Towards a progressive politics and a progressive constitution

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 2007-2056

  Becker, Mary ^a  

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References (277)

1. See infra notes 90-93 and accompanying text.
2. See Mary E. Becker, The Politics of Women's Wrongs and the Bill of "Rights": A Bicentennial Perspective, 59 U. Chi. L. Rev. 453, 457 (1992) (discussing conservative nature of rights in the Constitution).
3. Mary Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975, 986-1018 (1993) (discussing conservative nature of judicial review).
4. Daniel Yergin & Joseph Stanislaw, The Commanding Heights: The Battle Between Government and the Marketplace that is Remaking the Modern World 147-49 (1998).
5. See, e.g., Genaro C. Armas, "Doing What's Best for Me": More Moms with Infants Back to Work Within Year, ABCNEWS.com, at http://www.abcnews. go.com/sections/business /DailyNews/working_moms001024.html (Oct. 24, 2000) (describing United States Census report that thirty-six percent of mothers with infants are working full time and an additional twenty-three percent are either working part-time or looking for work); Children's Defense Fund, Supporting All Parents in Their Child Care Choices, at http://www.childrensdefensefund.org/cc_supparents.htm (last modified Feb. 10, 2001) (reporting that sixty-two percent of married mothers with children under age six work, and seventy-two percent of single mothers with children under six work).
6. See, e.g., Genaro C. Armas, "Doing What's Best for Me": More Moms with Infants Back to Work Within Year, ABCNEWS.com, at http://www.abcnews. go.com/sections/business /DailyNews/working_moms001024.html (Oct. 24, 2000) (describing United States Census report that thirty-six percent of mothers with infants are working full time and an additional twenty-three percent are either working part- time or looking for work); Children's Defense Fund, Supporting All Parents in Their Child Care Choices, at http://www.childrensdefensefund.org/cc_supparents.htm (last modified Feb. 10, 2001) (reporting that sixty-two percent of married mothers with children under age six work, and seventy-two percent of single mothers with children under six work).
7. 42 U.S.C. §§ 2000e(k) 2000e-2(a)(1) & (2) (1994).
8. See infra note 53 and accompanying text.
9. Family and Medical Leave Act of 1993, Pub. L. No. 103-03, 107 Stat. 6 (1993) (codified at 29 U.S.C. §§ 2601-2654); see 29 U.S.C. § 2612 (providing entitlement to twelve weeks of unpaid leave).
10. Michael Wolff et al., Where We Stand: Can America Make It in the Global Race for Wealth, Health, and Happiness? 296-97 (1992).
11. See, e.g., Gary Field, War on Drugs is Stacked Against Blacks, USA Today, Jun. 8, 2000, at 3A (quoting Jamie Fellner, associate counsel for Human Rights Watch, that "the great majority of drug offenders in prison" are African Americans though "[f]ive times as many whites use drugs").
12. Tracey L. Meares, Social Organization and Drug Law Enforcement, 35 Am. Crim. L. Rev. 191, 211-17 (1998).
13. See, e.g., Lawrence Mishel et al., The State of Working America 1998-1999, at 37-90 (1999); Richard B. Freeman, The Facts About Rising Economic Disparity, in The Inequality Paradox: Growth of Income Disparity 19, 30-32 (James A. Auerbach & Richard S. Belous eds., 1998).
14. See, e.g., Lawrence Mishel et al., The State of Working America 1998-1999, at 37-90 (1999); Richard B. Freeman, The Facts About Rising Economic Disparity, in The Inequality Paradox: Growth of Income Disparity 19, 30-32 (James A. Auerbach & Richard S. Belous eds., 1998).
15. Freeman, supra note 12, at 20 tbl.1.
16. See Nat'l Ctr. for Children in Poverty, Young Children in Poverty: A Statistical Update, June 1999, at 1, available at http://cpmcnet.columbia.edu/dept/ nccp/99uptext.html.
17. George A. Kaplan et al., Inequality in Income and Mortality in the United States: Analysis of Mortality and Potential Pathways, 312 Brit. Med. J. 999, 1001 (1996); Bruce P. Kennedy et al., Income Distribution and Mortality: Cross Sectional Ecological Study of the Robin Hood Index in the United States, 312 Brit. Med. J. 1004, 1005 (1996).
18. George A. Kaplan et al., Inequality in Income and Mortality in the United States: Analysis of Mortality and Potential Pathways, 312 Brit. Med. J. 999, 1001 (1996); Bruce P. Kennedy et al., Income Distribution and Mortality: Cross Sectional Ecological Study of the Robin Hood Index in the United States, 312 Brit. Med. J. 1004, 1005 (1996).
19. Bobby Cuza, Detained and Confused: A Jonesboro Shooter Writes to a Friend, Time, Aug. 16, 1999, at 32.
20. Id.
21. Id. at 33.
22. Id.
23. Id.
24. Id.
25. On possible explanatory factors, see Rep. Zach Wamp, Violent Entertainment Conditions Our Children to Kill: Curbing It Should Be a Top Priority, Chattanooga Times and Free Press, May 30, 1999, at H1 (discussing Jonesboro and similar shootings in light of evidence of a military psychologist that television and violent video games are "conditioning our children to kill much as the military trains its recruits to do the same thing"). For more on the link between television and violence, see Brandon S. Centerwall, Exposure to Television As a Risk Factor for Violence, Am. J. Epidemiology 643 (1989) (finding that introduction of television into a region tends to be followed by a doubling of the crime rate when the first generation raised on television comes of age); L. Rowell Huesmann & Leonard D. Eron, The Development of Aggression in American Children As a Consequence of Television Viewing, in Television and the Aggressive Child: A Cross-National Comparison (L. Rowell Huesmann & Leonard D. Eron eds., 1986) (finding that heavy exposure to television during childhood is the best predictor of later aggression, better even than poverty, grades, parental status, or exposure to actual violence).
26. On possible explanatory factors, see Rep. Zach Wamp, Violent Entertainment Conditions Our Children to Kill: Curbing It Should Be a Top Priority, Chattanooga Times and Free Press, May 30, 1999, at H1 (discussing Jonesboro and similar shootings in light of evidence of a military psychologist that television and violent video games are "conditioning our children to kill much as the military trains its recruits to do the same thing"). For more on the link between television and violence, see Brandon S. Centerwall, Exposure to Television As a Risk Factor for Violence, Am. J. Epidemiology 643 (1989) (finding that introduction of television into a region tends to be followed by a doubling of the crime rate when the first generation raised on television comes of age); L. Rowell Huesmann & Leonard D. Eron, The Development of Aggression in American Children As a Consequence of Television Viewing, in Television and the Aggressive Child: A Cross-National Comparison (L. Rowell Huesmann & Leonard D. Eron eds., 1986) (finding that heavy exposure to television during childhood is the best predictor of later aggression, better even than poverty, grades, parental status, or exposure to actual violence).
27. On possible explanatory factors, see Rep. Zach Wamp, Violent Entertainment Conditions Our Children to Kill: Curbing It Should Be a Top Priority, Chattanooga Times and Free Press, May 30, 1999, at H1 (discussing Jonesboro and similar shootings in light of evidence of a military psychologist that television and violent video games are "conditioning our children to kill much as the military trains its recruits to do the same thing"). For more on the link between television and violence, see Brandon S. Centerwall, Exposure to Television As a Risk Factor for Violence, Am. J. Epidemiology 643 (1989) (finding that introduction of television into a region tends to be followed by a doubling of the crime rate when the first generation raised on television comes of age); L. Rowell Huesmann & Leonard D. Eron, The Development of Aggression in American Children As a Consequence of Television Viewing, in Television and the Aggressive Child: A Cross-National Comparison (L. Rowell Huesmann & Leonard D. Eron eds., 1986) (finding that heavy exposure to television during childhood is the best predictor of later aggression, better even than poverty, grades, parental status, or exposure to actual violence).
