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Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change
Abstract
The Supreme Court in Rostker v. Goldberg (1981) upheld male-only military registration, and endorsed male-only conscription and combat positions. Few cases have challenged restrictions on women's military service since Rostker, and none have reached the Supreme Court. Federal statutes continue to exclude women from military registration and draft eligibility, and military regulations still ban women from some combat positions. Yet many aspects of women's legal status in the military have changed in striking respects over the past quarter century while academic attention has focused elsewhere. Congress has eliminated statutory combat exclusions, the military has opened many combat positions to women, and the public has become more enthusiastic about women's military service, including in combat. This Article brings long overdue attention to the record of women's legal status in the military in order to make three broad theoretical and historical points. First, women's continued exclusion from registration, draft eligibility, and some combat positions undermines the common assumption that legalized sex inequality has faded into history. Second, the record of women's legal status in the military helps illuminate how extrajudicial events can shape the Supreme Court's constitutional interpretation and then render that interpretation much less plausible over time. Rostker reflected contemporaneous understandings of sex equality. The extrajudicial transformation in women's military role since Rostker has undercut the factual premises and cultural assumptions behind Rostker's interpretation of constitutional equal protection, making clear that Rostker is inconsistent with the rest of the Court's sex discrimination jurisprudence. Third, and most strikingly, the record of women's legal status in the military illustrates how extrajudicial actors can develop and enforce their own evolving understanding of sex equality norms, sometimes becoming a more important source of those norms than courts. The extrajudicial transformation in women's military role has shifted the foundational normative commitments that shape the evolving meaning of constitutional equal protection. This transformation makes limits on women's military service that seemed just and reasonable in the 1970s and 1980s, even to many proponents of sex equality in constitutional and statutory law, now appear increasingly wrong, inequitable, and invidious. Over time, that shift in perspective is likely to affect demands for further change and judgments that both courts and extrajudicial decisionmakers reach about how the Constitution's open-textured language of equal protection applies to specific questions about women's military role. The Article concludes by exploring some of the practical consequences of the extrajudicial shift in perspective on women's military service.
... He believed that "after an enlistment or 2 enlistments they will ordinarilyand thank Godthey will get married." 6 Today, women comprise more than 200,000 members (about 15%) of the U.S. active duty military. As of 2014, 2 million of the nation's military veterans were women, approximately one-third of whom were enrolled in Veterans Health Administration health care. ...
... By examining the founding principles of the Selective Service System during WWI, and late twentieth-century controversies surrounding integrating women into the registration process, this essay underscores how ideas about men and women's "traditional" family roles informed how men were selected for service, and how these conceptions of appropriate family life continued to lurk beneath the 1980 decision to maintain male-only registration. 1 To appreciate fully the layers of masculine and feminine citizenship reproduced by Selective Service, the first section of this essay places feminist IR and Critical Security Studies in dialogue with feminist political-sociological accounts of the American welfare state. Such an approach entails shifting the conventional disciplinary division of labor. ...
How has male-only draft registration been ideologically justified in the United States? Feminist International Relations and Security Studies scholars would, correctly, point to the strong association between masculinity and militarism in explaining the preservation of male-only registration. I argue, however, that feminist political-sociological scholarship on the centrality of the male breadwinner/female caregiver distinction to numerous federal programs sheds light on ideological justification for women’s exclusion from draft registration. Much like other federal programs, concerns with women’s dependency and men’s economic independence shaped the Selective Service System in 1917. Fear of unraveling the family’s sexual division of labor persisted when Congress renewed all-male draft registration in 1980, a position to which the Supreme Court deferred in 1981. I conclude by arguing that the draft’s problematic nature would endure if women were required to register with Selective Service and that the new arrangement would likely reproduce multiple inequalities.
District of Columbia v. Heller could prove a turning point not in the law governing the right to keep and bear arms, but governing the right to serve in the military. Heller's reasoning, notwithstanding the Court's efforts to constrain its analysis from reaching a right to serve, should lead to a reconsideration of military service as a broadly-held and long-recognized constitutional right. Because of the political meaning of military service and the changes that have altered the role and make-up of the military in the United States, the Second Amendment ought to be read, in the wake of Heller, as protecting American citizens' right to military service. This Essay furthers that argument by exploring two critical contexts in which Heller was written: the link between full citizenship and military service and the demographic, technological, and geopolitical changes that have remade the U.S. military since its colonial origins. Today's Second Amendment, like today's military, must protect far more than it once did. All qualified citizens-regardless of gender or sexual orientation-hold the right to military service.
