Saturday, June 25, 2011

A Legal Historian’s First Book, Part IX: The Hatchet and the Scalpel


I began the final round of book revisions in denial about the fact that my manuscript needed to be reduced by 40,000 words—the equivalent of two chapters. One editor friend advised that I would need a hatchet as well as a scalpel: to condense the manuscript that much would require eliminating huge chunks of text as well as line-by-line editing. In the end, the need to cut Chapters 4 and 5 down to size forced me to do a wholesale rewrite of each—painful, but necessary.

Ruth Bader Ginsburg
The first step was to articulate the one or two central points of each chapter. Chapter 4 was perhaps the most difficult to distill without oversimplifying. There was a lot going on—feminists’ use of disparate impact arguments in both Title VII and equal protection cases, the complicated relationship between sex equality law and affirmative action, the politics and law of veterans’ preferences, and the campaign against pregnancy discrimination, among other topics. Several interrelated themes ran through the chapter; I tried to focus on two strands. First, feminists did not merely pursue “formal equality” or “equal treatment” in the 1970s; they also turned to more expansive theories of equality—disparate impact and affirmative action. In doing so, as the chapter’s title, “Reasoning from Sex,” suggests, they not only drew on race jurisprudence to attack sex inequality, they also deployed emerging sex equality theories and caselaw to protect and expand race precedents.

For example, Ruth Bader Ginsburg turned the Court’s rejection of strict scrutiny for sex-based classifications to the advantage of feminists and civil rights advocates. Using a “reverse analogy,” she argued forcefully that the distinction the Court had drawn between “invidious” discrimination and “genuine affirmative action” in sex equality cases should apply to race-based affirmative action, then under attack in Regents of the University of California v. Bakke (1978). And this was just the tip of the iceberg. By the mid-1970s, this chapter shows, race and sex equality law were so intimately intertwined that it is impossible to understand either in isolation from the other.

Katie Mae Andrews Peacock
Chapter 5 is one of my favorite chapters, in part because it features the little-known case of Andrews v. Drew Municipal Separate School District, argued at the Supreme Court in 1976 but dismissed as improvidently granted (“DIG’ed”). Katie Mae Andrews, then 22, challenged a rural Mississippi school superintendent’s ban on employing unmarried mothers as teachers. Andrews was attorney Charles Victor McTeer’s first client. McTeer collaborated with young feminist lawyers at the Center for Constitutional Rights, including Rhonda Copelon, and solicited testimony from sociologist Kenneth Clark and activist Fannie Lou Hamer. Andrews's supporters made innovative arguments about the intersections between racial injustice, economic oppression, sexual subordination, and reproductive freedom. They persuaded federal district court judge William C. Keady to see the case as not only an end run around racial desegregation but as an instance of unconstitutional sex discrimination, just weeks after the Court decided Roe v. Wade and Frontiero v. Richardson (1973). But when their appeal reached the Supreme Court, the rich intersections that had so excited Andrews’s feminist allies made the Justices profoundly uncomfortable.

Andrews is just one of many examples of how race and sex were intertwined in sex equality cases and campaigns during the 1970s. An astute colleague recommended making the case the chapter’s centerpiece. I rewrote the chapter from scratch, narrowing its focus to three sets of cases—involving school sex segregation, jury service, and unwed mothers’ employment--illustrate a single theme: the “whitewashing” of constitutional sex equality law.

In most respects, the word limit was a blessing in disguise, forcing me both to distill the book’s primary arguments and ruthlessly eliminate excess verbiage. Less salutary perhaps was my hatchet job on the footnotes. The rule of thumb I’ve heard is that footnotes should comprise no more than 25 percent of a book. My notes were longer than that, and still omitted much relevant information and explanation. That said, I am likely the only one who will miss them.


1 comment:

Dan Ernst said...

So that's one way to distinguish the pros from the amateurs in this business: the pros cut.