California Lawyers Association
From Parchment to People: Why Inclusive Constitutionalism Matters Today
By Faith Whatley-Blaine
“[The Constitution is] dead, dead, dead.”1
This is a lie. This quote stems from the perspective that constitutional interpretation is constrained to the meaning of the text at the time of signing and cannot evolve or change.2 But the Constitution was never intended to be a static artifact, bound to the narrow worldviews of the few socially powerful men who put quill to parchment. It was not written to serve a single moment in history or a single kind of citizen, but to guide a nation across centuries.3 It was crafted with the understanding that future generations—diverse in background, belief, and circumstance—would interpret and reshape its meaning. The Constitution lives because “we the people” breathe life into it, through debate, through activism, through law.4 In doing so, we honor its true purpose: to serve all people.
The creation of constitutional amendments is one of the most persuasive pieces of evidence of the Constitution’s built-in flexibility and enduring relevance. The framers recognized that the nation would evolve in ways they could not predict, which is why they included Article V.5 Article V outlines the process for amending the document, signaling the framers’ intent for the Constitution to grow and adapt alongside the changing needs of society.6 This process has enabled the legislature to respond to profound societal transformations, such as the adoption of the 14th Amendment, which fundamentally redefined citizenship in the aftermath of the Civil War.7 But for such amendments to fulfill their transformative potential, they must be interpreted through a lens that reflects the full diversity of the people they aim to protect, demanding a framework of inclusive constitutionalism.8 But for the Constitution to truly serve all people, the legal profession must reflect their diversity, ensuring its promises are interpreted in ways that are both meaningful and just.9 A diverse and inclusive bar is essential to this framework, as it ensures that the legal interpretations and applications of these amendments are informed by a broad range of lived experiences and perspectives.
Inclusive constitutionalism is the idea that the Constitution should be interpreted and applied in ways that reflect the full diversity of the people it governs—including those of different race, gender identity, sexuality, disability, socioeconomic background, or identity.10 It recognizes that justice cannot be truly achieved when the law is shaped and administered through a narrow lens. Instead, the Constitution must be a living promise to all people, not just those historically centered in its creation. This vision of constitutionalism demands a legal system led by individuals who bring a range of lived experiences and perspectives to the table. A diverse representation of lawyers is essential to this mission, not just for representation’s sake, but because a broader spectrum of voices leads to more just and equitable interpretations of the law.11
When constitutionalism is not inclusive, the law reflects only the interpretive frameworks of those who have historically held power, thus creating a form of hermeneutical injustice. Hermeneutical injustice occurs when an individual or group has a gap in collective interpretive resources, meaning they lack the knowledge, concepts, or language to properly understand and communicate their experiences.12 This type of injustice disproportionately affects marginalized groups, who are often excluded from the dominant culture’s structures and systems which typically fail to adequately capture or represent their experiences. Even the protections promised by the 14th Amendment can become hollow if the law lacks the capacity to recognize the specific and systemic harms these communities face. Without diversity in the legal field, the law risks becoming blind to the injustices it was meant to correct.
The failure to cultivate a diverse bar contributes directly to hermeneutical injustice. Their experiences may not ‘fit’ into the prevailing legal categories, and thus go unrecognized or unremedied. One of the first contexts the term hermeneutical injustice was applied to was sexual harassment towards women in the workplace. Philosopher Miranda Fricker, who coined the term hermeneutical justice, describes the experience of Carmita Wood the “central case” of this concept.13 Wood was an administrative assistant who frequently faced sexual harassment at the hands of her boss. Despite the horrendous harassment she faced, there was no national conversation nor legal framework in place to address the treatment, support her claims, or validate her suffering.14 Fortunately, Wood connected with journalist Lin Farley who recognized a disturbing pattern of women being driven from their jobs due to similar treatment. In 1975, they helped create the Working Women United group which spoke to media, feminist organizations, and campuses to bring these experiences to light. This activism led to the coining of the term “sexual harassment” which filled a crucial gap in collective understanding.15 By naming the experience, they enabled it to be recognized by the dominant, patriarchal culture and began to rectify the hermeneutical injustice faced by women in the workplace.
Just as the term “sexual harassment” had to be coined for women like Carmita Wood to have their suffering acknowledged, so too must constitutional law evolve to reflect the specific harms faced by marginalized groups. When courts and lawmakers ignore the social and historical contexts that shape how individuals experience injustice—such as racism, sexism, or classism— they risk reinforcing hermeneutical injustice by rendering certain harms legally invisible. In this sense, the Constitution’s broad guarantees of liberty and equality fall short unless they are interpreted through a lens that accounts for these intersecting identities. Without this, those most vulnerable remain unprotected by the very laws meant to serve them, and the ideals of fairness and justice remain the privilege of the few rather than the right of all. This underscores why a legal profession that includes people who understand those lived realities is not optional— it is foundational to a fair and effective justice system. 16
The modern #MeToo movement illustrates how societal understanding of sexual harassment has continued to evolve—and with it, the urgent need for constitutional and legal interpretations to keep pace.17 What began as individual stories shared on social media quickly became a global reckoning with entrenched cultures of abuse and silence across industries. Like the efforts of Carmita Wood and Working Women United decades earlier, #MeToo exposed how many experiences still fall outside legal protection, especially for low-wage workers, women of color, LGBTQ+ individuals, and others whose voices are often marginalized.18 These stories revealed not only persistent gaps in workplace protections but also the limitations of legal definitions shaped by dominant norms. To remain relevant and equitable, constitutional principles must evolve alongside these social shifts. Inclusive constitutionalism demands that the law not only respond to newly articulated harms but also recognize how power and identity shape whose suffering is legible to the legal system. Achieving this goal requires a legal community that mirrors the society it serves. A homogenous legal profession cannot meaningfully engage with the full complexity of identity, inequality, and injustice. The legitimacy of constitutional justice depends on its ability to adapt—to hear new voices, to name new injustices, and to ensure that all people, not just the privileged, are fully protected under its promises.19
The Constitution’s promise of liberty and justice can only be fulfilled when the legal profession truly reflects the diverse society it serves. Without diverse perspectives at the table, the law risks interpreting these injustices as isolated incidents rather than systemic, continuous injustices. Inclusive constitutionalism demands that we confront the Constitution not only as a historical document but as a living framework that must answer to the realities of all people it governs. By welcoming and empowering voices from every background, especially those historically marginalized, we ensure that the Constitution continues to evolve toward a more just and equitable future.20 A diverse and inclusive bar is not just a moral or symbolic imperative—it is a practical necessity for upholding the rule of law, promoting justice, and ensuring equal protection under the Constitution. This is not only the path to honoring the framers’ vision of progress but a necessary foundation for a legal system that serves all, today and for generations to come.
