What follows is a summary of a presentation made at the 12th Annual Meeting of LatCrit, held at Miami Beach on October 6, 2007. I want to thank all of the folks who met with us out in the Terrace for an informative panel.
Comments are welcome:
Ideologies of gender, understood as a community’s articulated forms of social self-consciousness, remain ascendant throughout the world. These ideologies are imprinted in the law of all states--modern and ancient, religious and secular. These ideologies become increasingly less visible as societies substitute the language of corruption, psychosis, and ethno-national chauvinism for that of gender. The power of these ideologies to discipline and subordinate women is well understood in the West, even among conservative jurists. Less well understood is the way in which these ideologies discipline and subordinate women by defining, disciplining, and subordinating the "female" in men. Thus gendered, these intra-male behavior-privileging norms serve as the basis for structuring ideal behavior norms for all members of society—whether sexed male or female (Backer 2005) and for the institutions that serve them. This essay considers the subtleties and dynamics of male on male gendering on the construction of law in general, and on the constitution of the American government through its constitutional order, in particular, in a context in which direct regulation of sexual conduct has lost much of its power but in which the social power of sexual privileging and order remains vitally strong (Backer 1993a). For that purpose the essay will engage in a close reading of a recent work of Harvey Mansfield, a member of the liberal arts faculty at Harvard University, in which Professor Mansfield proposes a theory of lawless” constitutionalism as the basis for defending a substantial extension of Presidential power under the American system of government (“The Law and the President: In a National Emergency, Who you Gonna Call?,” The American Standard 11(17) (Jan. 16, 2006). The essay will unpack the complex ideological assumptions underlying a seemingly simple analysis. It will suggest that Mansfield’s project—to convince the reader that traditional rule of law constitutionalism emasculates the “true” constitutional framework envisioned by the Founders—is grounded on a series of ideologies of gender in which rule of law is painted as defectively male and constitutionalism as grounded in a power to act beyond law under certain circumstances.
The reinforcement of male hierarchy was traditionally policed through the regulation of sexual activity (Backer 1993b). Though the sodomy laws, or laws like them, have substantially disappeared from the Western world, informal policing remains effective, primarily through the mechanisms of everyday social rules in which gendered conduct ideals are vested with important social and political consequences. But regulatory mechanisms also had a cultural and social dimension. This complex web of regulatory networks, bounded in soft and hard law, suggests the disciplinary techniques of social organization that have been well explored by Michel Foucault (Foucault 1978).
This gendering is trans-cultural. The foundational nature of intra-male codes of maleness—goodness, right, the privileged social ideal in both public and private sphere—finds expression through mechanisms consonant with the normative structure internalized by the particular communities in which this naturalization occurs. In the United States those mechanisms are based on principles of Enlightenment rationalism with an undercurrent of religious foundationalism. American popular understanding of the disordered life as backdrop to the political action of the so-called American Taliban provides a useful referent (Backer 2005). In Muslim majority states it is mediated through the language of religion and purity. This conflation of manliness purity and religiously based intra-male codes of religious and political behavior, rationalized through law, was nicely exemplified in the sodomy and corruption trails of Anwar Ibrahim in Malaysia in the late 1990s (Backer 2005), and in his subsequent rehabilitation (Backer 2007)). In developing states, gender ideologies are sieved through a discourse of post-colonialism and a reinvention of an idealized past. The reinforcement of male hierarchy was traditionally policed through the regulation of sexual activity. Though the sodomy laws, or laws like them, have substantially disappeared from the Western world, informal policing remains effective, primarily through the mechanisms of everyday social rules in which gendered conduct ideals are vested with important social and political consequences.
Intra-male behavior-privileging social ordering, and its political effects are also, to some extent, trans-historical. The notion of effeminacy and political behavior, as a dynamic and still living theory of politics is at least as old as Aristotle. (Aristotle 350 B.C.). Conflations of physical, moral and political strength are reflected in personal behavior, and an give rise to permissions to upset the social order—that is, to act extra legally. “Thus a general at the head of his army will endeavour to dethrone the monarch, as Cyrus did Astyages, despising both his manner of life and his forces; his forces for want of action, his life for its effeminacy” (Aristotle Bk III, ch. X). The end of tyranny and a certain effeminacy was also conflated.
Effeminacy of mind and body could be ascribed to certain activities, improperly indulged. For example, music: “for it must be admitted, that in some cases nothing can prevent music being attended, to a certain degree, with the bad effects which are ascribed to it; it is therefore clear that the learning of it should never prevent the business of riper years; nor render the body effeminate, and unfit for the business of war or the state; but it should be practised by the young, judged of by the old.” (Aristotle Bk. VIII Ch. VI). And it has been said to permeate the foundational interpretive documents produced in defense of the adoption of the American Constitution (Kang 2007). It is expressed in current national political discourse (Tierney 2002, at A-1) in the rhetoric of Senator Byrd with allusions to Roman Republican civic virtues, and in the discourse of state politics as well (MSNBC News 2004) with “girlie men” as a referent of appropriate conduct.