28. See U.S. Senate Resolution of Advice and Consent to Ratification of the International Convention on the Prevention and Punishment of the Crime of Genocide, 132 Cong. Rec. 2349 (1986). The Senate required implementing legislation, which was enacted in 1987. Genocide Convention Implementation Act of 1987 (the Proxmire Act), Pub. L. No. 100-606, 102 Stat. 3045 (codified at 18 U.S.C. §§ 1091-93).
29. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171, available at http://www.unhchr.ch/html/ menu3/b/a_ccpr.htm; see Office of the UN High Comm'r for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties, 1, 7 (Jan. 19, 2001) at http://www.unhchr.ch/pdf/report.pdf [hereinafter Status of Ratifications].
30. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, 999 U.N.T.S. 171, available at http://www.unhchr.ch/html/ menu3/b/a_ccpr.htm; see Office of the UN High Comm'r for Human Rights, Status of Ratifications of the Principal International Human Rights Treaties, 1, 7 (Jan. 19, 2001) at http://www.unhchr.ch/pdf/report.pdf [hereinafter Status of Ratifications].
31. U.S. Ratifies UN Convenant [sic], 3 U.S. Dep't St. Dispatch 457 (1992); Status of Ratifications, supra note 24, at 1, 7.
32. U.S. Ratifies UN Convenant [sic], 3 U.S. Dep't St. Dispatch 457 (1992); Status of Ratifications, supra note 24, at 1, 7.
33. Status of Ratifications, supra note 24 at 1, 7.
34. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://www.unhchr.ch/html/menu3/b/hcat39.htm.
35. U.S. Dep't of State, Treaties in Force 466 (1999) (effective Nov. 20, 1994);
36. Status of Ratifications, supra note 24, at 1, 7 (ratified Oct. 21, 1994).
37. Convention on the Rights of the Child, adopted Nov. 20, 1989, 1577 U.N.T.S. 3, available at http://www.unhchr.ch/html/menu3/b/k2crc.htm [hereinafter CRC].
38. See UNICEF, Convention on the Rights of the Child: Frequently Asked Questions, at http://www.unicef.org/crc/faq.htm (last modified Oct. 20, 2000) ("Q: Who has not ratified and why not?").
39. Id.
40. UNICEF, The Convention on the Rights of the Child, at http://www.unicef.org/ crc/convention.htm (last modified Oct. 20, 2000).
41. CRC, supra note 29, art. 6.2.
42. Id. art. 24.2(b).
43. UNICEF, The Convention on the Rights of the Child, at http://www.unicef.org/crc/convention.htm (last modified Oct. 20, 2000); see CRC, supra note 29, art. 4 ("States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.")
44. UNICEF, The Convention on the Rights of the Child, at http://www.unicef.org/crc/convention.htm (last modified Oct. 20, 2000); see CRC, supra note 29, art. 4 ("States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.")
45. Convention on the Elimination of All Forms of Discrimination Against Women, adopted Dec. 18, 1979, 1249 U.N.T.S. 13, available at http://www.unhchr.en/html/menu3/b/elcedaw.htm [hereinafter CEDAW].
46. Status of Ratifications, supra note 24, at 6-8; UN Division for the Advancement of Women, CEDAW: States Parties, at http://www.un.org/womenwatch/ daw/cedaw/states.htm (last modified Nov. 22, 2000).
47. Status of Ratifications, supra note 24, at 6-8; UN Division for the Advancement of Women, CEDAW: States Parties, at http://www.un.org/womenwatch/ daw/cedaw/states.htm (last modified Nov. 22, 2000).
48. Status of Ratifications, supra note 24, at 5-8.
49. CEDAW, supra note 36, art. 1.
50. Id. art. 3.
51. Id. art. 5(a).
52. Id. art. 11(1)(d).
53. Id. art. 11(2)(b).
54. Id. art. 11(2)(c).
55. Malvina Halberstam, United States Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, 31 Geo. Wash. J. Int'l L. & Econ. 49, 54 (1997).
56. Id. at 55.
57. Id.
58. Id. at 60.
59. Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int'l L. 341, 348 (1995).
60. See Halberstam, supra note 45, at 60-62.
61. See Sen. Comm. on Foreign Relations, Convention on the Elimination of All Forms of Discrimination Against Women, S. Exec. Rep. No. 103-38, at 7-8 (1994).
62. See Case C-394/96, Brown v. Rentokil, Ltd., 1998 E.C.R. 1-4185, 4222-23 (holding that under European Union law, an employer cannot fire an employee during pregnancy or maternity leave for any reason connected to pregnancy, such as inability to do the job because of pregnancy-related disability).
63. See, e.g., In re Carnegie Ctr. Assocs., 129 F.3d 290, 297 (3d Cir. 1997) (finding no pregnancy discrimination for employer to fire a secretary on maternity leave rather than, for example, the one with least seniority or the lowest job evaluations, when a reduction in force was necessary); Troupe v. May Dep't Stores Co., 20 F.3d 734, 737-38 (7th Cir. 1994) (finding no pregnancy discrimination for employer to fire pregnant worker on the day before she was to go on maternity leave, even though supervisor told her she was being fired because employer thought she would not return to work; employee had been tardy or left early a number of times during pregnancy because of morning sickness).
64. See, e.g., In re Carnegie Ctr. Assocs., 129 F.3d 290, 297 (3d Cir. 1997) (finding no pregnancy discrimination for employer to fire a secretary on maternity leave rather than, for example, the one with least seniority or the lowest job evaluations, when a reduction in force was necessary); Troupe v. May Dep't Stores Co., 20 F.3d 734, 737-38 (7th Cir. 1994) (finding no pregnancy discrimination for employer to fire pregnant worker on the day before she was to go on maternity leave, even though supervisor told her she was being fired because employer thought she would not return to work; employee had been tardy or left early a number of times during pregnancy because of morning sickness).
65. CEDAW, supra note 36, art. 7.
66. See Fourth World Conference on Women, Beijing Declaration and the Platform for Action (1996) (strategic objective G.189) at http://www.un.org/ womenwatch/daw/beijing/platform/decision.htm (last modified Jan. 28, 1998).
67. See Jim Abrams, Diversity of Congress Still Lags Behind Nation, AsianWeek.com (Dec. 8-14, 2000), at http://www.asianweek.com/2000_12_08/ news5_undiversecongress.html, for data on women, African Americans, Hispanic Americans, Native Americans, and Asian Americans in the Senate after the 2000 election and on women, African Americans and Hispanic Americans in the House of Representatives. Data on Native Americans and Asian Americans in the House are from Charles Pope, New Congress Is Older, More Politically Seasoned, Cong. Q. Wkly., Jan. 9, 1999, 60, 62, which reports the numbers of women and minorities in the House and Senate after the 1998 elections. General population data is from United States Census Bureau, Statistical Abstract of the United States: 1999, 25-26 tbls.24-25 (1999) [hereinafter 1999 Statistical Abstract].
