Gender Equality as Social Reproduction Infrastructure

Julie Suk —

On May 30, 2018 the Illinois legislature voted to ratify the ERA. Thirty-seven states have now ratified the sex equality amendment to the U.S. Constitution, just one state shy of the three-quarters required by Article V to validly amend the Constitution. Legal commentary following this news is primarily focused on questions about the amendment’s legitimacy, such as the status of post-deadline ratifications and attempted rescissions, the constitutionality of ratification deadlines for amendments, and the validity of legislation eliminating the deadline. But it is equally important to contemplate how the ERA could change the political economy of gender inequality. It can be more than a symbol that locks in the sex discrimination law we already have. We can take some inspiration from feminist constitutionalism around the world to imagine a twenty-first century ERA that catalyzes new gender-equal infrastructures, particularly for biological and social reproduction, compatible with a sustainable and more humane political economy.

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Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?

K. Sabeel Rahman –

Consider the following developments:

  • In recent weeks, the explosive revelations about Cambridge Analytica and its systemic data-mining of Facebook profiles has cast into relief the way in which our contemporary digitized public sphere is not a neutral system of communication but rather a privately built and operated system of mass surveillance and content manipulation.46038488 - law concept: circuit board with  scales icon, 3d render
  • Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, will take over management of a major redevelopment of part of Toronto’s waterfront, in an effort to build from the ground up a modern “smart city.”
  • These developments come amidst the longer-term development of new forms of technological transformations of our political economy, from the rise of Amazon to its position as the modern infrastructure for the retail economy, to the ways in which technology is transforming the nature of work and the social safety net.

There has been a growing sense of concern about the twin crises of twenty-first-century democracy on the one hand and of the growing problems of inequality and insecurity on the other. Technological change is at the heart of both of these transformations. Technological change alters the distribution and dynamics of political and economic power, creating new forms of “functional sovereignty”—state-like powers concentrated in entities and systems that are not subject to the institutional and moral checks and balances that we associate with the exercise of public power. Such arbitrary power represents a kind of quasi-sovereignty that, left unchecked, poses a threat of domination.

The rich scholarly debate on law and technology has surfaced a range of approaches for addressing some of these concerns, from legal standards for privacy and data use to antitrust and public utility regulation, and more. These proposals and interventions can be reframed as part of a broader challenge of defusing the threat of domination created by these technological systems. Regulating and responding to new technologies and modern forms of economic and political power thus represent a variation on familiar questions of public law and constitutional design: how to structure the exercise of potentially arbitrary, state-like power, rendering it contestable, and therefore legitimate.

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No Democracy

David Singh Grewal and Jedediah Purdy – 

What would it mean to make economic and political life more democratic? One way toward an answer is by getting more precise about how they are now undemocratic. Avoidance of democracy runs very deep in American law, and perhaps in the modern legal and political order generally. This is so despite the fact that constitutionalism and other forms of legal and political order all rest on claims to democratic legitimacy.

“Democracy” retains the core sense of its Greek root: “the people rule.”  That is, in a democracy it must be true in some real sense that people have authorized the rules, institutions, and multifarious exercises of power that they must live with, and which deeply shape their lives. What would it mean to “reinvent” democracy today—and what would the legal structure for such a democracy look like? In an essay forthcoming in the Yale Law Journal, we explore the answers to this question suggested by a recently published book, The Sleeping Sovereign, by Richard Tuck.

Tuck’s book sheds new light on the relationship between popular sovereignty and constitutional government. He argues that the modern constitution is a unique contribution to the practice of democracy, not because it constrains majorities – the usual picture – but rather because it enables them to act. Contrary to the popular myth that European monarchies exercised the “divine right of kings,” most medieval and early-modern rulers claimed some kind of authorization from “the people” – rooted in history, ongoing consultation among elites who claimed to speak for popular interests, and devotion to the well-being of the land. More or less everyone agreed, though, that it was impossible for large populations to rule themselves collectively in any ongoing way: what the citizens of small city-states of the ancient world had done, especially in Athens, was out of reach in a territory as vast as France or England.

Tuck traces a line of thought that began with sixteenth-century French jurist Jean Bodin and received crucial later formulations from Thomas Hobbes and Jean-Jacques Rousseau – and, more to the point, was understood in practice by the late eighteenth century to be a way of recapturing democratic self-rule in large, complex countries. The heart of the idea was to distinguish everyday rule, which thinkers in this line called “government,” from the decisions that established and authorized the basic form and terms of political control, which they called “sovereignty.” If a people authorized its form of government, its sovereignty was democratic, even if everyday business was carried out by other means – courts, ministers, etc. The great innovation that made this idea real was the written constitution, authorized by direct majority vote (or, less ideally, some other popular procedure such as elected conventions). A constitution contained the decisions of a democratic (i.e., “popular”) sovereign, granting power to the government it created while also shaping and constraining that government.

So far so good: It sounds like the U.S. Constitution, more or less (if you can stomach, for the moment, overlooking how limited the franchise was in most states). But pretty much everyone in this tradition agreed, for very powerful reasons, that sovereignty was democratic only if a people could regularly revisit its fundamental law, either to reauthorize it or to change it. Only if constitutional amendment was a real, live option would it make sense to say that the living had authorized the constitutional regime they were born into, rather than simply inheriting it. In other words, the original conception of constitutional self-rule incorporated both the basic commitment of today’s “originalism” (the democratic authorship of the constitution in the first instance) and the basic commitment of today’s “living constitutionalism” (the regular updating of constitutional authorization, by reaffirmation or change). Popular sovereignty was meaningful only if it included both, and to achieve that a people had to adopt a constitution with a viable procedure for ongoing amendment. Continue reading