Vol. 8 No. 12 (December 1998) pp. 437-439.

WOMEN, GAYS, AND THE CONSTITUTION: THE GROUNDS FOR FEMINISM AND GAY RIGHTS IN CULTURE AND LAW by David A. J. Richards.   Chicago: University of Chicago Press, 1998.  531pp. Cloth $65.00. Paper $22.00 ISBN 0-226-71207-9.

Reviewed by Judith A. Baer, Department of Political Science, Texas A&M University. Email: j-baer@tamu.edu.

Those readers familiar with David Richards’s previous work will find no surprises in WOMEN, Gays, and the Constitution.  This volume, Richards’s fourth book on constitutional interpretation, reaffirms his commitment to “American revolutionary constitutionalism,” which “tests the legitimacy of political power . . . in terms of respect for inalienable human rights” (p. 1). His project here is to construct an “interpretive challenge” (p. 9) to the conventional jurisprudence of constitutional rights from the “abolitionist feminism” (p. 12) that generated the women’s suffrage movement and the “visionary poetry” (p. 7) of nineteenth-century homoerotic literature. This approach clearly demonstrates what kind of constitutional theorist Richards is and, even more clearly, what he is not.  He is not an originalist like Robert Bork, or a textualist like Leslie Goldstein, or a literalist like Hugo Black.  Instead, he commits himself to what John Hart Ely calls “noninterpretivism:” the “contrary view” that “courts should . . .enforce norms that cannot be discovered within the four corners of the document.”

The noninterpretivist label does not specify what norms should be enforced. Approaches as diverse as Herbert Wechsler’s “neutral principles,” Alexander Bickel’s  “fundamental presuppositions,” and Sotirios Barber’s “constitutional aspirations” fit Ely’s definition at least as well as does Ely’s own “representation-reinforcing theory.”  American revolutionary constitutionalism is similarly independent of and separate from the constitutional text.  But Richards differs from other noninterpretivists and, for that matter, from the single-method interpreters--in at least two respects.  First, he makes little effort to anticipate criticisms of his revolutionary constitutionalism and to defend it against counter-arguments.  Secondly, his work evinces no concern with a factor that other constitutionalists consider important: to explain how his interpretive approach will restrain the power of the courts.   While these choices are defensible, Richards’s failure to defend them, or even to perceive that he has made choices, weakens his scholarship.

Even proponents and practitioners of rights-based interpretation, like this reviewer, may find that accepting the likes of Sojourner Truth and Walt Whitman as sources of authoritative constitutional doctrine takes some getting used to.  But, given the intellectual history of American constitutional interpretation, it is difficult to mount a convincing argument for excluding historical figures like these.  The predilection of judges and scholars for reading parts of the culture into the Constitution does not encourage easy rejection of unfamiliar sources. The claims of nineteenth-century visionaries to a place in American constitutional culture is at least as valid as that, of, say, rational choice theory.  Where Richards disappoints, here as in his earlier books, is in his failure to make a case for the superiority of his revolutionary constitutionalism over other approaches, to tell us why, for example, the Constitution enacts abolitionist feminism and not Social Darwinism, or why the interpreter should rely on Emma Goldman (Chapter 4) but not Milton Friedman.  Richards’s discussion of gay rights is essentially the converse of Justice White’s opinion in Bowers v. Hardwick (1986). In the same cultural tradition wherein White finds social condemnation, Richards finds defense and celebration.  The two argue right past each other.

These lacunae have not escaped the notice of previous reviewers of Richards’s work. Frederick Lewis, for instance, commented that “those unsympathetic to the ongoing effort to ground constitutional analysis in right-based philosophical approaches will not be persuaded, while supporters will applaud the book” (1988.)  In other words, to paraphrase a classic piece of theater criticism, for those who like this sort of thing, this is the sort of thing they will like.  But Women, Gays, and the Constitution does not quite pass even that test.  Richards’s attempt to construct a revolutionary constitutional theory of gender equality and gay rights confounds more than it convinces even the friendly reader.

