After Misogyny: A Response to the Contributors

Guest Blogger

For the Balkinization symposium on Julie Suk, After Misogyny: How the Law Fails Women and What to Do about It (University of California Press, 2023).

Julie Suk

Many thanks to Jack Balkin for hosting this symposium on After Misogyny: How the Law Fails Women and What to Do about It, and to Paula Monopoli, Deborah Dinner, Victoria Nourse, Katharine Young, and Linda McClain for their comments and questions which are as generous as they are challenging. I am deeply grateful for their praise and appreciation of the book’s ambitions, and I appreciate their skeptical questions and nudges. While misogyny is usually understood as hatred or animus against women, this book tries to broaden the lens to include the legal and social dynamics of power that make such animus injurious. Law enforces expectations of female forbearance, sacrifice, and pain—especially in matters of reproduction and care—for the benefit of men and the society they control. That, too, is misogyny, and it requires a different response than American legal feminism’s focus on animus and discrimination.  This symposium raises a number of insights that can be grouped into three main questions: (1) What does a legal order without misogyny (thus reconceived) look like? (2)  Is constitutionalism the way out of structural misogyny? and (3) Can misogyny in US law be approached drawing on strategies attempted elsewhere?

(1) What does a legal order without misogyny look like? 

Linda McClain reframes the normative project of After Misogyny as a “feminist common-good constitutionalism,” which she sees as “promising and possibly problematic.” On her reading, the constitutionalism of care and equality that characterizes the end state after misogyny is insufficiently critical of “a certain degree of expected and beneficial maternal “sacrifice” that is for the “common good,” even if the state compensates it. From a different angle, Deborah Dinner finds “jarring” my proposal that overcoming misogyny could entail the compensation of unwanted pregnancy in abortion-ban states as a regulatory taking for a public purpose. For McClain, my world without misogyny is not liberal enough, because it does not liberate women fully from gendered expectations that shape stereotypes; for Dinner, my world without misogyny is too liberal—neoliberal, in fact—because in strengthening a property right in the womb, it reinforces “privatization” of women’s reproductive work.  Both of these critiques raise a larger question about what a legal order without misogyny should look like. Is it liberal, or socialist, or neoliberal, or conservative, or something else?

A world without misogyny is one in which society is no longer entitled to women’s sacrifices, pain, and forbearance for the common good. If law ensures that those sacrifices are properly valued and compensated, whether through takings doctrine or through public policies fully absorbing the costs of reproduction that women disproportionately bear (free contraception and childcare, paid parental leave, maternal healthcare to significantly reduce maternal mortality, for instance), the expectation that women become mothers would be far less oppressive than it is presently. It could then no longer be characterized a collective overentitlement to women’s sacrifice. Thus, the normative project of After Misogyny is thinner than feminist common-good constitutionalism. Rather than defining the feminist vision of the common good, my primary prescription is a “constitutional procedure” (to use Dinner’s phrase) that would enable women to define the baseline entitlements by society to their reproductive contributions, because women are uniquely positioned to bear the costs of those common benefits. That said, a world without misogyny is compatible with a range of different end-states, including those that might emerge from coalitions and compromises between gender-traditionalists and gender-interrogators as long as those who sustain the sacrifices and burdens of human reproduction are full participants in defining and enforcing the public value of those sacrifices.

In the not-so-distant past, the laws of patriarchy extracted these sacrifices from women while excluding women from collective decisionmaking. Such laws entitled men to control their wives’ property and earnings, to beat their wives, and to have sex without women’s consent. By also excluding women from suffrage, gainful occupations, property ownership, parental authority, and the right to refuse sex, legal patriarchy established an infrastructure by which society could perpetuate itself, through childbearing, childrearing, and economic provision for those who spent their time on these demanding reproductive functions. Patriarchy was a legal infrastructure of biological and social reproduction that women had no say in designing, even as its design extracted disproportionate contributions from them.  Two major projects of legal feminism in the United States—women’s suffrage as achieved by the Nineteenth Amendment—and equal protection of the laws without sex discrimination as achieved by Ruth Bader Ginsburg’s 1970s litigation strategy—tried to end legal patriarchy. Women’s attainment of the same rights under the law as men had under legal patriarchy—to vote, to hold property, to engage in market work and own one’s own earnings, became a story of “gender triumph,” as Victoria Nourse puts it. At the same time, the “gender triumph” ended legal patriarchy only cosmetically, by forgetting that patriarchy was the only infrastructure of human reproduction that we had, unjust as it was. 