William Eskridge and John Ferejohn propose an original theory of constitutional law whereby, while the Constitution provides a vision, our democracy advances by means of statutes that supplement or even supplant the written Constitution. © 2010 by William N. Eskridge Jr. and John Ferejohn. All rights reserved.
This bibliography gives an extensive interdisciplinary overview of studies on gender issues in a military context. It covers more than 2500 references of international reviewed articles, reports, books, and theses from military and non- military institutions. The references have
been categorized in themes such as “Masculinities”, “Gender, Sexual Harassment and Abuse in a Military Context”, “Gender, Physical and Psychological Ability”, and “Recruitment of Women”. Hence, it represents an essential tool for military leaders and scholars interested in gender issues in a military context.
This chapter for Women and the Law Stories (Elizabeth M. Schneider & Stephanie M. Wildman, eds., 2010) tells the story of Frontiero v. Richardson from its origins on an Air Force base in Alabama to its rich and complicated role in American constitutional law and social movement history. The Frontiero litigation provides a lens through which to explore cooperation and conflict among civil rights lawyers; the legal strategy of Ruth Bader Ginsburg and other feminist advocates; and internal debates among lower court judges and Supreme Court Justices about the nature of sex discrimination, judicial review, and constitutional change. Frontiero’s legacies are manifold, touching on the development of equal protection standards of review; the allocation of government benefits; military equality; gay rights; reproductive freedom; and the relationship between constitutional amendment advocacy and judicial interpretation.
Although the Constitution’s Suspension Clause explicitly mentions the writ of habeas corpus, it does not require that Congress make the writ available in its common-law form at all times. Rather, the Clause has long been understood to permit Congress to replace the writ with an alternative procedure so long as that remedy is an adequate and effective substitute for habeas corpus. Under this functional view of the Suspension Clause, Congress might delegate responsibility for performing the habeas review function to an entity other than an Article III court, so long as the substitute procedure allows a detainee to challenge the lawfulness of his detention fairly and effectively. Because, at its core, habeas is concerned with checking arbitrary executive detention, however, this article argues that any delegation of the habeas review function to a non-Article III entity must conform to the dictates of the nondelegation doctrine. To delegate the authority for designing the procedures used to challenge executive detention to the very executive responsible for detention would defeat the purpose of the Clause. In Boumediene v. Bush, the Supreme Court cast doubt on its prior functional jurisprudence regarding the Suspension Clause. In particular, the Court expressed hostility toward any substitute for habeas corpus that did not rely exclusively on an Article III Court. This article criticizes the Court’s approach in Boumediene, and demonstrates how it threatens the functional view of the Suspension Clause the Court had previously embraced. At the same time, this article explains how and why nondelegation concerns justified the result in Boumediene. In particular, by relying so heavily on an executive-designed scheme – the Combatant Status Review Tribunals – Congress’s substitute for habeas delegated excessive authority to the executive to perform the habeas review function. For that reason, Congress’s attempt to eliminate access to the writ for Guantánamo detainees through the Military Commissions Act of 2006 violated the Suspension Clause when read in conjunction with the nondelegation doctrine. A decision grounded more in nondelegation than in the absolutist conception of the Suspension Clause espoused by the Boumediene majority would have preserved more flexibility for the political branches to design a system for detaining terrorist suspects in the future.
This Article argues that the anti-stereotyping theory undergirding the foundational sex-based equal protection cases of the 1970s, most of which were brought by male plaintiffs, has powerful implications for current controversies in sex discrimination law which have long been obscured by the dominant narrative about these cases. For decades, scholars have criticized Ruth Bader Ginsburg for challenging the constitutionality of sex-based state action in cases featuring male plaintiffs. They have argued that the predominance of male plaintiffs caused the Court to adopt a narrow, formalistic conception of equality incapable of rectifying the subordination of women. This Article offers a new account of the theory of equal protection animating Ginsburg’s campaign. It argues that her decision to press the claims of male plaintiffs was grounded not in a commitment to eradicating sex classifications from the law, but in a far richer theory of equal protection involving constitutional limitations on the state’s power to enforce sex-role stereotypes. This “anti-stereotyping” theory drew on the arguments of transnational movements for sex equality that emerged in the 1960s, including the movement to combat sex-role enforcement in Sweden and the women’s and gay liberation movements in the United States. The Burger Court incorporated the anti-stereotyping principle into sex-based equal protection law in the 1970s, but the significance of this doctrinal shift has long been overlooked, in part because the Court initially applied the new doctrine only in a limited set of domains. In recent years, the Court has extended anti-stereotyping doctrine beyond the provisional limitations established in the 1970s and in ways that are deeply relevant to questions at the frontiers of equal protection law today.