68. See Jim Abrams, Diversity of Congress Still Lags Behind Nation, AsianWeek.com (Dec. 8-14, 2000), at http://www.asianweek.com/2000_12_08/ news5_undiversecongress.html, for data on women, African Americans, Hispanic Americans, Native Americans, and Asian Americans in the Senate after the 2000 election and on women, African Americans and Hispanic Americans in the House of Representatives. Data on Native Americans and Asian Americans in the House are from Charles Pope, New Congress Is Older, More Politically Seasoned, Cong. Q. Wkly., Jan. 9, 1999, 60, 62, which reports the numbers of women and minorities in the House and Senate after the 1998 elections. General population data is from United States Census Bureau, Statistical Abstract of the United States: 1999, 25-26 tbls.24-25 (1999) [hereinafter 1999 Statistical Abstract].
69. Including Americans who have descended from Pacific Islanders.
70. Including Eskimo and Aleut peoples.
71. Abrams, supra note 56.
72. John O'Sullivan, Inclusive GOP Shuts Out Base, Chi. Sun Times, Dec. 5, 2000, at 31.
73. Id.
74. Barbara R. Bergmann, Saving Our Children from Poverty: What the United States Can Learn From France 6 tbl.1.1 (1996) (1984-87 data).
75. Colin Hughes & Kerry McCuaig, When Mom Must Work: Family Day Care as a Welfare-To-Work Option (Apr. 2000), § 2.13 tbl.1 at 4 at http://www.childcarecanada.org/CPAG_CCEF/moms_welfare/index.html.
76. Karen Christopher et al., Gender Inequality in Poverty in Affluent Nations: The Role of Single Motherhood and the State, 12 tbl.2 (Jan. 5, 2000), available at Joint Center for Poverty Research, http://www.jcpr.org/research_summaries/ vol1_num1.html.
77. Bergmann, supra note 62, at 35-37. Subsidies for care of infants and toddlers vary with income level. In 1991, a family with a monthly income under $681 and one child would pay the equivalent of $4.15 per day for care of an infant or young toddler; such a family would pay the equivalent of $3.38 per day per child for two children in such care. A family with a monthly income under $1,286 would pay $7.68 and $6.45, respectively. A family with a monthly income under $2,496 would pay $15.21 and $12.60. Id. at 40 tbl.3.7.
78. Id. at 31. In France, the ratio tends to be about sixteen children to one adult. This would be regarded as inadequate in the United States, where: an adult-child ratio of 1:9 [is thought] to be crucial to providing high-quality care; U.S. preschools abide by this finding. However, a group of American experts on day care who observed French child-care facilities in 1989 concluded that, despite the larger number of children per adult, the quality . . . was as high as or higher than the best and highest-cost American day-care centers. More systematic studies of teacher-child interactions confirm this impression. One study concluded that the teacher training in France, which encourages teachers to carefully plan daily activities and constantly monitor the children, explained the good results. Id. at 31.
79. Joni Seager, The State of Women in the World Atlas 68 (1997); Human Development Report 36 (Published for the United Nations Development Programme 1995).
80. Joni Seager, The State of Women in the World Atlas 68 (1997); Human Development Report 36 (Published for the United Nations Development Programme 1995).
81. Bergmann, supra note 62, at 28.
82. Id. at 59 tbl.4.5. All members of the European Community, even England, provide family allowances. In England, the allowance is $46 per month for one child, $92 for two children and $138 for three children. Id.
83. Id. at 59-60.
84. Id. at 61.
85. Id. at 62.
86. Id. at 68.
87. Id. at 46. The mother is entitled to $192 a month if she had a job immediately before the pregnancy or during it, even though she no longer has the job. Id.
88. Id. at 70.
89. Anders Hayden, France's 35-Hour Work Week, Canadian Dimension, Feb. 1, 2000, at 8. The law was designed as a way to cut the unemployment rate, which has been very high (though it is now steadily falling). Prior to the new law, unemployment was 12.5%. Although there was some controversy about the legislation even among workers, some of whom worried that employers would merely require employees to do the same amount of work in a shorter amount of time, "84 per cent of workers who had their hours reduced said that there were more advantages than disadvantages, and 75 per cent said their quality of life had improved." Workers reported that they were likely to use the time to "[s]pend[] more time with family and children." Employers have implemented the change in "diverse ways, such as: seven-hour days, alternating four- and five-day weeks, additional days off on an annual basis-usually 22 or 23, and 'time savings accounts' for accumulation of long periods of leave." Many workplace agreements "have gone beyond 35 to 32 hours or given individual workers the choice of reducing their hours further." Id.
90. Elizabeth Olson, Americans Lead the World in Hours Worked, N.Y. Times, Sept. 7, 1999, at C9.
91. Bergmann, supra note 62, at 64-65.
92. Id.
93. Id. at 65-66. When she no longer has a child under three, the single parent may qualify for additional assistance under the Minimum Income to Assist Job Entry program. See id. at 66-67.
94. Id. at 65-66. When she no longer has a child under three, the single parent may qualify for additional assistance under the Minimum Income to Assist Job Entry program. See id. at 66-67.
95. European Monitoring Centre for Drugs and Drug Addiction, Annual Report on the State of the Drugs Problem in the European Union, at 28 (2000), available at http://www.emcdda.org/publications/publications_annrep_00.shtml.
96. Id.
97. Id.
98. On the need for gun control, see generally Franklin E. Zimring & Gordon Hawkins, Crime Is Not the Problem: Lethal Violence in America (1997) (identifying firearms used in assaults and robberies as the single feature of the American environment most clearly linked to the extraordinarily high death rate in the United States as a result of interpersonal violence).
99. In a study of thirty-six countries, the United States came out first in the rate of death from gun violence, with a rate 3.3 times that of Canada, 5.4 times that of Australia, 6.0 times that of New Zealand, 34.7 times that of England and Wales, 26.4 times that of Scotland, and 284.8 times that of Japan. E.G. Krug et al., Firearm-Related Deaths in the United States and 35 Other High- and Upper-Middle-Income Countries, 27 Int'l J. Epidemiology 214, 216 tbl.1 (1998).
100. See, e.g., Shawn Donnan, Australians Claim Success for Tough Gun Controls: First Indications Vindicate Firearm Restrictions and Cast Doubt on Gun Lobby Arguments, Fin. Times (London), Apr. 29, 2000, at 8; Center to Prevent Handgun Violence, Concealed Truth: Concealed Weapons Laws and Trends in Violent Crime in the United States, Oct. 22, 1999, at http://www.handguncontrol.org/ research/studies/conctruth.asp (reporting on study finding that states with laws allowing people to carry concealed weapons have seen a significantly smaller drop in crime rates in recent years relative to states banning the carrying of concealed weapons); Center to Prevent Handgun Violence, Saving Lives By Taking Guns Out of Crime: The Drop in Gun-Related Crime Deaths Since Enactment of the Brady Law (2000), at http://www.handguncontrol.org/research/studies/savinglives.asp (studying effectiveness of the Brady Bill, which strengthened background checks on buyers of handguns, in reducing the use of handguns in robberies and assaults).
