Matters of hierarchy, sexuality and democracy animate my constitutional concerns. While hierarchy is not usually acknowledged as central to constitutionalism, the constitution itself is a document that allocates power in hierarchal, or even anti-hierarchal balancing, fashions. Additionally, concepts of rights essentially invoke matters of hierarchy, whether it is the hierarchy between the state and the individual or group, or between individuals or groups with differing claims to rights.
“What are constitutions if not plans for gardens?”
The doctrines that develop to elaborate constitutional rights are hierarchal ones: rights of political expression are valued more highly than rights of sexual expression. Moreover, and more controversially, constitutional interpretation often involves a choice between maintaining hierarchy or dismantling hierarchy.
Sexuality itself is a controversial candidate for being central to constitutionalism. Yet constitutional quarrels in recent decades have highlighted issues of sexuality, sexual freedom, bodily autonomy, sex, and gender. With race, class, ethnicity, citizenship, disability, and all types of “diversity,” matters of our corporeal bodies – – – whether deemed “inherent” or “socially constructed” – – – are managed in our political body through constitutionalism.
Democracy is most readily recognizable as a concept at the heart of our constitution, although it does not appear in the text of the document. Nevertheless, democracy remains problematical whenever there is judicial review of acts passed pursuant to democratic processes. It is also disputable whenever the democratic franchise is partial, as before the Fifteenth Amendment (for black men), the Nineteenth Amendment (for all women), and presently for non-citizens as well as citizen inhabitants of territories, as well as when certain persons (such as prisoners or people convicted of felonies), or when there is defacto disenfranchisement.
In theorizing, litigating, and practicing constitutional law, the main goals should be an elimination of hierarchy (towards equality), a liberation of sexuality, and striving toward a genuine democracy.
adapted from Dressing Constitutionally