By Christina Villegas
Many people assume that it is modern feminism, not the Constitution, that has secured freedom and political equality for women. In reality, the Constitution has always been compatible with women’s equal political rights and provides a framework for the expansion of those rights. Although contemporary feminists ostensibly pursue the goal of ensuring that men and women enjoy equal opportunity and treatment under the law, the feminist movement has largely strayed from this narrow mission in favor of a far more radical agenda. In the name of “equality,” it has sought to promote women’s full autonomy by eliminating gender distinctions and forcing gender parity. Achieving these goals would require a vast expansion of centralized government, the redefinition of freedom, and the destruction of equal protection and due process of law. This movement undermines America’s constitutional system, which limits the scope and character of the law with a view to protecting the individual rights of both men and women.
Progressives and feminists alike largely advocate the goal of ensuring that men and women enjoy equal opportunity and treatment under the law, a goal that resonates overwhelmingly with the American public. Modern feminism, however, has strayed from this narrow mission, embracing instead a far more radical agenda. In the name of promoting “equality,” it has become a movement that seeks to promote women’s full autonomy by eliminating gender distinctions and forcing gender parity (statistical proportionality of males and females) in every area of academic, economic, social, and political life. Achieving these ends requires the vast expansion of centralized government, the redefinition of freedom, and the preferential application of the law to women based on their identity as a specially protected class.
On these grounds, the modern feminist movement is interested in fundamental social transformation rather than the mere protection of individual freedom and opportunity. Its agenda is openly hostile to the American constitutional system, which is based on limiting the scope and character of the law in order to protect the individual rights and equal opportunity of both men and women.
Feminists often accuse those who defend the U.S. Constitution and limited government of being hostile to the well-being and interests of women.[1] These charges have been so thoroughly imbedded in the public mind that many Americans who do not necessarily support feminist policy prescriptions still presume that the Constitution itself has been an historic impediment to the rights of women. Many of these same Americans have been convinced that the principles of freedom and equality have come to fruition for women only as a result of modern feminism.
The widely held assumption, begun in the 1960s, that modern feminism has been necessary to correct the Constitution is rooted in the erroneous belief that the promise of equal freedom and rights, outlined in the Declaration of Independence and incorporated into the Constitution, was never intended to apply to women.[2] Many feminists even argue that the Constitution itself denied women the right to vote, the right to own property, and equal protection under the law.[3] These ideas are not merely the reserve of academics; they are widely circulated throughout society.
Contrary to what these critiques of the Founding documents assert, the basic protections contained in the Constitution, such as the protection from ex post facto laws and arbitrary seizure, arrest, and prosecution, are clearly guaranteed to all citizens, not just men. Neither the Declaration of Independence nor the Constitution ever classifies human beings on the basis of gender with regard to individual rights.[4] The Constitution and the principles on which it was based were always compatible with women’s equal political and legal rights and actually provided the framework for early women’s rights advocates who wanted to expand those rights.
Today, however, organized feminism, acting ostensibly in the name of protecting women, has already taken serious steps to change the Constitution by altering our understanding of liberty, justice, rights, and the purpose of constitutional government generally. The modern feminist movement—represented by groups such as the National Organization for Women (NOW); the Feminist Majority; the National Women’s Law Center; the American Association of University Women (AAUW); and many professors throughout the academy—has developed into a powerful political force with immense influence on public policy, higher education, popular culture, and the public mind.
These trends should concern those who seek to preserve the blessings of our Constitution, which, insofar as it has promoted a regime of individual liberty and rights, has brought greater freedom, opportunity, and prosperity to generations of Americans than has ever existed for most people throughout world history. Those who are serious about reestablishing constitutional limits on the power of government, for the benefit of both men and women, need to understand how the ideas underlying the modern feminist movement conflict with and ultimately undermine constitutional government.
The Founders’ Regime and Women’s Rights
Contemporary feminists’ hostility to limited constitutional government represents a stark shift from the self-understanding and demands of America’s earliest women’s rights advocates, or what is known as the first wave of feminism, which lasted from the 19th century to the onset of second-wave feminism in the 1960s. These early advocates, almost unrecognizable to contemporary feminists, largely sought to improve opportunities for American women through the expansion of political and legal rights, such as the rights to vote, to own property, and to pursue profitable employment on an equal basis with men.[5]
Far from being hostile to such rights, the Constitution and the principles of the Declaration of Independence in which it is rooted provided the foundation for their expansion. While many prominent academics and feminists commonly charge that the Founders were indifferent to women’s rights and that “the American Revolution produced no significant benefits for American women,” the signing of the Declaration of Independence and ratification of the Constitution represented a historical turning point for both men and women.[6] As Thomas G. West argues, the revolutionary idea of natural human equality “changed the terms of what was politically possible.” West explains that before the American Revolution, “No other government had ever been grounded on this idea” and that although the “belief by itself was not enough to bring about female suffrage…it made it thinkable as an option, while it had been unthinkable for most of human history.”[7]
Contrary to popular belief, the Constitution of 1787 was never in principle a barrier to female suffrage; Article I, Section 4, Clause 1 simply left the issue up to the states. Thus, the states varied in their suffrage qualifications, and one (New Jersey) made history by allowing women to vote as early as 1797.[8]
Moreover, in spite of state-imposed restrictions on suffrage, there is no evidence that women in the early republic actively sought the right to vote. This indifference was likely a consequence of the widespread belief among Americans of both genders that women would not vote differently from those on whom they were financially dependent: their husbands, fathers, or brothers. It was not until the mid-19th century, as advances in technology and wealth lessened the necessity for a division of labor in the home, that women became less convinced by early arguments against female suffrage and the movement for equal political rights gained momentum.[9] By the time the Nineteenth Amendment was adopted in 1920, women already had full voting rights in 15 of the 48 states.