Both Victoria Nourse and Katharine Young question whether the legal order we now inhabit should even be characterized as post-patriarchal.  Indeed, my account posits that misogyny emerges after the laws of patriarchy are invalidated.  When women have equal legal rights and are able to vote, it is not the patriarchal laws of coverture and exclusive male suffrage that enforce society’s entitlement to women’s mothering and caregiving or the overempowerment of men.  It is only in that formal legal sense that I intend any description of a legal order as post-patriarchal.  But of course Nourse and Young are right – there is plenty of other law that enforces society’s entitlement to women’s mothering and caregiving and the overempowerment of men.  Abortion bans, for instance, force women to become mothers.  Employment laws have long empowered employers to ignore and injure the health of pregnant workers. The overempowerment of men in law and politics is no longer enforced by the formal exclusion of women from the legal profession or office-holding or the vote, but, as Nourse and Young both indicate, through the manipulation of feminist and human rights ideas to invalidate gender parity and other efforts to reduce male control over institutions and women’s lives.

(2) Is constitutionalism the way out of structural misogyny?

That brings us to another serious question raised by this symposium  Why the focus on constitutional change?  Paula Monopoli points out that because our constitution is functionally unamendable (as my previous book about the ERA’s century of failure suggests), constitutionalism appears to be a dead end as a solution to any problem in the United States, particularly compounded by the Supreme Court’s 19^th century vision of the Fourteenth Amendment, as Victoria Nourse reminds us.  Deborah Dinner expresses lingering skepticism of constitutionalism, given the risks of constitutional veneration. In a recent episode of his legal theory podcast, Sam Moyn also questioned my focus on constitutionalism.  Indeed, Part II of After Misogyny argues that overcoming overentitlement and overempowerment require resetting baselines, empowering women, and building a non-patriarchal infrastructure for reproduction and care, wherein the prominent case studies are constitutional movements resulting in constitutional amendment. These case studies include American women’s late 19^th century pursuit of Prohibition to reset the entitlements of drunk overempowered men; the late twentieth century amendments of European constitutions to authorize gender quotas for positions of decisionmaking power; and several democracies’ recognition of care and gender equality as constitutional principles, including the pending Citizens’ Assembly-recommended amendment proposal in Ireland.

In each of these examples, women sought constitutional amendments not to entrench a substantive feminist policy agenda, but to unentrench constitutional barriers to the democratic pursuit of laws to reduce male overempowerment and society’s overentitlement to female forbearance. As I argue in Chapter 4, women only demanded a constitutional amendment on Prohibition after the liquor industry began to claim, with some success in state courts, that they enjoyed constitutional property and business rights to operate the saloons which intoxicated their husbands and made them abusive and unable to support their families. Given women’s economic dependence on men, due to their lack of suffrage and property rights, Prohibition (which prohibited manufacture and sale of alcohol, but not home production and drinking) became a way of curbing some Lochner-era constitutional property and business rights which worked to women’s detriment. In addition, the late twentieth century amendment that paved the way to gender quotas in France was only necessary because the French Constitutional Council had interpreted the existing constitutional guarantee of equality to prohibit gender-conscious measures to overcome women’s underrepresentation. The 1999 and 2008 amendments to the French Constitution did not entrench gender quotas; they simply clarified that the law shall promote equal access to positions of power against a constitutional landscape that prohibited positive measures. And finally, the proposed amendment to the Irish Constitution by which care will be protected on a gender-equal basis, which is expected to be up for referendum later this year, seeks to unentrench stereotypes perpetuated by the 1937 clause that recognizes the public value of women’s work as mothers and in the home. In 2018, the Irish constitutional amendment that liberalized abortion access did not establish a right to abortion; it un-entrenched a prior constitutional protection of unborn life and left it to the legislature to regulate or restrict abortion, following a Citizens’ Assembly process that established the people’s support for access to abortion in early pregnancy, and for serious health reasons thereafter.

Thus, it is democratic constitutionalism, more than a constitutional entrenchment of feminist policy outcomes, that forms After Misogyny’s normative project. As I note in Chapter 1, the Swedish model of gender emancipation that informed Ruth Bader Ginsburg’s sex equality litigation in the 1970s was made possible by a wholly different set of constitutional reforms from American feminists’ Equal Rights Amendment proposal.  In Sweden, the bicameral legislature was transformed, first by statute, then by constitutional amendment, into a unicameral legislature in the 1960s and 1970s, along with electoral reforms implementing proportional representation. It is these structural reforms that paved the path to greater proportions of women in the legislature and parliamentary processes that enabled legislation to expand childcare and parental leave for fathers as well as mothers.  In the United States, the current law of Equal Protection would make it difficult, as Monopoli, Young, and Nourse point out, to legislate gender quotas.  And the undemocratic design of our bicameral legislature, firmly entrenched in the Constitution (e.g. the Senate’s overrepresentation of underpopulated states), has hampered the adoption of substantively feminist policies, such as legislation protecting abortion access after Dobbs.  Thus constitutionalism with an eye to amendment may be necessary, though by no means sufficient, to unentrench undemocratic institutions that perpetuate overentitlement and overempowerment.

