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T H E Y A L E L A W J O U R N A L F O R U M
D E C E M B E R 2 6 , 2 0 1 9

Reconstituting the Future: An Equality Amendment
Catharine A. MacKinnon & Kimberlé W. Crenshaw

a b s t r a c t . A new constitutional amendment embodying a substantive intersectional equality
analysis aims to rectify the founding U.S. treatment of race and sex and additional hierarchical
social inequalities. Historical and doctrinal context and critique show why this step is urgently
needed. A draft of the amendment is offered.

“unto the Seventh Generation . . . ”
Iroquois Law of Peace1

A new constitutional amendment offers a new beginning. The equality par-

adigm proposed here recognizes the failures of what is, turns away from

1. This phrase is considered common to multiple traditions. Though it does not appear exactly
in the Iroquois Great Law of Peace, the notion of fealty to future generations is written there
in symbols on wampum. See Terri Hansen, How the Iroquois Great Law of Peace Shaped U.S.
Democracy, PBS (Dec. 17, 2018, 10:48 AM), https://www.pbs.org /native-america/blogs
/native-voices/how-the-iroquois-great-law-of-peace-shaped-us-democracy [https://perma
.cc/7JX6-QLTJ]; see also Gerald Murphy, Modern History Sourcebook: The Constitution of the
Iroquois Confederacy, FORDHAM U. (Apr. 12, 2019), https://sourcebooks.fordham.edu/mod
/iroquois.asp [https://perma.cc/BQ8E-79JR]. The most widely cited iteration of the Seventh
Generation concept was expressed by the former head of the Six Nations of the Iroquois Con-
federacy, Leon Shenandoah (d. 1996): “Look behind you. See your sons and your daughters.
They are your future. Look farther and see your sons’ and your daughters’ children and their
children’s children even unto the Seventh Generation. That’s the way we were taught. Think
about it: you yourself are a Seventh Generation.” Gina Boltz, Words from the Circle: Native
American Quotes, NATIVE VILLAGE (2016), https://www.nativevillage.org /Librar-
ies/Quote/Native%20American%20Quotes%2034.htm [https://perma.cc/3RC2-XH9Z]. Fe-
alty to subsequent generations is deeply rooted in Iroquois civilization, as evidenced by its
inclusion in the constitution of the Iroquois Confederacy. See CONST. IROQUOIS NATIONS art.
28 (“Look and listen for the welfare of the whole people and have always in view not only the

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language and interpretive canons rooted in an unjust past, and imagines a fully
functioning democracy as the inheritance of future generations. This proposal
reenvisions constitutional equality from the ground up: it centers on rectifying
the founding acts and omissions of race and sex, separately and together, and
incorporates similar but distinct inequalities.2 It is informed by prior efforts to
integrate equality into the constitutional landscape that have been decimated by
political reversals and doctrinal backlash. It aggregates the insights, aspirations,
and critiques of many thinkers and actors who have seized this moment to
breathe new life into the nation’s reckoning with inequality. It neither looks back
to celebrate amendments whose transformative possibilities have been defeated
nor participates in contemporary hand-wringing over equality’s jurisprudential
limitations. It seeks to make equality real and to matter now. We argue that a
new equality paradigm is necessary and present one form it could take.

i . w h y r e a l e q u a l i t y m a t t e r s n o w

Equality is the foundational problem of the American Republic. White su-
premacy and male dominance, separately and together, were hardwired into a
proslavery and tacitly gender-exclusive Constitution from the beginning. All en-
slaved people, Native people, and women were consciously and purposely

present but also the coming generations, even those whose faces are yet beneath the surface
of the ground—the unborn of the future Nation.”); id. art. 57.

2. This proposal reflects insights, aspirations, and critiques of many thinkers and actors—activ-
ists, lawyers, theorists, humans with a stake in taming illegitimate power. The Equality
Amendment presented here is the joint product of two intensive meetings coconvened by the
ERA Coalition and the African American Policy Forum at Columbia Law School, cochaired
by the authors on November 19, 2016 and December 20, 2016, in which Charles Lawrence,
Mari Matsuda, Gloria Steinem, Carol Jenkins, Jessica Neuwirth, Terry O’Neill, and Carol Ro-
bles Roman participated. Their acumen, insights, and erudition contributed greatly to the
final draft, which we have since modified slightly. While the discussions were collective, the
authors are solely responsible for any errors in the content of the proposal and the arguments
herein.

reconstituting the future: an equality amendment

345

excluded.3 White men of property4 intentionally designed the constituting doc-
ument to ensure the continued institutional existence of the enslavement of Af-
ricans and people of African descent,5 the exclusion of women from full

3. As Kathleen Sullivan observed,

[T]he U.S. Constitution, in its original text, never referred to women at all. The
only known use of the pronoun ‘she’ in the framing deliberations concerned a later-
rejected clause that would have referred to the rendition of fugitive slaves. . . . The
Constitution provided no explicit protection . . . against laws that disenfranchised
women, excluded them from juries, barred married women from owning property
or suing in their own capacity, and the like.

Kathleen M. Sullivan, Constitutionalizing Women’s Equality, 90 CALIF. L. REV. 735, 735-36
(2002). The tension between women seeking constitutional representation and men resisting
it can be seen in letters between Abigail and John Adams in 1776. Abigail Adams pled:

I long to hear that you have declared an independency—and by the way in the new
Code of Laws which I suppose it will be necessary for you to make I desire you
would Remember the Ladies, and be more generous and favourable to them than
your ancestors. Do not put such unlimited power into the hands of the Husbands.
Remember all Men would be tyrants if they could. If particular care and attention
is not paid to the Ladies we are determined to foment a Rebelion, and will not hold
ourselves bound by any Laws in which we have no voice, or Representation.

Letter from Abigail Adams to John Adams (Mar. 31, 1776), in 1 ADAMS FAMILY CORRESPOND-
ENCE (1761-1776) 369, 370 (L. H. Butterfield et al. eds., 1961) (original spelling retained). John
Adams’s reply, combined jocularity and denial with a threatening bottom-line common to the
language of misogyny then and now:

Depend upon it, We know better than to repeal our Masculine systems. Altho they
are in full Force, you know they are little more than Theory. We dare not exert our
Power in its full Latitude. We are obliged to go fair, and softly, and in Practice you
know We are the subjects. We have only the Name of Masters, and rather than give
up this, which would compleatly subject Us to the Despotism of the Peticoat, I hope
General Washington, and all our brave Heroes would fight.

Letter from John Adams to Abigail Adams (Apr. 14, 1776), in 1 ADAMS FAMILY CORRESPOND-
ENCE (1761-1776), supra, at 381, 382 (original spelling retained).

4. Among the property-owning white men generally recognized as “Founding Fathers,” the fol-
lowing owned slaves: Charles Carroll; Samuel Chase; Benjamin Franklin, who eventually
manumitted his slaves and became an abolitionist; Button Gwinnett; John Hancock; Patrick
Henry; John Jay; Thomas Jefferson; Richard Henry Lee; James Madison; Charles Cotesworth
Pinckney; Benjamin Rush; Edward Rutledge; and George Washington. See Anthony Iacca-
rino, The Founding Fathers and Slavery, ENCYCLOPEDIA BRITANNICA, https://www.britannica
.com/topic/The-Founding-Fathers-and-Slavery-1269536 [https://perma.cc/4Q9C-HDA9].