101. See, e.g., Shawn Donnan, Australians Claim Success for Tough Gun Controls: First Indications Vindicate Firearm Restrictions and Cast Doubt on Gun Lobby Arguments, Fin. Times (London), Apr. 29, 2000, at 8; Center to Prevent Handgun Violence, Concealed Truth: Concealed Weapons Laws and Trends in Violent Crime in the United States, Oct. 22, 1999, at http://www.handguncontrol.org/ research/studies/conctruth.asp (reporting on study finding that states with laws allowing people to carry concealed weapons have seen a significantly smaller drop in crime rates in recent years relative to states banning the carrying of concealed weapons); Center to Prevent Handgun Violence, Saving Lives By Taking Guns Out of Crime: The Drop in Gun-Related Crime Deaths Since Enactment of the Brady Law (2000), at http://www.handguncontrol.org/research/studies/savinglives.asp (studying effectiveness of the Brady Bill, which strengthened background checks on buyers of handguns, in reducing the use of handguns in robberies and assaults).
102. See, e.g., Shawn Donnan, Australians Claim Success for Tough Gun Controls: First Indications Vindicate Firearm Restrictions and Cast Doubt on Gun Lobby Arguments, Fin. Times (London), Apr. 29, 2000, at 8; Center to Prevent Handgun Violence, Concealed Truth: Concealed Weapons Laws and Trends in Violent Crime in the United States, Oct. 22, 1999, at http://www.handguncontrol.org/ research/studies/conctruth.asp (reporting on study finding that states with laws allowing people to carry concealed weapons have seen a significantly smaller drop in crime rates in recent years relative to states banning the carrying of concealed weapons); Center to Prevent Handgun Violence, Saving Lives By Taking Guns Out of Crime: The Drop in Gun-Related Crime Deaths Since Enactment of the Brady Law (2000), at http://www.handguncontrol.org/research/studies/savinglives.asp (studying effectiveness of the Brady Bill, which strengthened background checks on buyers of handguns, in reducing the use of handguns in robberies and assaults).
103. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2346-47 (1989) (describing hate speech regulation in other countries); see also David Kretzmer, Freedom of Speech and Racism, 8 Cardozo L. Rev. 445, 500 (1987) (noting restrictions in the Netherlands, Norway and Finland);
104. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2346-47 (1989) (describing hate speech regulation in other countries); see also David Kretzmer, Freedom of Speech and Racism, 8 Cardozo L. Rev. 445, 500 (1987) (noting restrictions in the Netherlands, Norway and Finland);
105. Cass R. Sunstein, Words, Conduct, Caste, 60 U. Chi. L. Rev. 795, 814 n.67 (1993) (noting restrictions allowed in Germany).
106. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, art. 20, 999 U.N.T.S. 171, available at http://www.unhchr.ch/ html/menu3/b/a_ccpr.htm.
107. Jordan J. Paust, Avoiding "Fraudulent" Executive Policy: Analysis of Non-Self-Execution of the Covenant on Civil and Political Rights, 42 DePaul L. Rev. 1257, 1257 (1993); Henkin, supra note 49, at 348.
108. A.F. Pollard, The Evolution of Parliament 164 (2d ed. 1926), quoted in Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy 128 (1994).
109. A.F. Pollard, The Evolution of Parliament 164 (2d ed. 1926), quoted in Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy 128 (1994).
110. Daniel Hays Lowenstein, Election Law: Cases and Materials 22-23 (1995) (noting that because of "cheap land and scarce labor, most white men who could not meet the property qualifications during their youth could do so by the time they had attained middle age"); see also Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and its Legacy 220-22 (1990) (arguing that the Framers saw the major problem of democracy as the possibility that the unpropertied majority might interfere with the property rights of the propertied minority, and the latter therefore deliberately structured government to create barriers to ordinary people's participation, including multiple levels of government and rule by a distant elite, and mentioning that in general only white men of property could vote).
111. Daniel Hays Lowenstein, Election Law: Cases and Materials 22-23 (1995) (noting that because of "cheap land and scarce labor, most white men who could not meet the property qualifications during their youth could do so by the time they had attained middle age"); see also Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and its Legacy 220-22 (1990) (arguing that the Framers saw the major problem of democracy as the possibility that the unpropertied majority might interfere with the property rights of the propertied minority, and the latter therefore deliberately structured government to create barriers to ordinary people's participation, including multiple levels of government and rule by a distant elite, and mentioning that in general only white men of property could vote).
112. Lani Guinier, Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice 256 (1998); Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries 3-4 (1984).
113. Lani Guinier, Lift Every Voice: Turning a Civil Rights Setback into a New Vision of Social Justice 256 (1998); Arend Lijphart, Democracies: Patterns of Majoritarian and Consensus Government in Twenty-One Countries 3-4 (1984).
114. Guinier, supra note 92, at 255. Guinier goes on to note that: Indeed, the reason so few congressional districts 'turn over,' meaning switch party affiliation, is that the districts are drawn consciously to collect like-minded voters into geographic units. Those who dissent, who support a different candidate, are free to vote. But their dissenting votes simply don't count. The outcome is stacked every ten years when the districts are drawn in light of new census figures. Id.
115. Labour, Liberal Democrats Agree British Constitutional Reform, Agence France Presse (France), Mar. 5, 1997, Int'l News Section.
116. Michael Clarke, Asdown Hail New Deal, Press Assoc. Ltd., Nov. 15 1998, Home New Section.
117. Toby Harnden, Blair's Secret Peace Plan for Ulster, Daily Telegraph (London), Jan. 10, 1998, at § 1 (describing plan for Northern Ireland Assembly to be elected by proportional representation);
118. Denis Campbell, When X Marks the Split, Herald (Glasgow), Oct. 29, 1998, at 8. In part of this column, Margaret Ewing argues for proportional representation and notes that it is being used for the Scottish Parliament, the Welsh Assembly, and the European Parliament.
119. Robert Shrimsley & George Jones, Cabinet Plan for Lords to Become Senate, Daily Telegraph (London), Jan. 20, 1999, at 1.
120. See Campbell, supra note 96 at 8.
121. Id. (noting that many thought Tony Blair could never "endorse moving over to a system which could see the loss of perhaps 80 Labour MPs").
122. Guinier, supra note 92, at 258.
123. See Lijphart, supra note 92, at 153.
124. See id. at 153-54.
125. See id. at 152 (Japan's single transferable vote system styled "semiproportional" representation).
126. Id. at 153.
127. Id. at 153-54.
128. Richard H. Pildes & Kristen A. Donoghue, Cumulative Voting in the United States, 1995 U. Chi. Legal F. 241, 260.
129. Id.
130. Guinier, supra note 92, at 258-61.
131. Id.
132. Douglas J. Amy, Real Choices/New Voices: The Case for Proportional Representation in the United States 51-53, 110-11 (1993).
133. Pildes & Donoghue, supra note 106, at 253.
134. Guinier, supra note 92, at 258, 264.
135. Id. at 266.
136. Id.
137. Id. at 268.
138. See id. at 264, 268 (noting, for example, that in New York City, while proportional representation was in place for the city council, there were more "energetic and public-spirited candidates" as well as more voters).
139. Id. at 254-55.
140. Id. at 264 (noting that in New York, proportional representation resulted in "new, able politicians; their diverse viewpoints enabled substantive and lively debate on public policy issues").
