Engendering Unjust Enrichment

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).

Katharine G. Young

“Other countries have social safety nets. The U.S. has women.” So quipped a sociologist during the COVID-19 pandemic, when millions of women lost or left their jobs to care for suddenly unschooled children and millions more (disproportionately women of color) continued as essential workers, often at minimum wage. Their unpaid or underpaid care work held society, the economy, and the nation together, at great personal cost. This reliance on women as crisis “shock absorbers” is a well-studied phenomenon under neoliberalism. But Julie Suk, in her excellent new book “After Misogyny”, points to its foundations in constitutional law. The U.S. Constitution, as currently interpreted by an renegade Supreme Court, interprets formal legal equality as anti-classification and gender-blindness. Suk argues that this legal choice – a legal misogyny – exacts distinctive costs from women and confers excessive entitlements on men.

That women are the peculiar bearers of America’s constitutional failings seems obvious after Dobbs v. JWHO. The Supreme Court’s majority opinion barely mentioned women’s lives and health in its support for “the unborn”. And it is everyone – not just those who hope to overcome binary sex and gender roles – that suffers from it. Yet this obviousness may have been lost on generations of constitutional drafters, scholars, and litigants, who have often cast “feminist” concerns in a marginal light (and who have more often than not been men). In a book that spans the globe, citing feminist constitutionalist movements in Europe and Latin America as its main comparators, Suk offers a new map of current inequalities and suggestions for constitutional change.

For Suk, such inequalities are derived from law and institutions, not animus or ‘bad men’. And despite the insights of #MeToo and #SayHerName that show violence, as well as care, are disproportionately distributed, her reference points are not criminal law or tort, but equity and public law. In parts of the book, she argues that the doctrines of unjust enrichment and abuse of right should inform a new constitutionalist recognition of care. Here, restitution should equalize the results of a misogyny that is not woman-hatred but rather a too-comfortable sense of entitlement to unearned riches and unpaid labor. In other chapters, Suk points to comparative paradigms of public law that require parity of participation across gender lines, and other forms of equal pay and status. These law reforms reset the baselines that are patriarchy’s legacy. 

There are notable comparative lessons to be drawn. Like the sociologist’s quip above, Suk relies on comparators as sources of internal rebuke and reimagination, not borrowing or transplant. In this, she draws from a rich tradition of U.S. feminist engagement with the world. From Ruth Bader Ginsburg’s early encounter with Swedish feminism, where the emancipation of women from constrained gender roles led to the emancipation of men from theirs’, she shows how the focus of U.S. constitutional reform has been informed by changes elsewhere. In the long run, RBG’s male-plaintiff, anti-discrimination, anti-stereotyping strategy may have misfired, undermined by legislative inaction and the constitutional ideology of negative rights. Without a social infrastructure of support and positive state duties – educational reforms, child care subsidies, health care and labor market reform – a constitutional doctrine requiring removal of classifications became grist for male grievance in the U.S. Unlike in Sweden, Suk shows how U.S. equal protection has been used to reclaim patriarchy rather than overcome it, with men’s rights activists challenging state-supported domestic violence shelters for women and start-ups favoring women in STEM fields. Comparison is not presented by Suk as an easy case for transplant.

Similarly, Suk explores German and Irish constitutional developments for reimagining our post-Dobbs settlement. With the Supreme Court’s retrenchment of the constitutional right of abortion, Suk points out that it is not only Roe v Wade, but the complicated Roe/Harris compromise, that has been overturned. Harris v McRae held that a ‘negative’ right to abortion required no positive state funding, upholding the Hyde Amendment that excluded funding coverage for medically necessary abortions from an otherwise comprehensive Medicaid program. This settlement meant that Roe and Casey’s formal protections of a woman’s freedom to decide whether to terminate a pregnancy were inaccessible for many poor women in the U.S. In comparison, Suk draws from the “pro-life jurisdictions” of Germany and Ireland, where the choice to terminate a pregnancy has been formally condemned but where positive duties to provide health care, and protect the life and health of the mother, ensure that access to abortion is secure. Again, such compromises are not uncomplicated and have been unappealing for many U.S. feminists – and yet Suk’s argument for a pro-life settlement is granular and pragmatic, and cast in the paradigm of reproductive justice, rather than reproductive choice, that Black feminists in the U.S. have long called for.

