To get the word male . . . out of the Constitution cost the women of the country fifty-two years of pauseless campaign.–Carrie Chapman Catt
Writing in the May 25th issue of The New Yorker, historian Jill Lepore discusses the history of the struggle for equal rights. Her article is titled “To Have and to Hold.” Lepore explains that the Constitution was written for men, so that protections for reproductive and marriage rights needed to be added.
The Constitution never mentions sex, marriage, or reproduction. This is because the political order that the Constitution established was a fraternity of free men who, believing themselves to have been created equal, consented to be governed. Women did not and could not give their consent: they were neither free nor equal. Rule over women lay entirely outside a Lockean social contract in a relationship not of liberty and equality but of confinement and subjugation. As Mary Astell wondered, in 1706, “If all Men are born free, how is it that all Women are born Slaves?”
Lepore discusses reproductive rights which are based on a right to privacy said to be implicit in the Constitution. Lepore finds this justification relatively weak and vulnerable to attack. Lepore writes that the right to marriage equality, currently before the Supreme Court, is based on the Fourteenth Amendment’s guarantee of equal protection, which she considers a much stronger claim. Lepore suggests that if Griswold, the decision upholding a right to contraception, had been based on the Fourteenth and Nineteenth Amendments rather than the right to privacy, reproductive rights might have survived challenges such as the Hobby Lobby case.
I highly recommend Lepore’s interesting article cited below.
I would suggest that we do not underestimate the importance of the 9th Amendment, largely ignored in conversations about Constitutional rights. Simply put, the 9th Amendment says that just because a right is not explicitly mentioned in the document, does NOT mean the people do not possess a given right. The right to privacy, based on the 9th Amendment, would be on solid ground.
If you will indulge me, this was the very first post on my blog back in 2011!
If in fact the Constitution were made clear that equal rights for all citizens were foremost, the right to privacy would extend to every citizen. The ERA still has not been ratified.
Essentially, the Constitution is inadequate. It speaks directly only to the sort of people who were enfranchised in 1787; the rest of us are left to make arguments by amendment and, failing that, by indirection.
According to Jill Lepore, Hamilton and others opposed the Bill of Rights believing that if certain rights were listed, other rights would be compromised.
And she is correct. Some of the members of the Constitutional Convention wanted a long, extensive list. Others wanted no list at all, fearing it would limit rights. The 9th Amendment took care of the problem by opening up the “rights” door to be defined in the future as need arose.
LikeLiked by 1 person