We are told that judicial engagement will not lead to dueling natural rights jurists usurping republican government. But what rights do they see?
Think about feminism. What images come to mind? For many Americans, the term evokes visions of pink hats, the Planned Parenthood logo, and perhaps the stern face of Ruth Bader Ginsburg. Now think about “women’s rights.” Are the associations different? Here we may picture suffrage sashes, wide-brimmed hats, or white-frocked marchers in stately formation.
It is fitting, therefore, that Erika Bachiochi’s new book carries the dignified title The Rights of Women: Reclaiming a Lost Vision. Bachiochi is a feminist of sorts, but she wants us to look past Gloria Steinem and Betty Friedan, remembering those corseted women in their ostentatious hats. This older feminist tradition, she thinks, can supply some of the insights that we need today. Blending history, legal theory, and social critique, The Rights of Woman stands as a powerful argument for a revitalized pro-life feminism.
It’s a hard sell. Conservatives tend to be quite skeptical of all forms of feminism, and this is understandable, given the developments of the past half-century. Lucy Stone and Elizabeth Cady Stanton may have cared about motherhood, but surely it means something that feminism eventually came to embrace “reproductive rights,” and an abortion regime so permissive that many are even willing to accept unvarnished infanticide. Have the fruits of feminism been good? Isn’t it reasonable to see these later developments as a kind of “unmasking,” in which the feminist movement revealed its misandrist and anti-traditional core?
Bachiochi thinks not. In her view, abortion stands as a perversion of a women’s rights tradition that traditionally embraced and celebrated motherhood. Looking back to 18th century England, Bachiochi traces this narrative, starting with the work of Mary Wollstonecraft, her feminist North Star.
Wollstonecraft articulated a feminist vision that was communitarian, virtue-oriented, and deeply interested in maternity and family life. A true Aristotelian, she is interested first and foremost in the moral formation of women (and men). The subordination of women seemed problematic to her in large part because, in her experience, it bred shallowness and ignorance, particularly in aristocratic women. When women are sheltered, and encouraged to focus their energies on pleasing men, their rational potentialities go unrealized and their moral development is likewise stunted. To her 18th century contemporaries, the problem was difficult to see, because it was widely believed that women were naturally subordinate and dependent. Theories of “natural womanhood” suggested that women possessed a kind of innate goodness, while also being weaker, less rational, and more emotion-driven than men. Wollstonecraft disagreed. She believed that the infantilization of women stunted their moral development, and for that reason, she wanted women to receive a serious education, as well as civic responsibilities roughly requisite to those of men. If we want women to become mature adults, they must be treated like mature adults.
Some of Wollstonecraft’s views are uncontroversial today. A robust defense of women’s education hardly seems necessary in our time, when women are receiving more university degrees than men. At other points, Wollstonecraft’s view seems unhelpfully ideological and divorced from reality. This may be especially true in her descriptions of appropriate conjugal relations. Like many early feminists, she showed a particular zeal for taming male sexual aggression. She was warmly sympathetic to “voluntary motherhood,” a 18th century precursor to many modern-day natural fertility movements, which ceded sole discretion over marital relations to wives.
The logic of this position is a readily understandable. In a sense, it affirms the woman’s “right to choose,” but relocates the decision point to the period prior to conception. Living in a society awash in pornography, we can admire Wollstonecraft’s prescience in recognizing that male chastity was a critical prerequisite to virtuous and mutually respectful relations between husbands and wives. Even (or especially?) in marriage, men need sexual discipline to honor their commitments appropriately. At the same time, there are aspects of this autonomy-oriented view that seem clearly in tension with a traditional Christian understanding of marriage. Are not the spouses asked to be “one flesh”? How do we balance voluntary motherhood against the expectation that spouses should be “open to life”? Should a husband’s physical needs be a matter of total indifference to his wife?
These quibbles notwithstanding, Wollstonecraft’s social vision is admirable in one very significant way. It represents a good-faith effort to bring together two defining truths about women. They are potential mothers. They are also rational beings, as well as “political animals” in the full Aristotelian sense. These statements may seem obvious, but it can be remarkably difficult to incorporate both into law and culture in a robust way. If women are viewed as full citizens of their respective societies, it may be difficult for them to receive the support that they need as mothers. On the other hand, when women are viewed first and foremost as potential mothers, they tend to be relegated to a protected class, with fewer rights and less opportunity for civic participation.
We might think of this as the dilemma of citizenship. In my view, neither Wollstonecraft nor Bachiochi are fully successful at resolving it. Still, they are trying, and that is encouraging.
Historically, women generally have not been regarded as full citizens of their societies. We should not oversimplify this matter, because cultural practices vary a great deal, and people have long understood that women are distinct from animals and children. They might have a kind of partial citizenship, mediated to some extent through familial men. However, looking back to ancient Athens or Rome, we do not see women voting, holding office, or participating in political fora. In learning about an ancient or medieval society, it is reasonable to ask whether women were permitted to own land, inherit property, start businesses, or bring a suit in a court of law. One does not ask whether men were permitted to do these things. Men could be citizens in the fullest sense in all ancient societies, while the situation for women was complex.
In the modern era, too, women’s political and economic rights have often been mediated, through coverture and other patronizing laws. “Patronizing” can be read here in both a positive and a negative sense. Women are benefitted in some very real ways when law and custom recognize that they are entitled to certain supports in virtue of their role in childbearing. Coverture laws, for instance, made women the legal responsibility of their husbands, which helped to ensure that mothers would enjoy the protection of familial men. At the same time, patronizing laws may afford women a legal and social status that is distressingly similar to that of children. When law and custom relieve women of the burdens of independence and civic responsibility, they will tend lose opportunities as well, and people may come to view women as intrinsically unsuited to independence, rarified achievement, and adult responsibility. This is the problem that troubled Wollstonecraft so deeply, and we can see the same concern in all the early feminists, and even in second-wave feminists like Betty Friedan.