Additionally, the Constitution was never indifferent to the rights of women. While the generic pronoun “he” is used occasionally to refer to persons in general, the Constitution nowhere specifically references either males or females. In other words, the Constitution’s guarantee of privileges to individuals—such as the prohibition against the impairment of contracts, ex post facto laws, bills of attainder, suspension of the writ of habeas corpus, and arbitrary infringement—by clear implication extend to women as well as men.[10] Thus, following ratification, American women were guaranteed specific legal privileges and protections against arbitrary and capricious government action previously unknown to most of mankind.
It is true that because of variations in state law, women did not immediately enjoy the same political and legal rights throughout the nation that men enjoyed. The dominant view was that natural differences between the sexes make women more suited for domestic cares and that the legal system should promote public safety and happiness by strengthening the bonds of the nuclear family. This view led states to adopt policies that restricted divorce, held men and women to different moral standards, prohibited women from participating in certain forms of employment, limited property ownership to single women, and restricted suffrage to males. Nevertheless, the establishment of equality as the central principle of the American regime was perfectly compatible with improving the status of women.
Eventually, the authority of the Founding documents inspired the movement for equal political and legal rights. Early women’s rights advocates were able to contend that sexual difference is not a sufficient justification for not granting women the rights that flow from their equal status as rational beings, such as the right to legal property ownership, political representation, and freedom of occupation.[11]
Women’s demand for expanded civil and political rights on this basis was first widely promulgated in the 1848 Seneca Falls Declaration of Sentiments, which began by appealing to the same transcendent “Laws of Nature and of Nature’s God” that inspired the American Revolution. On this foundation, the signatories of the Declaration charged that laws and actions that restrict women from the elective franchise, impose different civil and criminal liabilities for women, deprive women of guardianship of their children in the case of divorce, and construct barriers to higher education, property ownership, and profitable employment, are unjust violations of women’s equality and must be altered.
Second-Wave Ideological Roots of the Contemporary Feminist Critique of Constitutional Government
Earlier women’s rights advocates, from the mid-19th century to the onset of the civil rights movement in the 1960s, primarily sought to expand women’s political and legal rights within the framework of limited constitutional government, limiting their demands to the right to vote and equal legal access to property ownership, higher education, and employment. This changed radically beginning in the 1960s.
The second wave of feminism expanded mainstream feminism’s focus from political and legal inequality to social inequality. Its adherents began to emphasize the concept of patriarchy, arguing that the public and private relationships between the sexes are inherently oppressive and that women’s subordinate position within familial and social structures is the root cause of their legal, political, and economic inequality.[12]
Contemporary feminism, an ideological outgrowth of the second wave, has largely adopted the belief that constitutional forms, which pledge an objective application of the law without regard to sex and limit government power with a view to protecting individual rights, are patriarchal in nature and stunt women’s ability to develop into full and equal citizens. Thus, many prominent contemporary feminists oppose the notion that there are legitimate limits to political authority and that government action should primarily involve restraining individuals from trampling the equal rights of others while otherwise leaving them free to determine the course of their lives.
This misperception of constitutional institutions and ideals as hostile to the rights of women was the inevitable outgrowth of second-wave feminism’s redefinition of what it means for women to be free and equal. Similar to their progressive intellectual forebears, post-1960s feminists have consistently defined equality and freedom not as the right to receive equal protection of the law and make decisions for oneself, but as qualities that are achieved only when women fully develop their social and intellectual faculties free from constraints imposed by gender. In other words, whereas earlier women’s rights advocates fought to gain recognition of women’s equal status by securing their legal right to participate in the political process and pursue happiness through the free use of their faculties, second-wave feminists began to equate equality and freedom with the achievement of self-actualization, or individual autonomy.
The nature of these ideas is in conflict with any conception of limited constitutional government. To better understand our current condition, we will turn to some of contemporary feminism’s central claims. Specifically, feminism’s general understanding of autonomy and the barriers that the family, civil society, and sexual violence place before the realization of this autonomy has led contemporary feminists to support policies that reject the scope and character of American constitutionalism both implicitly and overtly.
Autonomy. Second-wave feminists have varied to some degree in their understanding of what the achievement of self-actualization for women would require. Beginning most notably with the publication of Betty Friedan’s The Feminine Mystique in 1963, second-wave feminists adopted the view held by earlier progressives that “true freedom…consists in the actual development of one’s full—and hence highest—nature, not the mere legal right or opening to pursue such development.”[13]
Believing that individual autonomy requires the full development of one’s intellectual and social capacities, Friedan argued that women had to reject the role of housewife and pursue a career that allows them to engage in the kind of human activities for which they are suited by nature. According to Friedan, a domestic life does not allow women to fulfill their human potential, because such a life does not require “enough thought or creative energy to challenge any woman’s full capacity.”[14] Friedan stressed that “[t]he only way for a woman, as for a man, to find herself, to know herself as a person, is by creative work of her own.”[15] This meant that in order to develop their own identity, women had to reject the role of housewife and pursue paid work, which is equal to their ability and requires initiative, responsibility, and leadership.[16]
While Friedan called for “a drastic reshaping of the cultural image of femininity” and rejected the idea that women could be naturally fulfilled and therefore “free” in the roles of wives and mothers, she did not deny “that woman, like man, has a sexual nature, expressed in specifically human traits and behaviors.”[17] In other words, she did not believe that women’s greater participation in the public sphere would completely alter their sexual nature as females.
