Law, Gender, and Injustice

A Legal History of U. S. Women

Joan Hoff

• Publisher: NYU Press
• Year: 1994
• ISBN:
  9780814744864
• Topic: Diritto
• Subtopic: Diritto di genere

In this widely acclaimed landmark study, Joan Hoff illustrates how women remain second- class citizens under the current legal system and questions whether the continued pursuit of equality based on a one-size-fits-all vision of traditional individual rights is really what will most improve conditions for women in America as they prepare for the twenty-first century. Concluding that equality based on liberal male ideology is no longer an adequate framework for improving women's legal status, Hoff's highly original and incisive volume calls for a demystification of legal doctrine and a reinterpretation of legal texts (including the Constitution) to create a feminist jurisprudence.

CHAPTER ONE
The Masculinity of U.S. Constitutionalism

During the bicentenary of the U.S. Constitution in 1987, an orgy of praise and pomp and circumstance celebrating “We the People” exploded under the watchful guidance of retired chief justice Warren Burger. Only a few isolated voices like that of former Texas congresswoman Barbara Jordan could be heard saying, “as grand as it sounds, it is not true.” Amid uncritical praise for the wisdom of the framers and their concept of equality, Justice Thurgood Marshall, in a bicentennial address on 6 May 1987, courageously pointed out that the government created by the U.S. Constitution “was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for individual freedoms and human rights, we hold fundamental today.”¹

To the degree that constitutional government has evolved to compensate for the Constitution’s original defects of exclusivity and inequality, the legal status of women also changed in the last two hundred years. Progress has been erratic and slow, in part because “We the People” did not include women or a majority of other Americans. These words from the preamble to the Constitution have no legally binding effect, yet the myth about their original inclusiveness persists. Contrary to conventional historical and legal wisdom, therefore, I do not think that major improvements in women’s legal status have occurred often, or always, in a progressively linear fashion. Instead, since the American Revolution the history of women is replete with examples of them obtaining too little, too late through the legal and legislative systems. This is why it is still necessary to reexamine the topic of women and the Constitution because women are still not in that hallowed document except for the 1920 suffrage amendment.

American women’s history and American legal history continue to be dominated by the broadest kind of political and theoretical liberalism reflecting binary views of reality. The most familiar dualisms include traditional Lockean power relationships: between public and private spheres; between the authority of the state and individual freedom; and between individual equality and group rights. Legal scholars have documented several trends in this basically liberal process from postrevolutionary judicial instrumentalism, to judicial formalism, to legal progressivism, to pragmatic instrumentalism and realism,² and now to the Critical Legal Studies movement (CLS),³ which has influenced most, but not all, of the contemporary radical feminist legal scholars attempting to go beyond the assumptions of all these previous schools of liberal legal interpretation.⁴

Even those liberal legal historians whose works include more than passing reference to, and concern for, women often reflect a basic conservatism from a feminist point of view because liberal legalism, according to Judith Shklar, has always embodied a

dislike of vague generalities, the preference for case by case treatment to all social issues, the structuring of all possible human relations into the form of claims and counterclaims under established rules and belief that rules are there. . . . As law serves ideally to promote the security of established expectations, so legalism with its concentration on specific cases and rules is, essentially conservative. . . . [it] is no mask for anything. It is an openly, intrinsically, and quite specifically conservative view because law is itself a conservatizing idea. In its epitome, the judicial ethos, it becomes clear that this is the conservatism of consensus. It relies on what appears already to have been established and accepted. . . . For the judiciary to remain uncontroversial is the mark of neutral impartiality. Adjustment is therefore its natural policy, whenever possible.⁵

If legal discourse is a rationale for patriarchy, then the very texts of the law cannot help but reflect that same male-dominated reality. The “very structure of the assumptions underpinning liberalism,” according to Isabel Marcus, “is a manifestation of a gendered social construction of reality.” This simple assertion is essential for understanding why liberal historicity and liberal legalism have until recently ignored the experiences of women or assumed they were identical with those of men. Consequently, until the emergence of the new legal history and the new social history movements of the 1960s, the “view of the law [and history] as highly political [and gendered] in itself” was uncommon, as critical legal studies advocates have noted. This helps explain why legal procedures and legal documents have so easily been utilized to deny women (and minorities) full rights of citizenship during most of U.S. history by simply declaring that the issues raised in their charges of discrimination are not cognizable or within the jurisdiction of the law.⁶ For example, the eighteenth- and nineteenth-century courts routinely denied married women ownership and contractual, dispositional, professional, and civil rights with lengthy discourses about their lack of legal personality or legal existence separate from that of their husbands.

