A Month of Blogging About We the Men

I have really enjoyed writing about We the Men during my month as a guest blogger.

Here are links to my posts, in case you missed them the first time:

We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality

Forgotten Women and Men’s Spontaneous Enlightenment 

Self-Contradictory Victory Announcements

The Unfinished Battle for the ERA 

My website has additional information about the book.  Follow me on Bluesky for more feminist energy in anti-feminist times.

Happy Women’s History Month!

The Unfinished Battle for the ERA

My new book, We the Men, concludes by exploring how Americans can learn from the past to change the future.  The long history of women’s struggles for equality in the United States makes clear that real progress has always required women to challenge prevailing certainties, advance uncomfortable demands, and confront powerful opponents.

I argue that America needs more conflict over women’s status rather than less.  Conflict can generate change.  Patiently awaiting men’s spontaneous enlightenment will not.

The last part of the book highlights some of the unwon battles that need fighting, or continued fighting, to push progress forward—now and over the long haul.  This unfinished reform agenda spans teaching, commemoration, political representation, legislation, litigation, and everyday life.

In this post, I will focus on the unfinished battle for the Equal Rights Amendment.  The required thirty-eight states have ratified the ERA, but the last three ratifications came decades after the expiration of the seven-year ratification deadline that Congress inserted into the 1972 joint resolution sending the ERA to the states. 

The crucial next step is to push Congress to embrace the ERA’s declaration that: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”  Federal lawmakers should either directly recognize the ERA as part of the Constitution, remove the ratification deadline, or—ideally—both. 

Such congressional endorsement would make it more difficult for the Supreme Court to resist the conclusion that the ERA’s ratification is complete.  The Court has never denied recognition to a constitutional amendment that Congress accepts.

Even so close to the finish line, fighting for the ERA remains arduous.  Continued opposition to the ERA in Congress fits within a long history of vehement resistance to expanding women’s rights and roles.  The stakes are high.

Most broadly, the ERA could help transform how powerful and ordinary Americans understand the relationship between women and the Constitution.  Generations of legal authorities have excluded women from the center of constitutional law.  Indeed, Justice Antonin Scalia argued in 2011 that the Constitution does not prohibit sex discrimination at all because: “Nobody ever thought that that’s what it meant.  Nobody ever voted for that.  If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”  Scalia added: “That’s what democracy is all about.”

This was never a compelling argument.  Men barred women from voting on both the original Constitution and the Fourteenth Amendment prohibiting states from denying “any person” “the equal protection of the laws.”   From that perspective, it is hard to see how abiding by what the men behind these constitutional provisions purportedly thought about sex discrimination would be a triumph of democratic legitimacy, rather than an importation of past injustice into the present.  But in any event, women are unquestionably not an afterthought to the ERA.  Adding that amendment to the Constitution would affirm women’s equal citizenship and women’s centrality to constitutional law.

Most practically, the ERA could help expand women’s rights and opportunities.  As We the Men recounts, ERA opponents have spent over a half century describing the amendment as simultaneously unnecessary and menacing.  The first claim has always depended on denying persistent sex discrimination and dismissing ongoing disparities.  The second line of attack has recently focused on arguing that the ERA would provide constitutional protection for abortion rights.  That latter argument has an ironic dimension: Abortion opponents ordinarily refuse to acknowledge any connections between abortion rights and sex equality.  But anti-abortion attacks on the ERA suggest the impact the amendment could have—eventually, if not necessarily with the current Supreme Court.  Embedding the ERA’s explicit prohibition on sex discrimination into the constitutional firmament would provide a new, sturdier foundation supporting feminist advocacy about constitutional rights.

— Jill Hasday

Self-Contradictory Victory Announcements

Today’s post about my new book, We the Men, focuses on another form of forgetting in America’s dominant stories about itself—forgetting the work the nation still has to do.

As modern Americans, many of us have encountered people who announce or assume that the nation has left the sexist bad old days behind.  Still, I was surprised to discover just how early in American history those premature declarations began appearing and how important a role they have played in perpetuating inequality.

Wildly exaggerated accounts of American progress toward sex equality have been common in both everyday settings and legal institutions since before the Nineteenth Amendment’s 1920 ratification made sex-based disenfranchisement unconstitutional. These declarations are routinely framed in terms of American women universally, although white women have tended to be top of mind.

The stories forget what remains undone, even to the extreme of proclaiming that the United States has already achieved sex equality. For example, a 1918 textbook assured young readers that: “All men and women are regarded as equals before the law.” At the time, thirty-three out of forty-eight states maintained sex-based restrictions on the franchise. Although women had spent decades mobilizing for equality, discrimination against women at work, in marriage, and in every other arena was still legal and pervasive throughout the nation.

Judges have been suggesting or proclaiming that the nation has moved past sex discrimination for almost as long as American women have been mobilizing to challenge male supremacy. In fact, many of the judiciary’s sunniest proclamations about American progress have appeared in decisions denying women equality, as courts rationalize their rejection of women’s claims by insisting that women already have so much.

