Harvard Law Review
Feminist Legal Theory, Constitutional Interpretation, Mainstream Constitutioal Theory, Democracy, Constitutionalism, Judicial Review, Social Construction of Choice, Constraint of Choice, Individual Choice, Democratic Legitimacy, Citizenship
Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on women's choices has led to a neglect of questions of citizenship and sovereignty within a democratic system. By comparing mainstream constitutional theory and feminist theory, Professor Higgins highlights the existing limitations of both. She argues both that mainstream constitutional theory must take into account feminist arguments concerning constraints on individual choice and that feminist theory must take seriously the mainstream debate over democratic legitimacy. Integrating these distinct concerns, she suggests a framework for constitutional interpretation that reflects a feminist conception of citizenship under conditions of inequality.
Tracy E. Higgins,
Democracy and Feminism , 110 Harv. L. Rev 1657
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/256