5. “[O]f the 11 clauses in the Constitution that deal with or have policy implications for slavery,
10 protect slave property and the powers of masters. Only one, the international slave-trade
clause, points to a possible future power by which, after 20 years, slavery might be cur-
tailed . . . .” David Waldstreicher, How the Constitution Was Indeed Pro-Slavery,
ATLANTIC (Sept. 19, 2015), https://www.theatlantic.com/politics/archive/2015 /09/how-the
-constitution-was-indeed-pro-slavery/406288 [https://perma.cc/SNX5-NHK9]; see also
DON E. FEHRENBACHER, THE SLAVEHOLDING REPUBLIC 15-47 (Ward M. McAfee ed., 2001)
(describing the role of ‘slavery in the founding of the United States and how the Constitution

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346

citizenship, and the silencing of all of their voices in authoritative forums.6 En-
slaved Africans were counted as three-fifths of a person to give political weight
to slave-owning states;7 the Electoral College was configured to assure the power
of slave states in electing the federal executive officer;8 no woman or enslaved
person was permitted to vote. Equality was not mentioned in either the debates
in Philadelphia or the resulting document. This raced and gendered institution-
alization of power was, and has been, presented as the epitome of freedom and
independence.

Since the Founding, constitutional amendments and legislation—impelled
by armed struggle and urgent organizing—have guaranteed equality based on
race and sex to some degree. This progress has emerged from cataclysmic up-
heavals and decades-long agitation to address the raw expression of subordina-
tion built into the Constitution. Limited equality rights have, at times, been

protects slavery); DAVID WALDSTREICHER, SLAVERY’S CONSTITUTION 107-52 (2009) (describ-
ing how the Constitution protects slavery); Juan F. Perea, Race and Constitutional Law Case-
books: Recognizing the Proslavery Constitution, 110 MICH. L. REV. 1123, 1123-25 (2012) (same).

6. It is said that the Iroquois Confederacy’s structures influenced Franklin and the Framers, but
the Iroquois’s recognition of women’s equality and their requirement that every decision be
considered for its impact on the Seventh Generation were omitted. See H.R. Con. Res. 331,
100th Cong. (1988) (enacted) (acknowledging the contribution of the Iroquois Confederacy
to the U.S. Constitution, noting Franklin’s admiration for the Iroquois Confederacy and its
influence on the American political system). This position is considered inaccurate by scholars
who research written records. See Erik M. Jensen, The Harvard Law Review and the Iroquois
Influence Thesis, 6 BRIT. J. AM. LEGAL STUD. 225, 225 (2017) (dismissing “the Iroquois influence
thesis” as “nonsense”); Elisabeth Tooker, The United States Constitution and the Iroquois League,
35 ETHNOHISTORY 305, 305 (1988) (“A number of writers have suggested that the League of
the Iroquois provided the model for the United States Constitution and the ideas embodied
in it. A review of the evidence in the historical and ethnographic documents, however, offers
virtually no support for this contention.”); Jack Rakove, Did the Founding Fathers Really Get
Many of Their Ideas of Liberty from the Iroquois?, HIST. NEWS NETWORK (July 21, 2005),
https://historynewsnetwork.org/article/12974 [https://perma.cc/H3AH-Q5VE].

7. U.S. CONST. art. I, § 2, cl. 3.

8. At the Constitutional Convention, James Madison suggested that a direct presidential election
“would have been a dealbreaker [sic] for the South” because slaves could not vote and the
“slaveholding South would basically lose every time.” Akhil Reed Amar, Opinion, Actually, the
Electoral College Was a Pro-Slavery Ploy, N.Y. TIMES (Apr. 6, 2019), https://www.nytimes
.com/2019/04 /06/opinion/electoral-college-slavery.html [https://perma.cc/V5ZL-N59D].
Despite alternative interpretations, there is no disputing that the South “had extra seats in the
Electoral College because of its slaves.” Id. And while the implications of the system were
abundantly clear by the time the Constitution was amended to modify the Electoral College,
“Jefferson’s Southern allies steamrollered over Northern congressmen who explicitly pro-
posed eliminating the system’s pro-slavery bias.” Id.; see also Alan Singer, Slavery and the Elec-
toral College: One Last Response to Sean Wilentz, HIST. NEWS NETWORK (Apr. 21, 2019),
https://historynewsnetwork.org/article/171783 [https://perma.cc/HS75-QHR3] (agreeing
that the Electoral College defended the institution of slavery).

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extended to women and people of color by judicial interpretation and legisla-
tion.9 Yet, retraction and resistance to these efforts hollowed out the ground-
shifting post-Civil War Amendments, limited the interpretation of the Nine-
teenth Amendment, blocked ratification of the Equal Rights Amendment
(ERA), and dismantled the mid-twentieth century’s modest equality infrastruc-
ture. Constitutional equality was effectively stripped of its regenerative potential.
Their roots in the constitutional landscape now weakened, both gender and race
equality have been cast into treacherous seas—with gender hanging onto race
like a castaway clinging to a slender piece of doctrinal driftwood.

Each moment of mobilization and democratic participation toward real
equality has been met by a reflexive reassertion of the rights, values, and entitle-
ments of a modestly reformed status quo. Courts in particular have dramatically
and continuously undermined efforts to rectify race and gender subordination
in society by rolling back what legal equality guarantees could have achieved. As
a result, prior efforts have not produced real equality in social life, nor can they
until the racial and gendered baselines that ground the constitutional order are
denaturalized and uprooted.

As a central instance, judicial interpretation has continuously hobbled the
Fourteenth Amendment’s promising guarantee of equal protection of the laws.10
Indeed, the Amendment’s most far-reaching implications, which could have dis-
mantled the legal infrastructure that constituted and insulated white supremacy,
were snuffed out in their infancy. Less than twenty years after the formal end of
slavery, the Supreme Court characterized congressional efforts to remedy

9. Following the Civil War, constitutional amendments aimed to promote racial equality, see
U.S. CONST. amends. XIII, XIV, XV, while Congress enacted laws intended to deinstitution-
alize Jim Crow, see Civil Rights Act of 1875, Pub. L. No. 43-114, 18 Stat. 335; Third Enforce-
ment Act, Pub. L. No. 42-22, 17 Stat. 13 (1871); Second Enforcement Act, Pub. L. No. 41-99,
16 Stat. 433 (1871); First Enforcement Act, Pub. L. No. 41-114, 16 Stat. 140 (1870); Freedmen’s
Bureau Act of 1866, Pub. L. No. 39-200, 14 Stat. 173; Civil Rights Act of 1866, Pub. L. No. 39-
31, 14 Stat. 27; and Freedmen’s Bureau Act of 1865, Pub. L. No. 38-90, 13 Stat. 507. However,
courts quickly restricted these initiatives’ potential for greatest impact. See, e.g., Cumming v.
Richmond Cty. Bd. of Educ., 175 U.S. 528 (1899) (permitting racial segregation in schools);
Plessy v. Ferguson, 163 U.S. 537 (1896) (permitting racial segregation in public facilities as
consistent with the meaning of constitutional equality); The Civil Rights Cases, 109 U.S. 3
(1883) (holding Congress was not empowered to end private racial discrimination); United
States v. Cruickshank, 92 U.S. 542 (1876) (holding that provisions of the Bill of Rights do not
apply to state governments); United States v. Reese, 92 U.S. 214 (1876) (narrowly construing
the Fifteenth Amendment); The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873) (hold-
ing that the Privileges and Immunities Clause of the Fourteenth Amendment only protected
rights of national, not state, citizenship).

10. U.S. CONST. amend. XIV, § 2. The Fifth Amendment’s Due Process Clause has been inter-
preted to apply constitutional equality standards to the federal government, just as the Four-
teenth Amendment does to the states. See Bolling v. Sharpe, 347 U.S. 497, 500 (1954).