In contrast to Friedan, radical second-wave feminists of the 1960s and 1970s denied that human beings possess any inherent sexual nature whatsoever and maintained that women have been enslaved by an arbitrarily imposed identity. Thus, they equated liberation with women’s ability to will their own identity free from considerations of nature, gender, traditional morality, religion, or culture. In her book The Female Eunuch, prominent radical feminist Germaine Greer argued that women have been castrated by society, the family, and the capitalist system. In order to become free, they would have to reassess their nature by revolting against societal assumptions about womanhood, sexuality, and love.[18]
Greer and other radical feminists aimed for an androgynous society in which women could define themselves however they pleased, unconstrained by notions of nature or femininity.[19] Furthermore, although all strains of second-wave feminism held that women must be freed from unwanted or unplanned pregnancy, some radical feminists, such as Shulamith Firestone, went so far as to argue that women would not achieve true autonomy until advances in science and technology freed them from the “tyranny” of their reproductive biology and childbearing itself through the development of artificial wombs.[20]
Organized feminism today is influenced by both liberal and radical second-wave feminism. Building on the liberal feminist view that women can achieve self-actualization only by pursuing creative work outside of the home and the more radical belief that, aside from anatomy, there are essentially no innate differences between men and women, contemporary feminists presume that if women are truly free and equal, they will pursue the same goals as men. The dilemma for contemporary feminists is that although American women have gradually overcome the formal legal and informal cultural barriers that previously prevented them from participating in certain occupations and professions, this achievement has not led to statistical parity between the sexes in all areas of social, economic, and political life.[21]
Because contemporary feminists generally deny that natural differences between the sexes might influence the free expression of their preferences, they tend to interpret observable differences in outcomes between males and females (for example, in different career fields) as evidence of systemic discrimination and debilitating social conditioning. Thus, feminists measure gender equality, in the words of a popular women’s studies textbook, by “the degree to which men and woman have similar kinds or degrees of power, status, autonomy, and authority.”[22]
Practically speaking, this standard has led most contemporary feminists to gauge equality in terms of outcome uniformity rather than equal legal opportunity. If women are not half of all college athletes, half of all engineers, half of all surgeons, half of all CEOs, and half of all political leaders, for example, the assumption is that women do not have the opportunity or freedom to pursue these goals equally.
The conviction that behavioral characteristics typically associated with females and males result entirely from arbitrary social and cultural norms and that true equality will manifest itself in statistical parity has had a dramatic influence on contemporary feminists’ understanding of rights and the role of government in protecting rights. Once gender parity became the criterion for equality, group achievement rather than equal protection of individual rights and opportunity became the goal.
These ends are in conflict. Equal protection requires non-discrimination against individuals—regardless of sex, class, race, etc.—in the protection of their rights. A system focused on group achievement, in contrast, actually requires unequal, preferential treatment of some individuals over others based solely on their membership in a particular group or class.
A constitutional system based on the protection of equal opportunity and individual rights in which males and females alike are able to develop their natural talents and abilities free from artificial legal barriers is problematic for contemporary feminists. They assert that such a system fails to account for the way women are hindered by external discrimination and the internal restrictions that they unknowingly have been socialized to impose on themselves. As Jessica Neuwirth, founder and director of the Equal Rights Amendment Coalition, maintains, “The entrenched historical inequality between the sexes cannot be erased by the creation of a level playing field because the players themselves are at two different levels.”[23]
In order to combat the discrimination and cultural views of sex that feminists believe pervasively hinder women as a class, the old system of individual rights, equal protection, and due process of law applied to individuals as individuals must be replaced by a system of group rights and legal privileges. Such a system undermines the very basis of limited constitutional government in which the people collectively empower the government to protect their inherent rights as individuals. Under a system of group rights, the state itself becomes the arbiter of rights, which are distributed to individuals based on their social demographic. Furthermore, in order to secure group rights and promote the development of specially protected classes, the state must weaken and even directly violate the freedom and rights exercised by individuals.
The feminist movement’s policy objectives in this regard are focused chiefly on combatting what feminists consider to be the major impediments to the development of women as a class. Such impediments include individual women’s pursuit of domesticity within the nuclear family, systemic discrimination in civil society, and sexual violence.
Family. From the Founding generation until the initiation of second-wave feminism, the belief that the nuclear family is essential to the maintenance of a free society, to the well-being of men and women, and to the proper care of children was widely accepted.[24] In this regard, even after controlling for socioeconomic factors such as income, education, and race, much research suggests that the long-term commitment and stability of marriage is beneficial for men, women, and children. Those who live within intact, biological, married families are far less likely to suffer from illness, exploitation, abuse, neglect, and impoverishment.[25] Research confirms that strong families are in fact essential to thriving communities and a stable political order.
