Constitution’s fate rests in the hands of women—A Commentary by Akhil Amar ’84
The following commentary was published in the Constitution Daily on September 17, 2012.
Constitution’s fate rests in the hands of women
By Akhil Amar ’84
Two hundred and twenty-five years ago this week — right here in Philadelphia, “where it all began” — America’s Founding Fathers went public with a proposed Constitution promising more democracy than the world had ever seen.
Even so, in September 1787, “We the People” basically meant “We the Men.” This year, the fate of this manly constitutional project rests more than ever in the hands of women.
More women than men will cast votes in November. Just for fun, imagine that women were to vote as a unified bloc. Virtually every election in America at every level of government — both candidate elections and issue elections — would be decided by the female vote. More plausibly, note that in any election in which men are closely divided, the candidate or issue position decisively favored by women will prevail.
For this remarkable turn of events, we must credit not just the Founding Fathers but also their amending daughters, granddaughters, and so on, who have rewritten the Constitution in both word and deed.
The gender-bending of the Philadelphia Constitution began in earnest after the Civil War with the Fourteenth Amendment, which promises “equal protection” to all — not merely racial equal protection but more generally. The amendment also proudly affirms that all homegrown Americans are “born” with equal civil rights. Just as a child born black or brown enjoys the same civil rights as a child born white, so too those born female are equal in civil rights to those born male.
A half-century after the Fourteenth Amendment came the Nineteenth, guaranteeing woman suffrage and thereby revolutionizing American politics. Earlier this year, it was obvious to all that Michele Bachman was eligible to run for president, as Sarah Palin and Geraldine Ferraro were eligible to seek the vice presidency in past electoral cycles — even though the original Philadelphia Constitution repeatedly used the gendered words he, him, and his to refer to the president. At the founding and for more than a century thereafter, states were perfectly free to keep women off the ballot; today, such a maneuver would be politically unthinkable and indeed unconstitutional.
Granted, the Nineteenth Amendment’s words speak only of women’s right to “vote” and not their equal right to be “voted for.” But the obvious spirit of the amendment is that women are legally equal to men in all things political — both at the ballot box and on the ballot itself.
Consider also how this amendment has transfigured modern presidential campaign etiquette and the dynamics of presidential succession. President Obama in effect has two running “mates” this season — the vice president and the first lady — and in fact either one could plausibly succeed him in 2017, as could of course another former presidential running “mate” named Hillary Clinton. Nothing of the sort was true at the founding: Back then, the idea that a Martha Washington or an Abigail Adams might one day become president in her own right would have been preposterous.
Though modern tea partiers claim fidelity to the Constitution, their understanding of the document reflects a curious pattern of arrested development, with lots of passionate references to the Founding Fathers and the Sons of Liberty (yes, fathers and sons), but no real embrace of the transformative constitutional amendments of the early 20th century. To the extent that tea partiers focus on the constitutional change wrought during the Progressive era, they are hostile to the Sixteenth Amendment, which ushered in a national and redistributivist income tax, and skeptical of the Seventeenth Amendment, which freed senators from dependence on state legislatures and thus emboldened Congress to aggressively pursue nationalist projects. Together, these two progressive amendments helped set the table for the New Deal, the Great Society, and Obamacare.
But the third Progressive-era amendment — the Nineteenth — has probably proved even more crucial, and the tea party is ultimately, if unwittingly, at odds with this amendment too. Thanks to woman suffrage, America has embraced a far more progressive agenda than she (yes, she) would have accepted had only men been voting. The progressive tilt of female voters over the years helped give America the tag-teams of Franklin and Eleanor, Bill and Hillary, and now, Barrack and Michelle. Earlier this year, the six men on the Supreme Court split four to two against Obamacare. This law — which might also be termed Pelosi-care in honor of the female former speaker of the House who helped birth it — prevailed in court thanks largely to the three female justices, who stood united in support of the statute’s core provisions.
It is unclear what John Adams would have thought of these modern developments. But somewhere, Abigail is smiling.
Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University, where he teaches constitutional law at both Yale College and Yale Law School.