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348

widespread discrimination against Black people as special treatment.11 A century
later, courts brutally truncated the Amendment’s mid-twentieth century renais-
sance12 by interpreting inequality so narrowly that its reproduction remains
largely undisturbed by any meaningful legal imperatives.13

Fatally, in Washington v. Davis, the Court decreed that nonexplicit discrimi-
nation with disparate effects on racial groups must be proven intentional to be
unconstitutional.14 In the Court’s view, an overwhelmingly disparate injury in-
flicted on a disadvantaged racial group was not enough to trigger equal protec-
tion concern even in the face of utterly predictable and proven outcomes.15 Only
actions taken with a conscious desire to actively harm a vulnerable group would
be held illegal.16 Discriminatory intent, so defined, is subjective. Evidence of it
is thus largely within the control of accused discriminators, making it easy to
exercise, easy to deny, and almost impossible to prove. Consequently, prevailing
constitutional doctrine effectively insulates countless decisions that actively
harm structurally subordinated populations.

11. See The Civil Rights Cases, 109 U.S. at 25 (repudiating the Civil Rights Act of 1875 in part for
treating African Americans as the “special favorite” of the law).

12. Courts’ interpreting prior guarantees to end legalized segregation are examples. Swann v.
Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971) (upholding policies to end de facto
school segregation); Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) (upholding Con-
gress’s power to bar private racial discrimination in property sales under the Thirteenth
Amendment); Brown v. Bd. of Educ., 347 U.S. 483 (1954) (holding de jure racial segregation
in schools unconstitutional); Sweatt v. Painter, 339 U.S. 629 (1950) (requiring state law school
admit Black students under the Fourteenth Amendment); Shelley v. Kraemer, 334 U.S. 1
(1948) (holding racially restrictive housing covenants judicially unenforceable under the
Fourteenth Amendment); Smith v. Allwright, 321 U.S. 649 (1944) (holding racial limitations
on political party membership unconstitutional under the Fifteenth Amendment); Missouri
ex rel. Gaines v. Canada, 305 U.S. 337 (1938) (holding that states must provide legal education
facilities for Blacks that were substantially equal to those for whites). But these efforts have
been increasingly stymied.

13. See, e.g., Schuette v. Coal. to Defend Affirmative Action, 572 U.S. 291 (2014) (holding that
states may constitutionally ban affirmative action by referendum); Parents Involved in Cmty.
Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (prohibiting use of race classifications in
school-assignment plans); Gratz v. Bollinger, 539 U.S. 244 (2003) (invalidating a public uni-
versity’s specific use of race in admissions); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265
(1978) (prohibiting racial quotas in state medical school admissions); Capacchione v. Char-
lotte-Mecklenburg Sch., 57 F. Supp. 2d 228 (W.D.N.C. 1999) (holding a public magnet
school’s consideration of race constitutionally impermissible).

14. 426 U.S. 229, 240-41 (1976).

15. Id.

16. Id. at 240 (holding that the “invidious quality of a law claimed to be racially discriminatory
must ultimately be traced to a racially discriminatory purpose”).

reconstituting the future: an equality amendment

349

The Court doubled down on the intent requirement in Personnel Administra-
tor of Massachusetts v. Feeney, applying it to sex.17 It held that a preference for
veterans in employment that predictably and knowingly advantaged men over
women was constitutionally permissible absent proof that the scheme was de-
ployed specifically to hurt women. Feeney spelled out with devastating clarity
that decision-makers could comfortably rest disparity-producing preferences on
the built-in inequalities created by myriad institutions—so long as they could
plausibly deny a specific intent to harm women.18 By depriving women of the
right to challenge disadvantages built on preferences for men—even those made
possible by the near-complete exclusion of women by law or policy—the Court
largely reduced the Equal Protection Clause to a minimalist intervention against
some explicitly discriminatory articulations termed “facial.”19

Submerged was the deeper obstacle to meaningful gender equality. Sex dis-
crimination is more often accomplished by omission of socially gendered expe-
riences such as pregnancy or sexual assault than explicitly expressed in law. The
narrowing of constitutional sex equality jurisprudence to mainly facial discrim-
ination further gutted the Equal Protection Clause of its substantive potential.
In much the same way that the Court resisted conceptions of equality that dis-
rupted the existing distribution of white rights and entitlements, Feeney—con-
sidered a non-facial case—ensured that gendered baselines favoring men, in-
cluding legal ones, would frame practices that mapped onto them as benign or
not gendered at all. This made the inequality these practices imposed difficult or
impossible to expose, contest, and change by law.

In the Court’s sense of vindictively motivated acts consciously targeted “be-
cause of ” group membership, most discrimination is not intentional.20 But dis-
crimination is no less damaging when built into social norms and structures.
Decision-makers, driven by unconscious or implicit bias in favor of the superi-
ority of whites and/or men,21 may fail to perceive or appreciate the heavy burden

17. 442 U.S. 256, 274 (1979) (holding that a law’s disparate impact on women must be intentional
in order to be deemed sex based and in violation of the Equal Protection Clause).

18. Id.

19. There is no doctrinal test for what is facial and what is not.

20. Id. at 270.

21. See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious
Racism, 39 STAN. L. REV. 317, 322 (1987) (noting that most Americans are “unaware” of their
racism and fail to acknowledge how cultural experiences influence beliefs about race); see also
Charles R. Lawrence III, Unconscious Racism Revisited: Reflections on the Impact and Origins of
“The Id, the Ego, and Equal Protection,” 40 CONN. L. REV. 931, 939-40 (2008) (revisiting his
1987 article and exploring how white supremacy is maintained). In the years since Charles
Lawrence’s initial publication, much research has supported his analysis. See, e.g., Anthony G.
Greenwald & Mahzarin R. Banaji, Implicit Social Cognition: Attitudes, Self-Esteem, and Stereo-
types, 102 PSYCHOL. REV. 4, 20 (1995); Christine Jolls & Cass R. Sunstein, The Law of Implicit

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their actions force on subordinated groups. No conscious intent is required for
such bias to animate decision-making; yet existing constitutional doctrine makes
its recognition as discrimination extremely difficult, facilitating the reproduction
of inequality.

The intent requirement, paired with the formalistic policing of classifications
under heightened review, together stabilize rather than dismantle the raced and
gendered social order. Racial classifications, under prevailing tiers-of-scrutiny
analysis, are subject to strict scrutiny, grounded in the observation that histori-
cally they have been vehicles of racial subordination.22 Yet the history that ani-
mates the Court’s apoplectic denunciations of racial classifications has been ab-
stracted from its material reality and gentrified with new occupants. Measured
against a historical standard, the landmark race cases of the post-Warren Court
era have arguably been white-rights cases23—largely successful campaigns to ar-
rest legislative and administrative efforts to remedy the contemporary conse-
quences of the very history that justifies heightened scrutiny.24 The Equal Pro-
tection Clause must mean the same thing for everybody, the Court majestically
intones. But packaged in its misleading rhetoric equating colorblindness and
gender neutrality—so-called same treatment—with constitutional equality are
precisely the discordant protections that the Court repudiates. The Court shields
the rights and entitlements of those whom the Constitution has historically priv-
ileged and disarms the aspirations of those it has historically excluded.

The difficult doctrinal barriers the Court imposed on racially subordinated
groups are virtually absent in the jurisprudence developed in response to white
grievances against remedial measures. Legal standing, causation, presumptions,
and burdens of proof reveal not only a lightened burden for white plaintiffs; they
also expose the stubborn baselines against which corrective remedies are repack-
aged as illegitimate preferences that discriminate against white people. The
Court’s supposed solicitude for an equality that means the same thing to every-
one—”neutrality”—obscures its more reliable role in defending white suprem-
acy.

The gravitational pull of the foundational baselines obscures the discrimina-
tory dimensions of an Equal Protection Clause that protects and insulates gen-
dered as well as racial power, while co-opting the tools that might disrupt the
reproduction of such inequality. The elision of gender bias is so deeply en-
trenched that it is not seen as gender-based at all. Sexual assault, reproductive

Bias, 94 CALIF. L. REV. 969, 971-73 (2006); Justine E. Tinkler, Controversies in Implicit Bias
Research, 6 SOC. COMPASS 987, 987-88 (2012).

22. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942).

23. See Luke C. Harris, Lessons Still Unlearned: The Continuing Sounds of Silence, 10 DU BOIS REV.
513 (2013).

24. See id.

reconstituting the future: an equality amendment

351

control, and the family, for instance, are all crucial sites of the creation and exer-
cise of male power, yet laws about them are overwhelmingly not assessed by
equality standards at all. Even where gender-based equality nominally exists in
law, it is constrained by a fixation with classifications and their ranking into tiers
of scrutiny.25 This approach effectively means that the more perfectly a distinc-
tion by law fits a distinction in society, the more “rational”—hence, less discrim-
inatory—it is seen to be.

The result is that the more effective a system of inequality is socially, the more
“rational” it will be found constitutionally, rendering constitutional law virtually
useless in disrupting the conditions that most need changing to end gender ine-
quality.26 Recognizing “sex” as a suspect classification would not solve this prob-
lem but rather would accentuate its effect, given that the Court looks to whether
“sex” justifies a sex classification, and what it finds to be “sex” is frequently the
reality of social sex (that is, gender) inequality. Requiring the sexes to be “simi-
larly situated” before a discrimination claim can be brought also serves to evade
the reality that social discrimination often prevents women from being situated
similarly to men in the first place. The fundamental strategy of sex equality liti-
gation has been to get rights for men in order to get them for women. Constitu-
tional equal protection law has accordingly worked better for men, whose claims
of sex discrimination have provided its foundation,27 than for women of any
color.

This basic approach—a separate and overly vigilant policing of remedial ra-
cial classifications, a status-quo-oriented solicitude toward gender, and a failure
to recognize sex inequality other than in the facial sense—reinforces rather than
remedies cascading social harms across multiple overlapping constituencies. It
has not only left victims of combined discrimination in a quandary as to the

25. See, e.g., Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 438 (1985); Craig v. Boren, 429 U.S.
190, 211 (1976) (Powell, J., concurring).

26. Id.

27. See, e.g., Orr v. Orr, 440 U.S. 268 (1979) (holding that a statute that required husbands but
not wives to pay alimony violated the Equal Protection Clause); Caban v. Mohammed, 441
U.S. 380 (1979) (striking down as unconstitutional a New York statute that allowed unwed
mothers but not unwed fathers a veto over the adoption of that couple’s children); Craig v.
Boren, 429 U.S. 190 (1976) (holding that a statute that denied the sale of alcohol to individ-
uals of the same age based on their gender violated the Equal Protection Clause); Weinberger
v. Wiesenfeld, 420 U.S. 636 (1975) (striking down a provision of the Social Security Act that
permitted widows but not widowers to collect special benefits while caring for children); see
also David Cole, Strategies of Difference: Litigating for Women’s Rights in a Man’s World, 2 LAW
& INEQ. 33, 33-35 (1984) (examining effects of several leading sex discrimination cases brought
by male plaintiffs).

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standard that applies to them;28 it has drained the blood, sweat, and tears of
those who sought to replace the flawed vision of the Founders with a constitu-
tional order that embodies the rhetorical claims made in its defense.

As a result, white and male supremacy continues and is socially resurgent,
reinforcing brutal, sometimes lethal, disadvantages. The Founders’ handprints
are visible across social hierarchies today despite corrective amendments and dil-
igent litigation. The contemporary consequences of the founding formula have
not been erased by gradualist improvements and symbolic reforms—and as
things stand will not be. Material inequalities between the enslaved and those
who benefitted from their enslavement, uncompensated and unremedied, live
on in yawning wealth and well-being disparities, conditions that the Court con-
siders uncorrectable societal inequality. Like their enslaved ancestors, African
Americans experience greater exposure to racialized surveillance and state-

28. See Devon W. Carbado & Kimberlé W. Crenshaw, An Intersectional Critique of Tiers of Scrutiny:
Beyond “Either/ Or” Approaches to Equal Protection, 129 YALE L.J.F. 108 (2019) (deploying an
intersectional analysis to reveal how the tiers-of-scrutiny analysis obscures the incoherence of
the standard particularly with respect to Black women).

reconstituting the future: an equality amendment

353

sanctioned violence,29 suffer compromised access to education,30 housing31 and
health care,32 and face continuing obstacles to their full political participation.33

29. Young Black men are more likely to be incarcerated, and are less represented in college-stu-
dent populations, than their white peers. E.g., Criminal Justice Facts, SENT’G PROJECT,
https://www.sentencingproject.org /criminal-justice-facts [https://perma.cc/89DH-TT3Z]
(noting that one in three Black young men born in the United States in 2001 will become
incarcerated, as compared to one in seventeen white young men); The Condition of Education
2019: College Enrollment Rates, NAT’L CTR. FOR EDUC. STAT. 2 (2019), https://nces.ed.gov
/programs/coe/pdf/coe_cpb.pdf [https://perma.cc/PEP3-DFPG]. Black people are terrify-
ingly vulnerable to unpunished police brutality. See, e.g., Anthony L. Bui et al., Years of Life
Lost Due to Encounters with Law Enforcement in the USA, 2015-2016, 72 J. EPIDEMIOLOGY & COM-
MUNITY HEALTH 715, 716 (2018) (highlighting that police violence disproportionately impacts
young people of color).

Although vulnerability to violence is frequently understood as male-exclusive, Black
women also face disproportionate risks of both lethal state violence and private violence. See
Kimberlé Williams Crenshaw & Andrea J. Ritchie, Say Her Name: Resisting Police Brutality
Against Black Women,” AFR. AM. POL’Y F. 4-7 (2015) http://static1.squarespace.com/static
/53f20d90e4b0b80451158d8c/t/55a810d7e4b058f342f55873 /1437077719984 /AAPF_SM_Brief
_full_singles.compressed.pdf [https://perma.cc/HK8V-WWS5].

30. African Americans attend schools that are more racially segregated now than they were when
segregation was first prohibited. See, e.g., Valerie Strauss, Report: Public Schools More Segre-
gated Now Than 40 Years Ago, WASH. POST. (Aug. 29, 2013, 3:49 PM EST), https://
www.washingtonpost.com/news/answer-sheet/wp/2013 /08/29/report-public-schools
-more-segregated-now-than-40-years-ago [https://perma.cc/M7XE-K2JA]. See generally Er-
ica Frankenberg & Chungmei Lee, Race in American Public Schools: Rapidly Resegregating School
Districts, HARV. U.: C.R. PROJECT (Aug. 2002), https://civilrightsproject.ucla.edu/re-
search/k-12-education/integration-and-diversity/race-in-american-public-schools-rapidly
-resegregating-school-districts/frankenberg-rapidly-resegregating-2002.pdf [https://perma
.cc/LQ56-F48M] (describing increasing school segregation since the 1980s).

31. See, e.g., Joseph P. Williams, Segregation’s Legacy, U.S. NEWS (Apr. 20, 2018, 6:00 AM),
https://www.usnews.com/news/the-report/articles/2018-04-20/us-is-still-segregated
-even-after-fair-housing-act [https://perma.cc/MQZ8-Z8WV] (noting that fifty years after
the Fair Housing Act, designed to eliminate housing discrimination, was signed into to law,
America remains nearly as segregated as when the law was passed). See generally Bruce Mitch-
ell & Juan Franco, HOLC “Redlining” Maps: The Persistent Structure of Segregation and Economic
Inequality, NAT’L COMMUNITY REINVESTMENT COALITION (Mar. 20, 2018), https://ncrc.org
/holc [https://perma.cc/9ESA-CVR7] (describing growing housing segregation).

