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  1. Preamble

    1. “We the people” 

      1. Women are recognized as “persons” based on the interpretations of the 14th Amendment

  2. Article I

    1. Section 8 (enumerated powers)

      1. Congressional authority to regulate abortion based on commerce clause and the spending clause

  3. Article II

    1. Article II uses “he/his” pronouns to refer to the president in the following sections

      1. Section I: 

        1. “He shall hold Office during the Term of four years, and, together with the Vice President, chosen for the same Term, be elected, as follows…”

        2. “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that period any other Emolument from the United States, or any of them.” 

        3. “Before he shall enter on the Execution of his Office, he shall take the following Oath or Affirmation:--I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

      2. Section II: 

        1. “The President shall be Commander in Chief of the Army and Navy of the United States, and of the MIlitia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

      3. Section III: 

        1. “He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.”

  4. Article IV:

    1. Full Faith and Credit Clause: Relevant to marriage and divorce state laws

    2. Privileges and Immunities Clause: Article IV, Section 2

  5. 4th Amendment:

    1. Relevant to women’s physical safety 

      1. “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated…”

  6. 14th Amendment:

    1. Section 1: 

      1. Clause: Privileges & Immunities

      2. Equal Protection Clause: Most important constitutional clause to protect women’s rights & LGBTQ+ rights. Source of intermediate scrutiny for sex discrimination

      3. Due Process: right to privacy established in Griswold v. Connecticut (1965)

        1. Cases: Roe v. Wade (1973) (abortion rights), Maher v. Roe (1977) (no public funding for abortions not medically necessary), Harris v. McRae (1980) (upheld the Hyde Amendment)

    2. Section 5:

      1. Clause: Congressional enforcement

        1. Could be used to uphold congressional power to regulate abortion

    3. Supreme Court Cases:

      1. Minor v. Happersett (1875): The Supreme Court ruled unanimously that the privileges & immunities clause did not protect women’s right to vote

      2. Slaughterhouse Cases (1873): Privileges & immunities clause is limited to federal citizenship and does not protect individual or state level rights

  7. 19th Amendment: 

    1. Cases:

      1. Adkins v. Children's Hospital (1923): Minimum wage laws for working women are unconstitutional 

    2. Clauses:

      1. “...as the twentieth century unfolded, federal courts expanded women’s political and civil rights, but they did so on the basis of the Fourteenth Amendment, rather than the Nineteenth Amendment. The Nineteenth Amendment became somewhat of a constitutional orphan in American jurisprudence, rarely interpreted or cited as foundational to the court’s analysis of underlying constitutional doctrine.” (Paula A. Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment, page. 146)

    3. Legal interpretations

      1. “Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It” by Richard L. Hasen and Leah M. Litman

      2. “She The People: The Nineteenth Amendment,

      3. Sex Equality, Federalism, and The Family” by Reva B. Siegel

 

Legal Concepts:

  1. Substantive due process:

    1. Lochner v. New York (1905): Struck down a law in New York that limited the hours bakery employees could work 

 

Books by Women About the U.S. Constitution

Becker, Mary, Cynthia Grant Bowman, and Morrison Torrey. Cases and Materials on Feminist Jurisprudence: Taking Women Seriously. St. Paul, Minn.: West Pub., 1994.

 

Bridges, Khiara M. The Poverty of Privacy Rights. Stanford, CA: Stanford Law Books, an imprint of Stanford University Press, 2017.

 

DeWolf, Rebecca. Gendered Citizenship: The Original Conflict over the Equal Rights Amendment, 1920-1963. Lincoln, NE: University of Nebraska Press, 2021.

 

Monopoli., Paula A. Constitutional Orphan: Gender Equality and the Nineteenth Amendment: Oxford University Press, 2020.

 

Paul, Alice. "Conversations with Alice Paul: Woman Suffrage and the Equal Rights Amendment." Interview by Amelia Frye. Suffragists Oral History Project. Last modified 1976. Accessed April 15, 2022. https://oac.cdlib.org/view?docId=kt6f59n89c&doc.view=entire_text.

 

Roberts, Dorothy E. Killing the Black Body: Race, Reproduction, and the Meaning of Liberty. 2nd ed. New York: Vintage, 1999.

 

Sneider, Allison L. Suffragists in an Imperial Age: U.S. Expansion and the Woman Question : 1870-1929. New York: Oxford Univ. Press, 2008.

 

Suk, Julie Chi-hye. After Misogyny: How the Law Fails Women and What to Do about It. Oakland, CA: University of California Press, 2023.

Women are not mentioned in the U.S. Constitution which means it can take additional work to explain to students how they are constitutionally protected and how the Constitution is gendered. Below is a list of constitutional clauses and Supreme Court cases that have a direct impact on women & constitutionalism.

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