Such legal texts do not simply exist to communicate the order of power relationships in society. Additionally, they turn patriarchy and liberal legalism normative into immutable “myths” or functional “givens.” Hence, such documents have been (and remain) problematic symbols for both women and minorities. Like all other patriarchal legal texts, the Constitution possesses potential for both oppressing and liberating all those disadvantaged persons and segments of society who were not represented at (or in) its creation. This is also a basic feature of most liberal legal texts: they engender “contradictory feelings of [both] oppression and liberation” in disadvantaged groups, such as women, because they assist in the construction of legal discourses that define the parameters of both sides of the argument, thus permitting discussion but not questioning of the basic premises of liberal legalism. Along with other patriarchal legal texts over the last two hundred years, the Constitution has been not only legitimized in the minds of an increasing number of Americans but also has been mystified, especially for those groups for whom it has not always been a benevolent juridical authority. This reifying process has taken place largely through the creation of a maze of “legalistic mechanisms of authoritative texts” that serve to enforce the socioeconomic and political hierarchy of any particular time period.⁷ Thus, legal documents and legal discourse become self-fulfilling in that they legitimate and mystify themselves along with the powers of the state.

Because most individual men remain more societally sovereign than most individual women, this line of feminist legal argument asserts that male freedoms under various liberal forms of patriarchy were first primarily dependent upon the socioeconomic inequality (dominance) of women and that they now continue to be dependent upon the sexual and psychological inequality of women. Only “feminists take women’s humanity seriously,” according to Robin West, “jurisprudence does not, because the law does not.” Such an assertion leads to the conclusion that women’s freedom (and the creation of a feminist jurisprudence) can only come at the expense of the two sovereigns women have served for so long, that is, various hegemonic (and still masculinist) forms of state power and widely dispersed individual male power.⁸

In this sense, the Constitution is not only the legal text of patriarchy but also has increasingly become the legal text of prevailing sexual mores because so many of the most controversial interpretative constitutional issues today involving women’s legal status are related to sexuality. Here I refer to such issues as evidence admissible in rape cases, pornography, prostitution, abortion, surrogate motherhood, and pregnancy disability. Even when Congress began a much-belated discussion of child care in the last half of the 1980s, the statutory debate turned into a “working women’s” issue, premised largely on unstated assumptions about the primacy of female responsibility for all offspring produced by human sexual activity.

The process of mystifying the Constitution and making it the guardian of sexuality, promoted by the existence of complex juridical procedures and promises of the good life, has led women and minorities to have contradictory and ambivalent feelings about it and other legal texts. The “price” such groups have had to pay for past and present inclusion in these texts has been an assimilationist brand of equality based on white, male standards—whether they be those of the Founding Fathers or those of contemporary white males. The questions raised by the last twenty years of successfully pursuing “unisex” parity with men, based on “one-size” sameness or assimilation, has led radical feminists to unravel the way in which other gendered legal and political texts have contributed to the Constitution’s mystification and subtle role in “legitimizing” the socioeconomic and political system. The result has been a linguistic and metaphorical level of analysis that redefines legal and political terms from a female, rather than male, point of view.

Many other feminist authors,⁹ for example, have already detailed the androcentric, misogynistic, and heterosexual qualities of liberalism present in the political theories of John Locke and Jean-Jacques Rousseau. I will build upon, but not reiterate, them here except to note that I agree with Carole Pateman that when Locke offered the social contract as a substitute for the classic patriarchal theories of Sir Robert Filmer, he did not intend or expect contractualism to benefit women. Instead, in denying Filmer’s assertion that male procreative power was the origin of political power, Locke did not refute masculinist notions about political rights. Instead, he separated paternal power from political power, relegating the former to a status outside the boundaries of civil society and politics.

In other words, the liberal Lockean civil state reflected traditional sexual divisions of society more subtly and insidiously than had been the case with conservative patriarchalists of the seventeenth century. Moreover, both were “fraternal” systems based on the sexist assumption that only male children would mature into independent adults capable of exercising individual political power in the public sphere. Despite “the emancipatory potential of contract doctrine,” it contained a basic gendered contradiction—namely, that all men but not all women were born equal, and, hence, only men were capable of giving their consent to be governed. Mary Astell, Mary Wollstonecraft, Harriet Martineau, and other isolated feminist critics of the seventeenth and eighteenth centuries pointed out the speciousness of this assumption, but their voices were drowned out by a chorus of fraternal contractualism that continues in subtly disguised ways to echo in academic and political settings across this country. Thus, Locke (and most liberal contractualists since him) simply ignored the private conjugal contract that accepted the subordination of women as “natural” and “nonpolitical.”¹⁰

It has taken two hundred years for women in the United States to overcome their unequal public political status under Lockean contract theory. They still have not overcome their private subordination under liberal contractualism. To the degree that male freedoms under modern liberalism remain dependent upon the sexual and psychological inequality of women, and as long as the basic freedom of speech is still primarily a male monopoly, women will not experience full equality or parity under the law. Unless such remaining conservative and sexist constraints from past and present liberal legalism are recognized and changed, it will be impossible to transcend either the male language or male standards by which progress in the historical and legal status of women continues to be judged. While many of the lingering legal restrictions on women have been exposed and remedied in the last twenty-five years, many remain to be ameliorated. Progress should not be confused with cooptation.