32. Jennifer Jones, Comment, Bakke at 40: Remedying Black Health Disparities Through Affirmative
Action in Medical School Admissions, 66 UCLA L. REV. 522, 532-33 (2019) (noting disparities in
Black health outcomes, such as shortened life expectancies compared to whites, higher infant
mortality rates, and higher death rates from cancer and AIDS).

33. See, e.g., Vann R. Newkirk II, Voter Suppression is Warping Democracy, ATLANTIC (July 17,
2018), https://www.theatlantic.com/politics/archive/2018/07/poll-prri-voter-suppression
/565355 [https://perma.cc/C2T4-9HD2] (noting deep structural barriers to the ballot for mi-
nority voters). White women in slave-owning families and institutions not only benefitted
from those systems, but were at times active agents within it, buying and selling enslaved
people, exploiting that relation for relative empowerment. See STEPHANIE E. JONES-ROGERS,

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354

The material and spiritual dimensions of lives shaped by the theft of land
and national integrity from Native Americans and the Mexican State are also
framed in sociopolitical discourse as natural and inevitable, rather than as the
contemporary manifestations of a ruthlessly constitutionalized colonial and im-
perial regime. Native peoples and their cultures continue to be subjected to as-
similationist pressures and land, resource and child expropriation—contempo-
rary forms of genocidal practices historically inflicted by the U.S. government.34
Unfettered by meaningful constitutional constraints, Native peoples have been
deprived of self-determination, jurisdiction to adjudicate aggression (including
sexual) against them, and many treaty rights.35 Native women are dispropor-
tionately trafficked for sex, prostituted, and disappeared.36 Beyond anti-Black
and settler colonialism are institutionalized patterns of xenophobic bias against
immigrants of color, which deprive scores of people of basic human rights, in-
cluding rights to security and family.37

The historical foundations upon which male supremacy rests continue to
ground conceptions of gender equality that normalize gender hierarchy and
frame departures from it as exceptional. Discrimination based on sex and gender,
to the limited extent it has been constitutionally prohibited, has been recognized
only very recently and merely by interpretation—not originally, textually, or

THEY WERE HER PROPERTY: WHITE WOMEN AS SLAVE OWNERS IN THE AMERICAN SOUTH
(2019).

34. See, e.g., Barbara Perry, From Ethnocide to Ethnoviolence: Layers of Native American Victimization,
5 CONTEMP. JUST. REV. 231, 232-33 (2002) (exploring the various forms of institutionalized
exploitation and marginalization of Native Americans); Lisa. M. Poupart, The Familiar Face
of Genocide: Internalized Oppression Among American Indians, 18 HYPATIA 86, 87 (2003) (dis-
cussing how the consequences of colonialism have created a government-sanctioned system-
atic genocide of American Indians).

35. For examples of deprivations of treaty rights, see New Mexico v. Mescalero Apache Tribe, 462
U.S. 324 (1983) (hunting and fishing); White Mountain Apache Tribe v. Bracker, 448 U.S. 136
(1980) (logging); Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) (timber); and John-
son v. M’Intosh, 21 U.S. (8 Wheat) 543, 588 (1823) (“Conquest gives a title which the Courts
of the conqueror cannot deny. . . .”). Native peoples have also been deprived of legal jurisdic-
tions in criminal law. See Alex Tallchief Skibine, Indians, Race, and Criminal Jurisdiction in In-
dian Country, 10 ALB. GOV’T L. REV. 49, 49 (2017) (explaining that criminal jurisdiction in
Indian Country depends on whether the alleged perpetrator or victim qualifies as “Indian”).

36. See, e.g., Steven W. Perry, American Indians and Crime 1991-2002, U.S. DEP’T JUST. 6 (2004);
Sarah Deer, Relocation Revisited: Sex Trafficking of Native Women in the United States, 36 WM.
MITCHELL L. REV. 621, 624-29 (2010) (explaining the relationship between colonization and
sex trafficking of Native women).

37. See Richard A. Boswell, Racism and U.S. Immigration Law: Prospects for Reform After “9/11?”, 7
J. GENDER RACE & JUST. 315, 333-37 (2003) (explaining how an “anchor” immigration system
like that of the U.S. disfavors people from groups previously excluded from admission, and
disproportionately impacts immigrants of color).

reconstituting the future: an equality amendment

355

historically—making its protection particularly thin and vulnerable.38 Despite
some legal progress for (mostly elite) women, male dominance continues to
characterize existing laws and their application.39 Laws responsive to women’s
circumstances and the social order that subordinates them either do not exist or
are unenforced.40 State laws against domestic violence and sexual assault have
virtually never been held to equality standards in their design or effect.41 The
federal legislation against violence against women was found to lack constitu-
tional basis.42 Pregnancy is not constitutionally recognized as sex based,43 limit-
ing defenses of reproductive rights to those that live under other constitutional
rubrics. All women on average are not paid equally to men—largely because they
are segregated into work that is valued less because women are doing it, or that
is seen as appropriate for women because it is valued less hence paid less.44 This
dynamic is accentuated for women of color.45 This pervasive social arrangement

38. Discrimination based on sex and gender was first constitutionally recognized by the Supreme
Court in Reed v. Reed, 404 U.S. 71, 76 (1971), which held that sex-differential laws must be
rationally related to valid legislative purpose.

39. See, e.g., United States v. Virginia, 518 U.S. 515 (1996) (holding that an elite military college’s
policy of excluding women violates the Equal Protection Clause); Price Waterhouse v. Hop-
kins, 490 U.S. 228 (1989) (finding that a firm denying accounting partnership to a woman
employee because of sex stereotyping constitutes sex discrimination). But see Meritor Savings
Bank v. Vinson, 477 U.S. 57 (1986) (recognizing statutory sexual harassment as sex discrimi-
nation, a non-elite advance).

40. See, e.g., CATHARINE A. MACKINNON, SEX EQUALITY 3 (3d ed. 2016) (noting the “potent com-
bination of social and political mechanisms” that enforce the institutionalized subordination
of women).

41. See Andrea B. Carroll, Family Law and Female Empowerment, 24 UCLA WOMEN’S L.J. 1, 11-22
(2017) (detailing how state laws attempting to help domestic-violence victims actually impair
some women’s rights). However, state statutes are held to equality standards when they are
said to discriminate facially against men. See, e.g., Michael M. v. Superior Court, 450 U.S. 464
(1981), where a state sexual assault statute said to facially apply only to men who had sex with
underage girls was upheld. No position is taken here on whether men were discriminated
against by the statute, although a substantive equality rationale for the ruling would have been
an improvement.

42. United States v. Morrison, 529 U.S. 598, 617, 627 (2000) (holding that Congress exceeded its
authority under the Commerce Clause and the Equal Protection Clause in enacting the civil
remedy provision of the Violence Against Women Act of 1994).

43. Geduldig v. Aiello, 417 U.S. 484, 496-97 (1974).

44. MACKINNON, supra note 40, at 253-56. Women also provide most of the unpaid caretaking
work for their own families. Wendy A. Bach, The Hyperregulatory State: Women, Race, Poverty,
and Support, 25 YALE J.L. & FEMINISM 317, 323 (2014).

45. For instance, in 2018, the median income of Black women was only 65.3% of the median in-
come of white men, whereas white women earned 81.5% of what white men earned. Ariane
Hegewisch & Heidi Hartmann, The Gender Wage Gap: 2018 Earnings Differences by Race and
Ethnicity, INST. FOR WOMEN’S POL’Y RES. (Mar. 7, 2019), https://iwpr.org /wp-content
/uploads/2019/03 /C478_Gender-Wage-Gap-in-2018.pdf [https://perma.cc/ZG6Y-8HFY];

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356

has been found not to violate existing equality laws.46 Women, within and across
racial groups, are comparatively impoverished and economically insecure. They
are violated with impunity, exploited economically and sexually, and deprived of
social stature and human dignity. The intersectional effects of race and gender
are facilitated within the U.S. sociolegal system, cumulatively stacking the deck
against women of color, depriving them of the most basic means to articulate
meaningful claims within existing constitutional doctrine.

