, constitutional “moral intentionalism,” 56 originalism, 55 “progressivism,” 56 “purposive” interpretation, 56, 63 “statutory analogism,” 55 textualism, 55 Interpretation, constitutional and statutory, 41 Intersectionality theory. See Crenshaw, Kimberl´e Interveners, constitutional cases, 149–150 Iraq citizenship, 107 Constitution, 40, 235 Constitution making, 17, 40 gender quotas, 118, 119 health care, 216 Islam, 248 legal aid, 159 Ireland, Constitution, 24, 105, 215, 226 Eighth Amendment, 202 Fourteenth Amendment, 204 right to life, 202 rules of standing, 151 Thirteenth Amendment, 204 Twelfth Amendment, 203 Twenty-Fifth Amendment, 204 Twenty-Seventh Amendment, 106, 107 Jagwanth, Saras, 136, 158, 163, 166, 188, 205, 241, 253 Judicial commission, 137 Judicial voice, 142–145 Kaganas, Felicity, 239, 240 Katzenbach v. McClung U.S. 1964, 72 Kende, Mark, 61 Kennedy, Justice Anthony, 209 Kenya, Constitutional Review, 18 Khosa v. Minister of Social Development, South Africa 2003, 108 Kiefel, Justice Susan, 140 Kolbert, Kathryn, 211 Kriegler, Justice Johann, 195 L’Heureux Dub´e, Justice Claire, 140 Langa, Justice Pius, 49

978 0 521 88108 1

December 25, 2007

Index Langton, Rae, 187 Lawal, Amina, 232 LEAF (Legal Education Action Fund), Canada, 149, 158, 163 Legal Aid, 159–160 Legislative standing orders, 127–130 Lenoir, Noelle, 35, 121, 122 Liberalism and feminism, 34 Lijphart, Arend, 26, 132 Linda R.S. v. Richard D., U.S. 1973, 153 Lister, Ruth, 93 Mabena v. Letsoalo, South Africa 1998, 242 Mackay, Fiona, 2 MacKinnon, Catherine, 75, 76 Mandela, President Nelson. See Hugo’s case Marriage constitutional powers, 75, 88 customary, 240 polygamy, 246 Martin, Dianne, 142 McBain case, Australia, 50, 95, 151, 197, 214 McKenzie King, William, 53 Miers, Harriet, 138, 139 Mill, John Stuart, 92 Minor v. Happersett 1874, 12 Minow, Martha, 33 Mokgoro, Justice Yvonne, 108 Monopoli, Paula, 30, 132 Morgan, Jenny, 160 Morgan, Martha, 43, 131, 220, 244 Mott, Lucretia, 8 Mthembu v. Letsela, South Africa 2000, 242 Murphy, Emily, 50 Murray, Christina, 21, 45, 46, 158, 239, 240, 241, 245, 253 Netherlands percentage of women in legislature, 117 New constitutionalism, 25, 26 New Zealand Bill of Rights Act 1990, 174, 223 Nguyen v. I.N.S, U.S. 2001. See Citizenship, by descent Nicholls, Elizabeth, 48 Nicolai, Caroline, 231 Nigeria Constitution, 68, 231, 232 Sharia courts, 232 Nineteenth Amendment, U.S. Constitution, 12, 58, 110, 114, 174, 175 Ninth Amendment, U.S. Constitution, 165, 186

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P1: ICD 9780521881081ind

CUFX261/Irving

Index Norway electoral system, 126 percentage of women in legislature, 117 Nussbaum, Martha, 154 O’Connor, Justice Sandra Day, 103, 138, 142, 177 Okin, Susan Moller, 91, 92, 237, 247 Old constitutionalism, 26 Open Society Initiative For West Africa, 20 Opportunity structures, 32, 108, 123, 160, 162, 259 Persons Case, Canada, 50, 56 Petersson, Sandra, 41, 42, 44, 47 Philadelphia Convention, 5, 38, 57 Phillips, Anne, 124 Pierce, Richard, 152 Planned Parenthood v. Casey, U.S. 1992, 209 Pornography, 186–190 Preambles, constitutional, 18, 48, 49, 62, 63, 203 Privacy Iraqi Constitution, 171 reproductive, 208–212 reproductive autonomy, 157 right, 171, 186, 208 Private sphere, 93 Privy Council, UK, 50, 53, 57 Prohibition, United States 1919–1933 78, 258 Protection of Human Life in Pregnancy Act, Ireland 2002, 204 Quick, John, 75 R v. Butler, Canada 1992, 188 R v. Morgentaler, Canada 1988, 143, 206, 208 Ramphosa, Cyril, 46 Recognition of Customary Marriages Act, South Africa 1998, 240 Reconstruction Amendments, U.S. Constitution, 14 Reed v. Reed, U.S. 1971, 13, 176 Reference of powers, state to federal, Australia, 88 Rehnquist, Chief Justice William, 72, 73 Religion Sharia law, 231 Religion and constitutional law Islam, 40 Religious law, 246–250 Remedies for breach of constitution, 154–156 Resnik, Judith, 70, 74, 86 Responsibility to protect, 204 Reynolds v. United States, U.S. 1879, 246 Right to life, constitutional, 201–208 Rights balance, 181–184

