ABSTRACT
Politics is a broad subject that permeates much of feminist legal theory. Feminists insisted during the 1960s that the personal was the political. The 2008 presidential campaign by Hillary Clinton illustrated that feminist thought and political strategy are often intertwined. However, as the chapters in this section show, feminist thought when it encounters political theory and discourse or political institutions often encounters deeply entrenched assumptions about gender, as well as beliefs about what is natural, normal, and desirable in politics and society. While the chapters in Section One of this book showed law’s reluctance to embrace feminist theory, these last chapters show that politics and political thought may be equally resistant to fundamental change. Holning Lau’s chapter considers how gender scripting undermines the
“reason-giving conversations” at the heart of deliberative democracy in three main ways. First, gender scripts create barriers to participation in democratic deliberation, so typically only women who negotiate femininity in certain ways can mount successful political campaigns. Second, the need to negotiate gender scripts can distort deliberative conversations among politicians because scripting often involves self-censorship. Finally, identity scripts distort the way communications are received by public. A woman politician who cries in public can seem weak, while a man may be seen as sensitive. After discussing the harms gender scripting can produce, Lau suggests
a redirection for feminist theory. He argues that, even though we are not in a “post-gender era,” group-based identity is not necessarily useful. He contends that group-oriented approaches can actually obscure the fact that gender still matters and that power inequalities do exist. The 2008 elections showed power and disadvantage not neatly tied to group identities but associated with willingness and ability to negotiate identity scripts. Lau ultimately uses his idea of identity scripts to argue for a “democracy
reinforcement theory,” wherein courts can review laws if they cause some impairment to democratic process. Laws involving gender scripts, because they impair democracy by creating barriers, distorting conversation, and misleading the public, would receive heightened scrutiny under democracy reinforcement theory. He employs the same-sex marriage debate as a specific example of how
this would play out. Gender scripts are central in arguments for bans on samesex marriage. Lau argues that removing the limitation on access to marriage for same-sex couples would thus result in also reducing the power of gender scripts. Victoria Nourse’s personal essay reflects on her role as a “minor player” in
some of the major moments of late twentieth-century legal drama. We follow her from Iran Contra to Anita Hill, with an extended peak at the internal history of the passage of the Violence Against Women Act and the disappointing repeal of its civil rights remedy by the Supreme Court. Nourse sees this world through a particular theoretical lens: one of constitu-
tional change that views the Constitution as something that “constitutes” political life. It does so through various actors: the branches of government, the states, and the citizen. She argues that the Constitution necessarily changes as those who constitute
the nation change. In spite of the Supreme Court’s repeal of the VAWA civil rights remedy for women, Nourse believes that one day the emerging constitutional consensus on women’s rights will lead society to the point where a world that existed before Title VII, sexual harassment, discrimination, family leave and violence against women laws would be unimaginable. Martha T. McCluskey argues that feminist theory is helpful in “countering the
ideological and material barriers to equality amassed during the right’s rule.” She contends that the right’s anti-egalitarian ideology is based on two assertions. The first is that some “objective” economic principles lead to the conclusion that substantive equality is really all about giving special benefits to a few at the expense of others. Second, the right’s morality argument places personal responsibility with the disadvantaged and expects them to correct existing power hierarchies, not the institutions that have created or maintained those hierarchies. Seeking legal protection rather than exercising personal responsibility when you are disadvantaged is not about seeking equality but about demanding “reverse discrimination” and usurping another’s rightful place. Inequality is thus necessary and natural, although the disadvantaged will get some “trickle down” crumbs from an ever-expanding pie. McCluskey suggests essentially two strategies to resist the right’s “ideological
and material shadow.” She argues that feminists must engage law’s foundational theories and reframe the questions. An example would be to redefine the “pie” as not just dollars amassed by the wealthy in a given quarter, but as measured by the “long-term health and education of non-wealthy women and children.” Deconstructing the terms “personal responsibility” and “independence” would reveal that businesses frequently rely on government support and that caretaking work is vital to society-thus government has a role to play in supporting caretaking. McCluskey also urges feminists to engage on three fundamental levels of
challenge to existing arrangements: confront the politics of law; reveal and understand the societal power of law; and recognize and engage with the complexity of identity. She argues that critical feminist theory can look at underlying
policies and institutional structures that support current identity-based divisions and help us move toward crafting better ways to build coalitions. The economic crisis and presidential election of Barack Obama may suggest
the end of the right’s rule, offering new opportunities for substantive equality. McCluskey encourages feminists to reach beyond the boundaries of existing law, politics, and gender identity to provide the foundation for progressive reform to take root and thrive.
