Siegel on the 19th Amendment and the Family

Reva Siegel, Yale Law School, has posted The Nineteenth Amendment and the Democratization of the Family, which is forthcoming in the Yale Law Journal Forum:

This Essay recovers debates over the family connecting the Reconstruction Amendments and the Nineteenth Amendment, and considers how this lost history can guide the Constitution’s interpretation, in courts and in politics.

A woman’s claim to vote contested a man’s prerogative to represent his wife and daughters, and so was a claim for democratization of the family. Suffragists raised other, more far-reaching challenges to the family. Suffragists advocated reforming the law to recognize women’s right to voluntary motherhood and to be remunerated equally with men for work outside and inside the household. They sought to create a world in which adult members of the household could be recognized and participate in democratic life as equals. And they debated how to realize these goals when women faced different and intersectional forms of discrimination.

Courts can interpret the Amendments synthetically and so, for example, integrate the history of suffrage struggle into the equal-protection framework of United States v. Virginia. I show how an historical and intersectional analysis could change the way that courts approach cases concerning of the regulation of pregnancy, contraception, sexual violence, and federalism. I close, looking beyond the courts, to persisting claims for democratization of the family in politics. How would we understand these claims if we recognized they began in the decades before the Civil War, and we recognized the disenfranchised Americans who voiced them among our Constitution’s esteemed Framers?

--Dan Ernst