While early advocates of women’s rights sought to address existing abuses of women and to increase opportunities for women by expanding political and legal rights, their demands did not require either absolute parity between the sexes in all areas of social, economic, and political life or the complete rejection of traditional roles within the family. On the contrary, under a constitutional regime of liberty, expanded legal privileges would afford women new opportunities outside of the home but would also permit them to pursue life choices and priorities different from those pursued by men even if that included following the traditional division of labor or making their career a higher priority than raising a family.
Beginning in the 1960s and 1970s, feminists began to attack the traditional nuclear family overtly, arguing that it contributes to women’s economic and emotional dependence and maintains a cycle of oppression through sexist social conditioning. Based on the conviction that, absent arbitrary social expectations and cultural norms, women would behave identically to men, feminists since the 1970s have been particularly concerned with the conflict that married women continue to face choosing between the priorities of domestic life and motherhood and career success. For example, Lenore Walker, a prominent feminist scholar, claimed that social glorification of the life of mother and wife makes women “seek status in their home lives rather than their careers. Thus, their self-esteem [is] dependent on their ability to be good wives and homemakers and [is] not well integrated with their successful professional activities.”[26]
Consequently, whereas many Americans would agree that women should have equal opportunity and choice in academic, economic, and political life, contemporary feminism is not so much about choice as it is about creating the conditions for women to make what feminists believe is the right choice. The right choice, of course, is the pursuit of parity with men in the public realm, and women who refuse to pursue this goal are often shamed and shunned by those who are associated with organized feminism.
Several prominent women have written well-researched accounts demonstrating that the feminist vision of what women should want from their lives (financial autonomy and career success) often conflicts with the goals and desires of many real women.[27] Contemporary feminists usually respond to such dissidents by arguing that women who desire to make their career a secondary or partial priority have been socialized by the cultural glorification of femininity and motherhood to participate in their own subordination. In other words, as Betty Friedan lamented, women adopt the values of the system that oppresses them, and because “the chains that bind [women] are often in [their] own mind.”[28]
The contemporary feminist critique of the nuclear family, together with the belief that women cannot achieve autonomy within the confines of family life directly affect their understanding of constitutional government. The constitutional framework designed to protect individuals’ ability to exercise their faculties and pursue happiness freely within the basic confines of the law is problematic for feminists because such a framework does not authorize the preferential regulatory action and resource distribution they deem necessary for women to reject traditional roles within the home and achieve autonomy.
Civil Society. Even if individual women are able to break “the chains” of domesticity, contemporary feminists insist that they are hindered in their endeavors by pervasive discrimination within the public sphere. Contemporary feminists express particular concern that the achievement of equal political and legal rights has not resulted in proportional numbers of males and females in all areas of economic and political life, and they assume that any lack of parity in public achievement is caused by discrimination and sexist social conditioning.
Consequently, rather than focusing on whether the conditions for opportunity and prosperity exist for individuals, feminists have become obsessed with statistical outcomes. For example, while acknowledging that women now earn more than half of all bachelor’s and master’s degrees, the National Women’s Law Center laments that women remain “disproportionately clustered in traditionally female jobs,” earn lower salaries on average than men, and do not get promoted at the same rate as men. Citing this as evidence that discrimination against women is “deeply rooted in our society,” the center emphasizes that affirmative action policies are necessary for “women to begin to take their rightful place in our society.”[29]
In appealing to statistical disparities as proof of pervasive bigotry, feminists ignore evidence demonstrating that such disparities are both most often attributable to factors other than systematic discrimination and, in many cases, a result of voluntary choice.[30] A wide range of studies demonstrate that, although the roles of men and women in the home and the workplace continue to converge and women are entering all fields in increasing numbers, females tend to be more concerned with rewarding work and familial relationships than are their male counterparts. As a result, many women willingly trade higher pay and upward mobility for “fewer risks, more comfortable conditions, regular hours, more personal fulfillment and greater flexibility.”[31] Moreover, far from feeling repressed or degraded by these decisions, women who make family-related career sacrifices tend to report higher levels of happiness.[32]
Rather than acknowledging that physical, neurological, and hormonal differences between the sexes, in addition to women’s unique role in bearing children, might lead a significant percentage of women to engage willingly and rationally in different behaviors and pursue priorities, college majors, or career paths different from those pursued by most men, mainstream feminists since the 1970s have denied that innate sexual differences contribute in any way to the overall structure of society. Instead, they attribute the worst qualities of some individuals to society as a whole, contending that prejudice against women in America runs so deep and is so ingrained in the minds of both males and females that those with authority are instinctively, even if unconsciously, less likely to promote or fairly compensate qualified, talented, and dedicated female workers.
Feminists argue not only that women as a class face barriers to advancement due to stealth discrimination in the workplace, but also that women themselves are frequently deluded and motivated by widely accepted stereotypes about motherhood and femininity. In other words, discriminatory social pressure leads women as a class to choose less lucrative careers and make career-related sacrifices that they otherwise would not have made. On this basis, even seemingly uncoerced personal choices and preferences in the workplace are, in the words of the AAUW, “fraught with inequities.”[33] These assertions lead feminists to reject the constitutional regime of individual liberty and equal opportunity in favor of intrusive and preferential regulation of the decisions and actions of individuals, organizations, and businesses to promote equality of outcome in the public sphere.
