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There are endless ways to interpret a constitution and endless debates about how to do it, but originalism, without a doubt, is the current star of the show. The literature on the subject is expanding by the minute, particularly in its birthplace, the United States, and there’s no sign that contributors are running out of things to say. This proliferation is curious (from the perspective of the future, it will probably be seen, for what it is - a proxy for other types of political debate).

But I noticed something else, when checking out the website of San Diego Law School’s ‘Center for the Study of Constitutional Originalism’: something that made me even more curious. Not a single woman appears on the Center’s upcoming ‘Work-in-Progress’ conference program ( Seven men will be speaking; seven men will be commenting. The Center’s 2012 conference featured eight speakers and six commentators; one speaker alone was a woman. I turned to other recent works. The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge UP, 2011), edited by Grant Huscroft and Bradley W. Miller, has twelve chapters, all by men. The Illinois Law Review 2012 symposium on Jack Balkin’s Living Originalism (Harvard UP, 2011) has nine contributors, only one a woman. More than fifty Legaltrac-recorded articles in the last two years with the word ‘Originalism’ in the title, and only one by a woman. Of the 141 footnotes in my own forthcoming Federal Law Review article, ‘Constitutional Interpretation, the High Court, and the Discipline of History’, only three references on constitutional interpretation are by women, and none recent. That there are ‘Big Names’ - all men - also cannot go unobserved. Several appear and re-appear: in the conferences, the collections, the symposia, the publications.

These are rough measures, for sure, but there can be no doubt that the topic, while not exclusive to men (I know there are exceptions), is massively male dominated. Why is this? Is it simply about raw numbers and ratios? There are, it appears, more male than female constitutional law professors in the U.S. than in Australia (this may bear some relationship to the greater prestige of U.S. constitutional law in the legal-academic hierarchy). But, the sub-set of originalists is too small for this to count, and besides, participants in the conferences and publications come from various countries. I have written elsewhere about the absence of women as a subject in studies of constitutional design (, but this paucity of female scholars still surprised me. What is it about debates over constitutional interpretation, and originalism in particular, that so appeals to men? This is hard to answer without recourse to stereotypes.

Originalism almost always concerns old constitutions. It is, essentially, about the authority of the ‘founding fathers’ (that extraordinary group of men who, agamogenetically, it seems, ‘gave birth’ to a constitution). In Canada, where ‘living constitutionalism’ appears to have triumphed and originalism has few defenders, the Constitution (at least its jurisprudentially interesting part) is only thirty years old. Women played a part in its framing, but its original gender equality commitments are, it seems, more assertively defended by a ‘living’ methodology than by originalism. Women also played a part in the emergence of the U.S. and Australian Constitutions, but, unsurprisingly for the 18th and 19th centuries, this was mostly indirect and informal. There are no explicit gender equality commitments in either Constitution (the U.S. 19th Amendment concerns voting rights alone, and was not the work of the 'founding fathers'). Perhaps this makes the field of originalist interpretation a fallow one for American and Australian women. But that doesn’t explain why women are not engaging in the debate - why they are not writing about, or questioning, the hermeneutic relevance of this history.*

Perhaps men simply like the idea of godlike ‘fathers’. Perhaps they find the example of successful men in history particularly inspirational. Or perhaps they dream of taking the 'fathers' ' place. But, again, this doesn’t explain why women don't challenge these claims to authority. Nor does it explain why some of the most energetic originalist debates concern the historical text (Justice Scalia, for example, claims to have no interest in the persons who wrote the American Constitution).

Perhaps the ‘problem’ is the fact that the benches of constitutional courts were, until recently, exclusively occupied by men, and the canon of constitutional jurisprudence does not yet routinely feature women’s judgments. The field, in short, is associated with men, and remains to be ‘de-gendered’. Most likely, it is a combination of all of the above: the prestige of constitutional law; the appeal of masculine authority; the myth of the 'fathers'; the dominance of a handful of ‘Big’ (and exceptionally assertive) masculine names.

These days, there is no shortage of women law students, or women lawyers, or women judges. Perhaps it's just a matter of time and, as with all self-referential and insular communities, outsiders will eventually break down the walls. But, to do so, they have to get in. Astonishing is the apparent failure of editors and organisers to notice the gender-imbalance in their work and to do something about it before things are finalised. In Australia, at least, it is hard to imagine a law conference of any kind that featured only men. Someone, somewhere, at the organising committee stage would have drawn attention to the gap, and suggested a woman commentator, at the least. The idea of men - in 2013 - talking to men about the historical authority of men is almost a parody. Or, one would hope.

* Of course, there is a substantial body of feminist literature on constitutional jurisprudence and particular cases, in the U.S. at least. I discuss this in my book, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (Cambridge UP, 2008), and in subsequent pieces. But debates about constitutional interpretation, as such, and in particular about the founders' 'intentions' go on in a different domain.