Pushing Boundaries

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).

Paula Monopoli

Julie Suk is one of the most interesting feminist constitutional scholars writing today. It’s a pleasure to engage with her new book, After Misogyny: How the Law Fails Women and What to Do about It.  Feminist legal scholars have been considering their intellectual options in the wake of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.  In After Misogyny, Professor Suk offers us a conceptual path forward in a post-Dobbs world.  I agree with Suk’s trenchant analysis of the failure of law to render substantive gender equality, and her proposals to remedy that failure.  My question is whether we have the constitutional conditions under which those proposals could come to fruition. 

After Misogyny is framed in two parts.  Part I, How the Law Fails Women, Misogyny Beyond Misogynists, reminds us about the limits of constitutional gender equality as it has developed in the United States.  Chapter 1 reviews the jurisprudential expansion of the Equal Protection clause to embrace sex-based differential treatment by the state, and the U.S. Supreme Court’s eventual adoption of intermediate scrutiny.  It highlights the narrow nondiscrimination norm that emerged from that jurisprudence. That kind of formal equality fell far short of eliminating what Suk conceptualizes in Chapter 2 as the residual overentitlement and overempowerment of men. Those two concepts distinguish Suk’s more capacious definition of misogyny in the book, differentiating it from the traditional definition which requires animus toward women.  It was sometimes challenging to see the conceptual boundary between the two and they can overlap. Suk links this theory of overentitlement and overempowerment to two doctrinal bases – unjust enrichment and abuse of right. While Suk’s description of overentitlement as grounded in unjust enrichment resonates, her description of overempowerment as grounded in abuse of right– a doctrine she notes is less well-known in American law (p. 75) – is more opaque.

In Chapter 3, Suk sheds light on alternative constitutional regimes around abortion.  She describes German and Irish judicial decisions which give weight to the rights of the fetus and impose restrictions on the rights of the pregnant person. Suk argues that despite what might appear to be regressive views about women as mothers, there is value to be had in judicial language suggesting the state owes social and economic duties to women and families.  That kind of maternalism recognizes as a legal matter that women suffer undue burdens as a result of pregnancy, burdens which confer significant benefit on society.  Suk notes that “these ideas are not alien to the United States,” but that women’s sacrifices in biological and social reproduction are only lightly referenced in U.S. Supreme Court decisions around abortion. (p. 118) She argues that recognition of those sacrifices “which have tangible collective benefits for the nation” is an essential step in building a state-sponsored infrastructure of care in the United States. (p. 118) While I agree with Suk, there is also a real risk that such maternalism reifies an essentialist view of women and poses potential pitfalls for equality.  Because much of Suk’s theory is grounded in this embrace of maternalism by other liberal democracies, it would have been helpful to address this risk more directly.

Part II, What to Do About It, Remaking Constitutions and Democracy, begins with Suk’s framing of Prohibition as a constitutional movement by women to reset and rebalance male entitlements and empowerment.  In Chapter 4, she reminds us that the ratification of a federal constitutional amendment prohibiting the manufacture and sale of liquor grew out of the nineteenth-century women’s temperance movement.  But rather than the conventional characterization of that social movement as the product of a group of abstinent church ladies, Suk tells a different story.  She describes women lawyers using law and constitutional theory to protect women from domestic violence in the private sphere, and to dismantle the legal regime of coverture underpinning the legal, social, and physical subordination of women.  In a post-Dobbs world, where “history and tradition” is the jurisprudential touchstone for finding an unenumerated right in the U.S. Constitution, this recovery of feminist constitutional history provides significant support for Suk’s theory.

In Chapter 5, Suk turns to her deep expertise in comparative constitutionalism to teach us about three countries that have made explicit constitutional moves toward gender parity.  She uses France, Germany, and Iceland as case studies in how women’s disempowerment and lack of entitlement can be the impetus for the development of legal rules which address such disadvantage as a constitutional and legislative matter. Suk describes moves by constitutional courts and parliaments to use theories of interpretation, gender quotas, and popular constitutionalist methods, like citizens’ assemblies, to develop those rules.  And in Chapter 6, Suk offers a blueprint for an infrastructure of care built around such rules.  She makes the case to “value care as a constitutional project” and she argues that building a “constitutionalism of care” requires us to develop “infrastructures that are responsive and inclusive” to women’s lived experiences, and that assign value to the full range of their contributions as citizens. (p. 181) This chapter again uses comparable liberal democracies – especially Ireland - as models for a post-Dobbs path in the United States. 

