Pushing Boundaries

This essay was originally published in Balkinization as part of an online symposium and it is reprinted with permission. The essay engages with Julie Suk\u27s book, After Misogyny: How the Law Fails Women and What to Do About It. It suggests that feminist legal scholars have been considering their intellectual options in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. In After Misogyny, Professor Suk offers a conceptual path forward in a post-Dobbs world. Suk’s trenchant analysis of the failure of law to render substantive gender equality and her proposals to remedy that failure are sound. Yet, the essay asks whether the United States has the constitutional conditions under which those proposals could actually come to fruition

A New New Departure

In the wake of enactment of the Fourteenth and Fifteenth Amendments, women’s rights activists embarked on an exercise in popular constitutionalism known as “the New Departure.” Frustrated by the failure of Congress to include women in the Reconstruction Amendments, suffragists turned to a strategy based, in part, upon republican theory. They argued that women had an inherent right to vote grounded in natural law and in their status as citizens of the United States under the Fourteenth Amendment. They operationalized that theory by engaging in mass-voting events and were prosecuted for illegal voting. These activist efforts came to an end in 1875 when the U.S. Supreme Court rejected that theory in Minor v. Happersett. This paper situates the New Departure at the beginning of a historical continuum that includes two subsequent periods in feminist legal history—the Progressive Era and the period which began in the wake of the Court’s decision in Dobbs v. Jackson Women’s Health. It explores how women’s rights activists in each of these three periods have rejected originalism as an interpretive methodology that, by its very terms, has a subordinating effect on women’s constitutional status. Such activists have proposed alternative interpretive methods which centered women and their legal, economic, and social status. Feminist constitutional advocacy in the post-Dobbs period continues in this tradition by resisting the dominant interpretive method and arguing for a “new” New Departure toward interpretive methods which elevate rather than subordinate women’s constitutional status. Exploring feminist constitutional strategies across time illuminates a history and tradition that may have a generative effect for current efforts to restore the right to abortion and establish a broader reproductive justice