Thursday, January 18, 2024

Book Review, In Pursuit of Collective Liberation in Feminist Constitutionalism

Yvette Butler, In Pursuit of Collective Liberation in Feminist Constitutionalism, 122(6) Mich. Law Rev. ___ (April 2024, Forthcoming).

Julie Suk’s book, After Misogyny responds to the tension between present day misogyny and the overarching gains women have made in American society. She does this by explaining that misogyny is not merely about physical violence toward women or hatred of women. Instead, she reframes misogyny as societal over-entitlement to women’s labor and men’s over-empowerment in the eyes of the law. Over-entitlement stems from the substantial benefits individual men and society reap from women—including their reproductive labor—without just compensation. Over-empowerment is about the explicit legal enforcement of that entitlement. Suk explores over-entitlement through the legal claim of unjust enrichment to describe how men and society have benefitted from women’s labor. She then ends on a recommendation to use the Takings Clause to remedy use of women’s reproductive capacities without compensation.

Throughout the book, Suk uses a variety of stories to illustrate her concepts. As someone who writes about epistemology within the critical race theory tradition, in particular, I found this use of narrative particularly enjoyable. Narrative is a particularly important and powerful way to understand how constitutional theory and law are shaped. The goal of reframing narratives and reinterpreting a constitution is to transform the rights and duties between people and the state. According to Suk, such a transformation is necessary to remedy societal over-empowerment. The result of that transformation: misogyny collapses and becomes democracy. Only through this transformation do women become equal citizens.

While I enjoyed Suk’s book and these transformative goals, portions of it gave me pause. Suk’s suggestions fall short of the radical transformations required to truly advance Collective Liberatory goals. As discussed in Section III.B., Collective Liberation seeks to avoid viewing justice as a zero-sum game. Instead, Collective Liberation acknowledges the interconnectedness of struggles against subordination. In my view, it counsels striving for the best version of justice – one that is truly transformative and does not merely shift scraps of rights between groups through reformist reforms. This issue will be the focus of this Review. Suk’s work is helpful for articulating reforms, but her recommendations could go even further. She seems to fall into the same trap of proposing reformist reforms that have the potential to perpetuate, rather than help address, gender injustice.

Ultimately, I see Suk’s book as an important contribution because her concepts of over-entitlement and over-empowerment can easily be applied to other issues. I have already recommended her book to several people when I have noticed that an entitlement/empowerment framing may be useful to their analysis. While prospective readers should not glean too much hope from the title—misogyny and the patriarchy are still alive and well—Suk’s book provides important guidance as to what misogyny really is and how to address it more effectively.

https://lawprofessors.typepad.com/gender_law/2024/01/book-review-in-pursuit-of-collective-liberation-in-feminist-constitutionalism.html

Books, Constitutional, Theory | Permalink

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