It comes as no surprise, then, that male elites in the United States, like those in other nations, continue to protect the male gender borderlands of behavior norms. And there is no more powerful set of behavior norms than law in the United States. In an article recently published in the American Standard (“The Law and the President: In a National Emergency, Who you Gonna Call?,” The American Standard 11(17) (Jan. 16, 2006) Harvey Mansfield seeks to apply a gendered male oriented framework of social and political organization (Mansfield 2006b) to reorient foundational issues of constitutional law. Yet, Mansfield's efforts to reproduce an originalist gendered constitutionalism instead produces an aggregation of inversions. These inversions draw on a number of original sources of American constitutionalism, but more importantly, on the gendered hierarchy of values and its expression as political doctrine. Thus, this essay will suggest that Mansfield’s reading of law and presidential power is couched not only in gendered terms but in irony as well—the disciplining of manliness through inversion is an odd thing indeed.
Mansfield’s immediate object is to make a specific case for the legitimacy of the Bush Administration’s surveillance activities in the war on terror. In making that case he also suggests a broadly applicable constitutional jurisprudence increasingly heard in some quarters today. That broad set of constitutional jurisprudence is grounded in the following general proposition: The American federal constitution does not advance merely a rule of aw system as the core of American political governance. Instead the federal Constitution creates a whole power in two parts, one of which is the inward looking and domesticated system of rule of law constitutionalism that characterizes the legislative and judicial powers. The other is outward looking and mandates the assertion of “extra legal authority” by the American President under certain circumstances and against certain contingencies.
Mansfield’s defense of both President Bush’s surveillance projects and of the broader constitutional project are grounded in a complex system of inversions growing out of a juxtaposition of related binaries set against and building on each other in a series of parallel analogies. These binaries touch on both the peculiarities of the immediate substantive elements (surveillance, criminality, etc.) and on a parallelism of binary aggregations that suggest a fidelity to an ultimate set of grundnorm binaries: survival/destruction, strong/weak, good/evil, and male/female.
The initial binary—and binary inversion—presented, is meant to set up the arguments that follow. This initial binary focuses on “law/outlaw.” Mansfield poses the greater problem from an initially smaller source—criminality. He suggests a foundational distinction in law between criminals and enemies. That distinction is based on the relationship of both criminals and of enemies to the political state. He tells us: “Criminals violate the law, and the law can be vindicated with police, prosecutors, juries and judges who stay within the law: At least for the most part the law vindicates itself. Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs.” (Mansfield 2006). Criminals, the reader is told, operate within the law and its framework, but enemies fall outside the law ands that framework. Enemies are “outlaws,” criminals are merely anti social people who must be managed in a bureaucratic state. Because enemies fall outside the territory marked by law, they “need to be faced with extra-legal force.” (Mansfield 2006).
Of course, this binary, as proposed ignores a number of things. Two are highlighted here. First, Mansfield appears to invert the traditional understanding of outlaw. And second, the binary, thus inverted, is at odds with American understanding of the relationship of law to all human activity. With respect to the first, it might be worth noting that to engage in violations of law, for example by activity deemed criminal, was to fall outside the law. Outlaws could include any individual from the poor person who stole a loaf of bread to feed a starving family to a foreign Queen, resident, deemed to have engaged in political acts of treason. In contrast, enemies did not fall outside the domestic law, for never having been within it, but they consequence fell within the rule systems guiding conduct among combatants, with both hard and soft content. Mansfield would reverse these ancient understanding to suit his very modern purpose. With respect to the second, suggesting that enemies are conceptually incapable of being treated as criminals, is to reject the fundamentally American project, since the Nurnberg and Tokyo trials of defeated political enemies, of constructing an international system that does just that. Post War American efforts (to the political establishment’s current chagrin it seems) have produced an international consensus that tends to view all anti-social activity as criminal irrespective of its nature or consequence. The regime of international political criminality, subsumed within the regimen of the Rome State of the International Criminal Court (International Criminal Court 1998/99), suggests that there may no longer be much of an area of activity “outside” the law. It is true enough that Americans have resisted this current implication of its international activities. But the conceptual framework that gave it life is as much a core set of American jurisprudential values as any recognized within the framework of the federal constitution.
