Gender and constitutional design

When constitutional law expert Professor Helen Irving turned her attention to the literature of constitution making, she found a glaring omission – women.

Professor Helen Irving

Hardly any mention was made of women in the leading texts on constitutional design. As Professor Irving set out to identify the reasons for this scholarly neglect of gender in constitutional design, she came across a US case study that brought home the modern significance of this unwritten history.

"Despite the fact that under the 14th Amendment [to the US Constitution] there's a guarantee that if you are born in America you get citizenship, a law was passed in the 19th century that stripped American women who married non-American men of their citizenship," she explains.

"Americans I talked to didn’t know about this relatively recent [law]; they were quite shocked to hear from me that women had lost what they thought was constitutionally guaranteed citizenship," Professor Irving recalls.

"That example really startled me and made me wonder what constitutions can do to protect vulnerable people, in a very real way … and I was really struck to learn that the largest number of stateless people in the world, currently and in history, are women."

Primarily an Australian constitutional scholar until relatively recently, Professor Irving had always been conscious of US constitutional law – the US Constitution of 1787 being the first modern form of constitution. But her interest took on a new dimension when she was posted as a Visiting Professor at Harvard Law School, with the Harvard Chair of Australian Studies, between 2005 and 2006.

Upon her return to Australia she completed a book on gender and constitutional design and embarked on teaching a collaborative course in comparative US, Canadian and Australian constitutional law, by videoconference with a colleague at Penn State Law School.

“We taught by videoconference in real time with three classes in America, Canada and Sydney, with a split screen and the two professors interacting with the classes,” she says. “It was an immersion for me in the teaching of the comparative side of things, so this semester I’m teaching my own comparative Australian and US constitutional law course.”

In 2009 Professor Irving was awarded a four-year ARC Discovery Project grant to explore the comparative constitutional history of citizenship law and gender. Her research will cover five jurisdictions: Australia, the US, Canada, the UK and Ireland. Although the study may touch upon issues of race and other grounds of discrimination, Professor Irving will predominantly focus on the exploration of gender.

"I’m a fundamental feminist; I actually think that the experience of gender inequality transcends other forms of minority inequality or discrimination," she says.

"My guess is that a great deal of the material will be American, because they have such a rich history of constitutional legislative outcomes and equality jurisprudence … but surprisingly were not protective of women’s equality until quite recently."

As well as the lack of a gendered perspective in the literature on citizenship law, Professor Irving has identified the concept of allegiance as a silent but overarching theme in the framing of constitutional citizenship.

Her focus on allegiance will strike a nerve for many, as immigration and citizenship are perennial topics of debate in Australian politics.
“The normative and the legal come together with respect to tests of allegiance, so that’s a really interesting thing, because the common law of citizenship rests on tests of allegiance, and those tests still apply to the constitutional definition of citizenship in Australia today, with some paradoxical results."

"This is relevant to gender because the history of women's deprivation of citizenship depends on the idea that women cannot owe allegiance to the sovereign; they can only owe allegiance to their husband."

"So that idea of owing allegiance is critical to these renewed normative debates about citizenship, and it’s still relevant to the way in which women are seen – or not seen – as members of the constitutional community."

Despite the bleak picture painted by the history of women’s citizenship, Professor Irving says she is a resolutely ‘glass half-full’ person, and very much focused on the progress made rather than on the setbacks experienced along the way.

"I hate anachronisms, so I’m not going to go around tearing my hair out, saying, 'Wasn’t history terrible!'" she says. "You can’t berate history – you have to describe it and explain it in terms which allow one to think about progressive forms, standards and values."

Although currently immersed in the ARC project, Professor Irving is also highly engaged in the debate over a proposed Human Rights Act, writing papers and commenting in the media on both the constitutional and the equality implications of the proposed legislation. A self-described sceptic, she says the Al-Kateb case of 2004 (in which the High Court held that the indefinite detention of Ahmed Al-Kateb, a stateless man of Palestinian origin who had applied for a temporary protection visa in Australia, was lawful) has attracted wider attention to the issue of statelessness, but has funnelled that collective anxiety in the wrong direction.

"My concern is that there will in fact be a disadvantaging effect from putting a discourse about disadvantage and inequality in the form of [a] legally enforceable claim, so that people start to think about how to redress disadvantage only in terms of litigation,” she says.
“I find America fascinating, but one of the really disturbing things is how American people think about social disadvantage and inequalities of power and economics purely in terms of what you can assert in a legal argument. It’s an epistemological distortion of human experience."

However, she believes the democratic process provides a means for such issues to be addressed.

"The democratic political process, for all its faults – taking the long view through history – has really been the principal engine of progress."

by Laura MacIntyre

This piece was first published in the Sydney Law School Research Report