141. Id. at 266.
142. Id. at 264-65.
143. Id. at 265.
144. Id. at 266. It seems possible that some supporters of repeal might have had more political reasons.
145. Pildes & Donoghue, supra note 106, at 260.
146. Id. at 272-73.
147. Id. at 277-81.
148. Id. at 276.
149. Id. at 282-84. The authors of the study of the Chilton County experience "explored whether dislike of cumulative voting was a cover for resistance to minority political power," but "ultimately rejected this explanation." Id. at 283. People did appreciate the need for minority representation, but would have preferred other solutions, such as drawing majority-black districts, to avoid the unconstitutionality of cumulative voting. Id. at 283-84. Ironically, cumulative voting is "clearly constitutional," whereas the "setting aside of a seat for minority officeholders" is "blatantly unconstitutional." Id. at 283-84.
150. Id. at 282-84. The authors of the study of the Chilton County experience "explored whether dislike of cumulative voting was a cover for resistance to minority political power," but "ultimately rejected this explanation." Id. at 283. People did appreciate the need for minority representation, but would have preferred other solutions, such as drawing majority-black districts, to avoid the unconstitutionality of cumulative voting. Id. at 283-84. Ironically, cumulative voting is "clearly constitutional," whereas the "setting aside of a seat for minority officeholders" is "blatantly unconstitutional." Id. at 283-84.
151. Id. at 282-84. The authors of the study of the Chilton County experience "explored whether dislike of cumulative voting was a cover for resistance to minority political power," but "ultimately rejected this explanation." Id. at 283. People did appreciate the need for minority representation, but would have preferred other solutions, such as drawing majority-black districts, to avoid the unconstitutionality of cumulative voting. Id. at 283-84. Ironically, cumulative voting is "clearly constitutional," whereas the "setting aside of a seat for minority officeholders" is "blatantly unconstitutional." Id. at 283-84.
152. Id. at 282-84. The authors of the study of the Chilton County experience "explored whether dislike of cumulative voting was a cover for resistance to minority political power," but "ultimately rejected this explanation." Id. at 283. People did appreciate the need for minority representation, but would have preferred other solutions, such as drawing majority-black districts, to avoid the unconstitutionality of cumulative voting. Id. at 283-84. Ironically, cumulative voting is "clearly constitutional," whereas the "setting aside of a seat for minority officeholders" is "blatantly unconstitutional." Id. at 283-84.
153. Id. at 284-85.
154. See Lijphart, supra note 92, at 157; Guinier, supra note 92, at 263-69.
155. See Lijphart, supra note 92, at 157; Guinier, supra note 92, at 263-69.
156. Guinier, supra note 92, at 263, 268-69.
157. Id. at 268-69.
158. Id.
159. Id. at 268.
160. Id. at 269.
161. Id. at 251.
162. See Lijphart, supra note 92, at 157 . In Chilton County Alabama, cumulative voting in multi-member districts did not result in the election of extremists. Indeed, "some Chilton County observers believe cumulative actually tends to produce more centrist candidates-at least more centrist minority candidates-than the alternative of 'safe' minority districts." Pildes & Donoghue, supra note 106, at 292-93.
163. See Lijphart, supra note 92, at 157 . In Chilton County Alabama, cumulative voting in multi-member districts did not result in the election of extremists. Indeed, "some Chilton County observers believe cumulative actually tends to produce more centrist candidates-at least more centrist minority candidates-than the alternative of 'safe' minority districts." Pildes & Donoghue, supra note 106, at 292-93.
164. Pildes & Donoghue, supra note 106, at 292-93.
165. Rankings of the Inter-Parliamentary Union are current as of December 15, 2000 and include every country in the world (not all of which are included in the table in text, hence there is, for example, no entry with a rank of 6 in the table in text). Inter-Parliamentary Union, Women in National Parliaments, Dec. 15, 2000, at http://www.ipu.org/wmn-e/classif.htm [hereinafter Women in National Parliaments]. Although the Inter-Parliamentary Union's ranking data are used, numbers are not skipped when there is a tie. In the Inter-Parliamentary Union's rankings, if two countries tie for eleventh place, the next country is still ranked twelfth. In this table, the next-ranked country is ranked thirteenth, since there are twelve countries ranked ahead of it.
166. One party has a quota of twenty-five percent women, but "the necessary rules for its implementation have not been approved" and the quota has been only partly applied. Directorate of Human Rights, Women in Politics in the Council of Europe Member States, Oct. 1997, at http://www.dhdirhr.coe.fr/equality/Eng/women%20in %20politics.html [hereinafter Women in Politics in the Council of Europe].
167. Each party has either quotas or "a system of positive discrimination towards women candidates. The statues of one party stipulate that one of the vice-presidents must be a woman." Id.
168. One hundred seventy-seven countries are included in the ranking. Other countries higher than the United States are: Iceland; New Zealand; Mozambique; South Africa; Bosnia and Herzegovina; Venezuela; Cuba; Grenada; Argentina; Turkmenistan; Viet Nam; Namibia; Seychelles; Australia; Monaco; China; Lao People's Democratic Republic; Croatia; Democratic People's Republic of Korea; Costa Rica; Guyana; Uganda; Estonia; Lithuania; Rwanda; Botswana; Latvia; United Republic of Tanzania; Dominican Republic; Angola; Bahamas; Czech Republic; Tajikistan; Eritrea; Ecuador; Burundi; Slovakia; Jamaica; Saint Kitts and Nevis; San Marino; and Poland. Women in National Parliaments, supra note 138.
169. In Ireland, three of the six major parties have quotas, varying from 20-40%. Of the other three parties, "one party has adopted a Positive Action Programme to increase the participation of women, and another party has set a target of 40% to be reached by the year 2000." Women in Politics in the Council of Europe, supra note 139.
170. Liane Hansen, Women from Around the World Look for Ways to Increase Their Numbers in Elected Positions and Leadership Roles, Nat'l Pub. Radio, Weekend Edition, June 11, 2000 (Sweden); Rachel Giese, Voters Should Count on Women, Toronto Star, Apr. 27, 2000 (Germany and England).
171. Liane Hansen, Women from Around the World Look for Ways to Increase Their Numbers in Elected Positions and Leadership Roles, Nat'l Pub. Radio, Weekend Edition, June 11, 2000 (Sweden); Rachel Giese, Voters Should Count on Women, Toronto Star, Apr. 27, 2000 (Germany and England).
172. Hansen, supra note 143.
173. Jane Eisner, Women Win Clout, Miami Herald, Aug. 11, 2000, at 7B.
174. Data in this table is from European Database, Women in Decision-making, Results of the Election to the European Parliament, June 1999, at http://www.db-decision.de/FactSheets/EP-Results.htm (last modified Mar. 13, 2000).
175. Fourth World Conference on Women, Beijing Declaration and the Platform for Action (1996) (strategic objective G.181) at http://www.un.org/womenwatch/daw/ beijing/platform/decision.htm.
176. Id. (strategic objective G.189).
177. Id. (strategic objective G.186).
178. Id. (strategic objective G.1.190(b)).
179. Id. (strategic objective G.1.190(d)).
180. Id. (strategic objective G.l.190(j)).
181. 4th European Ministerial Conference on Equality Between Women and Men, Declaration on Equality Between Women and Men as a Fundamental Criterion of Democracy, Nov. 13-14, 1997, at http://www.humanrights.coe.int/equality/Eng/ Equality%20res.html.