A third set of comparisons provide additional rebuke of the U.S. constitutional system. Parity is the state or condition of being equal, and addresses the inherited inequalities of pay, status, or political representation. In the mainstream U.S. constitutional ideology of non-discrimination and negative rights, parity – along with quotas, accommodations, and affirmative action policies – are considered suspect. Suk recounts successful interventions in France, Germany, Iceland (and now Chile) that require gender quotas on corporate boards, constitutional drafting bodies, courts or legislatures. Far from the tokenism or stigma long assumed in U.S. debates, Suk shows how decades of parity requirements have changed the rules of the game, “tempering the power of overpowerful institutions” and shifting budgeting and policy priorities. Just as she did in her earlier book, documenting the century-old American struggle for an Equal Rights Amendment, Suk takes a transgenerational view of feminist constitutional politics aboard. In so doing, she argues (as Pauli Murray had done for the U.S.) that the most significant achievements rely on equalizing power, not equal rights.

Comparison as castigation informs my own Feminist Legal Theory class – my students are often outraged to learn how other democracies have guaranteed paid parental leave, childcare, reproductive care, other social rights, and political equality. They are surprised by the responsiveness of other constitutions, delivered through amendment rules or the interpretive methodology of living constitutionalism. They are also aghast at how gender inscribes burdens and opportunities in the United States, even as they envisage distinctive gender identities and roles for themselves. Some facts are truly alarming. The rates of maternal mortality are highest in the United States among wealthy industrialized countries. Indeed, celebrated declines in mortality were an almost worldwide feature in 2020, but deaths in the U.S. increased. These risks, which fall heavily on Black and Native American woman, tell of public health failures, but also constitutional ones. (The Dobbs opinion acknowledged this context only in its dissent, where it was noted a ban in abortion could increase the numbers of people dying from pregnancy and childbirth by 21 percent, and by 33 per cent for Black women (at 597 US ___, 29 (2022)). Comparison has a way of signaling what is grossly unreasonable and unjust in this wealthy country and its creaking, dysfunctional constitutional democracy.

But the U.S. is not always at outlier, depending upon where one looks. The so-called Geneva Consensus Declaration, an effort to galvanize an international movement to remove abortion from women’s health rights and ‘strengthen the family’, isn’t mentioned in Suk’s book. The 2020 Declaration was spearheaded under the Trump Administration, and co-sponsored by Bolsanaro’s Brazil, as well as Egypt, Hungary, Indonesia, and Uganda. Indeed, with a partnership that included some of the world’s worst performers on the Women Peace and Security Index, the U.S. was happy to lead a comparative trend in the direction of backlash. It is worth noting that this Declaration, which appropriated human rights arguments in an attempt to remove women’s reproductive rights and LGBTQ+ rights from United Nations protection, has informed other influential constitutionalist arguments in the U.S.

These criss-crossing trends lead to my only real quibble with this bracing study. In numerous places, Suk suggests that we are beyond law’s patriarchy, even “post-patriarchy”. Misogyny, in her telling, is the next staging for action and analysis – where law becomes formally equal, the focus must shift to misogyny. I’m not exactly sure why she stages her analysis in this way – my guess is that she wants to inject present doctrines – unjust enrichment, natural justice and right – with a duly post-patriarchal spirit. In her analysis of unjust enrichment, she extrapolates from cases involving the division of assets between cohabiting non-marital partners to the unequal distributions within society at large. In so doing, the general entitlements that swing to men rather than women –– through sex, pregnancy, reproduction, care and household work – become more cognizable as remediable. Perhaps she also intuits that a renewed emphasis on positive state duties – to protect women, children and families, through childcare, health care, labor protections, paternal leave or parity – becomes more trustworthy if we are assumed to be at patriarchy’s end.

Of course, feminists helped overcome coverture and achieve suffrage, and the most overt features of patriarchal rule are behind us in the U.S. But patriarchy continues to confer benefits along gender lines, shorn up by religion, cultural traditions, and baseline entitlements. Knowledge of the world, and of feminist struggles elsewhere, may not, by itself, transform this fact. But comparative constitutional analysis, with the institutional range and vision presented in Suk’s book, is critical for understanding the U.S. predicament – and for reinforcing just how unjust it remains.