The foreign-born have served in all of America’s militaries, from the Revolution to the present. The standard narrative of political and social development in the United States assigns military service a leading role in integrating marginalized groups in to society. This, many believe, flows from the “citizen-soldier” tradition in the United States. This paper examines the practice of non-citizen enlistment in America’s armies, past and present. It has three principle aims: to introduce alien enlistment as an American military institution, to show a relationship between the state’s military needs and its immigration and naturalization policies, and third, to evaluate how closely current practices align with American values and ideals, i.e. the “citizen-soldier” tradition. Specifically, it reviews the policy and legislative changes (concerning alien service men and women) of the last ten years and discusses their constitutional, political, and social implications. Some practices reflect American ideals (i.e. granting citizenship to those who serve in uniform) and basic values (i.e. reciprocity, fairness,) whereas others remain deeply problematic. The problematic category includes: the detention and removal (deportation) of alien veterans, spouses and children of active duty service members, and the “revocable” nature of citizenship acquired through military service.
This Article interrogates the sexual morality of Equal Protection. Gender equality jurisprudence reveals the unacknowledged influence of a traditional, heteronormative conception of sexual morality – the sexual double standard – that often sets the parameters of gender equality. Where the Supreme Court frames a gendered law as limiting participation in education, the workplace, or civic life, it tends to apply a demanding form of heightened scrutiny which few gendered laws can survive. Where, on the other hand, it frames a gendered law as governing the consequences of illicit sex, it tends apply what I call the sex discount, replacing the rigorous scrutiny mandated by its public equality cases with an unacknowledged, but much more deferential form of equal protection review. The Court invokes biological differences between men and women to justify this deference. But the sex discount does not genuinely accommodate gender differences regarding pregnancy, sexuality, or parenthood. Courts tend to reject reproductive justifications for inequality in public life; they tend to assume that biological differences are irrelevant when a heterosexual couple is married; they have applied the sex discount to gendered laws that serve no interest in protecting fetal life; and they apply a sex discount in cases of antigay discrimination that do not involve reproductive or sexual behavior. Rather, the sex discount authorizes governments to use gendered laws to enforce traditional gender norms about the morality of sex: to discourage abortion, to allow antigay discrimination, and to “incentivize” heterosexual marriage.
This paper examines wartime as a form of time, arguing that assumptions about the temporality of war are a feature of American legal thought. Time is thought to be linear and episodic, moving from one kind of time (peacetime) to another kind of time (wartime) in sequence. In this way of thinking, war is by definition temporary, so that war’s impact on law is limited in time. This understanding of war and time, however, is in tension with the practice of war in 20th century U.S. history, for American involvement in overseas military action has been continuous. Drawing upon works on the history of time, the paper argues that our conception of “wartime” is not inevitable. Instead, like other forms of time, it is a product of social life. The paper turns to World War II, which is thought of as a traditional war, with clear temporal limits. But this war is harder to place in time than is generally assumed, as the different legal endings to the war span over a period of seven years. The fuzziness in the war’s timing affects scholarship on rights and war, as scholars who believe themselves to be writing about the same wartime are not always studying the same years. The difficulty in confining World War II in time is an illustration of a broader feature of the twentieth century: wartimes bleed into each other, and it is hard to find peace on the twentieth century American timeline. Meanwhile, as all twentieth century wars occurred outside U.S. borders, a feature of American military strategy has sometimes been to increase the engagement of the American people in a war, and at other times to insulate them. Isolation from war enabled the nation to participate in war without most citizens perceiving themselves to be in a wartime. The paper closes with a discussion of the way anxiety about temporality surfaces in contemporary cases relating to Guantánamo detainees, as the Supreme Court confronted the possibility that endless war might mean endless detention.