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December 25, 2007

263 hierarchy, 184–186 limitations, 178–181 maternity, 212–216 non-derogable, 179–181 parental, 216–218 substantive, 168–171 unenumerated, South African Constitution, 165 unenumerated, U.S. Constitution. See Ninth Amendment Roe v. Wade, U.S. 1973, 152, 156, 209 Rubio-Marin, Ruth, 31, 220, 244 Rwanda electoral system, 126 gender quota, 118 percentage of women in legislature, 117 Rwanda, Constitution, 17, 229 “Fundamental principles,” 131 parental rights and duties, 218 recognition of international law, 222 Scott, Rose, 15, 16 Seneca Falls Convention 1848, 8 Serbia, Constitution recognition of international law, 221 Sex Discrimination (Election Candidates) Act U.K. 2002, 121 Shaffer, Martha, 206 Shah Bano case, India, 248, 249 Shah, Niaz, 248, 249 Sixth Amendment, U.S. Constitution, 159 Slaughterhouse case U.S. 1873, 11 ´ Solari-Yrigoyen, Hipolito, 245 Soobramoney v. Minister of Health, South Africa 1998, 214 South Africa appointment to Constitutional Court, 136 Black Administration Act, 49 Constitution making, 38, 45 Constitutional Court, 49 Constitutional interpretation, 53 judicial tenure, 141 legal aid, 159 parliamentary rules, 130 South Africa, Constitution amendment, 257 Commission for Gender Equality, 252 cultural rights, 238 customary law and constitutional interpretation, 248 freedom of conscience and religion, 240 health care, 200 non-derogable rights, 180 pornography, 188

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CUFX261/Irving

978 0 521 88108 1

264 South Africa, Constitution (cont.) pregnancy discrimination, 199 public and legislative committees, 156 recognition of international law, 221, 224 reproductive rights, 216 right to housing. See Grootboom case rights provisions, 168 rules of standing, 148 Spence, Catherine Helen, 14 Standing (locus standi), 145–156 Standing in utero, 156–157 Stanton, Elizabeth Cady, 8 Sullivan, Kathleen, 28, 29, 31 Sunstein, Cass, 189, 247 Sweden electoral system, 126 gender quota, 118 percentage of women in legislature, 117 Sweden, Constitution, 183 Switzerland, Constitution, 62 non-derogable rights, 180 Tanko, Nana, 20 Temperance movement, 48, 77, 78 “The people,” use of expression, 47 Thirteenth Amendment, 7 Trengrove, William, 155 Tripp, Aili Mari, 118, 124 Twelfth Amendment, U.S. Constitution, 39 Twenty-First Amendment, U.S. Constitution, 79, 257, 258 Tysia˛ c v. Poland, European Court of Human Rights, 227 Uganda gender quota, 119 United Kingdom percentage of women in legislature, 117 United Nations Human Rights Commitee, 198, 225, 244, 245 United States appointment to Supreme Court, 136, 138 judicial tenure, 141

December 25, 2007

Index percentage of women in legislature, 117 women law graduates, 135 United States v. Virginia, U.S. 1996, 177 United States v. Morrison U.S. 2000, 70, 74, 75, 76, 153 United States v. Virginia, U.S. 1996, 177 Unity Dow case, Botswana 1991, 147 Vickers, Jill, 82 Vienna Declaration and Programme of Action 1993, 245 Violence Against Women Act, U.S. 1994, 70, 71 Volpp, Leti, 96 Voluntary Committee of Lawyers, 78, 258 Vote, right to, 109–115 Vote, women’s right Australia, 10, 14, 15 Warren, Mercy Otis, 5 Webber, Jeremy, 25 Welfare state, 79 Werdegar, Justice Kathryn Mickle, 143 West, Cornel, 111 Wheare, Kenneth, 1 Wickard v. Filburn U.S. 1964, 73 Wilkinson, Brian, 226 Williams, Joan, 35 Williams, Susan, 144, 145 Wilson, Justice Bertha, 60, 61, 62, 141, 142, 143, 150, 208 Winkler, Adam, 59 Wollstonecraft, Mary, 6 Woman’s Christian Temperance Union (WCTU), 15, 77 Woman’s Organization for National Prohibition (WONPR), 78 Women for Women International, 17 Women’s Federal Leagues, Australia, 15 World Anti-Slavery Convention 1840, 8 x’s case, Ireland, 202 Young, Iris Marion, 92

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