Joy Milligan and Bertrall Ross (both of the University of Virginia) have posted "We (Who Are Not) the People: Interpreting the Undemocratic Constitution." The article is forthcoming in the Texas Law Review. The abstract:
How should we interpret a Constitution that was not written for us? For
most of American history, “We the people” excluded women and racial
minorities. The Constitution and all but a few amendments were adopted
amidst profoundly undemocratic conditions in which majorities of the
population did not participate or see their interests represented. The
United States did not approach even minimally egalitarian democracy
until 1965, when the Voting Rights Act finally assured the right to vote
to people of color, implementing the Fifteenth and Nineteenth
Amendments’ guarantees.
In this Article, we argue that the
undemocratic nature of the Constitution must be addressed in
interpreting the document. Interpreters can exacerbate or ameliorate the
Constitution’s democratic flaws; the methods they select may entrench
old forms of political exclusion or help equalize rights and status
across the citizenry.
To illustrate, we offer a case study of the
perils and possibilities of interpretation, focusing on unenumerated
rights. Such rights may have been unwritten because they were liberties
commonly exercised by white men as full citizens, and hence could be
assumed. Or they may have been unwritten because they mattered primarily
for politically excluded populations and therefore could be ignored. We
show that the Supreme Court’s recent adoption of an approach to
unenumerated rights resting on “history and tradition” unjustifiably
reinforces prior undemocratic conditions. As a corrective, we advocate a
set of interpretive steps designed to ameliorate the Constitution’s
democratic flaws and advance equal citizenship. Such methods may move us
closer to egalitarian democracy, a prerequisite if we are ever to
reshape our constitutional framework under truly inclusive conditions.
The full article is available here. (h/t Legal Theory Blog)
-- Karen Tani