The countermajoritarian activism of the Supreme Court is usually assessed in terms of the willingness of the Court to overturn legislation and/or to protect minorities. Using these criteria, the post-New Deal Supreme Court emerges as an exceptionally active countermajoritarian decision-making institution. It is also important, however, to examine the relationship between the Court's decisions and public opinion. Such an examination reveals that the Court's decisions overturning legislation and/or protecting minority rights were often supported by the distribution or at least the trend of nationwide public opinion and that when such support was lacking, the Court seemed reluctant to act. Thus, the policymaking activism of the post-New Deal Supreme Court was perhaps more consistent with majoritarian principles than is sometimes supposed.
In Cooper v. Aaron, the Supreme Court asserted that its interpretations of the Constitution bind all officials, and that the obligation of nonjudicial officials to obey the Constitution is an obligation to obey the Constitution as interpreted by the Supreme Court. Since Cooper, however, a consensus has developed among scholars and officials that Cooper cannot be taken at face value, and that nonjudicial officials need not treat Supreme Court opinions as authoritative in order to comply with their obligation to the Constitution. In this Article, Professors Alexander and Schauer challenge this consensus, and offer an unqualified defense of Cooper and the judicial supremacy that it asserted. They argue that settlement of contested issues is a crucial component of constitutionalism, that this goal can be achieved only by having an authoritative interpreter whose interpretations bind all others, and that the Supreme Court can best serve this role. They further argue that constitutionalism entails obeying a constitution even when its directives seem mistaken, and that once we accept the obligation of officials to follow a mistaken constitutional directive, it is only a small step to expect them to follow a court decision that they believe similarly mistaken. Both constitutionalism itself and judicial supremacy embody the goal of providing settlement of issues as to which people disagree, and the coordination function of law in general and constitutionalism in particular yields not only an obligation to obey the law, but also an obligation to obey a single authoritative interpreter of the law.
Although normative questions about the role of the Supreme Court as a countermajoritarian institution have long excited controversy in democratic theory, empirical questions about how far the Court acts contrary to majoritarian opinion have received less attention. Time series analyses for the period 1956–89 indicate the existence of a reciprocal and positive relationship between long-term trends in aggregate public opinion and the Court's collective decisions. The Court's ideological composition changes in response to previous shifts in the partisan and ideological orientation of the president and Congress. The Court also responds to public opinion at the margins even in the absence of membership change. Since 1981, the relationship has vanished or turned negative in direction. The Court's ideological balance has been upset by an unbroken string of conservative-to-moderate appointments, thereby undermining the dynamics that promote judicial responsiveness and raising questions about the majoritarianism of the contemporary and future Court.
If the cases outlawing segregation were wrongly decided, then they oughtto be overruled. One can go further: if dominant professional opinion everforms and settles on the belief that they were wrongly decided, then they willbe overruled, slowly or all at once, openly or silently. The insignificant error,however palpable, can stand, because the convenience of settlement outweighsthe discomfort of error. But the hugely consequential error cannot stand anddoes not stand.
For more than a quarter century, the Supreme Court has repeatedly declared that sex-based state action is subject to heightened scrutiny under the Equal Protection Clause. But the Court has always been much less clear about what that standard allows and what it prohibits. For this reason, it is especially noteworthy that one of the Court's most recent sex discrimination opinions, United States v. Virginia, purports to provide more coherent guidance. Virginia suggests that the constitutionality of sex-based state action turns on whether the practice at issue denies women "full citizenship stature" or "create[s] or perpetuate[s] the legal, social, and economic inferiority of women." Yet the opinion does not begin to indicate how the sex discrimination jurisprudence might implement this new standard. In particular, it does not tell us how to determine whether any specific practice deprives women of "full citizenship" or maintains their "inferiority." This Article attempts to give some content to the framework that Virginia presents. More specifically, it explores how analyzing the historical record of a practice can inform an investigation into whether, when, and why that practice is consistent with women's "full citizenship stature" or operates to perpetuate their "legal, social, and economic inferiority." The Article takes the historical record of sex-segregated public education in the United States as its case study. That record is an especially apt place to begin because Virginia directly concerned the constitutional status of a single-sex public school.