Violence. In addition to the charge that discriminatory social constructions have resulted in an economic and political system that is inherently hostile to women, feminists commonly argue that a pandemic of gender-based violence perpetuates that system. Although violence generally affects victims from all sectors of society and the causes of violence are complex, feminists since the late 1960s have argued that domestic and sexual violence are not deviant or pathological acts, but rather are part of a socially accepted system of control designed to prevent gender equality.
In 1971, feminist Susan Griffin referred to rape as “the all-American crime” and equated it to “a kind of terrorism which severely limits the freedom of women and makes women dependent on men.”[34] Susan Brownmiller contributed to this notion of rape as a political mechanism of male social control when she argued that rape is “a conscious process of fear and intimidation by which all men keep all women in a state of fear.”[35] In other words, not the act of rape itself, but the fact that it can be done is a source of oppression.
Based on the contention that “every man is a potential rapist and all women are potential victims,” feminists have continued to insist that a generalized fear of rape has direct behavioral consequences for women.[36] Specifically, behavioral restrictions on women, such as a reticence to travel or work alone or late at night, based on their fear of rape allegedly reinforce socially constructed “gender-appropriate” forms of behavior that hinder women’s ability to engage equally in political or economic life and develop as a class. Some prominent feminists have even gone so far as to compare the social effects of gender-motivated violence on 21st century American women to the lynching of blacks in the Jim Crow–era South. According to Catharine MacKinnon, for example, “In feminist analysis, a rape is not an isolated event or moral transgression or individual interchange gone wrong but an act of terrorism and torture within a systematic context of group subjection, like lynching.”[37]
Violence against the person and property of both sexes is a serious matter, and the state is responsible for protecting those under its jurisdiction from such violence through an equal, blind, and rigorous enforcement of the criminal law. However, feminist advocacy groups purposely promulgate exaggerated and fictitious statistics about the frequency and nature of such abuse. This is often done to perpetuate the notion that the personal and physical relations between the sexes are inherently repressive and that the alleged pandemic nature of abuse inhibits all women from living as free and equal beings.
One claim touted repeatedly by feminists and their allies in politics and the media is that domestic violence is the leading cause of injury to women between the ages of 15 and 44—more common than car accidents, muggings, and cancer deaths combined. According to the U.S. Department of Health and Human Services (HHS), however, the leading causes of injury to women in 2006 were all unintentional injuries, with motor vehicle accidents and overexertion topping the list.[38]
Feminist groups also support the contention that violence is an inherent product of the nuclear family and that wife battery is not “a deviant, aberrant, or pathological action,” but rather one that is rooted in the cultural and social norms of society. Some feminists even maintain that “a marriage license is a hitting license.”[39] Recent data from the U.S. Department of Justice, however, show that households with married adults with children are 10 times less likely to experience violence than households comprised of one female adult with children.[40] This is most likely due to the fact that monogamous, committed relationships between the sexes frequently promote healthy attachments, lower levels of stress, and greater financial stability.
Although a variety of prominent scholars—including Christina Hoff Sommers, Wendy McElroy, and others—have published extensive research exposing the gross inaccuracy of many feminist contentions about violence, the feminist trend of politicizing violence continues. Recently, contemporary feminists have touted the discounted statistic that at least one in five women on college campuses will be a victim of sexual assault, suggesting that institutions of higher learning in particular are predatory, misogynistic environments and that women who pursue an education are more likely to become victims than are women in the general society.[41]
The charge that sexual violence is pandemic and that such violence is a primary mechanism of male social control motivates a feminist response to violence that is rooted in social and legal transformation as opposed to a constitutional system of legal equality that seeks to punish individual perpetrators of violence.
Feminist Rejection of the Scope of Constitutional Government
The view that patriarchal social hierarchies are initiated and perpetuated by the socialization, discrimination, and violence that occur in private life has led contemporary feminists to support policies that both implicitly and overtly reject the scope of American constitutionalism. Constitutional government, which limits the reach of government authority with a view to impartially protecting individual rights, is a barrier to the state intervention and regulation of individual liberty that feminists believe are necessary for women to escape gendered patterns of socialization and deeply embedded sexism.
American constitutionalism is grounded in the idea that individuals have rights that cannot be repealed or infringed by human laws. Therefore, a constitution should limit the scope of democracy with a view to securing those things that are naturally our own, including, as James Madison summarized, our personhood, opinions, religious beliefs, faculties, and possessions.
As Madison points out, our ability to pursue happiness is threatened both by “an excess of liberty” and by “an excess of power” of other citizens or government over us.[42] Consequently, while government is necessary to secure the ability of individuals to pursue happiness by protecting them against injury from foreign actors or other citizens, government also threatens individuals’ pursuit of happiness when it becomes too intrusive or gives preferential treatment to certain classes of citizens at the expense of others. Therefore, constitutional government provides a framework for the individual pursuit of happiness both by effectively empowering governing authorities to protect the weak against injury and by subordinating them to a set of principles and procedures that minimize abuses or overextension of that power.
On this basis, the government’s role is not to guarantee specific outcomes—in wealth or achievement, for example—but to create the conditions under which individuals can cultivate their faculties, worship God according to the dictates of their conscience, and pursue goals free from the despotic control of other people and the government itself. Only under a system that vigorously and impartially prosecutes crimes against person and property and provides civil remedies for damages while otherwise allowing individuals to govern their own affairs will individuals from all conditions and classes experience any vestige of equal opportunity to pursue success based on merit and personal choice.