182. Id.
183. Commission of the European Communities, Communication from the Commission to the Council, The European Parliament, The Economic and Social Committee and the Committee of the Regions: Towards a Community Framework Strategy on Gender Equality (2001-2005), June 7, 2000, at 2, 3, 7-9, available at http://www.europa.eu.int/comm/employment_social/equ_opp/news/arsenal_en.htm [hereinafter Community Framework Strategy]. The Commission is one of the major institutions of the European Union, with twenty members, each serving for a term of five years and with three distinct functions: initiator of proposals for legislation, guardian of the Treaties, and the manager and executor of Union policies and of international trade relations. See European Union, Role of the European Commission, at http://www.europa.eu.int/comm/role_en.htm (last modified Oct. 6, 1999); European Union, Institutions of the European Union, at http://www.europa.eu.int/inst-en.htm (last modified Feb. 2, 2001).
184. Commission of the European Communities, Communication from the Commission to the Council, The European Parliament, The Economic and Social Committee and the Committee of the Regions: Towards a Community Framework Strategy on Gender Equality (2001-2005), June 7, 2000, at 2, 3, 7-9, available at http://www.europa.eu.int/comm/employment_social/equ_opp/news/arsenal_en.htm [hereinafter Community Framework Strategy]. The Commission is one of the major institutions of the European Union, with twenty members, each serving for a term of five years and with three distinct functions: initiator of proposals for legislation, guardian of the Treaties, and the manager and executor of Union policies and of international trade relations. See European Union, Role of the European Commission, at http://www.europa.eu.int/comm/role_en.htm (last modified Oct. 6, 1999); European Union, Institutions of the European Union, at http://www.europa.eu.int/inst-en.htm (last modified Feb. 2, 2001).
185. Commission of the European Communities, Communication from the Commission to the Council, The European Parliament, The Economic and Social Committee and the Committee of the Regions: Towards a Community Framework Strategy on Gender Equality (2001-2005), June 7, 2000, at 2, 3, 7-9, available at http://www.europa.eu.int/comm/employment_social/equ_opp/news/arsenal_en.htm [hereinafter Community Framework Strategy]. The Commission is one of the major institutions of the European Union, with twenty members, each serving for a term of five years and with three distinct functions: initiator of proposals for legislation, guardian of the Treaties, and the manager and executor of Union policies and of international trade relations. See European Union, Role of the European Commission, at http://www.europa.eu.int/comm/role_en.htm (last modified Oct. 6, 1999); European Union, Institutions of the European Union, at http://www.europa.eu.int/inst-en.htm (last modified Feb. 2, 2001).
186. Community Framework Strategy, supra note 155, at 2.
187. Id.
188. Id. at 3.
189. Id. at 4.
190. Id. at 7.
191. Id. at 8.
192. See id. at 7-8.
193. 2 U.S.C. § 437c(a)(1) (1994).
194. 15 U.S.C. § 78d(a) (1994) (Securities and Exchange Commission); id. § 41 (1994) (Federal Trade Commission); and 7 U.S.C. § 4a(a)(1) (1994) (Commodity Futures Trading Commission).
195. 15 U.S.C. § 78d(a) (1994) (Securities and Exchange Commission); id. § 41 (1994) (Federal Trade Commission); and 7 U.S.C. § 4a(a)(1) (1994) (Commodity Futures Trading Commission).
196. 15 U.S.C. § 78d(a) (1994) (Securities and Exchange Commission); id. § 41 (1994) (Federal Trade Commission); and 7 U.S.C. § 4a(a)(1) (1994) (Commodity Futures Trading Commission).
197. 12 U.S.C. § 1812(a)(2) (1994).
198. Id. at § 1422a(b)(2)(A) (West Supp. 2000).
199. See Bachur v. Democratic Nat'l Party, 836 F.2d 837 (4th Cir. 1987) (upholding constitutionality of Maryland rules implementing policies of the national party requiring voters to cast an equal number of votes for women and men as delegates to the Democratic convention).
200. N.D. Cent. Code § 54-06-19 (1989).
201. Iowa Code Ann. § 69.16A (West 1999).
202. Mont. Code Ann. § 2-15-108 (1999).
203. Iowa Code Ann. § 46.4 (West 1999).
204. Robin West, Caring for Justice 22-93 (1997).
205. Id. at 69.
206. Id. at 72. See also Hugh LaFollette, Real Men, in Rethinking Masculinity: Philosophical Explorations in Light of Feminism 59 (Larry May & Robert A. Strikwerda eds., 1996) (arguing that women and men in intimate relationships should think in terms of needs and care rather than rights and equality).
207. Id. at 72. See also Hugh LaFollette, Real Men, in Rethinking Masculinity: Philosophical Explorations in Light of Feminism 59 (Larry May & Robert A. Strikwerda eds., 1996) (arguing that women and men in intimate relationships should think in terms of needs and care rather than rights and equality).
208. West, supra note 172, at 72.
209. Id.
210. Id.
211. See, e.g., Eva Feder Kittay, Love's Labor: Essays on Women, Equality, and Dependency 186-88 (1999); Mona Harrington, Care and Equality: Inventing a New Family Politics 44-60 (1999); Joan C. Tronto, Moral Boundaries: A Political Argument for an Ethic of Care 101-80 (1993); Michele M. Moody-Adams, The Social Construction and Reconstruction of Care, in Sex, Preference, and Family: Essays on Law and Nature 3 (David M. Estlund & Martha C. Nussbaum eds., 1997).
212. See, e.g., Eva Feder Kittay, Love's Labor: Essays on Women, Equality, and Dependency 186-88 (1999); Mona Harrington, Care and Equality: Inventing a New Family Politics 44-60 (1999); Joan C. Tronto, Moral Boundaries: A Political Argument for an Ethic of Care 101-80 (1993); Michele M. Moody-Adams, The Social Construction and Reconstruction of Care, in Sex, Preference, and Family: Essays on Law and Nature 3 (David M. Estlund & Martha C. Nussbaum eds., 1997).
213. See, e.g., Eva Feder Kittay, Love's Labor: Essays on Women, Equality, and Dependency 186-88 (1999); Mona Harrington, Care and Equality: Inventing a New Family Politics 44-60 (1999); Joan C. Tronto, Moral Boundaries: A Political Argument for an Ethic of Care 101-80 (1993); Michele M. Moody-Adams, The Social Construction and Reconstruction of Care, in Sex, Preference, and Family: Essays on Law and Nature 3 (David M. Estlund & Martha C. Nussbaum eds., 1997).
214. See, e.g., Eva Feder Kittay, Love's Labor: Essays on Women, Equality, and Dependency 186-88 (1999); Mona Harrington, Care and Equality: Inventing a New Family Politics 44-60 (1999); Joan C. Tronto, Moral Boundaries: A Political Argument for an Ethic of Care 101-80 (1993); Michele M. Moody-Adams, The Social Construction and Reconstruction of Care, in Sex, Preference, and Family: Essays on Law and Nature 3 (David M. Estlund & Martha C. Nussbaum eds., 1997).
215. Kittay, supra note 178, at 188.
216. Harrington, supra note 178, at 48-49.
217. Jerome Kagan, Three Seductive Ideas (1998).
218. Id. at 6.
219. Id. at 153.
220. Id.
221. Id. at 9.
222. Id. at 8-9, 173-75.
223. Id. at 186.
224. This view of what humans need is entirely consistent with that of Amartya Sen and Martha Nussbaum.
225. Amartya Sen, Development as Freedom 87 (1999).
226. Id.
227. Martha C. Nussbaum, Sex and Social Justice 41-42 (1999); see also Amartya Sen, Capability and Well Being, in The Quality of Life 30 (Martha Nussbaum & Amartya Sen eds., 1993) (describing and discussing meaning of capabilities).