What is the canon of family law? By canon, I mean the ways of thinking about family law that are widely shared by legal scholars and especially by legal authorities, like legislators and judges. The existing literature on canons, which has long centered on the literary canon and has recently turned to the constitutional law canon, has most commonly understood a canon to be a set of foundational texts that exemplify, guide, and constitute a discipline. In part, the family law canon tracks this traditional focus on the inclusion and exclusion of texts, even if the family law canon does not take the form of a short and definitive reading list. Some of the shared ways of thinking about family law address which official legal sources, such as statutes and judicial decisions, fall within family law and which fall outside of it. But canons are not necessarily limited to texts like cases and statutes. Stories and examples can also be part of a canon. In fact, there is widespread agreement among legal authorities and legal scholars that certain stories and examples explain and describe family law and its governing principles. The family law canon consists of both official legal sources and these stories and examples. No one has examined family law as a field that might have a canon. Yet the family law canon importantly determines what counts as family law, what constitutes a good reason or a convincing argument in a family law debate, what explanations have to be given, and what does not have to be explained. The family law canon operates, moreover, at the level of common sense, powerful enough that its tenets are taken to require no reappraisal. Indeed, the family law canon casts stark light on a feature of canons that has been given too little attention in the scholarship on the literary canon and even in the scholarship on the constitutional law canon: the practical consequences that a canon can have in the world. The family law canon, for example, has enabled state legislatures and state courts enacting and defending changes in divorce law to contend that family law no longer supports women's inequality and so no longer needs to worry about women's position upon divorce. The family law canon has allowed courts, judges, judicial organizations, congressmen, and legal scholars to mount powerful and effective campaigns against federal statutes simply on the ground that the statutes constitute federal family law and are supposedly unprecedented and inappropriate for that reason alone. The family law canon has permitted courts and Congress to avoid explaining why the law employs very different rules to regulate the familial rights and responsibilities of the poor. The silence about the family law canon does not indicate the absence of a family law canon, but it does reflect more general trends in the work of academic theorists. Academic theorists have devoted much less attention to family law than they have spent on thoroughly examining legal subjects like constitutional law. Academic theorists have also frequently written about legal canons as if they emanate only from prestigious, powerful, centralized, and federal institutions like the United States Supreme Court. These theorists may have ignored the family law canon because they incorrectly assumed - ironically, because of the power of the family law canon itself - that an institution like the Supreme Court has played little role in the development of family law. This Article examines the family law canon, analyzes the consequences of the way that the canon is constructed, and explores how contesting the canon's construction might make a difference in practical terms. At present, the family law canon misdescribes both the content of family law and its governing principles. The family law canon distorts how legal authorities and legal scholars understand family law in a way that can distort their judgments about specific family law disputes. Challenging the family law canon's construction - opening to scrutiny and question what is now taken to be a matter of common sense - can reorient our perspective on family law and our ways of thinking about the field. It is the first step toward changing the family law canon and restructuring family law debates, altering the terms on which they take place, transforming what counts as a convincing argument, and reforming how decisions are made.
The Supreme Court's decision in Grutter v. Bollinger represents a high-water mark for the recognition and influence of constitutional academic freedom. The Court there relied, gingerly perhaps, on constitutional academic freedom, understood as some autonomy for university decision making on matters of core academic concern, to provide a compelling interest adequate to uphold flexible racial preferences in university admissions. Now that the dust has settled from direct import of the decision for affirmative action in admissions, it is important to consider what role constitutional academic freedom, as a working constitutional doctrine, should or may play within current disputes about higher education.
In this essay, I hope to clarify the scope and strength of the right affirmed in Grutter and to suggest how it might apply to a few current and notorious disputes. Preliminarily, I provide some context for Grutter by reviewing the long development of constitutional academic freedom and the role it played in the Court's decision. The core of the paper examines three aspects of constitutional academic freedom by looking both at what Grutter tells us about each and how each addresses current controversies about the nature and scope of academic freedom. First, I argue that Grutter clarifies that constitutional academic freedom is a right and apply it to state referenda prohibiting universities from considering race in admissions. Second, I consider the centrality to constitutional academic freedom of faculty control over the evaluation of scholarship and curriculum, arguing that statutes enacting the so-called "Academic Bill of Rights" would be invalid. Third, I claim that the sphere of autonomy protected by the right must be limited to core academic areas and that broader claims to autonomy based on academic freedom, such as those advanced in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. for employer recruitment policies, both lack merit and may imperil the basic right.
The Most Dangerous Branch: Executive Power to Say What the Law Is
- See Michael Stokes Paulsen
See Michael Stokes Paulsen, The Most Dangerous Branch: Executive
Power to Say What the Law Is, 83 GEO. L.J. 217, 221-22 (1994).
- Larry D See
- Kramer
- The
- Themselves
See LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTI-
TUTIONALISM AND JUDICIAL REVIEW 253 (2004).