Nevertheless, our constitutional order is considered problematic by contemporary feminists. According to the logic of modern feminism, the bounds of political authority should be defined not by what is necessary to protect individual freedom and opportunity, but by what is necessary to secure a specific outcome for women as a historically oppressed group. Constitutional government, designed with the goal of protecting individual rights without burdening or benefiting people based on their membership in a particular group, does not authorize the preferential financial and legal treatment of women as a class and the regulation of individual liberty that contemporary feminists believe are necessary for women to realize their potential. That is, although women have the same legal freedom to exercise their faculties and dispose of their property that men have, this legal freedom to make decisions about their own lives or goals is insufficient. Without the means necessary to overcome gender stereotypes, economic discrimination, gender-motivated violence, and other barriers that stand in the way of self-actualization, women’s freedom is null.
Freedom in this sense is not the ability to make decisions about one’s own life or the employment of one’s faculties free from arbitrary interference or injury, but an evolving, subjective concept that requires access to whatever material resources and conditions are necessary for women to overcome the constraints of gender and achieve statistical parity with men in power, wealth, and status. Unlike natural rights, the so-called positive rights demanded by feminists are constantly in flux and have no principled limits.
The problem with the Constitution on these grounds, according to Robin West, a prominent feminist law professor at Georgetown University, is that:
[It] guarantees us the right to do certain things free of interference from social authority, but it does not guarantee us the absolute right to do those same things. The negative freedom that is the concern of the Constitution extends only to the right to procure goods or develop abilities free of interference from social authority. It does not positively guarantee the individual the goods themselves, or access to the goods, or access to the ability or skills necessary to procure them.[43]
In other words, while the Constitution defines and limits authority, guarantees equal protection of law, and prohibits government interference with such rights as property, free speech, religious belief, and association, it does not allow for the redistribution of resources and legal privileges that is necessary to secure such positive rights as a higher education, a good income, and unfettered access to abortion, contraception, and day care. Positive rights, according to those within the organized feminist movement, necessarily require the redistribution of financial and legal resources to women because legal access to such rights as abortion or higher education is worthless without the financial means or resources to take advantage of them. For this reason, West complains that the Constitution “is a shield of protection; it is not a sword of entitlement.”[44]
Modern feminists have further expanded their critique of limited constitutional government by arguing that the Constitution not only fails to grant women the positive rights necessary for self-actualization, but also exacerbates women’s subordination by insulating civil society—including religious and civic organizations, private associations, businesses, and the family—from state involvement or interference. For example, Sally Goldfarb, former NOW senior staff attorney and founder of the National Task Force on the Violence Against Women Act, contends that “[b]y sealing off civil society in general, and the home in particular, as a private sphere where the law may not intrude, the Constitution protects the stronghold of patriarchy.”[45]
Under the constitutional framework, the state polices the private sector to protect core rights through the restriction and punishment of deeds and actions that lead to or result in direct tangible or physical harm. Such a system, however, does not extend to the extensive oversight and regulation of private and religious associations, education, and the marketplace that are necessary to eradicate the discriminatory personal, cultural, and religious beliefs and attitudes that feminists believe exist in the minds and hearts of nearly all Americans.
This critique of constitutional government has led politically connected feminist groups to support a common agenda of larger and more intrusive government that is more concerned with redistributing wealth and resources and regulating individual liberty than it is with protecting individual freedom, opportunity, and choice. Believing that group achievement for women as a class is more important than the protection of individual rights, feminist organizations rally in support of policies that severely restrict the liberty and property rights of individuals—men and women alike.
All mainstream feminist groups, for instance, adamantly supported the HHS mandate requiring health insurance plans to cover contraceptives, abortion-inducing drugs, and sterilization at no cost to the patient, considering it a triumph of “equal rights.” In reality, however, the mandate violates individual liberty and rights. It not only dictates how employers and individuals—both non-religious and religious—must spend and invest their own money, regardless of personal beliefs and opinions, but also restricts individuals’ ability as consumers to enter into contracts and make health care decisions based on personal needs and preferences.
Feminists’ emphasis on group achievement at the expense of individual liberty is also apparent in the way they have distorted laws originally enacted to protect individuals from injury caused by direct discrimination. By encouraging bureaucrats to interpret anti-discrimination laws as mandating quotas, feminist organizations have attempted to use anti-discrimination legislation to force women’s advancement into male-dominated areas of society. The test of discrimination on this basis is not whether individuals have actually experienced injury, but whether group averages meet a set goal.
A clear example of this can be seen in the application of Title IX of the Educational Amendments of 1972 to collegiate athletics. Modeled after Title VI of the Civil Rights Act of 1964, the text of Title IX reads,
No person in the United States shall, on the basis of sex, be excluded from participating in, be denied benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.[46]
The intention of the law was to outlaw sex discrimination in education so that women would have equal opportunity to excel in academic pursuits, not to require statistical parity of males and females in particular fields or extracurricular activities. In fact, Title IX’s original supporters in Congress emphasized that the law should not be used to mandate quotas.[47]
Nevertheless, feminist special-interest groups, including NOW, the Women’s Equity Action League, the Feminist Majority, and others, immediately began to lobby the agency responsible for Title IX implementation, the U.S. Department of Education’s Office of Civil Rights (OCR), to interpret the law as requiring a de facto quota system. Although the OCR developed several measures for judging compliance with the law, the courts—due to pressure from feminist organizations—have mostly judged compliance based on whether male–female participation in sports is proportional to overall enrollment. Thus, schools are able to protect themselves from legal action only if they can demonstrate that the percentage of males and females involved in intercollegiate athletics mirrors the makeup of the student body as a whole: If women make up 60 percent of the student body, for example, then 60 percent of the student athletes must be women and 60 percent of the funding for athletic scholarships must go to women, or a college will likely be found out of compliance with Title IX.