228. Martha C. Nussbaum, Sex and Social Justice 41-42 (1999); see also Amartya Sen, Capability and Well Being, in The Quality of Life 30 (Martha Nussbaum & Amartya Sen eds., 1993) (describing and discussing meaning of capabilities).
229. Nussbaum, supra note 191, at 42.
230. Id.
231. See, e.g., Richard A. Easterlin, Will Raising the Incomes of All Increase the Happiness of All?, 27 J. Econ. Behav. & Org. 35, 37, 38, 41 (1995).
232. Id. at 38-39.
233. Richard M. Ryan et al., The American Dream in Russia: Extrinsic Aspirations and Well-Being in Two Cultures, 25 Personality & Soc. Psych. Bull. 1509, 1510 (1999).
234. Id.
235. Easterlin, supra note 194, at 41.
236. Kagan, supra note 181, at 175-76.
237. Sen, supra note 189, at 89.
238. Id.
239. Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (2000).
240. Id. at 287-349.
241. Steven Stack & J. Ross Eshleman, Marital Status and Happiness: A 17-Nation Study, 60 J. Marriage & Fam. 527, 532 (1998).
242. Putnam, supra note 202, at 296-318.
243. Kagan, supra note 181, at 149.
244. Id. at 147.
245. Id. at 177.
246. Id. at 5, 147, 177-78.
247. Id. at 146-47.
248. Guinier, supra note 92, at 256; Lijphart, supra note 92, at 3-4.
249. Amy, supra note 110, at 1.
250. Id.
251. See supra notes 93-99 and accompanying text.
252. Guinier, supra note 92, at 261.
253. On campaign finance reform in general, see Marlene Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Condition Doctrine, 10 Hastings Const. L.Q. 601, 603-05 (1983) (summarizing doctrinal debate about constitutionality of spending limits); Marlene Arnold Nicholson, Basic Principles or Theoretical Tangles: Analyzing the Constitutionality of Government Regulation of Campaign Finance, 38 Case W. Res. L. Rev. 589 (1988) (arguing for spending limits to ensure equality of opportunity in participating in politics and influencing political outcomes); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum. L. Rev. 609 (1982) (arguing for spending limits); J. Skelly Wright,
254. On campaign finance reform in general, see Marlene Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Condition Doctrine, 10 Hastings Const. L.Q. 601, 603-05 (1983) (summarizing doctrinal debate about constitutionality of spending limits); Marlene Arnold Nicholson, Basic Principles or Theoretical Tangles: Analyzing the Constitutionality of Government Regulation of Campaign Finance, 38 Case W. Res. L. Rev. 589 (1988) (arguing for spending limits to ensure equality of opportunity in participating in politics and influencing political outcomes); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum. L. Rev. 609 (1982) (arguing for spending limits); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976) (same); Harold Leventhal, Courts and Political Thickets, 11 Colum. L. Rev. 345 (1977) (same); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986) (arguing that "traditional" free speech analysis should not apply to campaign spending); Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994) (arguing for the constitutionality of spending limits in light of candidates' and incumbents' need to focus exorbitant amounts of time and energy on fund raising, a factor not considered by the Supreme Court in striking spending limits as unconstitutional in Buckley v. Valeo, 424 U.S. 1 (1976)).
255. On campaign finance reform in general, see Marlene Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Condition Doctrine, 10 Hastings Const. L.Q. 601, 603-05 (1983) (summarizing doctrinal debate about constitutionality of spending limits); Marlene Arnold Nicholson, Basic Principles or Theoretical Tangles: Analyzing the Constitutionality of Government Regulation of Campaign Finance, 38 Case W. Res. L. Rev. 589 (1988) (arguing for spending limits to ensure equality of opportunity in participating in politics and influencing political outcomes); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum. L. Rev. 609 (1982) (arguing for spending limits); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976) (same); Harold Leventhal, Courts and Political Thickets, 11 Colum. L. Rev. 345 (1977) (same); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986) (arguing that "traditional" free speech analysis should not apply to campaign spending); Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994) (arguing for the constitutionality of spending limits in light of candidates' and incumbents' need to focus exorbitant amounts of time and energy on fund raising, a factor not considered by the Supreme Court in striking spending limits as unconstitutional in Buckley v. Valeo, 424 U.S. 1 (1976)).
256. On campaign finance reform in general, see Marlene Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Condition Doctrine, 10 Hastings Const. L.Q. 601, 603-05 (1983) (summarizing doctrinal debate about constitutionality of spending limits); Marlene Arnold Nicholson, Basic Principles or Theoretical Tangles: Analyzing the Constitutionality of Government Regulation of Campaign Finance, 38 Case W. Res. L. Rev. 589 (1988) (arguing for spending limits to ensure equality of opportunity in participating in politics and influencing political outcomes); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum. L. Rev. 609 (1982) (arguing for spending limits); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976) (same); Harold Leventhal, Courts and Political Thickets, 11 Colum. L. Rev. 345 (1977) (same); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986) (arguing that "traditional" free speech analysis should not apply to campaign spending); Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994) (arguing for the constitutionality of spending limits in light of candidates' and incumbents' need to focus exorbitant amounts of time and energy on fund raising, a factor not considered by the Supreme Court in striking spending limits as unconstitutional in Buckley v. Valeo, 424 U.S. 1 (1976)).
257. On campaign finance reform in general, see Marlene Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Condition Doctrine, 10 Hastings Const. L.Q. 601, 603-05 (1983) (summarizing doctrinal debate about constitutionality of spending limits); Marlene Arnold Nicholson, Basic Principles or Theoretical Tangles: Analyzing the Constitutionality of Government Regulation of Campaign Finance, 38 Case W. Res. L. Rev. 589 (1988) (arguing for spending limits to ensure equality of opportunity in participating in politics and influencing political outcomes); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum. L. Rev. 609 (1982) (arguing for spending limits); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976) (same); Harold Leventhal, Courts and Political Thickets, 11 Colum. L. Rev. 345 (1977) (same); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986) (arguing that "traditional" free speech analysis should not apply to campaign spending); Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994) (arguing for the constitutionality of spending limits in light of candidates' and incumbents' need to focus exorbitant amounts of time and energy on fund raising, a factor not considered by the Supreme Court in striking spending limits as unconstitutional in Buckley v. Valeo, 424 U.S. 1 (1976)).
258. On campaign finance reform in general, see Marlene Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Condition Doctrine, 10 Hastings Const. L.Q. 601, 603-05 (1983) (summarizing doctrinal debate about constitutionality of spending limits); Marlene Arnold Nicholson, Basic Principles or Theoretical Tangles: Analyzing the Constitutionality of Government Regulation of Campaign Finance, 38 Case W. Res. L. Rev. 589 (1988) (arguing for spending limits to ensure equality of opportunity in participating in politics and influencing political outcomes); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum. L. Rev. 609 (1982) (arguing for spending limits); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976) (same); Harold Leventhal, Courts and Political Thickets, 11 Colum. L. Rev. 345 (1977) (same); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986) (arguing that "traditional" free speech analysis should not apply to campaign spending); Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994) (arguing for the constitutionality of spending limits in light of candidates' and incumbents' need to focus exorbitant amounts of time and energy on fund raising, a factor not considered by the Supreme Court in striking spending limits as unconstitutional in Buckley v. Valeo, 424 U.S. 1 (1976)).
