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Abstract In two paragraphs at the beginning o/Dobbs v. Jackson Women's Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative groundfor the abortion right. As the [...]

TABLE OF CONTENTS INTRODUCTION 21 I. CONSTITUTIONAL MEMORY: OF NAMING, SPEAKING, VOTING, LEADING 25 II. VOTING AND THE FAMILY--A BRIEF HISTORY 30 A. The Republican Household: Voting and the Family [...], Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw--but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women's quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law. This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law. To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents. But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.

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TABLE OF CONTENTS INTRODUCTION 972 I. COMPARATIVE MODELS OF DISCRIMINATION AND PREGNANCY AS DIFFERENCE--BEFORE AND AFTER THE PDA 978 A. Pregnancy Discrimination Under the Constitution: The Uniqueness Trap 978 B. [...], As the Pregnancy Discrimination Act of 1978 (PDA) turns forty, it is time to consider how we define pregnancy discrimination. In recent years, courts have come to define pregnancy discrimination almost exclusively through comparison. Yet our understanding of discrimination, inside and outside the pregnancy context, depends on judgments about social roles as well as comparison. Both Congress and the Court appealed to social roles in defining the wrongs of pregnancy discrimination. In enacting the PDA, Congress repudiated employment practices premised on the view that motherhood is the end of women's labor force participation, and affirmed a world in which women as well as men would combine work and family--a world in which pregnancy would be a normal condition of employment. A social-roles analytic helps explain the logic of pregnancy discrimination, whether it assumes the form of hostility to pregnant workers or a simple failure to accommodate. Drawing on this social-roles analytic, the Lecture offers a reading of Young v. UPS, the Supreme Court's most recent decision on the PDA. Young breaks from an exclusively comparative approach and authorizes pregnancy accommodation claims under both disparate treatment and disparate impact frameworks. The Court's approach is informed by a growing popular consensus. As the PDA turns forty, nearly half the states have enacted pregnant worker fairness acts supporting reasonable accommodation of pregnancy in the workplace.

This Article examines originalism's role in overruling Roe v. Wade in Dobbs v. Jackson Women's Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice whose long-term goal has been the overturning of Roe. As the conservative legal movement has developed originalism, judicial appointments matter critically to originalism's authority, as do originalism's appeals to constitutional memory to legitimate the exercise of public power. Examining these different dimensions of originalism's authority, this Article shows that the conservative legal movement has practiced originalism as a form of living constitutionalism that makes our constitutional order less democratic in several important ways. To demonstrate how this is so, this Article returns to originalism's roots in the Reagan years and examines originalism's origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time--and continuously ever since--the Republican Party's platform promised that "[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life." I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it. This Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs "living constitutionalist") and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs's living constitutionalism serves contemporary movement goals: the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan Administration. The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past--entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court. [ABSTRACT FROM AUTHOR]