This is a very fascinating and important analysis. I would be interested in
what you would say about the "right to privacy," which is not directly
stated in the Constitution but was used to support Roe v. Wade. Is it a
right that affects the current administration's penchant for developing ways
to track all of us all day and night in every transaction of our lives? If so, is
it still centuries from being enforced?
Date sent: 0000,0000,8000Mon, 2 Dec 2002 10:45:27 -0800
Send reply to: 0000,0000,8000"T. S. Eliot Discussion forum." <<[log in to unmask]>
From: 0000,0000,8000John Ryskamp <<[log in to unmask]>
Subject: 0000,0000,8000Feminism and Individual Rights
To: 0000,0000,8000[log in to unmask]
Times New RomanBut remember, the issue is never legal equality. The issue is ALWAYS
vindication of the individual. That's the problem with the organized
feminist movement, just as it was the problem with the Civil Rights
movement. Both stopped at legal equality--racial legal equality or gender
legal equality. The issue is NEVER legal equality.
James Madison wrote in the Federalist papers that the Constitution
prevents "every assumption of power in the Executive and Legislative."
This quotation was often used by Justices Marshall and Brennan. The
word to focus on is "every." What does that mean? It means the
individual is vindicated with respect to EVERY fact of the individual.
What is a fact, or indicium, of the individual? Answering that question is
the meaning of living in a society with a Constitution. By the time the
Constitution came to be written, the Founders were certain they had
established certain facts of the individual: speech, assembly, religious
expression and others. What is the importance of the word "every" with
respect to these facts. The importance is, how cases are decided.
When the fact of an establishment of religion is made, it is prevented in
EVERY case; there is no balancing, that is, no considering various
interests which! might mean an outcome in favor of an establishment of
It is no easy matter to determine a fact of the individual: deciding such
facts is a process of centuries of evaluation. To see just how long it took
to come up with black-letter formulations of just the rights in the Bill of
Rights, read the two most important books ever written about the law
(both written by women, by the way): From Resistance to Rebellion, and
The Crisis of the Constitution.
Since the Bill of Rights, a scant two hundred years ago, the question has
been--as it always is--what are other facts of the individual. Actually,
racial legal equality and gender legal equality were "decided" long before
they became political movements--that is, among legal theorists, the
questions had been entertained and decided in favor of both ideas many
centuries before the movements. It was then just the "minor" question of
getting it enforced (and, of course, it is still a question of enforcement).
Much more difficult to determine have been other proposed "facts" of the
individual, but haltingly, more quietly and often entirely out of the public
eye, this debate has been going on for two hundred years. Today I think
there is a "consensus" that these are other facts of the individual: liberty,
housing, medical care, maintenance and education. How to give them
black-letter expression? Well, they tried in the early 1970s with the
affirmative rights movement, which sought to impose such black letter
laws as "Government shall provide education to all individuals." But that
was a mess and the Court struck it down, as well as other laws like it.
Why? Because it tended to drag the Court in to making executive
branch decisions due to the need for constant monitoring of the executive
branch in carrying out the proposed mandate.
Times have changed. Today, the black-letter formulation of such rights
begins "on the ground," by dealing with life as it is lived right now. If
these are facts, then they are happening right now and nothing can be
permitted to interfere with them. If that is the view, then the wording is
changed to resemble the anti-slavery 13th Amendment: No individual
shall be involuntarily deprived of education. Look at the difference:
Government shall provide education to all individuals.
No individual shall be involuntarily deprived of education.
That means that, if you are enrolled, and can't pay the tuition, you can't
be kicked out of school. If you are housed, and can't pay the rent or
mortage, you can't be kicked out of the housing. EVER, for ANY
Why this long-winded prelude to a response to a question about
feminism? Because when it came time to move BEYOND gender legal
equality with respect to existing individual rights, the feminist movement
faltered, as did the Civil Rights movement. Why? Because the
extremely right-wing American middle class is, quite simply, not prepared
to take these next steps. Consider, for instance, two provisions of this
new bill of rights: no individual shall be involuntarily deprived of liberty, no
individual shall be involuntarily deprived of housing. Well, if you can't
remove people from housing, how can you drag them off to prison if they
commit a crime? You can't. I can tell you right now, the vast majority of
Americans are not going to give up the power to incarcerate, even if it
means they deprive themselves of a right to housing. I don't blame Civil
Rights or feminist leaders for getting all they could and can get--they
simply fac! ed the reality that either they themselves didn't support a right
to housing, for example, or, if they did, that there was no way they could
advocate it without crippling the struggle for things they could achieve if
they jettisoned it. So they did.
Anyway, that's where we are, folks, when it comes to the further
implications of legal equality movements. Legal equality as to what?
The right to have your medical care terminated? And remember, there's
no wiggle room on individual rights. Every means every, so you better be
clear with respect to what it is you want to prevail in EVERY case. By
the way, debate about new individual rights is by no means restricted to
those listed above: those are just the ones on which there appears to be
the nearest thing to consensus. Another one being discussed is
transportation. No individual shall be involuntarily deprived of
transportation? Well, it has interesting aspects. So far, I myself think it
is subsumed under the other new rights. But just remember: there were
Founders who felt the abolition of slavery was subsumed (and would
therefore speedily take place) under the Bill of Rights. There was no
way. You ! get what you write, when it comes to individual rights--and
>From: INGELBIEN RAPHAEL
>Reply-To: "T. S. Eliot Discussion forum."
>To: [log in to unmask]
>Subject: Re: Thatcher, feminism, etc.
>Date: Mon, 2 Dec 2002 18:19:09 +0100
> > Actually, I'm under the impression that much of middle class
> > womanhood in th UK was more than happy with her, esp. because
> > of how she kept the patriarchy in its place, and let ordinary
> > people get on with the business of the nation. The fact that
> > ordinary at that time didn't equate with left wing may be
> > puzzling to some outsiders from certain nations.
>Both 'middle-class' and 'ordinary' simplify British society at that time -
>or, for that matter, any kind of society.
>If I understand what you mean by 'ordinary', I'll add that for much of
>20th century, the Tories managed to attract the votes of many 'ordinary'
>people. They seem to have lost that ability in 1997.
>[log in to unmask]
>----- Original Message -----
>From: Peter Montgomery
>Sent: Monday, December 02, 2002 1:01 AM
>Subject: FW: Thatcher, feminism, etc.
> > From: Peter Montgomery
> > ====================
> > From: Carrol Cox
> > In some novel (someone quoted the passage to me years ago but I
> > the source of it) there is a character whos says, "I don't want to rise
> > from my class, I want to rise with my class." What kind of liberated
> > woman is it that participates vigorously in the repression of the
> > majority of her gender?
> > ================================================
> > Perhaps not a very moral one, but still very free (liberated) to
> > do as she thinks or wants to do.
> > Cheers,
> > Peter.
Protect your PC - 0000,0000,FF00Click here for McAfee.com VirusScan Online