259. On campaign finance reform in general, see Marlene Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Condition Doctrine, 10 Hastings Const. L.Q. 601, 603-05 (1983) (summarizing doctrinal debate about constitutionality of spending limits); Marlene Arnold Nicholson, Basic Principles or Theoretical Tangles: Analyzing the Constitutionality of Government Regulation of Campaign Finance, 38 Case W. Res. L. Rev. 589 (1988) (arguing for spending limits to ensure equality of opportunity in participating in politics and influencing political outcomes); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum. L. Rev. 609 (1982) (arguing for spending limits); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976) (same); Harold Leventhal, Courts and Political Thickets, 11 Colum. L. Rev. 345 (1977) (same); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986) (arguing that "traditional" free speech analysis should not apply to campaign spending); Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994) (arguing for the constitutionality of spending limits in light of candidates' and incumbents' need to focus exorbitant amounts of time and energy on fund raising, a factor not considered by the Supreme Court in striking spending limits as unconstitutional in Buckley v. Valeo, 424 U.S. 1 (1976)).
260. On campaign finance reform in general, see Marlene Nicholson, Political Campaign Expenditure Limitations and the Unconstitutional Condition Doctrine, 10 Hastings Const. L.Q. 601, 603-05 (1983) (summarizing doctrinal debate about constitutionality of spending limits); Marlene Arnold Nicholson, Basic Principles or Theoretical Tangles: Analyzing the Constitutionality of Government Regulation of Campaign Finance, 38 Case W. Res. L. Rev. 589 (1988) (arguing for spending limits to ensure equality of opportunity in participating in politics and influencing political outcomes); J. Skelly Wright, Money and the Pollution of Politics: Is the First Amendment an Obstacle to Political Equality?, 82 Colum. L. Rev. 609 (1982) (arguing for spending limits); J. Skelly Wright, Politics and the Constitution: Is Money Speech?, 85 Yale L.J. 1001 (1976) (same); Harold Leventhal, Courts and Political Thickets, 11 Colum. L. Rev. 345 (1977) (same); Owen M. Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405 (1986) (arguing that "traditional" free speech analysis should not apply to campaign spending); Vincent Blasi, Free Speech and the Widening Gyre of Fund-Raising: Why Campaign Spending Limits May Not Violate the First Amendment After All, 94 Colum. L. Rev. 1281 (1994) (arguing for the constitutionality of spending limits in light of candidates' and incumbents' need to focus exorbitant amounts of time and energy on fund raising, a factor not considered by the Supreme Court in striking spending limits as unconstitutional in Buckley v. Valeo, 424 U.S. 1 (1976)).
261. See Jane Rutherford, One Child, One Vote: Proxies for Parents, 82 Minn. L. Rev. 1463, 1495-1525 (1998) (noting that children cannot vote, nor can anyone else vote on their behalf today and arguing for giving parents proxies to vote for children); Sylvia Ann Hewlett & Cornel West, The War Against Parents: What We Can Do for America's Beleaguered Moms and Dads 240-41 (1998) (arguing that parents should have votes to cast on behalf of children). For a study reporting on the importance of parental status to parents when they vote, see Charney Research, The Parent Vote: Moms and Dads up for Grabs, Oct. 2000, available at http://www.parentsunite.org/ parentvote.pdf.
262. See Jane Rutherford, One Child, One Vote: Proxies for Parents, 82 Minn. L. Rev. 1463, 1495-1525 (1998) (noting that children cannot vote, nor can anyone else vote on their behalf today and arguing for giving parents proxies to vote for children); Sylvia Ann Hewlett & Cornel West, The War Against Parents: What We Can Do for America's Beleaguered Moms and Dads 240-41 (1998) (arguing that parents should have votes to cast on behalf of children). For a study reporting on the importance of parental status to parents when they vote, see Charney Research, The Parent Vote: Moms and Dads up for Grabs, Oct. 2000, available at http://www.parentsunite.org/ parentvote.pdf.
263. See Jane Rutherford, One Child, One Vote: Proxies for Parents, 82 Minn. L. Rev. 1463, 1495-1525 (1998) (noting that children cannot vote, nor can anyone else vote on their behalf today and arguing for giving parents proxies to vote for children); Sylvia Ann Hewlett & Cornel West, The War Against Parents: What We Can Do for America's Beleaguered Moms and Dads 240-41 (1998) (arguing that parents should have votes to cast on behalf of children). For a study reporting on the importance of parental status to parents when they vote, see Charney Research, The Parent Vote: Moms and Dads up for Grabs, Oct. 2000, available at http://www.parentsunite.org/ parentvote.pdf.
264. See Mary Becker, Patriarchy and Inequality: Towards a Substantive Feminism, 1999 U. Chi. Legal F. 21, 74-78 (describing details of the kinds of changes needed, in addition to proportional representation, to maximize voter participation rates).
265. 424 U.S. 1, 86 (1976).
266. See, e.g., United States v. Morrison, 529 U.S. 598, (2000) (holding unconstitutional a private cause of action provision of the Violence Against Women Act).
267. See, e.g., Bd. of Trustees of the Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001) (holding suits by state employees for money damages under Title I of the ADA barred by the Eleventh Amendment).
268. Roger Pinto, Comparison of the French and American Constitutions and Constitutional Law, 5 Tulane J. Int'l & Comp. L. 368, 372 (1997).
269. This right is modeled after a right in the French Constitution. The preamble to the French Constitution of October 27, 1946, incorporated into the current Constitution, includes the following: On the morrow of the victory achieved by the free peoples over the regimes that had sought to enslave and degrade humanity, the people of France proclaim anew that each human being, without distinction of race, religion or creed, possesses sacred and inalienable rights. They solemnly reaffirm the rights and freedoms of man and the citizen enshrined in the Declaration of Rights of 1789 and the fundamental principles acknowledged in the laws of the Republic. They further proclaim, as being especially necessary to our times, the political, economic and social principles enumerated below: The law guarantees women equal rights to those of men in all spheres. * * * * Each person has the duty to work and the right to employment. No person may suffer prejudice in his work or employment by virtue of his origins, opinions or beliefs. * * * * The Nation shall provide the individual and the family with the conditions necessary to their development. It shall guarantee to all, notably to children, mothers and elderly workers, protection of their health, material security, rest and leisure. All people who, by virtue of their age, physical or mental condition, or economic situation, are incapable of working, shall have the right to receive suitable means of existence from society. * * * * The Nation guarantees equal access for children and adults to instruction, vocational training and culture. The provision of free, public and secular education at all levels is a duty of the State. Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law 562-63 (1999).
270. For a view of what a progressive labor policy might look like-including limits on the number of hours employees at all levels can work and government supplements to low-wage workers wages, see Vicki Schultz, Life's Work, 100 Colum. L. Rev. 1881 (2000).
271. Mary Becker, The Sixties Shift to Formal Equality and the Courts: An Argument for Pragmatism and Politics, 40 Wm. & Mary L. Rev. 209, 264 (1998).
272. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966, art. 20(2), 999 U.N.T.S. 171, available at http://www.unhchr.ch/html/ menu3/b/a_ccpr.htm.
273. See supra Part I.B.1.
274. For a discussion of how such a system might operate, see Schultz, supra note 224.
275. John Nichols, Jesse Jackson, Jr.: A Different Vision, The Nation, Sept. 18, 2000 at 11.
276. Id.
277. Id.