1 See e.g., Jonathan Easley, Scalia: Constitution Is ‘Dead, Dead, Dead,’ The Hill (Jan. 29, 2013) https://thehill.com/blogs/blog-briefing-room/news/140572-scalia-constitution-is-dead-dead-dead/.
2 Steven G. Calabresi, On Originalism in Constitutional Interpretation, National Constitution Center (last visited Jul. 15, 2025) https://constitutioncenter.org/the-constitution/white-papers/on-originalism-in-constitutional- interpretation.
3 Madiba K. Dennie, The Originalism Trap (Random House 2014).
4 Lindsey Welfley, An Inclusive Interpretation of The Constitution, Idaho State Bar (Jun. 5, 2019) https://isb.idaho.gov/blog/an-inclusive-interpretation-of-the-constitution/ (“The first three words denote the genesis of power in the people, not the local, state, or federal government, and they illustrate that the government serves the people, not the other way around”).
5 U.S. Const. amend
6 Id.
7 § 1:432. Enforcement of Fourteenth Amendment as affecting state’s sovereign immunity, 1 Fed. Proc., L. Ed. §1:432.
8 See Lenora M. Lapidus, Ruth Bader Ginsburg and the Development of Gender Equality Jurisprudence Under the Fourteenth Amendment, 43 Harbinger 149, 154 (2019).
9 See Madiba K. Dennie, Keynote Address: The Future of Constitutional Interpretation, 69 ST. LOUIS U. L.J. (2025).
10 Dennie, supra note 3.
11 See Phyllis D. Thompson, Focus on Diversity: Why Diversity Must Matter to the Bar Admissions Cmty., 89 The Bar Examiner, 65-67 (2020).
12 Genevieve A Chornenki, Hermeneutical Injustice—A Fancy Term for Just Plain Wrong, ADR Institute of Canada (last visited Jun. 7, 2025) https://adric.ca/hermeneutical-injustice-a-fancy-term-for-just-plain-wrong/.
13 Franco Palazzi, Epistemic Injustice and #MeToo: Some Initial Remarks, Berkeley J. of Socio. (Sep. 28, 2018) https://berkeleyjournal.org/2018/09/28/epistemic-injustice-and-metoo-some-initial-remarks/.
14 Nina Renata Aron, Groping in the Ivy League Led to the First Sexual Harassment Suit—and Nothing Happened to the Man, Medium (Oct. 20, 2017) https://medium.com/timeline/carmita-wood-sexual-harrassment-f2c537a0e1e8.
15 Erin Blakemore, Until 1975, ‘Sexual Harassment’ Was the Menace With No Name, History (last updated May 27, 2025) https://www.history.com/articles/until-1975-sexual-harassment-was-the-menace-with-no-name.
16 Ruth Rubio-Marín, On Constitutionalism & Women’s Citizenship, 74 Current Legal Problems, 74, 361-402 (2021).
17 Anna E. Jaffe, Ian Cero & David DiLillo, The #MeToo Movement & Perceptions of Sexual Assault: College Students’ Recognition of Sexual Assault Experiences Over Time, 2 Psychological Violence, 209-218 (2021).
18 See Megan Stubbs-Richardson, Shelby Gilbreath, Mackenzie Paul & Audrey Reid, It’s a Global #MeToo: A Cross- National Comparison of Social Change Associated With The Movement, 6 Feminist Media Studies, 1330-349 (2023); Ro’ee Levy & Martin Mattsson, The Effects of Social Movements: Evidence From #MeToo, (Jul. 12, 2022) available at https://tobin.yale.edu/sites/default/files/2023- 02/The%20Effects%20of%20Social%20Movements_%20Evidence%20from%20%23MeToo.pdf.
19 Jay Schweikert, Professional Diversity Is Essential For The Supreme Court to Enforce the Const., CATO Inst. (Mar. 21, 2022, 2:13 PM) https://www.cato.org/blog/professional-diversity-essential-supreme-court-enforce- constitution.
20 See James Carlos McFall, Trey McDonald & Miguel Ortiz, Race, Diversity, Inclusion, & the Media Bar: Will the Nat’l Conversation on Race, Diversity, & Inclusion Bring About Meaningful, Lasting Change Within Our Bar?, American Bar Association (Jan. 22, 2021) https://www.americanbar.org/groups/communications_law/publications/communications_lawyer/fall2020/race- diversity-inclusion-and-media-bar/.