an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This week I was teaching sexual harassment law to my employment discrimination law class. It’s a tricky topic today for law students in their 20s, because understanding the legal revolution of sexual harassment law requires understanding the world as it existed before it. That world feels distant. Most years when I teach this material I find Mad Men a useful touchstone. The show gave a generation of students some general cultural knowledge about the sex hierarchies in a fancy white-collar New York workplace in the 1960s. Having watched Mad Men, students find it less implausible, I think, to believe that judges—well into the 1970s—were telling women who complained of what we now call sexual harassment things like, well, you weren’t fired because you were a woman, but rather because you wouldn’t engage in sexual relations with your boss, so there was no sex discrimination. Or, you went ahead and submitted to your boss’s sexual advances, and you kept your job, so no sex discrimination. Mad Men is off the air now; I’ve been curious what would take its place. Well… this year almost the very first point a student raised her hand to make brought up current events.
The kind of behavior Donald Trump boasted about on tape, and that various women are now coming forward to accuse him of, was not viewed by the law as discriminatory in an era that really wasn’t that long ago—it was an era that Americans of Donald Trump’s generation remember well. For people a lot younger, accessing this world is tougher. It is not easy to name exactly what it was that was overturned by the legal revolution that Catharine MacKinnon and others brought about in the late 1970s and early 1980s. In the regime that was overturned, harassment was not sex discrimination, in part because judges and lawyers and lawmakers, almost all men, compartmentalized it, viewing it as taking place in a sphere of personal behavior, like dating, rather than in the sphere of work. It took some brilliant and visionary work to convince both the legal system and the larger society that in fact, sexual harassment was part of a discriminatory system that enforced an overall sex role hierarchy, one ostensibly-private behavior at a time.
This work is a striking rebuke to those who insist that scholarship is irrelevant to law. MacKinnon’s The Sexual Harassment of Working Women came out in 1979. Within one year the EEOC had issued interim guidelines implementing this new idea that sexual harassment constituted discrimination “because of sex,” and by 1986 this theory had prevailed at the Supreme Court, in a Rehnquist opinion. Nor does this story end with MacKinnon; later scholars also directly shaped both the law’s development and the trajectory of the concept of sexual harassment in our culture. Vicki Schultz argued successfully that harassment wasn’t always about sexual advances—other forms of harassment and sabotage to keep women in their place had the same effect. Those things now count as sexual harassment too, among judges and juries both.
Donald Trump is a singular, and increasingly isolated, figure in our politics. He has various groups of strong supporters, from diehard anti-Washington-“establishment” types to highly partisan Republican voters who would support any nominee of their party. At the same time, Trump has become a global beacon for a panoply of groups that share only one obvious thing: an attachment to some form of ethnic or ethno-religious nationalism. Trump is the avatar of this nationalism and therefore an appealing figure in the minds of such disparate groups as Serbian nationalists, Hindureligious nationalists, Russian Putin-apologists andultra-nationalists, and of course the all-American white supremacist “alt-right” of Trump’s campaign CEO and personal twitterverse.
But maybe these groups also share a less obvious thing. Ethnic and ethno-religious nationalisms often tend to be bound up with traditional gender roles and opposition to feminism. From their perspective, feminism seems cosmopolitan and transnational and therefore potentially threatening, like talk of “human rights.” It is anti-traditional. Members of all these movements are surely none too pleased with the idea of a female U.S. President who once declared, while breaking out of the traditional role of the First Lady, that “women’s rights are human rights.” But that’s not the only reason they favor Trump. They also see a lot to like in Trump himself, whose hypermasculine bluster strikes some of the rest of us as a kind of reductio ad absurdum of substance-free manly performance art.
Trump, in other words, is mining a deep and global vein of both ethno-religious nationalism and gender traditionalism; and these are linked. It might seem absurd to talk about Trump in terms of gender traditionalism, since the man clearly sees himself as (and brags about being) a Hefneresque playboy—hardly a paragon of “traditional family values.” But it’s not absurd at all. In many ways, such as his attitude about his role in his own marriages, Trump is an arch-traditionalist. Anyway this conflict has always had (at least) three corners: the traditional family, the sexual liberation of the Hefneresque playboy, and feminism. In the 1960s and 70s, the traditional family values corner was dominant; it defined the main axis of public debate; and so feminism and Hefnerism had to (uneasily) share space on the other end of the axis, in opposition. The question was: traditional family values—for or against? In different ways, both were against. Today, the question is: feminism—for or against? And so, Hefnerism and traditional family values must begin to learn to (uneasily) share space on the other end of the axis, in opposition.
If this is right, then Donald Trump’s braggadocious embrace of what he might call womanizing (or what most of us would call sexual assault) is not actually a one-off. It’s not a bizarre fluke that will end after Trump loses in November. To be clear, no party will (hopefully) again nominate a potential Groper-in-Chief. But an underlying triangular realignment will continue apace. In the future, candidates who excuse some forms of sexual harassment, who view “boys will be boys” as a serious argument when discussing harassment, who in these ways embrace a certain degree of Hefnerism, will increasingly be found in (perhaps uneasy) political coalition with the advocates of “traditional family values.” What they share is opposition to feminism. Trump’s particular combination of views—objectification of women, Playboy lifestyle, veneration of traditional gender roles in marriage—are emblematic of a political alliance of the future.
The big question is what Trump’s failed candidacy, assuming he does fail, will do to all these cross currents. In terms of ethnic nationalism, I fear that, even in defeat, Trump may have brought the fringe into the mainstream, radicalizing many Americans and building a far broader and more receptive audience for the “alt-right” and its racism. Would it be too much to hope that, on the feminism axis, Trump might paradoxically have just the opposite effect—discrediting the set of views that treats as “normal” the kind of behavior with women that he has bragged about? The fact that so many Republican politicians have denounced and distanced themselves awkwardly from this aspect of Trump, even as they embrace the rest and often continue to endorse him, might conceivably give reason for hope. (Even if all the distancing is politically craven.) In the end, if future Americans can agree on nothing about the 2016 campaign except this one point—that the behavior Trump bragged about is beyond the pale—perhaps that could turn out to be a small kind of progress, in a direction we have been moving, fitfully, since 1979. Posted
by Joseph Fishkin [link]