The vitiation of equality on the bases of race and gender extends to related
forms of hierarchy. Discrimination based on sexual orientation enforces compul-
sory heterosexuality, a means of maintaining male supremacy. Even in the face
of the striking legal progress for lesbian women and gay men in recent years,
their rights are restricted to areas in which state or federal statutes have been
invalidated by the courts—for example, by prohibiting laws criminalizing sod-
omy47 and by requiring recognition of same-sex marriage48—or under statutes
guaranteeing sex equality.49 However, in some jurisdictions, same-sex partners
can still be married on Sunday and fired on Monday for the same reason.50

see also Katherine Richard, The Wealth Gap for Women of Color, CTR. FOR GLOBAL POL’Y SOLU-
TIONS (Oct. 2014) http://www.globalpolicysolutions.org /wp-content/uploads/2014 /10
/Wealth-Gap-for-Women-of-Color.pdf [https://perma.cc/JH74-M7F6] (finding that in
2012, Black women and Latina women earned 64% and 54% of wages of white men, while
white women earned 78% of wages of white men).

46. See, e.g., County of Wash. v. Gunther, 452 U.S. 161, 179-80 (1981) (allowing a comparable
worth claim so long as women prison guards’ pay rates are proven intentionally discrimina-
tory); Am. Fed’n of State, Cty. & Mun. Emps. (AFSCME) v. Washington, 770 F.2d 1401, 1406-
07 (9th Cir. 1985) (holding that Title VII permits Washington to set wages according to his-
torically sex discriminatory market practices).

47. Lawrence v. Texas, 539 U.S. 558, 578 (2003).

48. Obergefell v. Hodges, 135 S. Ct. 2584, 2604-05 (2015).

49. 42 U.S.C. § 2000e-2(a) (2018). See, e.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 112-13
(2d Cir. 2018) (holding that sexual orientation discrimination is a subset of sex discrimination
prohibited under Title VII), cert. granted, 139 S. Ct. 1599 (2019); Hively v. Ivy Tech Cmty.
Coll., 853 F.3d 339, 345 (7 th Cir. 2017) (same).

50. Whether the Title VII prohibition on sex discrimination applies to sexual orientation or
transgender status is pending before the Supreme Court, to be decided during the 2019 Term.
See Altitude Express, Inc. v. Zarda, 139 S. Ct. 1599 (2019) (cert. granted); Bostock v. Clayton
Cty., 139 S. Ct. 1599 (2019) (same); Harris Funeral Homes, Inc. v. EEOC, 139 S. Ct. 1599
(2019) (same). This issue has particular impact on the intersection of sexual orientation, gen-
der identity, and race. A recent study analyzing over 9,000 sexual-orientation and gender
identity discrimination charges found an “overrepresentation of Black charging parties,”
which, combined with allegations of race discrimination, “suggests that the intersection of
these stigmatized identities could shape experiences of employment discrimination for this
group.” M.V. Lee Badgett et al., Evidence from the Frontlines on Sexual Orientation and Gender
Identity Discrimination, UNIV. OF MASS. AMHERST: CTR. FOR EMP’T EQUITY (July 2018),
https://www.umass.edu/employmentequity/evidence-frontlines-sexual-orientation-and
-gender-identity-discrimination [https://perma.cc/8VVF-DQAM].

reconstituting the future: an equality amendment

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Discrimination against transgender people, another kind of gender-based dis-
crimination, is frequently brutal and lethal, causing unemployment,51 homeless-
ness,52 and vicious stigmatization without meaningful systemic relief.53

Inequality is not inevitable. Indeed, it takes considerable force to maintain,
given the fact that all peoples are human equals—meaning, at minimum, that no
racial and/or gendered group is actually superior or inferior to another. Human
hierarchy based on sex and/or race is not only a political construction created to
confer power on some over others. It is predicated on the lie of natural hierarchy:
the fiction that the actual basis, origin, and foundation of the present socially
tiered status of sex- and race-based groups is sex and/or race itself, rather than
the power interests of those who dominate on those grounds—grounds that are
themselves constructed by these same politically interested configurations. Fail-
ure to order societies to correspond to the reality of equality has resulted in the
intensification of inequality over time, making it appear to be “just there” to
many, reinforcing the ideology of its natural basis. The law’s participation in ob-
scuring the fact that the existing system is one of imposed social hierarchy rather
than natural difference—or, in any event, that such “differences” as exist are
equal—has rationalized and legitimated inequality.

As a result, despite the focused and determined efforts of committed move-
ments, communities, organizations, lawyers, and some scholars, led by genera-
tions of valiant activists, the United States remains a deeply unequal society. Its
laws, against formidable interventions for change, have largely operated to
maintain that inequality. This must end.

51. Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey, NAT’L CTR. FOR
TRANSGENDER EQUALITY 140-41 (Dec. 2016), https://transequality.org /sites/default/files
/docs/usts/USTS-Full-Report-Dec17.pdf [https://perma.cc/5RTJ-TKLX].

52. Id. at 110.

53. Some circuits have recognized transgender discrimination as sex discrimination under Title
VII. See, e.g., Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011); Smith v. City of Salem, 378 F.3d
566 (6th Cir. 2004); Rosa v. Park West Bank & Trust Co., 214 F.3d 213 (1st Cir. 2000);
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000). The best decision conceptually is the
breakthrough case of Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008). Other courts
refuse to cover gender identity discrimination under Title VII’s prohibition on sex discrimi-
nation. See, e.g., Oiler v. Winn-Dixie La., Inc., No. 00-3114, 2002 U.S. Dist. LEXIS 17417 (E.D.
La. Sept. 16, 2002). Trans individuals continue to face “extraordinary” levels of physical and
sexual violence, with more than one in four trans people reporting that they have faced a “bias-
driven assault” and even higher rates for trans women and trans people of color. Issues:
Anti-Violence, NAT’L CTR. FOR TRANSGENDER EQUALITY, https://transequality.org/isues/anti
-violence [https://perma.cc/BH5H-ZRMW].

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i i . n e w e q u a l i t y a m e n d m e n t d r a f t

The Equality Amendment

Whereas all women, and men of color, were historically excluded as
equals, intentionally and functionally, from the Constitution of the United
States, subordinating these groups structurally and systemically; and

Whereas prior constitutional amendments have allowed extreme inequal-
ities of race and/or sex and/or like grounds of subordination to continue with-
out effective legal remedy, and have even been used to entrench such inequali-
ties; and

Whereas this country aspires to be a democracy of, by, and for all of its
people, and to treat all people of the world in accordance with human rights
principles;

Therefore be it enacted that—

Section 1. Women in all their diversity shall have equal rights in the
United States and every place subject to its jurisdiction.

This language provides affirmative equality rights to all women, rather than
prohibiting states from denying women equal rights, whether intentionally or
inadvertently, facially or by impact. Because women are not exclusively, or even
principally, made or kept unequal to men by the actions of states, but rather by
the social order—its structures, forces, institutions, and individuals acting in
concert—this Section has no state-action requirement. The state does not so
much act to deny equality of rights through law as it fails to guarantee freedom
from these violations, and fails to provide legal claims against them or precludes
those claims altogether. Equality is powerfully denied to women through law
abdicating an equality role, for example, in domestic violence, sexual abuse and
exploitation, and unequal pay for work of comparable worth. Law allows these
violations to happen, and to continue to happen, until they form the substrate
of the normal. The negative state—the state as embodied in a constitution that
supposedly guarantees rights best by intervening in society least—has largely
abandoned women to social inequality imposed on them by men. This Section
therefore affirmatively envisions equality as a right, permitting legal claims for
discrimination against nonstate actors and state actors alike who deny equal
rights to women.

