Welcome back to our grand tour of America's unwritten Constitution a set of, tools and techniques of going beyond the written Constitution, beneath it, behind it, beyond it. Yet nevertheless remaining faithful to it. And we've talking about different ways of doing that. We've talked about how we need to read the Constituton as a whole. There's no clause that specifically directs us to do that. There's no clause that says we shouldn't and the constitution was of course ratified as a whole. And in one of the most famous cases ever decided. The case of McCullough v Maryland, John Marshall very famously reminds us, we must never forget, he said, that it is a constitution we are expounding. That is, an entire document, not a clause, not, not a word but a constitution, a system. And so, we began this guided tour by talking about the need to, to read the Constitution holistically, seeing larger principles: separation of powers, checks and balances, limited government, federalism, the rule of law, the idea that no man should be a judge in his own case. We talked about another technique, about looking at how the constitution was in fact ordained, the process by which it was enacted and seeing if there were deep and important principles in that processes, as indeed, there were principles of free speech and majority rule. And late when we focused on how the Constitution was in fact amended, the particular processes by which it was amended we see other principles very significant in our system, like the, the Principle of a robust, republican government, a principle of the heart, of the 14th amendment, and the way it actually came about, the way it was enacted. [COUGH] Excuse me. We talked about America's lived constitution, a set of, of principles of un-, unwritten Constitutional rights that Americans have embodied just by living out their lives in ordinary ways, un-self conscious ways. But in, in the process of living out their lives, they've embodied certain basic rights, with-, without even thinking about it very much: the right to have a dog to play the fiddle, to wear a hat, to enjoy family life with your loved ones and to, to raise your children. We talked about looking at the Constitution through the prism of case law. In particular the case law of the Warren court. The case law is not, itself a part of this written constitution; this, this terse text. I'm reaching here in my pocket top pull it out. I've always got at least one copy. Okay. So this is the terse text; this is the written constitution. Case law, all of the judicial decisions, they're not formally part of this. They're part of an as, as it were, an unwritten constitution. But they offer a set of, of lenses, a, a prism through which, of course, we read the terse text. And that's what we talked about in our discussion of the Warren court and the role of precedent more generally. We talked about the world that certain special text, constitutive texts, constitutional texts, if you will, outside the formal written Constitution. We talked about the role that some of these special iconic texts play in our national constitutional culture. Texts like the Declaration of Independence and the, I Have a Dream speech, and the Brown v Board of Education case, and the Gettysburg Address. I ended the last chapter by reminding you that that Lincoln is in, in my phrase, da man. We very much live in Lincoln's Constitution, not just the founders', but Lincoln's Constitution. And we, in all sorts of ways, conscious and unconscious, read the Constitution from a Lincolnian perspective. And then I said, okay, if Lincoln is the man then what about women? What about the ladies? And by the ladies I want to remind you, actually, of a famous letter that, that Abigail Adams wrote to John Adams, her husband in 1776, in which she very famously urged John Adams and his fellow revolutionaries to quote, remember the ladies, unquote. I'm going to come back to that at the end of next lecture, tell you a little bit more about that letter that Abigail wrote to John. But let's take that admonition seriously. Let's remember the ladies and see how that a-, admonition plays into Am-, America's constitutional culture written and unwritten. So here's a key fact about the written Constitution. It describes itself as in the Preamble, as having been ordained and established by the people. And later on in Article Six, it again refers to itself, this Constitution, just as it does in the Preamble, and it says, this Constitution is the the supreme law. So the Preamble says this Constitution is ordained, this, this written text is ordained and established by the people. and then later on in Article Six it says this Constitution, again, this text, is the supreme law of the land. And these two patches of text where the document refers to itself, they're not the only two patches, but these two in particular, are linked it seems to me, by a theory of legitimacy. A theory of popular sovereignty the Con-, this constitution is the supreme law of the land because it was ordained and established by the people in a process that was particularly inclusive, that involved more people than anything ever before in the history of planet Earth. that, that, and, and a very wide swath of ordinary Americans in 1788 1787, 88, were allowed to participate in the ordainment