Rarely has a book by a constitutional lawyer had such timeliness: Julie Suk’s monograph, After Misogyny: How the Law Fails Women and What to Do About It, talks about the ways in which women often do too much, and men too little, to sustain the life, work, and health of others.
In 2023, the same message is all around us. Anna Funder’s 2023 much lauded book, Wifedom: Mrs Orwell’s Invisible Life, tells the story of how George Orwell’s literary corpus was built on the back of the contributions of his wife, Eileen O’Shaughnessy, and yet those contributions were consistently minimized by Orwell himself and others writing about his work.
The new mini-series The Change, on the UK’s channel 4, gives a humorous though still highly pointed account of what Suk argues is core to misogyny, namely: the “overentitlement and overempowerment” of men compared to women. The protagonist of The Change, Linda, has spent decades carefully recording the amount of time she spends on household work (to the second), and when she turns 50, she decides that the lack of recognition of that work within the family calls for change, including a well-earned sabbatical from wifedom.
What distinguishes After Misogyny from these parallel accounts of sexism or misogyny is that Suk is a leading comparative constitutional scholar, and a central argument of the book is that constitutional norms offer an important resource in responding to this problem.
In making this argument, Suk draws on her considerable comparative knowledge, and especially her expertise in European constitutionalism, to highlight for a US audience the possibilities for imagining a more care-conscious model of constitutionalism. Suk calls this a “constitutionalism of care” and suggests that its value lies in reshaping public attitudes and expectations, by “recognizing the public value of [women’s] sacrifices and entitling mothers to the protection of the community in return” (P. 208).
This argument is also especially welcome in the US. It echoes the calls of other feminist constitutional scholars for us to pay greater attention to the relationship between constitutions, care, and social and economic transformation.1 But it also seeks to draw out the relevance to the US of historical and contemporary comparative experience in this area.
This same “double turn” – from the US to comparative experience and back to the US – is a hallmark of Suk’s prior work on the Equal rights Amendment.2 In the We the Women: The Unstoppable Mothers of the Equal Rights Amendment, Suk traces the history of the attempts to pass the ERA, the lessons from the globe about what constitutions can deliver for gender equality, and then turns back to the US to offer contemporary American feminists a clearer appreciation of the stakes behind the ERA debate.
The same pattern is a hallmark and strength of After Misogyny. In this second important book on gender and constitutionalism, Suk takes us to recent and long-ago moments in Chile, Iceland, Ireland, Germany, and Italy to better to understand how the US can promote a more care-conscious society – i.e., one that does more to empower and reward women, rather than encourage male over-empowerment and overentitlement.
The main challenge for the US in this context is that its recognition of care is quite gender-specific. That is, it recognizes the role of mothers, rather than non-binary or male carers, or families in which care is divided more flexibly. As Suk notes, this raises constitutional difficulties under current US Equal Protection doctrine. (Here again one can see the connection to Suk’s past work on the ERA and the value of changing existing US constitutional gender equality approaches.)
There are also conceptual dangers to constitutionalizing care norms in ways that reinforce rather than challenge gendered expectations around who performs care work. While revaluing care is critical to gender equality and the feminist project, equating care-work with mothers is much more problematic for women. It often implies limits to women’s collective economic empowerment. South African Constitutional Court Justice Kriegler put the point this way in his dissent in President v. Hugo:3
‘the notion … that women are to be regarded as the primary care givers of young children, is a root cause of women’s inequality in our society. It is both a result and a cause of prejudice; a societal attitude which relegates women to a subservient, occupationally inferior yet unceasingly onerous role. It is a relic and a feature of the patriarchy which the Constitution so vehemently condemns’.
In essence, the challenge is to revalue mothering, while at the same time empowering women to choose roles other than – or in conjunction with – mothering. And this means encouraging men to mother – no small ask in a world in which market-based work is rewarded so much more highly than most care work.
Suk is alive to this danger and usefully notes the distinction between the act of mothering –or intense parenting – and the gender of the parent (P. 199). It may still be better, in this context, to talk about primary versus secondary parenting. There are limits to this: pregnancy, childbirth, and breastfeeding remain distinctly gendered forms of care work and reproductive labor.4 And they are a huge if rewarding form of labor. But there is still a broad scope of intense parenting that could readily be made gender neutral, or equal. And hence, we should be careful about both the scholarly and constitutional language we use in this context.
Labels aside, however, Suk notes attempts in Ireland and Chile to de-gender a constitutional commitment to mothering (Pp. 200-207). So far, these attempts have not led to formal constitutional change in either country. But there are strong indications of informal, court-led change in Ireland, or a dynamic approach on the part of Irish society to developing constitutional motherhood provisions.
The real question is how we can ensure that attempts to constitutionalize care actually lead to concrete change, and that our efforts to reward mothering do not simply end up enchaining women – or perhaps worse, rewarding men who pretend rather than actually show up to the work historically done by mothers.5
This a hard question, and one we have just begun to tackle. But in answering it, we will surely be better for reading and engaging with Suk’s important new book.
- Jaclyn L. Neo, Constitutionalizing Care: How can we Expand our Constitutional Imaginary After Covid-19?, 20 Int. J. Const. L. 1307 (2022). See also the more globally-focused work along similar lines by Ruth Rubio-Marin, Global Gender Constitutionalism and Women’s Citizenship: A Struggle for Transformative Inclusion (2022).
- See Philipp Dann et al’s idea of a “double turn” from Global North to South and back again: Philipp Dann, Michael Riegner & Maxim Bönnemann, The Southern Turn in Comparative Constitutional Law: An Introduction in The Global South and Comparative Constitutional Law (Philipp Dann et al. eds, 2020).
- President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1, [80] (Kriegler J).
- For attempts to challenge this legally and practically, see David Fontana & Naomi Schoenbaum, Unsexing Pregnancy 119 Colum. L. Rev. 309 (2019) and Mathilde Cohen, The Lactating Man, in Making Milk: The Past, Present and Future of Our Primary Food (Mathilde Cohen & Yoriko Otomo eds., 2017).
- Gráinne de Búrca, Rosalind Dixon & Marcela Prieto Rudolphy, Engendering the Legal Academy, 22 Int. J. Const. L. (forthcoming, 2023); Justin Wolfers, A Family-Friendly Policy That’s Friendliest to Male Professors, N.Y. Times (July 26, 2016).