Marginal improvements can be made in women’s conditions by addressing
sex as an abstraction, as in Section 2 of this Amendment. But abstract equality
enshrines dominant groups as the standard, failing to rectify discrimination for

reconstituting the future: an equality amendment

359

those who do not meet it. Inequality, meanwhile, itself denies access to the means
of meeting dominant standards and creates the illusion that those standards are
neutral or meritocratic, when they are simply dominant. Substantive equality, in
contrast, begins with recognizing the concrete historical situation of subjected,
violated, and denigrated people, called by name: women in all their diversity.54
This concrete language is particularly useful for avoiding failures to address the
situation of women who are multiply subjected, who under the abstract equality
approach are open to the dodge that their discrimination is based on factors
other than sex.55 Here, they are women. Women encompass characteristics of
virtually every social group: women’s diverse qualities and inequalities substan-
tially make up what a woman is. When used through or with sex or gender to
discriminate against them, that is discrimination because they are women, there-
fore what discrimination against women as such looks like.

Section 2. Equality of rights shall not be denied or abridged by the
United States or by any State on account of sex (including pregnancy,
gender, sexual orientation, or gender identity), and/or race (including
ethnicity, national origin, or color), and/or like grounds of subordina-
tion (such as disability or faith). No law or its interpretation shall give
force to common law disadvantages that exist on the ground(s) enu-
merated in this Amendment.

Section 2 provides for negative rights that are predicated on discriminatory
state action, state or federal. Once rights are provided unequally, a legal claim of
discrimination can arise. This Section adapts in its first sentence the basic lan-
guage of the ERA proposed in 1972, passage of which would itself be an

54. The first time the idea of substantive equality was spoken in public was 1989. See CATHARINE
A. MACKINNON, BUTTERFLY POLITICS 110 (2017). See generally MACKINNON, supra note 40
(developing the concept of substantive equality across U.S., comparative, and international
law and theory); Catharine A. MacKinnon, Substantive Equality Revisited: A Rejoinder to San-
dra Fredman, 15 INT’L J. CONST. L. 1174 (2017) (arguing that hierarchy of power is the funda-
mental dynamic of inequality); Catharine A. MacKinnon, Substantive Equality: A Perspective,
96 Minn. L. Rev. 1 (2011) (arguing that reality of substantive inequality should be incorpo-
rated into the Fourteenth Amendment’s equal protection guarantee).

55. See generally KIMBERLÉ CRENSHAW, ON INTERSECTIONALITY (forthcoming 2020); Kimberlé
Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidis-
crimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 139-40,
166-67; Kimberlé Crenshaw, The Urgency of Intersectionality, TEDWOMEN (Oct. 2016),

[https://perma.cc/J4V5-E994]; Kimberlé Crenshaw, Why Intersectionality Can’t Wait, WASH.
POST (Sept. 24, 2015, 3:00 PM EST), https://www.washingtonpost.com/news/in-theory
/wp/2015 /09/24 /why-intersectionality-cant-wait [https://perma.cc/X3LL-GWCH].

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improvement.56 Notably, the first clause of Section 2 is identical to the Nine-
teenth Amendment and the 1972 ERA, but for its substitution of “equality of
rights” in place of the right to vote.57 Some of the equality theory animating the
Equality Amendment—for instance, its substantive and concrete rather than for-
mal and abstract approach, and its understanding of intersectionality as a neces-
sary component of sex—could be used in interpreting the 1972 ERA, should it
be ratified and come into force. The language of the Equality Amendment locks
in its distinctive approach, meaning, and application. Providing such explicit in-
struction to courts makes it less likely that the standard symmetrical approach to
equality will be reflexively applied and the asymmetries—that is, the actual social
inequalities that need to be remedied—will remain ignored. The express refer-
ence to subordination in the Equality Amendment provides more substantive
language that otherwise could be reduced to anti-classification (as if classifica-
tion is the only injury of subordination, when it is merely one tool of it), or to
anti-stereotyping (as if being typecast as a member of a group of which one is a
member is the essence of inequality, when it is merely one tool of it, and only
sometimes). Hierarchy is inequality’s real injury. And, of course, the Equality
Amendment applies beyond sex itself.

Pregnancy, gender, sexual orientation, and gender identity are grouped un-
der “sex” because they are all facets of the unified but diverse system of inequality
that privileges maleness and masculinity over femaleness and femininity, enforc-
ing sexual rules and gendered myths, roles and stereotypes, and punishing non-
compliance. Discrimination against transgender or nonbinary persons based on
gender or sex, including nonconformity, would be covered. Similarly, ethnicity,
national origin, and color are grouped under “race” because they are complexly
but inexorably racialized in the United States, privileging whiteness and punish-
ing as lesser anyone seen as not so-called white.

Adaptability is part of the ingenuity, the genius, of inequality. Section 2’s
“like grounds” clause is thus open-ended, while maintaining race and sex as the
substantive touchstones for the covered inequalities. The “like grounds” clause
permits recognition of as yet unknown or unanticipated forms inequality can
take.

This Amendment is designed to cover lacunae in existing law. Disability is
expressly covered because of inadequacies in existing legislation and a general
failure to recognize that it is social assumptions, not individuals’ particular abil-
ities, that result in the deprivation of resources and dignity and extreme

56. For the conventional articulation of the interpretation of the 1972 ERA, which may yet be
ratified, see generally Barbara A. Brown et al., The Equal Rights Amendment: A Constitutional
Basis for Equal Rights for Women, 80 YALE L.J. 871 (1971).

57. U.S. CONST. amend. XIX.

reconstituting the future: an equality amendment

361

marginalization of disability discrimination. Like every inequality, discrimina-
tory deprivations are distinctive to this ground: distinctively wrenching, ex-
treme, irrational, and cumulatively and systemically disadvantaging.

Although many constitutional and statutory provisions exist to protect spir-
itual beliefs and practices, including those fundamental to the Founding, failures
to protect minority religions make clear the need to include this provision ex-
pressly.58 All groups are entitled to constitutional rights, but dominant religions
have less purchase here, as they would need to show subordination, a substantive
term relative to evidence, similar to that suffered by women and people of color,
who lack adequate coverage by existing law.

One possible like ground, adequately litigated, could be social and economic
class. But race and sex discrimination together and separately do a great deal of
class work. Just how much of class disadvantage would be left if race and sex
inequality were adequately addressed is an open question. In addition, class as a
factor, for women especially, is often vicarious and protean, its features calling
for full concrete development.

Of course, the Equality Amendment’s language does not imply or permit an
intent requirement. This is because discrimination is not a moral failing of indi-
viduals but a pervasive social practice of power—epistemic, practical, and struc-
tural. No one need intend to perpetuate discrimination for it to persist. There-
fore, no showing of intent is required to legally undo and remedy it.

The last sentence of Section 2 prohibits interpretive piggybacking on existing
long-term discrimination that is built into the common law. Consider that Sec-
tion 1 would prohibit as a denial of equality much social discrimination that is
not now prohibited and is embodied in common law. A cardinal example of
denying force to common law disadvantages predicated on inequality is Shelley
v. Kraemer, in which state court decisions upholding racially restrictive covenants
were denied enforcement under the Fourteenth Amendment’s equal protection
guarantee.59 This ruling has been largely confined to its facts; its larger animat-
ing principle is captured in Section 3.