While many schools have successfully increased female participation, some schools such as Brown University have been sued when they could not generate enough interest to fill the rosters for women’s sports teams even after engaging in aggressive recruitment efforts. Many campuses have been forced to eliminate men’s athletic teams, and certain men’s sports such as gymnastics have all but disappeared on college campuses in order to achieve proportional athletic participation.
Paradoxically, the quota system under Title IX has been applied only to athletics, the one extracurricular activity on college campuses in which male participation outpaces female participation. As Carrie Lukas observes,
If Title IX were applied to other endeavors, such as student newspaper[s], government and theater, then opportunities for women to participate would have to be slashed. Presumably, feminists celebrating Title IX would recognize that this would be unfair to women and would fail to benefit men.[48]
Lukas further observes that rather than reforming Title IX implementation, feminist groups have pushed to expand the quota system into other academic subject areas, focusing solely on boosting women’s enrollment in male-heavy disciplines while ignoring equally skewed female-dominated subjects.
Feminist efforts to restrict liberty likewise occur in the workplace more generally. Rather than supporting a freer regulatory environment that would make it easier for women to start and run businesses, promote based on merit, and choose flexible work environments consistent with their own priorities, feminists push for extensive bureaucratic oversight of wage and hiring decisions, mandated compensation and benefit packages, and taxpayer-subsidized child care. Operating under the assumption that opposition to increased government spending and regulation is an assault on women, feminist organizations consistently ignore evidence that such actions not only make the workplace less productive and accessible in general, but also burden and restrict women themselves.[49]
For example, while feminists have lobbied forcefully for federally mandated benefits such as maternity leave and child care so that women will not have to make trade-offs between family and work life, mandated benefits can actually hinder women’s advancement in the workplace. In Chile, Spain, and France (and Europe in general), mandated benefits for women such as child care, generous maternity leave, and the right to work part-time or demand reduced hours without being terminated have artificially increased the cost and risk of employing women, and the result has been a decline in salaries, promotion rates, and full-time jobs available to women.[50]
Mandated benefits also restrict women’s freedom to negotiate their own contracts with employers. Large employers frequently offer generous benefit packages to attract and retain employees, including women. Thus, for example, women who do not anticipate having children or who have outside means of child care may prefer to opt for higher take-home pay rather than benefits that they will not use. Federally mandated benefits, however, effectively restrict employers’ flexibility to offer compensation based on employees’ individual preferences and needs.
Thus, in the name of promoting a just outcome for women, feminists dictate the types of economic arrangements women can or should enter and thereby threaten the freedom of choice and contract that the Constitution was designed to protect.
Feminist Rejection of the Character of Constitutional Government
Based on their conviction that American society is necessarily hostile to the well-being and autonomy of women, modern feminists have rejected both the scope and the character of constitutional government. American constitutionalism rests on the bedrock principle that the exercise of state power should be limited in scope and non-arbitrary in character. Non-arbitrary government depends upon rule of law, due process of law, and equal protection under the law. That is:
Civil rights and proper behavior must be defined through general laws;
Violations of the law must be adjudicated by trials so that accused individuals have the opportunity to defend themselves according to specified procedures defined by law; and
The state must protect individuals from injury against their person and property through a blind, equal, and consistent execution of the criminal and civil law.
In short, violations or injuries against person or property should be defined by law and prosecuted with absolute impartiality by government without regard to the gender of the perpetrator or the victim.
The idea that each individual has a right to be protected equally and impartially by the law was one of the animating forces behind early civil rights laws and the Fourteenth Amendment. While feminist advocates have often built on this foundation by highlighting genuine cases of injustice toward women in the civil and criminal law, ensuring protection against injury for all victims through the equal and rigorous enforcement of the law is not their primary aim because they do not believe that such protection will redress the root causes of injury.
In The Politics of Law: A Progressive Critique, David Kairys asserts a notion long maintained by feminist legal scholars: “[T]raditional jurisprudence largely ignores social and historical reality, and masks the existence of social conflict and oppression with ideological myths about objectivity and neutrality.”[51] From the feminist standpoint, legal neutrality, understood as the objective application of the law through clearly defined trial procedures and the equal execution of the law in the case of injury, is not possible given the patriarchal views that dominate the legal system; furthermore, even if objectivity were possible, it would merely perpetuate patriarchal dominion because it would not allow the flexibility and power necessary to correct past injustices or weed out the discriminatory thoughts and attitudes that feminists believe are at the root of social, economic, and political inequality.