Yet the law/outlaw binary also serves to reinforce the gendered basis of Mansfield’s argument. The core binary is the unsurmountable division between the male and the female that served as the basis for Mansfield's foray into sex equality (Mansfield 2006b), in which women are "weaker" and constructed in relation to men. (Id.). Law and criminality are tied to the domestic, the internal matters of state. Criminals are a matter of family. Enemies are tied to a public space, to external activities, and to the world of non-domestic work. This gendered distinction, which feminist theory has explored in the construction of national and international legal systems, and in the social spaces produced thereby (Olsen 1993) becomes the crucial first step in Mansfield’s project to articulate an essentially male space “beyond” law.
Having asserted the possibility of a dual space for anti social activity—within and without the law—Mansfield invokes a complex parallelism of related binaries that will build on each other to produce the necessary support for his thesis: that the American federal constitution provides the President with a grant of “extra-legal” power to be used in the President’s discretion against the enemies of the nation. That grant of extra legal power is foundational to the nature and character of the executive authority granted to the Chief Executive created through Article II of the federal Constitution, without which it would be impossible to understand the office of the chief executive as an independent and co-equal branch of the federal government. The federal constitution, Mansfield tells the reader, created a strong executive. “A strong executive is one that is not confined to executing the laws but has extra-legal powers such as commanding the military, making treaties. . . and pardoning the convicted, not to mention a veto of legislation.” (Mansfield 2006). This is a thesis far broader than the usual iteration of similar notions in the traditional “unitary executive” theory. (Calabresi 1992). Rule of law unitary executives remain firmly grounded in the rule of law system of the constitution and subject to its constraints. (Fleming v. Page 1850; Youngstown Sheet & Tube Co. v. Sawyer 1952) Mansfield’s executive is not.
To get to this understanding of extra legal Presidential power, grounded in the law of the constitution, Mansfield deploys his second great binary—law/discretion—and suggests its inversion as well. In fleshing out this binary, a key concept in the argument Mansfield makes, he deploys a series of parallel supporting binaries each to serve as an analogue for and reflection of the others, and all intimately tied to the foundational governing binaries of the American state, which lurk in the background until the very end—survival/destruction, strong/weak, male/female.
Presidential extra legal activities, like surveillance, are not illegal merely because they fall outside the law, Mansfield argues. Assertions of extra legal power are legal, because the American rule of law system, founded on the federal constitution, permits lawless activity under the circumstances therein specified. “Thus it is wrong [Mansfield relates] to accuse President Bush of acting illegally in the surveillance of possible enemies, as if that were a crime and legality is all that matters.” (Mansfield 2006). Notice here the conflation of binaries criminal/enemy and law/extra legal.
It is at this point that Mansfield makes his alternative, and critical, argument. He suggests that constitutional rule of law must be understood as constitutionally limited, that is, of occupying only part of the governance space described by the constitution in the government it creates. This leads to an interrogation—and ultimate limitation—of the scope of a properly understood constitutional rule of law system. Mansfield suggests that there is no identity between constitutional rule of law and constitutionalism, at least in the American context. “The Constitution took seriously a difficulty in the rule of law that the republican tradition before 1787 had slighted.” (Mansfield 2006). Rule of law, understood as a form of “standing rules” is an appropriate subject for ordinary legislative functioning—power in the hands of many, rule supremacy over discretionary power, etc. It is focused on the domestic sphere. In a domestically focused context, legislative power can be favored over the executive and law over discretion.
Rule of law constitutionalism is female space and, for Mansfield, insufficient. He tells the reader: “Yet the rule of law is not enough to run a government” (Mansfield 2006), and it was government that the Constitution created. Rule of law, and even constitutional rule of law constitutionalism, must then itself be limited within an overall theory of governance. For Mansfield, implicit in the Constitution is the idea that an appropriately constituted government needs “both the rule of law and the power to escape it—and that twofold need is just what the Constitution provides for.” (Mansfield 2006). The Constitution thus provides a framework in which two conceptions of governance co-exist. The first is the ordinary rule of law state of democratic governance and legislative superiority, but also of “inflexibility of the rule of law.” (Mansfield 2006). The other is a system of discretionary authority that is always subject to the risk of Caesarism in our executive. The echoes of Aristotle’s family/state political theory are strong. (Aristotle 350 B.C.). Rule of law corresponds to law and criminality; discretion corresponds to extra legal power and enemies of the state.