Section 3. To fully realize the rights guaranteed under this Amend-
ment, Congress and the several States shall take legislative and other
measures to prevent or redress any disadvantage suffered by individu-
als or groups because of past and/or present inequality as prohibited
by this Amendment, and shall take all steps requisite and effective to

58. See, e.g., Trump v. Hawaii, 138 S. Ct. 2392 (2018) (upholding the Trump Administration’s
“Muslim Ban”); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quashing a Muslim detainee’s claims
of discrimination and mistreatment). While text matters in interpretation, conflicts between
provisions cannot be entirely precluded by drafting.

59. 334 U.S. 1, 23 (1948).

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362

abolish prior laws, policies, or constitutional provisions that impede
equal political representation.

The word “shall” affirmatively requires legislative and administrative author-
ities to implement this Amendment. There is no option not to, although the text
of the Section leaves its precise implementation open.

The distribution of political power built into the Constitution impedes dem-
ocratic progress, making it far easier to sustain conditions made unconstitutional
by this Amendment than to dismantle them. The undemocratic protection, pro-
motion, and insulation of an unequal socioeconomic order—slavery—continues
to structure the political system under which leadership is elected, undermining
the capacity for change in accordance with this Amendment. It must be dis-
lodged from the Constitution’s foundation. Section 3 leaves to Congress the task
of evaluating the Electoral College, for example, but giving more weight to vot-
ers in some states than in others in presidential elections would likely invalidate
it. Upon ratification of this Amendment, Congress would be required to take up
the question under this Amendment’s approach.

Section 4. Nothing in Section 2 shall invalidate a law, program, or ac-
tivity that is protected or required under Section 1 or 3.

Undoing discrimination is not discrimination. Promoting equality undoes
inequality. Section 4 repudiates the premise that classification per se is the injury
of inequality and embraces the understanding that group hierarchy is the essence
of inequality’s injury.60 Accordingly, this Section requires that any law, policy, or
practice qualifying as protected or required under Sections 1 and 3 may not be
eliminated under Section 2. Currently, for example, affirmative-action plans and
policies can be constitutionally challenged as discriminatory based on the notion
that the Equal Protection Clause prohibits treatment based on categories or clas-
sifications rather than imposed relations of superiority and inferiority among
groups or precluded opportunities of certain groups.61 So long as the require-
ments of Sections 1 and/or 3 are met, and it is recognized that the Equality
Amendment supersedes the Equal Protection Clause (and Fifth Amendment
Due Process as to the federal government) in the equality arena, as it should, this
reverse engineering of inequality into equality guarantees would be over.

60. This proposed section parallels Section 15(2) of the Canadian Charter of Rights and Free-
doms, which states that the equal-rights protection found in Section 15(1) “does not preclude
any law, program or activity that has as its object the amelioration of conditions of disadvan-
taged individuals or groups.” Can. Const. (Constitution Act, 1982) pt. 1 (Canadian Charter of
Rights and Freedoms), § 15(2).

61. John Valery White, What is Affirmative Action?, 78 TUL. L. REV. 2117, 2124 (2004).

reconstituting the future: an equality amendment

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i i i . r e c o n s t i t u t i n g t h e f u t u r e

The proposed Equality Amendment embraces an intersectional approach to
equality, prioritizing race and gender for historical as well as contemporary rea-
sons. This year’s Nineteenth Amendment Centennial, commemorating women’s
right to vote, must not obscure the reality that not all women became full citizens
upon the Amendment’s passage. As the suffrage struggle for the Nineteenth
Amendment demonstrates, the political processes used to change laws deeply
influence the substantive changes that those laws can produce. The fight for the
vote for all women was intertwined with attempts to repeal the Fifteenth
Amendment, which prohibits states from denying the right to vote based on
race, color, or prior servitude,62 because of white racist fears of enfranchising
Black women.63 The suffrage movement often excluded African American
women from its marches and speaking platforms, despite their determined sup-
port for the right to vote.64 Historical disempowerment of women of color by
some women’s suffrage organizers and entities contributed to a demobilization
that has undermined their full participation in the political process, and thus real
democracy, today. The Equality Amendment is therefore predicated on recogniz-
ing the full interconnection between race- and gender-based subordination and
is designed to deinstitutionalize it in all of its forms. But in recognition of the
relationship between the politics of lawmaking and the law that politics makes,
it will be the political mobilization, if pursued by the politics that animate this
text, that produces its passage, as much as anything in its wording, that guaran-
tees that the dual erasure of women of color is not replicated.

The Equality Amendment has been needed all along. But it is needed now as
much or more than ever. Without equality, democracy is in peril: real equality
provides the voting power to break the glass ceiling, guaranteed rights that raise
the floor for all citizens, and recognition of the reality that inequalities intersect
and overlap, making it impossible to rectify one alone. All Americans deserve
equality guarantees that cannot be taken away or disregarded. And in a true de-
mocracy, each citizen should have an equal right to vote and have their vote count
equally. Only the Constitution can provide this power and protection. But no
constitutional amendment alone can guarantee these results. History shows that
law is subject to retrenchment as well as advance, particularly when emerging

62. U.S. CONST. amend. XV, § 1.

63. See Kimberly A. Hamlin, How Racism Almost Killed Women’s Right to Vote, WASH. POST (June
4, 2019, 6:00 AM EST), https://www.washingtonpost.com/outlook/2019/06/04 /how
-racism-almost-killed-womens-right-vote [https://perma.cc/H7PP-P8A8].

64. See, e.g., ANGELA Y. DAVIS, Racism in the Woman Suffrage Movement, in WOMEN, RACE, AND
CLASS 70, 70-86 (1981).

the yale law journal forum December 26, 2019

364

from and overlaid upon a nonintersectional power grid. This is not a reason to
succumb, but a challenge to create the conditions for change.

Most Americans believe that the Constitution already guarantees equal
rights.65 Unlike most constitutions in the world, it does not.66 It is the responsi-
bility of “We, the People” to adapt the Constitution to the society we live in; to
grow in our recognition of problems and potential solutions; to strengthen our
democracy in an intimately interconnected world. Neither too vague nor too pre-
scriptive, this proposal, offered as a beginning, aspires to sketch a path, to clear
terrain to open a space for everyone to fill and, finally, to be heard.

Generations past have fought and died for equality, bringing us to this mo-
ment. The perceptions, principles, and language of this proposal can be used as
a guide to legal and political action in every realm. Having broken the code by
which U.S. equality law and theory has been constrained from fulfilling its
promise, we are determined to be the last generation to fight for it. We can all be
framers.

Catharine A. MacKinnon is the Elizabeth A. Long Professor of Law, University of
Michigan Law School and The James Barr Ames Visiting Professor of Law, Harvard
Law School (since 2009). Kimberlé W. Crenshaw is the Promise Institute Chair in
Human Rights and Distinguished Professor of Law, UCLA School of Law, and the
Isidor and Seville Sulzbacher Professor of Law, Columbia Law School.

The insightful comments of Devon Carbado, Gerald Torres, Diane Rosenfeld, Da-
vid Strauss, and Ezra Young, and the research assistance of Lisa Cardyn, are gratefully
acknowledged. The focused diligence on a moment’s notice of Rachel Davidson, Virginia
Wright, Mia Gettenberg, and Heather Pickerell, under Heather’s inspired leadership,
supported the footnotes.

65. A 2016 poll commissioned by the Equal Rights Amendment Coalition suggests that eighty
percent of Americans believe that the Constitution guarantees equal rights to men and
women. Nicole Tortoriello, Making the Case for the Equal Rights Amendment, ACLU VA.
(Jan. 3, 2019, 1:00 PM), https://acluva.org /en/news/making-case-equal-rights-amendment
[https://perma.cc/K8JG-Y2YA].

66. See Catharine A. MacKinnon, Gender in Constitutions, in THE OXFORD HANDBOOK OF COMPAR-
ATIVE CONSTITUTIONAL LAW 397, 404 (Michel Rosenfeld & András Sajó eds., 2012).

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