process. And that's why this constitution should trump an ordinary statute passed, perhaps more recently enacted in the ordinary ways by ordinary legislatures. Because there isn't that the ordinary statute, can't claim that kind of popular sovereignty mandate that this Constitution itself can claim by the fact of its special ordained and establishment. Similarly, amendments to the Constitution, precisely because they have to go through a very special process, they have to win the support of 2 3rds of the House, and 2 3rds of the Senate and three quarters of the states. They've these amendments, precisely because they reflect a particularly broad and deep democratic consensus, are entitled to trump a statute. Even a more recent statue just passed by ordinary legislatures in the ordinary way without necessarily having achieved the special super majorities of 2 3rds House, 2 3rds Senate, three quarters of the states. So that's the theory of popular sovereignty that I think legitimates the idea that the Constitution is supreme law because it's in some sense more deeply democratic. Okay, so that's the theory. And then along comes the 19th amendment. That's the women's suffrage amendment. And I think this complicates the story, because once women's suffrage is actually embraced as a constitutional principle, it, it's, it's, this amendment, is unintentionally perhaps, but deeply unsettling. Because I think the deep logic of the Nineteenth Amendment is that women are equal political participants, but of course they weren't at the founding, or during the Reconstruction. In fact they weren't even equal political participants in the very process by which the Nineteenth Amendment became law. And so the, the nanosecond that the Nineteenth Amendment becomes part of the supreme law of the land, I think it, it complicates and unsettles, to some extent this popular sovereignty story we've been telling. And the precise extent to which it unsettles isn't explicitly specified in the Nineteenth Amendment. To some extent, it's unwritten. And what I'd like to do in today's lecture, and the companion one, is to explore the, the profound implications of the Nineteenth Amendment. Of the, the suffrage revolution and what it might mean for American Constitutionalism. So let's begin with a hypothetical. Let's imagine that Congress tomorrow were to pass a sweeping law of, aiming to vindicate women's rights. A law kind of along the lines of a statute called the Violence Against Women's Act that Congress actually did pass a, a, a while back, and part of which the Supreme Court, in fact, invalidated as going beyond congress' power. Let's imagine that this law says that private violence against women when a man attacks a woman because she is a woman, targets her, because of her, her gender is now a, a federal offense of some sort. And lets imagine that the law provides for special civil remedies for women who have been targeted for, by violent men, because they are women. Let's imagine this law further provides all sorts of protections of, of women against governmental discrimination and private employer discrimination. And now, let's imagine that some people raise questions about whether Congress legitimately has the power to pass a law like that. Now I think if you just read the text of the Constitution, you can see that it's fairly capable of being read to support this Congressional law. Now, remember the Fourteenth amendment begins by saying everyone born in America is born a citizen. That is where, everyone is born equal, an equal citizen. And women are born equally with men. And the last sentence of that amendment says Congress shall power to enforce this. And the Nineteenth amendment is all about sex discrimination. And there's another clause that says Congress shall have power to enforce this by appropriate legislation. So you might think that Congress has very sweeping power to protect women's rights against all sorts of threats to them threats against women as women. but, but here's the counter argument. Well, maybe the text is broad enough, but actually, we think the legislative history, a critic might say, of the Fourteenth amendment shows it's all about race. Doesn't say race but really, we think when you look at the legislative history, it's about race and not sex. And the Nineteenth amendment, yes, it's about sex discrimination, but sex discrimination in voting. And what does private violence against women have to do with voting? What does employment discrimination have to do with voting? And so, so, so we don't think, based on the legislative history, that the Congress has the sweeping power. now, I, myself, think that they've got the history, to some extent, wrong about the Fourteenth Amendment, and the Nineteenth Amendment. The history of the Fourteenth Amendment is a history of equality. And they could have used the word race in the Fourteenth Amendment, they didn't. They used the word race in the Fifteenth Amendment about voting rights, but in the Fourteenth, it's a broader principle. It's a principle of birth equality, that everyone is born equal, created equal. And that's a principle, that we're born equal, not just black and white, the race issue, but we're born equal, male and female. And in fact, women were strongly supportive feminists of Section One of the Fourteenth