Second-wave feminism was key to subverting the head-and-master regime, and constitutional sex equality provisions gave birth to an inclusive gender constitutionalism, which, by overcoming family exceptionalism, affirmed the need to produce gender-neutral legal orders and to suppress marital-status discrimination. Two variants of the inclusive paradigm were shaped: one, prevalent in the United States and with a focus on combatting gender stereotypes that limited women’s market options (assimilationist workerism), and another one (maternalist accommodationism), better suited for constitutional regimes combining sex equality with motherhood/family protection mandates and seeking not only to allow but also to accommodate women’s pregnancy and motherhood-related needs. In confronting women’s claims to reproductive autonomy, constitutional orders had to rely on constitutional interpretations and gave way to radically different constitutional architectures around abortion, with the right to abortion (based on privacy) appearing in one tradition (as exemplified in US constitutionalism) and the duty of motherhood (based on the protection owed to the fetus) being affirmed in the other (as exemplified in German constitutionalism).

The first constitutionalism was a gender exclusionary constitutionalism, which simply took a foundational gendered political order for granted, drawing from Enlightenment theories prevalent at the time. This chapter explains how the marital contract and the separate spheres tradition excluded women from the realm of equal citizenship rights despite constitutional appeals to the notion of equality. It shows how women were active in revolutionary moments and also seized to intervene in constitution-making from the very start and to advance various causes (e.g., temperance, female suffrage, abolitionism). The chapter then proceeds to show how women eventually conquered voting rights and the recognition of constitutional sex equality, along with provisions protecting motherhood and the family, first during interwar constitutionalism and then in post–World War II constitutionalism, and shows how none of this was sufficient to tackle the legacy of the separate spheres tradition, especially given the cultural hegemony of the breadwinner family model in the postwar years.

After World War II, the language of constituent power was taken up by constitutionalists Constantino Mortati, Georges Vedel and Ernst-Wolfgang Böckenförde to advocate for popular participation in government. They accused contemporary positivist theories of sovereignty of downplaying the principle of popular power in favour of a purely legal approach to the study of legislation. This, they claimed, had the effect of undermining popular participation in politics and needed to be contrasted by adopting a different approach to the study of the state and its foundations. The language of constituent power offered precisely that, as it brought the role of the people back at the centre of constitutional theory. It indeed indicated the power of the people to establish the fundamental ‘political ideal’ at the origins of the legal political system. This power would not disappear once the constitution entered into force but would remain present alongside the ordinary working of the constitutional system. In addition, Böckenförde, Mortati and Vedel aimed to limit the scope of representation and favoured instances of direct exercise of power by the people instead. They thus promoted practices of direct or semi-direct democracy, such as referenda and constitutional revisions, decentralised and federal structures of power.