(3) Can misogyny in US law be approached drawing on strategies attempted elsewhere?

Beyond broadening the theoretical lens on misogyny in the law, After Misogyny tries to inform the American reader of noteworthy developments in comparative constitutional law, which Katharine Young astutely characterizes as “comparison as castigation” rather than comparison as borrowing or transplant. The case studies of resetting entitlements, empowering women, and building a non-patriarchal infrastructure of care are put forth to nudge “reimagination.” New lenses can sharpen our view of “what is grossly unreasonable” in the United States, as Young puts it, rather than as a blueprint to be followed.  I agree with Paula Monopoli that our constitution has become unamendable. Yet, encountering gender parity and constitutional change on abortion and care in our peer democracies, made possible by different amendment rules and processes, should redirect feminist focus away from discrimination and towards reform of our basic constitutional institutions, including its rule for change.  Anyone interested in seeking feminist goals must be concerned with paving new procedural and institutional paths of constitutional renewal.  In Ireland, for instance, the constitutional amendments were made possible after deliberations by randomly selected citizens’ assemblies revealed popular opinion in the direction of opening up abortion access and valuing care on gender-equal terms.  Such assemblies are not mentioned in the Irish constitution’s amendment rule, but were developed by the legislature on an advisory basis.  In the United States, just as Congress renovated the Article V process by inventing seven-year ratification deadlines with the Prohibition Amendment, Congress can renovate that process further, perhaps by authorizing national citizens’ assemblies on an advisory basis.  I highlight tis proposal as one of many ways we might broaden our imagination of what’s legally and politically possible in the United States. Victoria Nourse reminds us that  “before anyone is willing to accept such change, they must see that the law continues to fail.”

Yet, seeing how the law continues to fail could lead to despair and cynicism rather than optimism about resetting entitlements, empowering women, and building a non-patriarchal infrastructure of care. Prohibition may have reset entitlements by reducing male power in the home, but as many historians have noted, it also led to the growth of an intrusive state apparatus that galvanized a women’s movement to repeal Prohibition.  Gender quotas have led to a rapid increase of women in politics in Europe, but this includes far-right women like Marine LePen in France and Giorgia Meloni in Italy who may threaten other forms of democratic inclusion.  And, in citing Mary Ann Glendon as a fellow traveler with the constitutionalism of care, Linda McClain, channeling the reasonable anxieties of American liberal feminism, questions whether protecting mothers can ultimately liberate them.  Katharine Young also raises the important and sobering point that “the U.S. is not always an outlier.” For all the glimmers of possibility against misogyny at the center of this book, there are efforts to galvanize an international movement to remove abortion from women’s health rights. History, as Deborah Dinner notes, reveals that even American feminists have sought to build care infrastructures beyond formal equality, only to be defeated by the rise of neoliberalism.  And, citing originalism and other live threats to women, Victoria Nourse writes, “there is nothing subtle about today’s misogyny.”

After Misogyny opened with the feminist protests in Chile that helped launch the process by which a new constitution was written, a constitution that included commitments to gender parity, reproductive freedom, climate justice, and indigenous empowerment.  As the book was being typeset, Chilean voters rejected that constitution—the first in the world to be written by a convention composed equally of men and women.  I write these words in the same week that Chilean voters elected a new constituent assembly with a right-wing majority that is unlikely to adopt an equally feminist constitution, even though it, too, will be gender-balanced by law.  In the week that After Misogyny was published, the word “after” seemed laughable while a federal judge in Texas was trying to abolish the abortion pill in the United States.  Will it matter whether our conceptual account of misogyny is clearer, or whether more Americans learn that it can be less bad without being perfect?

I agree with Paula Monopoli that the present moment “leaves us no choice but to seek new paths.”  Imagining new paths informed by historical and global perspectives is the necessary first step, though by no means sufficient, to abolishing misogyny.  Senate passage of the Pregnant Workers Fairness Act in December 2022 (while After Misogyny was being printed) provides a glimmer of hope, but it came after years of filibuster and stalemate. This is why fixing our democracy—which may require changing our constitution—must come first.

Julie C. Suk is Professor of Law at Fordham University Law School. You can reach her by e-mail at jsuk4@fordham.edu.