In her Conclusion, Suk anticipates the argument that the United States doesn’t have a constitutional culture that would allow these paths to take hold here.  She asks, “Can the global innovations of feminist lawmaking direct the law to realize and value the contributions of women in the United States?” (p. 211) Suk draws on comparative scholars who suggest that “creative translation” and “constitutional engagement” rather than wholesale “transplantation” are the preferred ways to implement comparative legal analysis. (p. 214) From that perspective, Suk offers the possibility that her comparative proposals could gain traction in the United States.

While I find Suk’s underlying theory persuasive, I do question whether the proposals she sets out can take root in our shallow constitutional soil. Suk’s invocation of Prohibition is instructive. It’s not a coincidence that the only time an amendment to the U.S. Constitution was repealed, it was an amendment originally enacted as the result of a movement led by women. And if we had been paying attention to that feminist constitutional history – instead of what Reva Siegel  describes as constitutional memory – we wouldn’t have been so surprised that the first time the U.S. Supreme Court reversed a previously recognized constitutional right, it was the right to abortion.  Suk is right on target when she argues that the explanation for these constitutional moves is misogyny as she broadly defines it.  Achieving equality means ending the extraction of unpaid labor from women that has been the hallmark of societies from time immemorial.  But in a constitutional culture where rights are conceived of as negative, any suggestion of socialism is assiduously avoided by all but the most progressive politicians, and gender quotas used to rebalance legislative power face a hostile legal landscape, can we really build a constitutionalism of care? 

Our constitutional culture remains stubbornly masculine. In 1873, Justice Bradley suffered no apparent cognitive dissonance in arguing vehemently in his dissent in the Slaughter-house Cases that the right of male butchers to engage in their profession was a privilege of national citizenship.  But on the very same day, in his concurrence in Bradwell v. Illinois, Bradley had no problem dismissing out-of-hand Myra Bradwell’s argument that her right to practice the profession of law was similarly protected.  He presumably rationalized these inconsistent positions purely on the basis of sex.  Women were members of a separate class of citizens.  Their rights could be differently defined under such a separate spheres view of the world. And today, in a post-Dobbs world, our constitutional culture displays a similar comfort with differential norms around equal citizenship.  The freedom to be left alone by the state and the concomitant right to bodily autonomy means one thing for men and another for women.  

Masculine norms are deeply embedded in our constitutional design.  And that design is virtually unamendable, given the nature of Article V and our polarized politics. (p. 222) Suk describes how the maternity clauses in several twentieth-century European constitutions have been linked to their equality clauses in ways that support recognition of a constitutional basis for women’s unique contribution to biological and social reproduction. (p. 183) Yet we haven’t been able to get a sex equality amendment into our constitution for the past one-hundred years.  And the only amendment we do have that comes close – the Nineteenth Amendment – has been narrowly construed.  So constitutionalizing the right of women as mothers to the support of the community seems far out of reach.  In fact, the U.S. Supreme Court’s recent expansion of free exercise and its erosion of establishment clause jurisprudence may actually amplify the patriarchal norms embedded in organized religion.  In essence, personal religious beliefs that should remain in the private sphere will increasingly be ushered into the public sphere and law itself through the back door.

Because our constitution is virtually unamendable, building a constitutionalism of care in this country would require a legislative strategy.  Such a strategy requires a foundational shift in who exercises institutional power – a shift most efficiently achieved by embracing electoral quotas. (p. 222) Suk acknowledges that American law has generally rejected quotas, despite some recent signs otherwise. (p. 167, p. 223, p. 290 n45) So such a shift in the gender balance of power in Congress and state legislatures seems unlikely.  She suggests the pandemic’s disparate impact on women could trigger a groundswell of support for such a strategy. (p. 180) But the child tax credit enacted by Congress was allowed to lapse, the President has declared the emergency at an official end, and the nation just wants to move on.

Still, Dobbs leaves us no choice but to seek new paths.  So, we shouldn’t let existing conditions deter us from carefully considering Suk’s compelling theory and proposals.  As her title After Misogyny signals, Suk is writing as much for the future as she is for today. Our immediate task is to restore a constitutional right to reproductive self-determination, the cornerstone of women’s full citizenship and substantive equality under any theory.  After Misogyny offers us a thick conceptual basis to ground that right.  And it also offers us a foundation upon which to build – for the first time – an anti-subordination constitutionalism of care.  It’s a theory that feminist legal scholars should clearly consider - one that illuminates a potential path forward in these otherwise dark times.

Paula Monopoli is the Sol & Carlyn Hubert Professor of Law at the University of Maryland Carey School of Law.  She can be reached at pmonopoli@law.umaryland.edu.