How does the Constitution provide space for both a limited rule of law system and democratic Caesarism? Mansfield suggests that the doctrines of separation of powers and checks and balances starkly highlight this constitutional binary between (rule of) law and discretion. Law is built into the legislative and judicial branches—but not into the core of the executive function. The legislature and the judiciary are bound by rule of law constitutionalism, law is the thing they produce and manage and to which they are subject. This Mansfield describes as the choice aspects of constitutionalism. But the higher law of the constitution constitutes the lawful power of the president differently. The “executive power represents necessity in the form of responses to emergencies.” (Mansfield 2006). He elaborates:
Together, they form the entirely of the constitution of lawful power that may be asserted by the state. Thus, Mansfield uses traditional separation of powers analysis as the basis for the support of a none rule of law legal system. Separation of powers serves as a proxy for the split between the rule of law governance (by legislation and the judiciary) and extra legal executive power.
But they are also complementary principles. By fiercely asserting the bases of each of their power, the three branches serve to check the others, producing a democratic whole. “The Constitution maintains both opposite principles by arranging for an interested party or parties to support [its organizing principle] in exercising its power.” (Mansfield 2006). Checks and balances thus serves as a proxy for the only constitutionally permitted basis for controlling the ascendancy of either a hide bound rule of law state, on the one hand, or Caesarism, on the other. “No, [Mansfield states] there will be conflict between discretion and the rule of law, each party aware of the other principle but more convinced by its own.” (Mansfield 2006). And thus the Constitutional framework is reduced to a great binary in motion: the American government is thus a combustion engine that operates as the force of a constant series of explosions among the branches moving the “pistons” of state from monarchy to republicanism while avoiding the extremes of tyranny and demagogic democracy. Still, this argument would have to confront over a century of jurisprudence suggesting significant limits to Presidential “extra legal” power (Fleming v. Page 1850). Though he devotes no time to it, it might be reasonable to assume that Mansfield would dismiss over a century of rule of law jurisprudence that clearly views the President in a far less extra legal power capacity as partisan—that is as efforts by one branch to control another—and on that basis to constitute a less authoritative interpretive source.
The law/discretion binary thus serves as a cover for a number of parallel binaries—active/passive, individual/group, monarchy/republic, separation of powers/checks and balances. But Mansfield is not done with separation of powers. He elaborates by reference to the Federalist Papers (Federalist Papers 1789), as “the most authoritative source for understanding the thinking of the Framers.” (Mansfield 2006). Mansfield reads this Federalist Papers to strengthen the idea that the framers had meant to constitution a republican monarchy. Responsibility is vested in the executive. “To be sure of responsibility you must fix it on one person; true responsibility is sole responsibility. That is why, under our republican Constitution, the people, when they want to hold the whole government responsible, end up holding the president responsible.” (Mansfield 2006). The logic of this progression is not beyond dispute and indeed, its simplicity and naiveté seem to serve as the greatest arguments against it. Whatever the value of Mansfield’s insight, he uses it to buttress the law/discretion binary, and its formal incorporation into the American constitutional order.
Yet he also uses selective references to the Federalist Papers for another purpose: to privilege the constitutional principle of efficient government (corresponding to European constitutional notions of effect util) over the anti-tyranny principle built into rule of law governance. He conflates the idea that the Framers sought to make a strong executive “in order to have both power and security,” (Mansfield 2006) with a fundamental reconsideration of the meaning of separation of powers. That reconsideration leads to a reconstitution of the unitary part of the unitary executive. Separation of powers is characterized as a 17th century invention improved by the Framers. That improvement consisted of a strengthening of the executive. “They enabled the executive to act independently of the legislature [something Mansfield now suggests would be impossible in a monopolistic rule of law constitutional order] and not merely to serve as its agent in executing the laws.” (Mansfield 2006). What does Mansfield mean? Perhaps he is suggesting that the executive, in order to be denominated such, must exist not merely as a servant of the legislature and the courts, but must be able to assert power in his own right. But the only sort of power that the executive may assert in his own right must be extra-legal—that is extra legislative—power. Otherwise he remains merely the subordinate and minister of the legislature and the courts. If the Constitution means what it says—and it says that it created three co-equal branches of government that together constitute the state, then the executive must be able to assert an authority equal to and independent of that of the other branches. This extra-legal power may only be asserted in emergencies, Mansfield seems to suggest, but asserted it must if the executive is to be co-equal. Thus, separation of powers suggests that to assert lawful power, the President must be able (in an emergency) to disregard the law. His actions may be illegal (that is contrary to the power of Congress to legislate and the courts to hear cases) but not unconstitutional (that is exceeding the lawful powers of his office as set forth in the Constitution itself). “Emergency action of this kind may be illegal but not unconstitutional; or since the Constitution is a law, it is not illegal under the Constitution.” (Mansfield 2006).