On these grounds, Robin West writes, “Women living in a state whose law is rigorously neutral toward women and men still find themselves burdened by the inequality and injustice of a private regime of patriarchal control. Women will still find themselves unable to live the positively free life of the citizen because of it.”[52] According to this view, the state—by aiming to protect everyone’s right to life, liberty, and the pursuit of happiness through a system of rule of law, due process, and equal protection—in effect sides with men because it fails to account for the way that women are hindered by cultural (and personal) views of gender and the family. In other words, the constitutional ideals of legal neutrality and objectivity reinforce the male privilege that dominates the whole system and “recapitulate the male point of view.”[53]
This feminist critique of a constitutional system governed by standards of legal neutrality and objectivity is particularly evident in the realm of sexual violence, in which feminists have sought to transform individual crimes of violence into a civil rights issue requiring the dispensation of special legal privileges to alleged victims. Operating under the conviction that sexual assaults are not deviant, aberrant, or pathological acts, but rather are accepted, structural byproducts of the American “rape culture,” which normalizes and even condones such violence, feminist advocates have long argued that any plan to eliminate sexual violence cannot be addressed adequately through a system of legal equality that seeks to punish individual perpetrators. Instead, they maintain, any long-term plan to combat such systemic violence must be based on a change in the traditional response to violence with the goal of transforming the hearts and minds of Americans.
The feminist influence in this area is perhaps nowhere more apparent than in the weakening of due process protections for the accused in sexual assault cases, particularly those adjudicated on college campuses. Operating under the supposed authority of Title IX, which forbids sex-based discrimination in education, the Department of Education’s Office of Civil Rights has recently put tremendous pressure on colleges and universities to change how they respond to allegations of sexual harassment and sexual assault by instructing them to lower the standards of evidence for finding male students guilty, to restrict cross-examination, and to impose “interim” punishments against the accused before they even receive a hearing on the charges against them.
Just as troublesome, however, is that while the OCR has promoted policies that favor the alleged victim in campus disciplinary proceedings dealing with sexual harassment or assault, it does not require that even the most appalling instances of alleged sexual abuse and misconduct on campuses must be referred to the police for further investigation and prosecution. In fact, mandatory referral to police is seen as violating the right of an alleged victim to “control” the proceedings and is itself seen as a patriarchal response. This is a matter for serious concern, especially in view of the high rates of recidivism for rapists, especially those who are never incarcerated.
The push to base findings of guilt largely on the mere accusation of guilt while at the same time downplaying the important investigative and prosecutorial roles of the criminal justice system is rooted in the assumption, frequently promulgated by feminists, that reliance on facts, evidence, and process is inherently patriarchal and oppressive because they can be used to discredit women who delay reporting assault or whose stories regarding abuse change over time.[54] The feminist instinct to treat uncorroborated accounts of victimization as indisputable fact is also apparent in the contemporary application of sexual harassment law.
Sexual harassment, to the extent this concept can be defined and prohibited in a manner consistent with the First Amendment, should be prohibited. However, as a result of the influential legal theory espoused by feminist law professors such as Catharine MacKinnon, Deborah Rhode, and Robin West, the concept of “sexual harassment” has become muddled and arbitrary. According to feminist legal theory, sexual harassment is not just an objective, quantifiable personal harm by one individual against another; rather, it is an all-things-considered description of women’s subordinate social and economic position. As Diana Furchtgott-Roth and Christine Stolba explain, “That interpretation of sexual harassment makes it a permanent fixture of a supposedly male-dominated society, immune to eradication until society itself is thoroughly restructured along feminist lines.”[55]
There is no question that sexual assault and injurious harassment should be investigated and prosecuted aggressively to the full extent of the law, but neither men nor women are well-served by the destruction of the constitutional ideals of objectivity and neutrality in determining guilt and innocence. Without clear and objective standards for defining and prosecuting injurious behavior, the law merely becomes a tool for the capricious whims of those in power and their cronies, and the execution of justice tends to disintegrate into mob rule—the very problems against which early civil rights advocates fought and that the Fourteenth Amendment and early civil rights legislation addressed.
Conclusion
Those within the modern feminist movement frequently speak the language of equal opportunity and rights, but what they are really seeking is absolute parity between the sexes in all areas of society. This view is based both on a monolithic view of what it means to be an autonomous woman, and on the belief that discriminatory socialization, power imbalances within the family and society as a whole, and pervasive gender-based violence (which both results from and reinforces power imbalances) have created a social, economic, and political system that is inherently hostile to women. On these grounds, the modern feminist movement is less interested in protecting individual freedom and rights than it is in fundamentally transforming the American public consciousness and America’s political and private institutions.
Thus, while early women’s rights advocates fought to expand women’s political and legal rights and correct unjust applications of the law within the framework of limited constitutional government, modern feminism has challenged that same framework as inherently patriarchal. Modern feminists do not believe that genuine equality and justice can be achieved through a limited constitution based on the equal and non-arbitrary protection of rights because, as feminist law professor Elizabeth Schneider has stated, “Rights claims do not effectively challenge existing social structures and social relations and seek to transform them.”[56]
In other words, because entrenched discrimination and institutional sexism hinder women as a class, the “same protection” actually requires preferential treatment and government mandates geared toward improving the status, wealth, and power of women. Therefore, the old system, which limits the scope and character of the law with a view to protecting individual rights, must be replaced with group rights and legal privileges designed to ensure or promote a specific outcome for women as a whole.
To oppose the restructuring of the American constitutional system is not to assert that women never face discrimination or even that they enjoy perfect equality of opportunity in all instances. However, by seeking to balance the scales of past and current inequities by unleashing government power and removing the blindfold of justice, feminist ideology poses a serious threat to this system, which is intended to protect individuals regardless of group membership.
Ultimately, an unfettered state that favors certain individuals based on their membership in a particular class threatens the equality and rights of all men and wome