The Yale Law Journal


Reconstituting the Future: An Equality Amendment

26 Dec 2019

abstract. 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 paradigm proposed here recognizes the failures of what is, turns away from 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. why real equality matters now

Equality is the foundational problem of the American Republic. White supremacy and male dominance, separately and together, were hardwired into a proslavery and tacitly gender-exclusive Constitution from the beginning. All enslaved people, Native people, and women were consciously and purposely excluded.3 White men of property4 intentionally designed the constituting document to ensure the continued institutional existence of the enslavement of Africans and people of African descent,5 the exclusion of women from full citizenship, and the silencing of all of their voices in authoritative forums.6 Enslaved 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 institutionalization 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 upheavals and decades-long agitation to address the raw expression of subordination built into the Constitution. Limited equality rights have, at times, been extended to women and people of color by judicial interpretation and legislation.9 Yet, retraction and resistance to these efforts hollowed out the ground-shifting post-Civil War Amendments, limited the interpretation of the Nineteenth Amendment, blocked ratification of the Equal Rights Amendment (ERA), and dismantled the mid-twentieth century’s modest equality infrastructure. 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 entitlements 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 dismantled 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 widespread discrimination against Black people as special treatment.11 A century later, courts brutally truncated the Amendment’s mid-twentieth century renaissance12 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 discrimination with disparate effects on racial groups must be proven intentional to be unconstitutional.14 In the Court’s view, an overwhelmingly disparate injury inflicted on a disadvantaged racial group was not enough to trigger equal protection 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.

The Court doubled down on the intent requirement in Personnel Administrator 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 deployed 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 discrimination is more often accomplished by omission of socially gendered experiences such as pregnancy or sexual assault than explicitly expressed in law. The narrowing of constitutional sex equality jurisprudence to mainly facial discrimination further gutted the Equal Protection Clause of its substantive potential. In much the same way that the Court resisted conceptions of equality that disrupted the existing distribution of white rights and entitlements, Feeney—considered a non-facial case—ensured that gendered baselines favoring men, including 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 “because of” group membership, most discrimination is not intentional.20 But discrimination is no less damaging when built into social norms and structures. Decision-makers, driven by unconscious or implicit bias in favor of the superiority of whites and/or men,21 may fail to perceive or appreciate the heavy burden 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 historically they have been vehicles of racial subordination.22 Yet the history that animates the Court’s apoplectic denunciations of racial classifications has been abstracted 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 arrest legislative and administrative efforts to remedy the contemporary consequences of the very history that justifies heightened scrutiny.24 The Equal Protection 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 privileged 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 repackaged as illegitimate preferences that discriminate against white people. The Court’s supposed solicitude for an equality that means the same thing to everyone—”neutrality”—obscures its more reliable role in defending white supremacy.

The gravitational pull of the foundational baselines obscures the discriminatory dimensions of an Equal Protection Clause that protects and insulates gendered 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 entrenched that it is not seen as gender-based at all. Sexual assault, reproductive control, and the family, for instance, are all crucial sites of the creation and exercise 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 distinction by law fits a distinction in society, the more “rational”—hence, less discriminatory—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 inequality.26 Recognizing “sex” as a suspect classification would not solve this problem 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 “similarly 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 litigation has been to get rights for men in order to get them for women. Constitutional 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 racial 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 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 constitutional 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 diligent 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 considers uncorrectable societal inequality. Like their enslaved ancestors, African Americans experience greater exposure to racialized surveillance and state-sanctioned violence,29 suffer compromised access to education,30 housing31 and health care,32 and face continuing obstacles to their full political participation.33

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 imperial regime. Native peoples and their cultures continue to be subjected to assimilationist pressures and land, resource and child expropriation—contemporary 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 disproportionately 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, including 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 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 constitutional basis.42 Pregnancy is not constitutionally recognized as sex based,43 limiting 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 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 compulsory 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 sodomy47 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 Discrimination against transgender people, another kind of gender-based discrimination, is frequently brutal and lethal, causing unemployment,51 homelessness,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. Failure 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 obscuring 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 movements, communities, organizations, lawyers, and some scholars, led by generations 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.

II. new equality amendment draft

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 inequalities of race and/or sex and/or like grounds of subordination to continue without effective legal remedy, and have even been used to entrench such inequalities; 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 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 substantially 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, therefore 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 subordination (such as disability or faith). No law or its interpretation shall give force to common law disadvantages that exist on the ground(s) enumerated 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 language of the ERA proposed in 1972, passage of which would itself be an improvement.56 Notably, the first clause of Section 2 is identical to the Nineteenth 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 formal and abstract approach, and its understanding of intersectionality as a necessary 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 instruction 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 reference to subordination in the Equality Amendment provides more substantive language that otherwise could be reduced to anti-classification (as if classification 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 under “sex” because they are all facets of the unified but diverse system of inequality that privileges maleness and masculinity over femaleness and femininity, enforcing sexual rules and gendered myths, roles and stereotypes, and punishing noncompliance. 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 punishing 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 abilities, that result in the deprivation of resources and dignity and extreme marginalization of disability discrimination. Like every inequality, discriminatory deprivations are distinctive to this ground: distinctively wrenching, extreme, irrational, and cumulatively and systemically disadvantaging.

Although many constitutional and statutory provisions exist to protect spiritual beliefs and practices, including those fundamental to the Founding, failures to protect minority religions make clear the need to include this provision expressly.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 individuals but a pervasive social practice of power—epistemic, practical, and structural. No one need intend to perpetuate discrimination for it to persist. Therefore, 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 Section 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 animating principle is captured in Section 3.

Section 3. To fully realize the rights guaranteed under this Amendment, Congress and the several States shall take legislative and other measures to prevent or redress any disadvantage suffered by individuals or groups because of past and/or present inequality as prohibited by this Amendment, and shall take all steps requisite and effective to abolish prior laws, policies, or constitutional provisions that impede equal political representation.

The word “shall” affirmatively requires legislative and administrative authorities 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 democratic progress, making it far easier to sustain conditions made unconstitutional by this Amendment than to dismantle them. The undemocratic protection, promotion, 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 dislodged from the Constitution’s foundation. Section 3 leaves to Congress the task of evaluating the Electoral College, for example, but giving more weight to voters 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 activity 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 classifications rather than imposed relations of superiority and inferiority among groups or precluded opportunities of certain groups.61 So long as the requirements 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.

III. reconstituting the future

The proposed Equality Amendment embraces an intersectional approach to equality, prioritizing race and gender for historical as well as contemporary reasons. 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 support 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 recognizing 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 guarantees 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 democracy, 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 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 responsibility 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 prescriptive, 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 moment. 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, David Strauss, and Ezra Young, and the research assistance of Lisa Cardyn, are gratefully acknowledged.