The law/discretion binary is thus critical to the development of Mansfield’s constitutional theory of a constitutionalism in which rule of law aspects of the constitution is separable from a legal power to avoid law. But the law/discretion binary subsumes a number of other binaries running in parallel. And it is those supporting binaries, to binaries that seem drawn from “natural” that Mansfield invokes. And it is in this effort that Mansfield’s reliance on strict gendering, and the conflation of power, law, and social organization in gendered terms is most easily visible. Mansfield speaks of the binary law/discretion in terms of responsibility versus irresponsibility, of efficiency of individual action versus inefficiency of consensus or institutional action, of the rule of law versus necessity in extremis. But, again grounding analysis on his extractions from the Federalist Papers (Federalist Papers 1787 No. 70), he focuses on another set of binaries that he suggests run in parallel or serve to illustrate the law/discretion binary: energy versus stability, “terms taken from physics to designate discretion and law. Energy has its place in the executive, and the foremost guarantee of energy is unity. . . . Unity facilitates ‘decision, activity, secrecy, and dispatch.’” (Mansfield 2006). The President must be understood as a constitutionally mandatory nexus point for energy, discretion, unity, singularity, and responsibility. Thus, the president appears as the embodiment of the male principle. The legislature and judiciary are not. These institutions represent the female principle. Stability, nurture, standing rules, consensus, limitation of power serve as the constitutionally mandatory expression of the construction of an institutional and limited assertion of its form and content. Mansfield thus constructs a constitutional theory based on those binaries at the heart of gendered social ordering. Male/female, strong/weak, public/private, these are the parallels used to justify a division in which men dominate the state and women are relegated to civil society. (Olsen 1993 154).
And here Mansfield is able to begin to bring the analysis around to its conclusion—that secrecy is the sort of action that is most consonant with energy, and the responsibility, properly understood, of the executive. Thus, Mansfield argues, “secrecy is compatible with responsibility because, when one person is responsible, it does not matter how he arrives at his decision.” (Mansfield 2006). Secrecy is incompatible with law—with stability—a telling point, but not for Mansfield. Instead, that parallelism suggests the need for lawlessness in the executive rather than an absence of secrecy within government, considered as a whole. Secrecy is incompatible with law, but perfectly compatible with responsibility bound up in the body of a singe executive. This practice Mansfield suggests, is truer to American cultural practice than a more collegial and institutionalized decision-making process subsumed under the legislation rule of law model. Thus the attempt to bring secrecy under the law is the same, for Mansfield, as bringing the President under Congress and the Courts as a mere minister of enforcement of law. It is in this context that Mansfield would prefer surveillance and torture to be understood in the American constitutional context: the rule of law cannot apply when law does not apply—in those emergencies in which a President must assert a lawless, masculine, virile, protective, singular power. “You have to do what you have to do” reminds Mansfield quoting John McCain on the issue of torture. (Mansfield 2006). Surveillance reasserts a private/public distinction at the heart of gendered ordering of law and politics. (Gavison 1992 3).
There is thus a space within American constitutionalism, Mansfield argues, “when liberties are dangerous and law does not apply.” (Mansfield 2006). Lawlessness of this sort is both moral and lawful, precisely because it rejects the weakness and stability of rule of law constitutionalism. The higher law of the Constitution is said to solve this problem by making lawful lawless actions. The make principle is thus embedded in the uniqueness of the Presidential office. And in this way Mansfield would undo two hundred years of American jurisprudence, built in the blood of the colonists English forbearers, who took down a Stuart king of England and Scotland, to defend the primacy of law, organic, extra governmental, and binding, on a monarch who would also assert the virile power of lawless activity. The bent once bent the neck of the King to the power of law. Mansfield forgets that the American republic was built on that scaffold.
For Mansfield, then, a federal Constitution that is bound solely by rule of law constitutionalism, a constitution in which legislative and interpretive power appears to set the boundaries of executive action, is a constitution that is defective, and defectively male. Rule of law constitutionalism is essentially defectively male, and thus female, and the male principle—energy, discretion, responsibility, singularity and unity must provide a space in which lawlessness is lawful. Mansfield builds on binaries with significant gendered tones to present a picture of an appropriately manly construction of the constitution. Law, then, is defectively male—that is, female—and must be cabined to a well-defined domestic space. And rule of law as the whole of the constitutional order produces an effeminate legal order.
Yet, Mansfield’s underlying gendered analysis causes an inversion of doctrine and a perversion of traditional male ordering. Still, the ordering survives his analysis. That is because gendered action is still at the core of the value system at the foundation of the Republic. The essay suggested the ironies inherent in Mansfield’s articulation of manliness through Presidential extra legal muscularity. A central great irony centers on Hamilton’s poorly remembered justification for union as a means to protect rights and the rule of law set out in Federalist No. 8 (Federalist Papers 1787). Hamilton suggest that the United States, like Great Britain can profit form union because of its geographic position as a state insulated form constant warfare and the need to defend its territory. In such a context, the rights of people (and their resolve to protect them) would be strengthened and their otherwise justifiable fear of a military state would be diminished (Federalist Papers 1787, No. 8).