Amendment. Elizabeth Cady Stanton and and others. They didn't like section two of the Fourteenth Amendment, that inserted the word male when it came to voting rights, but section one they thought was affirm, about affirming equal rights of all. and, and the 19th amendment is about women's equal political participation and, and yes, actually in order to be politically equal I think e- eh, Congress made believe that a prerequisite of that is that women be equal in the workplace, and be equal when they walk out on the street. And and, and equal in their ability to be protected against, against private violence against them, because they're women. Congress might legitimately think so, but suppose someone thinks the legislative history is too narrow, that that goes too far? My claim is, why should we let that legislative history of the Fourteenth Amendment, of the Nineteenth Amendment, if it were read, I think wrongly in my view, but if it were read to offer a kind of a narrow conception of women's rights, why should we allow that legislative history to travel? Because after all, that legislative history, is the history of men, and because men are thee only ones voting on the Fourteenth Amendment. And men overwhelmingly are the ones voting on the Nineteenth Amendment. Yes, in some states women have the vote already, so there participating in the conversation and the votes about whether to take that women's suffrage idea and make it the law of the land across America the federal amendment. But, but in lots of states, the people who are voting on women's suffrage are men and only men, because these states don't have women suffrage yet. And, and so the radical thought is, the very nanosecond that the Nineteenth Amendment is adopted, it kind of calls into question the fairness of the process up to that point, even the process up to its own adoption. If women, after the Nineteenth Amendment are adopted, are supposed to be political equals, wasn't it unfair that they weren't equal parts in the process that the process that, that generated the Nineteenth Amendment? That they really weren't any part of the official voting process that generated the Fourteenth Amendment and, and before that, the founding? so, let me give you an analogy. If, when my kid turns 18, he's going to get to vote, and he's going to say, you know, dad but, you know, they didn't let me vote last year and the year before, and the year before that! And I say, yes, that's because, you know, last year you were 17, and the year before that, you were 16. You weren't actually mature enough. Now you're 18, now you get to vote. But there's nothing that happened before was really unfair. Is that what women's suffrage was like? We say, oh well, women you know, in 1920, they're intelligent enough and capable enough to vote, but boy, in 1919, they were really immature. And in 1918, they just weren't ready for this and, and in 1867 you know, they were, they were just children. And the founding, they were just not able to think straight. No. I think the Nineteenth Amendment, the deep logic of it, it's not on the surface of the of, of, of the of the amendment it gets. It's unwritten but I think unmistakable that the idea is that women are the political equals of men and, and this is not something new that's happening in 1920. This, this has always been true. And to some extent, the Nineteenth Amendment as I said, calls into question the fundamental fairness of everything that has gone before. And here's now, let's go back to our hypothetical. If Congress were to pass this law affirming women's rights, the Congress that's passing it, is a Congress in which women are members of that Congress. And women are voting for all of the members of that Congress. And, if that law is being trumped by an earlier Constitution in which women were not full participants, in the Fourteenth Amendment and the Nineteenth Amendment the process by which the Nineteenth Amendment was adopted. And if that congressional statute that we're hypothesizing were invalidated because of the legislative history of the Fourteenth and the Nineteenth Amendment, an overwhelmingly male legislative history. Is that really popular sovereignty when a more, arguably sort of democratic and more recent enactment in which women are full participants is being trumped by an earlier process in which women were excluded wrongfully, it seems to me, from a certain point of view? The point of view of the logic of the Nineteenth Amendment itself. That's, that's the, the thought. So I'm proposing an unwritten rule of interpretation that, I think, does justice to the deep logic of the Nineteenth Amendment. Where the text is fairly, of the Constitution, is fairly capable of being read different ways, we should hesitate to invalidate Congressional laws affirming women's equality, based on legislative history that's overwhelmingly male. of, of amendments in which women were not full participants. That's not really consistent with a constitution of popular sovereignty. The deep logic of why the Constitution is supreme, because it actually is more democratic than an ordinary statute. Is that so in a hypothetical or instead, is that stature actually more democratic? Because it is involving women fully in a way that the Nineteenth Amendment itself didn't fully involve women. The