Women are discovering that a “raised” consciousness about equal treatment and liberation is quite different from having a “changed” consciousness about equitable treatment and emancipation when it comes not only to analyzing court decisions but also to understanding women’s perceptions of themselves and their needs in any particular time period. Such terms as equality, progress, liberation, equity, justice, happiness, and emancipation have yet to be redefined by women for women, based on their actual, as opposed to prescribed, constitutional and historical experiences. In essence, therefore, women can only be emancipated when they are finally accorded equity—justice—not simply equality under the law, although equality is a precondition for equitable justice.¹¹

Needless to say, traditional historical studies based on liberal legalism do not usually make these essential semantic distinctions. Several acclaimed histories of constitutionalism published in connection with the bicentennial, for example, contain few references to women in their indexes, let alone their texts, confirming the continued marginality of half of the U.S. population in the minds of major scholars in this field.¹² Little wonder that there have been increasing incidents of conflict and disagreements between radical legal feminists and civil libertarians in the 1980s. Many of these differences are, like the issue of pornography, related to sexuality, such as prostitution, battery, abortion, surrogate motherhood, sexual harassment, and evidence admissible in rape trials. This should not come as a surprise because civil libertarians and socialist feminists obdurately refuse to admit that these sexual issues are “central to women’s survival,” continuing to insist that feminism is simply “a traditional civil liberties quest for constitutional and legislative equality.” Thus, they argue that since the middle of the nineteenth century, the term women’s rights has simply meant “the equality of women with men,” often ignoring issues of sexuality altogether.¹³

Equating women’s rights and civil rights symbolizes the degree to which the liberal state has utilized the law to institutionalize male power relationships without considering alternatives based on female concepts of justice and morality that could lead to a feminist jurisprudence.¹⁴ While feminism in the United States has historically overlapped on occasion with the goals of liberal legalism, its most radical and comprehensive forms since 1848 have always gone beyond the male model of civil libertarianism in its quest to transform society’s attitudes and treatment of women. And this is why in the twentieth century, more and more of these transformational issues dividing mainstream liberal/socialist and radical feminists focus on sexuality—an issue which in its many complex manifestations does not lend itself to standard case-law solutions based on fixed binary oppositions, mainstream politics, or socioeconomic class analysis.

In particular, radical feminist lawyers are reevaluating the rapidly changing legal status of women between 1963 and 1990. Most of these improvements were based on traditional views of progress, which stress women’s obtaining the same rights as men. Instead, radical feminists are positing female, rather than male, standards for progress and justice. Ideas about relational, nonadversarial concepts of morality and equitable justice, rather than strict adherence to rule of law in the name of masculine notions about legal neutrality and objectivity, constitute some of the nontraditional legal views that stand the very essence of liberal legalism on its head. Consequently, the ERA, which is based on traditional equality with men, may not remain the epitome of legal stature for women in the last years of the twentieth century that it was for many between 1923 and 1982, since it was first introduced as an amendment to the Constitution and finally failed to achieve ratification at the state level. To better understand the potential importance of such a shift in emphasis from equality to equity and from individualism to interconnectedness, I have posed the following legal and historical questions and suggested answers here and in subsequent chapters.

Why Are Some More Equal Than Others?

The subject of equality often brings to mind George Orwell’s Animal Farm, in which all the animals were declared to be equal but some, notably the pigs, were more equal than all the others. And, indeed, this fictionalized and cynical version of equality is not that far from reality when one takes a hard look at the application of equality—as opposed to the theories about equality—in most contemporary industrialized nations, regardless of their political economies. The reason that the reality of equality usually differs so markedly from its theoretical constructs in any historical period stems from the fact that, at best, equality remains an elusive concept despite all that has been written about it.

The basic problem with equality is that, unlike liberty, it is a divisible concept. The origins of this divisibility and, hence, elusiveness vary from country to country; but in the United States, at least, unequal status among individuals and groups goes back to the colonial period when the majority of whites enjoyed liberty without equality or power. Following the American Revolution, and continuing throughout the nineteenth and into the early twentieth centuries, more and more white males were accorded equality and some access to power far outstripping that of white women. At the same time African-Americans, other racial minority groups, and many immigrant or ethnic groups were just beginning to experience liberty without being accorded equality or power. Gradually, however, in the course of the twentieth century many individual members of these groups were granted limited equality, but this usually did not result, especially in the case of women and African-Americans, in their exercise of any meaningful individual (or collective) political or economic power until the last quarter of the twentieth century.

It has always been possible in the United States, therefore, to have liberty without having either equality or power. It is even pos...