Mansfield will take this insight and turn it on its head, suggesting a notion of rule of law as both effeminate and passive that was once more appropriately the province of more totalitarian ideologies (Mussolini 2004). But even the focus on surveillance suggests inversion: the object of strong executive extra legal power is surveillance in the protection of the state. But surveillance is itself was traditionally gendered female—the sort of thing gentlemen do not do (CITE). But surveillance appears to become male in the face of a greater failure of maleness—the resort to terror in lieu of traditional acts of war between equals. Terror is depicted as cowardly, sneaky, conspiratorial, dishonorable, uncontrolled, reactive, all of the attributes of the traditionally depicted defective male (Backer 1996). It follows that terror would itself likely to be gendered female, causing a “cure” or at least a rehabilitation of surveillance.
Mansfield thus suggests that Presidential power, gendered male, clearly suggests that the President’s Constitutional powers extend beyond the mere execution of the laws. “Thus it is wrong to accuse President Bush of acting illegally in the surveillance of possible enemies, as if that were a crime and legality is all that matters.” (Mansfield 2006). If law is male, he suggests, then rule of law is defectively male (and thus subordinate as female)—passive, docile, and risk averse. He effectively suggests an Aristotelian political effeminacy—and not as a source of strength. And by imposing and enforcing these differences, differences based on a need to distinguish male from female behavior--more from less valued—Mansfield’s exercise in “manliness” is symptomatic of the more subtle and corroding subversive nature of the hierarchy of male gendering. Intra-sexual gender role hierarchies, based on a normative model of male role supremacy, continue to marginalize the normatively female both within each sex and between the sexes. When this marginalization becomes the stuff of constitutional analysis, caudillismo cannot be too far behind.
And yet, even if Mansfield's extra legal constitutionalism is wrong--and two hundred years of male dominated American jurisprudence suggests that it is, the gendered legal order still survives, intact. Theory merely reverts to the traditional binary which genders rule of law as male, and the domestic portion of the private sphere, female and thus extra-legal (and here is the ultimate inversion of Mansfield--the idea at unregulated space, that is extra legal space is traditionally gendered male, when in fact forms, as feminist theory has long understood, the core of "unregulated space" gendered female (and unregulated because it does not merit the attention of positivist state theory (Austin 1879) or traditional rule of law constitutionalist theory (Dicey 1915).
REFERENCE LIST
Aristotle. 350 B.C. Politics. Trans. William Ellis. London: J.M. Dent & Sons (1912).
Austin, John. 1879. Lectures on Jurisprudence, or The Philosophy of Positive Law, two vols. (4th ed.). Ed., R. Campbell. London: John Murray, 1879 [Bristol: Thoemmes Press reprint, 2002].
Backer, Larry Catá. 1993a. Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration, UNIVERSITY OF FLORIDA LAW REVIEW 45:755.
----------. 1993b. Raping Sodomy and Sodomizing Rape: A Morality Tale About the Transformation of Modern Sodomy Jurisprudence, AMERICAN JOURNAL OF CRIMINAL LAW 21:37.
----------. 1996. Inventing a ‘Homosexual’ for Constitutional Theory: Sodomy Narrative and Antipathy in U.S. and British Courts, TULANE LAW REVIEW 71:529 (1996).
----------. 2005. Emasculated Men, Effeminate Law in the United States, Zimbabwe and Malaysia, YALE JOURNAL OF LAW & FEMINISM 17:1.
----------. 2007. Anwar . Law at the End of the Day (DATE).
Calabresi, Guido, & Rhodes. 1992. The Structural Constitution: Unitary Executive, Plural Judiciary. HARVARD LAW REVIEW 105: 1555–1216.
A.V. Dicey, A.V. 1915. Introduction to the Study of the Law of the Constitution. 8th edition, London: Macmillan, 1915, (reprinted Indianapolis, IN: Liberty Classics (1982).
The Federalist Papers (Alexander Hamilton, James Madison, John Jay). 1787. Chicago, IL: Encyclopedia Britannica, Inc. (1952).
Fleming v. Page, 50 U.S. 603 (1850).
Foucault, Michel. 1978. The History of Sexuality; Vol. I: An Introduction. Trans. Robert Hurley. New York: Random House.
Gavison, Ruth. 1992. Feminism and the Public/Private Distinction. Stanford Law Review 45:1.
