American Constitutionalism in Historical Perspective (packet)

Rebirth of American Feminism: begin rearticulating arguments from abolitionist feminism. Become interested in questions of sexual authority. In the 1970s, have movement from Plessy to Brown and civil rts movement where women crucial. Cross-ethnic alliance b/w black and white women—moral agency of white Southern women finally utilized and question racialized pedestal.

Analogies to other suspect classifications:

1. 
   Religion: classification based on conviction with no relevant secular state purpose.
   
2. 
   Race: five factors which cluster around suspectness
   
   1. 
      Immutable Fact: can’t be changed.
      
   2. 
      Salience: noticeable to casual observer.
      
   3. 
      History of irrational Prejudice: culture, slavery, caste system
      
      1. 
         Deprivation of basic human rights
         
      2. 
         Rationalization on grounds of dehumanizing stereotypes
         
   4. 
      Irrelevant to legitimate state purpose: (but see sex differences)
      
   5. 
      Group is politically powerless: (a) Denied the vote and (b) Vote not given fair weight
      
3. 
   Similarities b/w race & gender: Same abridgment of basic rts are also visited on women: no conscience, speech, reproductive autonomy, rt to work. Rationalized by gender stereotypes which were viciously circular and silenced women. Unlike race & gender, religion is NOT salient, immutable or a creator of political powerlessness.
   
4. 
   Aren’t race diffs but ARE sex diffs: Social psychologists: 1974 Macoby and Jack—both feminists. Cts struggle which what wt to give these diffs: (1) Procreation/lactation, (2) Test results: (a) Verbal/math, (b) Non-spatial/spatial, (c) Nurture/aggressive, (3) Physical strength
   

Cases:

1. 
   Ginsburg strategy was to put gender args in mouths of men so that they would be taken seriously. Uses arg of principle, proving that gender stereotypes cut across both men and women equally.
   
2. 
   19^th A: women get the vote and d/n do much with it, vote w/ their husbands. Only really vote independently after 1970s movement. Great debate over ERA but never passed, d/n want to wait for ct to give equal protection.
   
3.