I call these decisions “self-contradictory victory announcements” because judges boast about America’s embrace of sex equality while simultaneously enforcing male supremacy. While women are not the only marginalized group to have experienced the judiciary’s self-contradictory declarations, cases perpetuating women’s inequality have long been prominent triggers for self-contradiction.

The Supreme Court continued its long tradition of self-contradictory victory announcements in Dobbs v. Jackson Women’s Health Organization (2022). This decision overruled Roe v. Wade (1973) in the course of upholding an anti-abortion law from Mississippi, the Gestational Age Act of 2018.

Dobbs repeatedly invoked overstated accounts of women’s advances to defend the Justices’ decision to leap backward and eliminate a constitutional right that women had held for generations.  For example, Dobbs sought to justify the Justices’ decision to give legislatures so much control over women’s lives by announcing that: “Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”

This line of argument turned on obscuring how far America still has to go. Dobbs never mentioned that men held 85.1% of the seats in the Mississippi legislature that passed the Gestational Age Act in 2018. Dobbs also did not mention that the Mississippi governor who championed the bill and signed it into law was the latest in the state’s uninterrupted line of white male governors. Boasting about women’s electoral and political power while ignoring these persistent inequalities made it easier to deny how politicians can endanger women when constitutional safeguards disappear.

— Jill Hasday

 

Forgotten Women and Men’s Spontaneous Enlightenment

My new book, We the Men, explores how America’s dominant stories about itself forget about women. This post draws on that book to highlight one mode of forgetting—simply ignoring women and their struggles for equality.

 

Some examples are concrete (literally). A 2021 survey of federal courthouses found more than 165 named for a man and just four named for a woman. Only three women made a 2021 list of the fifty most frequently commemorated people in America’s public monuments, compared to forty-four white men, many of them slaveholders.

Struggles over commemorating women have drawn much less mainstream attention than commemoration conflicts framed as centrally about race, even though many struggles over commemorating women are simultaneously intertwined with race. Perhaps our male-dominated commemorative landscape is such a perennial fact of life that it sometimes fades into the background as we enter yet another government building with a man’s name over the door or walk through yet another public square featuring a man immortalized on horseback.

But commemorations are not just decorative flourishes or scenery. They shape the vision of America that we carry around with us, which is why generations of women have fought to reconstruct the commemorative landscape and why they have faced such persistent resistance.

For example, women in and out of Congress have been fighting since the 1990s for construction of an American Women’s History Museum. That battle has lasted so long because of sustained opposition from conservative lawmakers and anti-feminist activists. As of this writing, Congress has not passed the statute required to build on the National Mall, and the museum remains years away from opening.

Women’s erasure also runs through the stories that powerful Americans tell with torrents of words rather than blocks of concrete and stone. Politicians delivering odes to America on significant anniversaries commonly celebrate the Founders for establishing government by the consent of the governed. That account depends on excluding almost everyone who was not a white male property owner.

Supreme Court opinions regularly ignore women when remembering the Court’s key decisions. They skip over both rulings that offered crucial support to women striving for equality and the many cases where the Court blocked or undid women’s progress. Law professors making lists of the Court’s most important or most terrible constitutional judgments routinely omit decisions about women’s rights.

Indeed, I was surprised to discover how frequently legal authorities and popular writers marginalize women even within discussions of women’s status. When judicial opinions mention women, judges on and off the Supreme Court often write as if men decided on their own to expand women’s rights and opportunities. I call these tales “spontaneous enlightenment stories,” and they feature in generations of popular press and political debates as well. These stories attribute progress to consensus and men’s wisdom while erasing the conflict and female agency that forward momentum required, with women needing to demand change and fight for reform against determined opponents.

For example, it remains all too common for judges, politicians, and textbook writers to describe the Nineteenth Amendment as a gift from men that “gave” all women the vote. That account is doubly misleading.

First, framing the Nineteenth Amendment as conclusively establishing women’s access to the polls misdescribes reality and implicitly centers white women. While the amendment prohibits sex-based denials of the franchise, it guarantees no one the right to vote. Laws on the books or tactics on the ground have denied many women the vote since 1920, especially women of color. Battles over voting and voter suppression rage to this day.

Second, the Nineteenth Amendment was not a gift. It was a multigenerational battle that required suffragists to overcome furious, sometimes violent, opposition. Suffragists were shot at, assaulted, knocked from picket lines, dragged on the ground, arrested while their assailants went free, brutalized in prison, and force fed.

American newsmen were apparently unable or unwilling to provide detailed photographs of anti-suffragist violence, which helped shield the violence from scrutiny. A suffragist artist refused to let the violence go undepicted. Nina Allender’s cartoons for the National Woman’s Party attracted widespread attention. Her cover art for a September 1917 edition of the Suffragist newspaper shows a male mob surrounding suffragists to wrest their banners from their hands and destroy them. One delighted hooligan has ripped the word “democracy” from a woman’s banner and claimed it for himself. The drawing was captioned: “Training for the Draft.” It illustrated how women battling for suffrage faced their own ferocious combatants, at a time when the nation was drafting young men to fight World War I.

— Jill Hasday