International Criminal Court (ICC). 1998/99. Rome Statute of the International Criminal Court: Overview. http://www.un.org/law/icc/general/overview.htm.
Mansfield, Harvey. 2006a. The Law and the President: In a National Emergency, Who you Gonna Call?,” The American Standard 11(17) (Jan. 16, 2006), (http://www.weeklystandard.com/Content/Public/Articles/000/000/006/563mevpm.asp).
----------. 2006b. Manliness. New Haven, CT: Tale University Press.
MSNBC News. 2004. California Gov. Not Sorry For 'Girlie Men' Remark: Democrats Blast Schwarzenegger for Mocking Lawmakers (July 19, 2004). http://www.msnbc.msn.com/id/5460326/
Mussolini, Benito. 2004. The Doctrine of Fascism: Fundamental Ideas. In Readings on Fascism and National Socialism. Ed. Alan Swallow. Project Gutenberg: eBook #14058 (reprinted with permission from I.S. Munro. 1933. Fascism to World-Power. Trans. & Ed. I.S. Munro. London: Alexander Maclehose).
Olsen, Frances. 1993. International Law: Feminist Critiques of the Public/Private Distinction. In Reconceiving Reality: Women and International Law. Ed., Dorinda G. Dallmeyer, 157.
Tierney, John. 2002. Byrd, at 85, Fills the Forum With Romans and Wrath, N.Y. Times (Nov. 20, 2002).
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
Comments are welcome:
Ideologies of gender, understood as a community’s articulated forms of social self-consciousness, remain ascendant throughout the world. These ideologies are imprinted in the law of all states--modern and ancient, religious and secular. These ideologies become increasingly less visible as societies substitute the language of corruption, psychosis, and ethno-national chauvinism for that of gender. The power of these ideologies to discipline and subordinate women is well understood in the West, even among conservative jurists. Less well understood is the way in which these ideologies discipline and subordinate women by defining, disciplining, and subordinating the "female" in men. Thus gendered, these intra-male behavior-privileging norms serve as the basis for structuring ideal behavior norms for all members of society—whether sexed male or female (Backer 2005) and for the institutions that serve them. This essay considers the subtleties and dynamics of male on male gendering on the construction of law in general, and on the constitution of the American government through its constitutional order, in particular, in a context in which direct regulation of sexual conduct has lost much of its power but in which the social power of sexual privileging and order remains vitally strong (Backer 1993a). For that purpose the essay will engage in a close reading of a recent work of Harvey Mansfield, a member of the liberal arts faculty at Harvard University, in which Professor Mansfield proposes a theory of lawless” constitutionalism as the basis for defending a substantial extension of Presidential power under the American system of government (“The Law and the President: In a National Emergency, Who you Gonna Call?,” The American Standard 11(17) (Jan. 16, 2006). The essay will unpack the complex ideological assumptions underlying a seemingly simple analysis. It will suggest that Mansfield’s project—to convince the reader that traditional rule of law constitutionalism emasculates the “true” constitutional framework envisioned by the Founders—is grounded on a series of ideologies of gender in which rule of law is painted as defectively male and constitutionalism as grounded in a power to act beyond law under certain circumstances.
The reinforcement of male hierarchy was traditionally policed through the regulation of sexual activity (Backer 1993b). Though the sodomy laws, or laws like them, have substantially disappeared from the Western world, informal policing remains effective, primarily through the mechanisms of everyday social rules in which gendered conduct ideals are vested with important social and political consequences. But regulatory mechanisms also had a cultural and social dimension. This complex web of regulatory networks, bounded in soft and hard law, suggests the disciplinary techniques of social organization that have been well explored by Michel Foucault (Foucault 1978).
This gendering is trans-cultural. The foundational nature of intra-male codes of maleness—goodness, right, the privileged social ideal in both public and private sphere—finds expression through mechanisms consonant with the normative structure internalized by the particular communities in which this naturalization occurs. In the United States those mechanisms are based on principles of Enlightenment rationalism with an undercurrent of religious foundationalism. American popular understanding of the disordered life as backdrop to the political action of the so-called American Taliban provides a useful referent (Backer 2005). In Muslim majority states it is mediated through the language of religion and purity. This conflation of manliness purity and religiously based intra-male codes of religious and political behavior, rationalized through law, was nicely exemplified in the sodomy and corruption trails of Anwar Ibrahim in Malaysia in the late 1990s (Backer 2005), and in his subsequent rehabilitation (Backer 2007)). In developing states, gender ideologies are sieved through a discourse of post-colonialism and a reinvention of an idealized past. The reinforcement of male hierarchy was traditionally policed through the regulation of sexual activity. Though the sodomy laws, or laws like them, have substantially disappeared from the Western world, informal policing remains effective, primarily through the mechanisms of everyday social rules in which gendered conduct ideals are vested with important social and political consequences.