Fourteenth Amendment didn't fully involve women, the founding didn't fully involve women. now, you might think, gee, are you saying, professor, that all sorts of Constitutional provisions mean a lot more than they say on their face? And I'm saying, that's exactly what I'm saying, and it's not unique to the Nineteenth Amendment. Let's take the freedom of speech. We've talked about it a lot in, in this, course. When the people commit themselves in the First Amendment to the freedom of speech, I think the deep logic of that is that we the people are sovereign, in America. We have a broad right of political expression, a right of political expression, much broader than Parliament had. Actually much broader than the English cit-, citizenry had, because in England, Parliament is sovereign and so it has freedom of speech and debate from the French parlez, to speak. But ordinary British subjects actually, actually aren't sovereign and so they may not have the same broad freedom of speech. Parliament is socially superior to them and legally sovereign. But in America, no Our government officials are not superior to us socially. They work for us. We pay them. They are our servants, they are our agents, and we are sovereign. And so the deep logic is, British style laws limiting free speech are not appropriate in America. Now, did every, that's the logic of the freedom of speech. That's the logic, when, when, extended to all Americans, that's the logic of American popular sovereignty. Did everyone at the founding understand that? No, they didn't. That's why, shortly after the founding, you have people voting for sedition acts. John Adams, signing into law, basically echoing British-style censorship. And they said, well, you know, this is, this is okay, Britain does it. They didn't appreciate, no, in America, we've committed ourselves to a newer, broader revolutionary principle. James Madison understood the principle, but did everyone else at the time? Actually, not quite. The First Amendment meant more than everyone perhaps in-, initially understood. It had logical entailments and implications. And the very fact of popular sovereignty maybe went further than every, than some people initially recognized. Take the Reconstruction. Originally the, the folks who give you an end to slavery think they can just stop there. Okay, we ended slavery, we did it immediately, universally, without justi-, without compensation for the slave masters. That's a lot. That's a good day's work, we're done. But then they began to realize, no actually that wouldn't be stable. You can't give people freedom and not guarantee their equal citizenship. Not guarantee their, ultimately, their equal voting rights, at least in the South because, how can these Southern governments, be genuinely republican governments, when they're disfranchising a huge number of Freemen. And upon reflection, Reconstruction Republicans thought no we actually have to go further than the Thirteenth Amendment. We've got to make sure that at least in the South freed slaves get to vote um,uh, because otherwise the southern governments won't be republican. But they thought, okay that's only in the South. Maybe we don't have to do that for the North. So we're going to impose black suffrage on the South as a condition of the South's coming back into the Union and getting, receiving Congress, but we won't impose that on the North. And then, people began to think no actually, the deep logic of, of equality, of battle sacrifices of, of free blacks of, of the deepest and broadest ideas of republican government is, the Northern states have to let blacks vote equally, too, not just the Southern states. And this gets codified in the Fifteenth Amendment. And so, actually, although the Thirteenth Amendment began more modestly, people under- began to understand shortly thereafter that it had implications and entailments that, that upon reflection, really had to go further than merely an end of slavery. And so we end up with an affirmation of citizenship in the Fourteenth Amendment and the imposition of certain rules about black suffrage on the former Confederacy and eventually the extension of those rules of, of equal racial suffrage to the North, as well. So, what was true of the First Amendment, what was true of the reconstruction, seems to me, is also true of the Nineteenth Amendment. It, it has broader and deeper implications than merely a right to vote. In the lex-, next lecture, I'll trace a few more of the implications. Today I talked about it's implications for Congressional power to pass laws protecting women in all sorts of ways. In the next lecture I'll tell you about how we need to rethink marriage laws to some extent in light of the Nineteenth Amendment, the role of the First Lady and the Vice-Presidents in light of the Nineteenth Amendment. And we'll talk about actually Griswold and Roe, two very famous cases about women's rights. In the 20th century in again in light of the, the, the women's suffrage idea, the women's equality idea. So lots still to talk about. and, and I'm going to end as always by telling you a little bit about the the picture for this chapter. This is a picture about women on juries or not on juries. And it turns out the Nineteenth amendment has something to say about that, as well, so stay tuned. [MUSIC]
