Gender and the Law

Abstract

1.U.S. Exceptionalism and States of CaptivityThe United States government, business, media, etc., and my students have touted the virtues of its democratic values - it is the freest of all countries, and given that immigration continues unabated, it seems to be true! What would folks from the Global South give to win a coveted Green Card!However, this exceptionalist rhetoric has an ominous underside. No other country has engaged in wars of aggression at the level and intensity of the United States military machine since 1945. In fact, only seven years in its 200-year history have been relatively free from waging war. Hence no U.S. president can be considered a peace president!There's something very troubling about using bombs to "free Afghan girls" from the Taliban or free the Iraqi people from a dictator who the U.S. military and CIA propped up in the first place - women have had access to a variety of professional jobs in Iraq - so that invasion for "freedom" campaign couldn't have been executed under the humanitarian mantle of "women's rights." As philosopher Angela Y. Davis has suggested in public talks, whenever George W. Bush exalted in "freedom (and democracy)" speechifying, one would do better by replacing "freedom" with "capitalism" - then his rhetoric actually made sense.Exceptionalism at any price. The Monroe Doctrine of the imperial 19th Century went eastwards to engulf the entire globe, especially in the wake of the Cold War and its hot expressions across Asia and Africa. So far a brief glimpse into the global, imperial expressions of an empire that considers itself democratic and decidedly export-friendly or zealous to enforce such democracy overseas.What does democracy mean within this nation-state, especially to all women and to men of color? In fact, as freed man Frederick Douglass exclaimed: What is the meaning of the 4th of July to the American slave? For our purposes, let us remember two important legal ramifications haunting the American republic: one - as presence, the other - as an absence.It is no secret that the United States confederacy was built on two pillars of violence: genocide of Indigenous peoples and enslavement of peoples captured from another continent. Yet, it basks in spreading "freedom and democracy" far and wide.Note the presence of one underexamined legal fact: the 13th amendment to the U.S. constitution captures the paradoxical nature of American Democracy: enslaved, indentured people are set free, but only if they don't commit a crime (U.S. Const. Amend. XIII)! Thus, the end of the U.S. Civil War in 1865 did not free enslaved Black people but instead ushered in statesanctioned enslavement. The state captures people and incarcerates them with such enthusiasm that to date the U.S. is the prison nation of the entire world. Having 5% of the world's share of population, it incarcerates 25% of the world's prisoners. And unsurprisingly, of the 2.3 million daily count of US prisoners, a majority of them are Black, even though the Black population stands at 12% of the general population, a distinct minority! Since the racist War on Drugs was propagated by the Nixon administration some 45 years ago, Black women have been alarmingly overincarcerated, even more so than Black men, and Black girls are overpoliced in the pre-kindergarten-toprison pipeline (Chesney-Lind, 2015; Morris, 2016). The upshot of the 13th amendment is that the U.S. is the only state in the world that legalizes slavery!The second legal fact concerns an absence: In 1982, an Equal Rights Amendment (ERA) was defeated thanks to the vigorous activism of one conservative white woman, antifeminist Phyllis Schlafly, who enthusiastically supported the (white) woman's right to stay an unpaid homemaker (and sup- ported Donald Trump for president before her passing in September 2016). Her fear mongering regarding ERA was that an equal protection clause on the basis of gender rights would in slippery slope kind of way also extend rights to sexual minorities, and then they could marry, join the military and other ghastly practices. …