Richards is not the first constitutionalist to ground interpretation of the Reconstruction Amendments in the history and literature of the anti-slavery movement.   He is the first to revisit the “historically marginal tradition” (p. 25) of abolitionist feminism.  The story of that marginality is familiar.  The first stage was women’s exclusion from the protection of the Fourteenth Amendment as Frederick Douglass proclaimed it “the [male] Negro’s hour.” In fact, reading “first wave” feminist history alongside the congressional debates leaves the impression that the Thirty-ninth Congress never took feminist demands for inclusion seriously.  The second stage was “the tragic collapse of abolitionist into suffrage feminism and its long-term deleterious consequences for American feminism” (p. 130), although Richards is less concerned with the obdurate white racism of the late suffrage movement than with “a highly sectarian conception of women’s maternal role” (p. 141) which derailed the possibility of a rights-based feminist movement making connections with free love and gay liberation.  Richards concedes that a “case can be made that the central claims of abolitionist feminism . . . were explicitly rejected by the Reconstruction Congress as reasonable interpretations of the Reconstruction Amendments” (p. 14.)  But he argues for an alternative understanding of these amendments as embodying “a prophetic vision of our constitutional principles of respect for the human rights of all persons” (p. 24.)

Richards finds this vision in the words of nineteenth-century feminist and homosexual dissidents. While the anti-slavery movement built on Thomas Jefferson’s Declaration of Independence to develop a theory of equality and a constitutional doctrine, those abolitionists who were barred from full participation in the movement because of their sex built on Mary Wollstonecraft’s A Vindication of the Rights of Women to assert “their rights of conscience, free speech, association, and work against both the racist and sexist orthodoxies of their age” (p. 23.) Abolitionist feminists like Sarah Grimke implied that “women’s subjugation was the historically generative pattern for slavery” (p. 97.)  Richards finds a similar connection between sexism and homophobia; he traces Christian doctrinal progression from “the traditional Pagan distaste for men taking the passive (female) role” to “a remarkably cruel reprobation of homosexual relations as such” (pp. 290-91.)  

The idea that male supremacy is the uncaused cause of inequality, the root from which other forms of oppression grow, has enormous generative potential for law and theory.  Unfortunately, neither Richards nor his sources are able to accomplish much with this insight.  The author reads his authorities selectively, and invites the reader to do the same.  For example, Grimke’s linkage between slavery and patriarchy depends on her tracing male domination to Adam’s fall, a connection which seriously weakens her credibility with the modern secular constitutionalist; to what extent can we draw interpretation from writers so vulnerable to scrutiny?  For Richards, the value of these dissident writings as a guide to constitutional interpretation lies in their condemnation of “moral slavery,” which he defines as “a structural injustice marked by its abridgement of basic human rights of a group on inadequate grounds involving the dehumanization of the group in question.” (p. 3)  This kind of argument can indeed be found in racist, sexist, and homophobic writings, including, unfortunately, some binding constitutional precedents.  But is it legitimate to identify group dehumanization with slavery? It has been a while since anyone openly denied that slavery entails dehumanization, but is the converse also true?  The meanings of the word include servitude as well as ownership; this connection allows the interpreter to get beyond the post hoc justifications for slavery to the economic and social functions of the institution.  The notion of a similar connection with male dominance is hackneyed by now, but homophobia fits less well here.  Despite the difficulties inherent in grounding racism and homophobia in sexism, this linkage may ultimately be more generative than Richards’s grounding sexism and homophobia in slavery. Women, Gays, and the Constitution fails to make a persuasive case either for Richards’s revolutionary constitutionalism or for his theory of moral slavery.

REFERENCES:

Barber, Sotirios.  1984.  ON WHAT THE CONSTITUTION MEANS.  Baltimore: The Johns Hopkins University Press.

Bickel, Alexander M.  1962.  THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS.  Indianapolis: Bobbs-Merrill.

Black, Hugo L.  1968.  A CONSTITUTIONAL FAITH.  New York: Knopf.

Bork, Robert H.  1984.  TRADITION AND MORALITY IN CONSTITUTIONAL LAW.  Washington, D.C.: American Enterprise Institute.

Ely, John Hart.  1980.  DEMOCRACY AND DISTRUST.  Cambridge, Mass.: Harvard University Press.

Goldstein, Leslie F.  1991.   IN DEFENSE OF THE TEXT.  Lanham, MD: Rowman and Littlefield

Lewis, Frederick.  1988.  Review of David A.J. Richards, CONSCIENCE AND THE CONSTITUTION.  AMERICAN POLI-TICAL SCIENCE REVIEW 82 (June): 623.

Wechsler, Herbert.  1961.  POLITICS, PRINCIPLES, AND FUNDAMENTAL LAW.  Cambridge, Mass.: Harvard University Press.