Early feminists wrestled continually with dilemma of citizenship. We can see this, for instance, in the labor disputes of two early 20th century activists, Florence Kelley and Alice Paul. Both formidable women, they clashed over labor laws designed specifically for the protection of female workers. Kelley believed that impoverished women would benefit from laws which guaranteed them a minimum wage, and maximum work hours. Though she was not averse to affording men the same, it seemed to her that women especially needed and deserved this, because they were more easily marginalized and exploited. Paul, for her part, was concerned that employers would be deterred from hiring women in the first place if they were required to give them special treatment. Also, she feared that female-specific labor benefits would compromise long-standing feminist efforts to expand women’s “liberty of contract.”
Paul’s concerns were not unreasonable. Neither were Kelley’s. This was a real-world, historical case in which a laudable desire to protect and support mothers conflicted with a laudable desire to expand women’s opportunities, and improve their social status.
The second-wave feminists did not struggle with the dilemma of citizenship. They picked a horn, and motherhood lost. In 1964, the Civil Rights Act outlawed discrimination “on the basis of sex.” In 1973 the Supreme Court handed down Roe v Wade, establishing a woman’s “right” to procure an abortion. For two generations now, women’s rights have been addressed through the political and judicial lens of “equal opportunity,” which in practice has meant that the inclusion of women in institutions, civic organizations, and even private clubs has increasingly been required by law. Our society has clearly and unambiguously affirmed that women are, and deserve to be, full citizens.
This is a real achievement, and we can see many good fruits. We have seen enormous advances in women’s education, and women today are distinguishing themselves in almost every imaginable way. Physiologically, women are unable to compete with men in in certain sports and physically-demanding professions, but these are the exceptions that prove the rule. Women have demonstrated that they are just as rational as men, able to excel and hold their own in nearly every competitive field.
Across the same period, unfortunately, family life has not thrived. Nearly all the indicators are grim. The number of children living with a single mother has more than doubled in the years since Roe. Mothers (especially if single) are disproportionately struggling with their finances, physical health, mental health, and general well-being. Meanwhile, growing numbers of women are choosing not to have children in the first place. Maternity remains, as it has always been, an enormously demanding undertaking. As women have advanced in the civic realm, supports for mothers have eroded, and children are now paying the price.
Bachiochi examines these developments in her final four chapters, paying particular attention to the work of Ruth Bader Ginsburg and Mary Ann Glendon. Her views on anti-discrimination legislation are not terribly explicit, but to conservatives, they will still seem suspiciously favorable. Bachiochi does clearly understand that our social and legal situation has disadvantaged mothers, by relegating motherhood to the realm of “private choice.” She places the blame squarely on abortion and hopes that the situation can be remedied through some combination of communitarian family policy and Wollstonecraftian cultural mores. If men contribute more, and if society at large takes more responsibility for the needs of families, it may be possible for women to embrace the responsibilities of motherhood without accepting second-tier citizenship. Instead of treating all women as “potential mothers,” we can honor and support all caretakers, thus enabling them to feel like respected citizens, and to contribute to society at large. Ideally, this would resolve the dilemma of citizenship.
It sounds appealing. Can it really be enough, though? Even if we can somehow afford them, child allowances will not resolve the deep cultural and political tensions surrounding marriage and family life. For instance, a gender-neutral affirmation of “caretaking” will do nothing to help young men and women understand what they personally need to do to prepare for marriage, nor will they understand what they should look for in a spouse. Traditional gender roles can be unhelpfully constraining in many circumstances (especially for women), but they do help people to understand what, concretely, is expected of them in the context of family life. Wollstonecraft would like to see virtuous men and women coming together in a loving, mutual-respect-based parental partnership. That sounds great, but with marriage rates falling rapidly, we may need a more accessible blueprint.
We may also wonder whether caretakers can ever really be respected, to the point where talented and educated people will choose that role over other opportunities. We live in a society that places immense value on rarified excellence. People are admired and rewarded if they can distinguish themselves, developing unique abilities or areas of competence. Communitarians like Bachiochi like to blame markets for “teaching” us to disparage family life, but that oversimplifies the problem. Rarified excellence is admirable, and a wealthy civilization can afford to notice and reward it. Specialization has advanced the common good in tremendous ways, which would not have been possible without a natural incentive system that reward and encourages rarified achievement. Unfortunately, this creates a brain-drain problem that can reach into our very living rooms. Undoubtedly, caretaking is also extremely important, but it is by nature a private undertaking, which tends to hinder the pursuit of more rarified excellences. There is no simple way to erase or compensate people for that sacrifice.
In short, the trade-offs between family and civic commitments are real, and women will inevitably feel them when they are empowered to participate fully in economic and civic life. If we take it as a given that women must now be fully included in civic life, we may just find that there are limits to how much support can be given to mothers and families. We can try to slip through the horns of the civic dilemma, but it may be unrealistic to expect to come through unscathed.
However serious these concerns, they should not be allowed to diminish the tremendous value Bachiochi’s book. By tracing the legal and philosophical history of feminism, she puts readers on track to wrestle with these problems more constructively. No social arrangement is ever entirely just in this fallen world, and it would be foolish to expect that any feminism, or traditionalism, could perfectly resolve the dilemma of citizenship. Surely though, it is possible to achieve a better balance of the relevant goods than what we currently have. To that end, a pro-life feminism like Bachiochi’s seems like a promising foundation. Human beings always struggle to build humane, life-affirming cultures that respect the intrinsic dignity of all persons. The Rights of Woman cannot tell us exactly how to do this, but it may help us to identify a starting place.