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.