[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Cornelia Weiss reviews Helen Irving’s Constitutions and Gender (Edward Elgar 2017)]
–Cornelia Weiss, Colonel, U.S. Air Force Reserve Judge Advocate Corps*
As incredible as it seems, it was not until 1971 that the U.S. Supreme Court ever declared a statute that discriminated against women as unconstitutional. That was Reed v. Reed, 404 US 71. A co-author on the brief for the Appellant is the now U.S. Supreme Court Justice Ruth Bader Ginsburg. In her brief, she included two West German Constitutional Court decisions from 1959 and 1963 in which the German Court invalidated similar gender classifications. As she explained about her strategic choice to include these two West German constitutional law case in a brief to the U.S. Supreme Court: “I did not expect our Supreme Court to mention the German decisions, but thought that they might have a positive psychological effect. Informed of the West German Constitutional Court’s reasoning, the U.S. justices might consider: ‘How far behind can we be.’”
The 553 page Constitutions and Gender, Research Handbooks in Comparative Constitutional Law series, edited by Helen Irving of Sydney Law School, is a tool that can be used by scholars and practitioners to employ Justice Ginsburg’s approach. Constitutions and Gender is the first handbook devoted specifically to gender and constitutions. Based on the premise that constitutions are “gendered” (to include having a disparate or differential impact upon women and men, be it through the writing, interpretation, application, and/or internalization of constitutions), the handbook articulates original thinking that will serve as a platform for future transformative scholarship as well as constitutional law practices. This book tackles tough questions, to include that of “culture” and “freedom of speech” – do they trump, are they subordinate, or can they be harmonized? The analysis employed throughout Constitutions and Gender suggests that we must ask and challenge, for example, “who gets to state what culture is.” The comparative law analysis indicates that effective approaches to grappling with the challenges of changing technology (that includes the lightening fast spread of gender hate speech) are still to be developed.
Part I addresses Constitution-Making. Its contributors explore questions such as what is the effect when women are not excluded from participation in the process of making constitutions, what is the outcome when gender exclusionary clauses are removed from constitutions, and what the impact of the international community support is/can be, to include regional (such as the EU) and international (such as the UN) governmental and non-governmental (such as IDEA – International Institution for Democracy and Electoral Assistance) entities.
Part II reviews Constitution Design. Its contributors address the relationship between national constitutions and international conventions, explore how “gender” interacts with federal constitutional design (for example, in the U.S., 20 states have constitutions containing an equal rights amendment whereas the U.S. Constitution does not), and examine an existing design tool (the Constitution Assessment for Women’s Equality) while analyzing its potential as well as its limitations for gender equality.
Part III explores Constitutional Practice. Its contributors address national and regional constitutional interpretation as well as ask why a Justice Ruth Bader Ginsburg proposal of having women as one hundred percent of judges is controversial (whereas an all-male or majority male bench is not). It explores whether the experience of being a woman or a man makes a difference in how laws are interpreted and created.
Part IV examines Constitutions and Citizenship. Its contributors address issues such as whether democratic legitimacy is undermined by the unequal participation of women; the status of constitutional recognition of indigenous women to include ensuring that their rights are not abrogated due to privileging groups that exclude women and women’s rights; and gender-based striping of constitutional citizenship, with its accompanying issues of statelessness.
Part V articulates Constitutional Challenges. Its contributors address how particular constitutional choices provide a plural legal system (to include religion-based courts) that is committed to gender equality, varying State constitutional court approaches to framing reproductive rights, whether there is or needs to be a tension between restrictions on/freedom from gender hate speech and pornography and freedom of expression/speech, what are the state obligations to providing for its citizens and what are the constitutional mechanisms for claiming women’s social and economic rights, and, in a patriarchal analysis of unwritten and written constitutions, how gendered arguments influenced constitutions and their drafting (for example, Japan’s 1889 Meiji Constitution restricted the Imperial Throne to male descendants despite women having served as empresses of Japan).
Gender and Constitutions is invaluable in addressing “How far behind can we be” as well as providing insights, through its comparative law analysis, to approaches that have proved successful in being “less behind.” To move beyond being less or more behind, the handbook provides analytical constitutional frameworks that can be utilized by scholars and practitioners. This is a book to mark-up, to tab, to have within an arm’s reach to consult again and again. Looking forward, given that the subject matter of constitutions and gender is too immense to be contained in a single handbook, it is my hope that the publisher, Edward Elgar, will use this handbook as a basis for publishing a series titled Research Handbooks in Constitutions and Gender. The issues are numerous, to include those of sex-selective abortions, gender-based freedom of movement (such as the legal and actual inability to travel absent permission of a “guardian”), religion-based-gender-based employment exclusions such as to priesthood, gender-based denial of access to places of cultural heritage, and constitutional rights of transgender individuals (as of the date of writing this review, transgender individuals are facing possible expulsion from the U.S. military).
Suggested Citation: Cornelia Weiss, Review of Helen Irving’s “Constitutions and Gender”, Int’l J. Const. L. Blog, Aug. 9, 2017, at: http://www.iconnectblog.com/2017/08/weiss-on-irving
*The opinions and views expressed are my personal views and are not intended to represent in whole or in part the opinions of the U.S. government or any of its components.
 U.S. Justice Ruth Bader Ginsburg, “Foreword,” Constitutional Jurisprudence of the Federal Republic of Germany: Third Edition, Revised and Expanded, Donald P. Kommers and Russell A. Miller (Durham, North Carolina: Duke University Press, 2012), at xii.