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Program for Advancing Equal Access to Justice by Challenging Gender Bias in the Legal Profession: What’s Next?
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Symposium: The 19th Amendment at 100: From the Vote to Gender Equality: The Constitutional Development of the Nineteenth Amendment in the Decade Following Ratification
No full textThis essay is based on my remarks at the Center for Constitutional Law’s symposium on the Centennial of the Nineteenth Amendment. It offers a brief summary of the thesis of my forthcoming book from Oxford University Press. In Constitutional Orphan: Gender Equality and the Nineteenth Amendment (forthcoming 2020), I argue that the ratification of the Nineteenth Amendment in 1920 represented a significant moment in American history, one which held the promise of change in the political, civil and social status of women in our republic. However, what emerged from a decade of contestation was a thin conception of the Nineteenth’s constitutional meaning, as a mere nondiscrimination in voting rule. The story of the Nineteenth presents a puzzle as to why this thin conception of the amendment prevailed over a thicker conception of the amendment, as a broader norm around women’s equal citizenship and gender equality. Drawing on original historical sources, legal scholarship and case analysis, the book illuminates a piece of that puzzle.
The book offers an account of how that thin conception emerged and the role played by national suffrage organizations, as institutional actors, in that story. While Congress and the courts are significant sites of constitutional interpretation and enforcement, social movements within civil society play influential roles as well. Through their efforts to enfranchise American women, suffragists assumed that role. Yet, the suffragists made strategic choices post-ratification that took them away from the Nineteenth as a focus of energy and resources. That pivot meant that there was less consistent, unified pressure on state courts as they parsed the corollary constitutional questions around the extent of the Nineteenth’s impact on state law regulating poll taxes, jury service and holding public office. A close reading of the history around these cases illustrates how the Nineteenth implicated issues of federalism, the scope of woman’s citizenship and the constitutional meaning of equality, in ways shaped by race, gender and class. There was a similar absence of unified pressure on Congress to enact enforcement legislation pursuant to section two of the Nineteenth, as well as a deep split in the former suffrage movement over the proposed Equal Rights Amendment. Exploring this history helps us understand the puzzle of why the Nineteenth did not develop a thicker, more robust constitutional meaning in the decade following its ratification. Given the current uncertainty about the status of the proposed Equal Rights Amendment, revisiting the jurisprudential potential of the Nineteenth Amendment can shed light on how we may better secure women’s constitutional equality today
\u3cem\u3eAmerican Legion v. American Humanist Ass\u27n\u3c/em\u3e: Exempting Longstanding Governmental Religious Displays from Establishment Clause Scrutiny and How the Endorsement Test Could Have Prevented It
Get PDFRemedial Payments in Agency Enforcement
Get PDFDuring the Obama Administration, the government settled many enforcement cases involving alleged violations of the nation’s federal statutes. The settlements have several requirements, including that the defendants pay money for beneficial projects to mitigate or offset harm directly or indirectly caused by defendant’s actions. For example, the government settled an environmental enforcement case against Volkswagen that included payments for environmental projects, and a mortgage enforcement case against Bank of America that included payments for housing education projects. These payments have spawned renewed criticism amongst conservative groups who have long claimed that payments for projects are mechanisms for agencies to get vulnerable defendant corporations to fund pet projects, outside of available agency statutory authority and the Congressional budget appropriations process. This article examines payments for projects in agency settlements, using Clean Air Act enforcement as an example, and argues for additional clarity and transparency surrounding the purpose of such payments. The law most clearly allows for payments for projects in statutory enforcement cases when they serve a clear remedial purpose. Yet, payments for projects have often tried to achieve multiple goals at the same time, including deterrence and compensation. As a result, it is sometimes difficult to see the remedial purpose of payments for projects, particularly in settlement where the process of resolution is not as apparent as in litigation. A legislative solution could provide for obvious legal authority for payments for projects. However, in the absence of such legislative fix, agencies should focus on a better identification of harm, earlier in the enforcement process, and articulation of the connection between harm and projects in the settlement process. Payments for projects serve a key role in making the public whole from statutory violations. Clarity and transparency on the purpose of projects can help alleviate the concerns surrounding authority and appropriations and ultimately strengthen the review of projects by courts