Intra-male behavior-privileging social ordering, and its political effects are also, to some extent, trans-historical. The notion of effeminacy and political behavior, as a dynamic and still living theory of politics is at least as old as Aristotle. (Aristotle 350 B.C.). Conflations of physical, moral and political strength are reflected in personal behavior, and an give rise to permissions to upset the social order—that is, to act extra legally. “Thus a general at the head of his army will endeavour to dethrone the monarch, as Cyrus did Astyages, despising both his manner of life and his forces; his forces for want of action, his life for its effeminacy” (Aristotle Bk III, ch. X). The end of tyranny and a certain effeminacy was also conflated.
“Contempt also is often the cause of their destruction: for though, for instance, those who raised themselves to the supreme power generally preserved it; but those who received it from them have, to speak truth, almost immediately all of them lost it; for, falling into an effeminate way of life, they soon grew despicable, and generally fell victims to conspiracies.” (Id.).
Effeminacy of mind and body could be ascribed to certain activities, improperly indulged. For example, music: “for it must be admitted, that in some cases nothing can prevent music being attended, to a certain degree, with the bad effects which are ascribed to it; it is therefore clear that the learning of it should never prevent the business of riper years; nor render the body effeminate, and unfit for the business of war or the state; but it should be practised by the young, judged of by the old.” (Aristotle Bk. VIII Ch. VI). And it has been said to permeate the foundational interpretive documents produced in defense of the adoption of the American Constitution (Kang 2007). It is expressed in current national political discourse (Tierney 2002, at A-1) in the rhetoric of Senator Byrd with allusions to Roman Republican civic virtues, and in the discourse of state politics as well (MSNBC News 2004) with “girlie men” as a referent of appropriate conduct.
It comes as no surprise, then, that male elites in the United States, like those in other nations, continue to protect the male gender borderlands of behavior norms. And there is no more powerful set of behavior norms than law in the United States. In an article recently published in the American Standard (“The Law and the President: In a National Emergency, Who you Gonna Call?,” The American Standard 11(17) (Jan. 16, 2006) Harvey Mansfield seeks to apply a gendered male oriented framework of social and political organization (Mansfield 2006b) to reorient foundational issues of constitutional law. Yet, Mansfield's efforts to reproduce an originalist gendered constitutionalism instead produces an aggregation of inversions. These inversions draw on a number of original sources of American constitutionalism, but more importantly, on the gendered hierarchy of values and its expression as political doctrine. Thus, this essay will suggest that Mansfield’s reading of law and presidential power is couched not only in gendered terms but in irony as well—the disciplining of manliness through inversion is an odd thing indeed.
Mansfield’s immediate object is to make a specific case for the legitimacy of the Bush Administration’s surveillance activities in the war on terror. In making that case he also suggests a broadly applicable constitutional jurisprudence increasingly heard in some quarters today. That broad set of constitutional jurisprudence is grounded in the following general proposition: The American federal constitution does not advance merely a rule of aw system as the core of American political governance. Instead the federal Constitution creates a whole power in two parts, one of which is the inward looking and domesticated system of rule of law constitutionalism that characterizes the legislative and judicial powers. The other is outward looking and mandates the assertion of “extra legal authority” by the American President under certain circumstances and against certain contingencies.
Mansfield’s defense of both President Bush’s surveillance projects and of the broader constitutional project are grounded in a complex system of inversions growing out of a juxtaposition of related binaries set against and building on each other in a series of parallel analogies. These binaries touch on both the peculiarities of the immediate substantive elements (surveillance, criminality, etc.) and on a parallelism of binary aggregations that suggest a fidelity to an ultimate set of grundnorm binaries: survival/destruction, strong/weak, good/evil, and male/female.
The initial binary—and binary inversion—presented, is meant to set up the arguments that follow. This initial binary focuses on “law/outlaw.” Mansfield poses the greater problem from an initially smaller source—criminality. He suggests a foundational distinction in law between criminals and enemies. That distinction is based on the relationship of both criminals and of enemies to the political state. He tells us: “Criminals violate the law, and the law can be vindicated with police, prosecutors, juries and judges who stay within the law: At least for the most part the law vindicates itself. Enemies, however, not merely violate but oppose the law. They oppose our law and want to replace it with theirs.” (Mansfield 2006). Criminals, the reader is told, operate within the law and its framework, but enemies fall outside the law ands that framework. Enemies are “outlaws,” criminals are merely anti social people who must be managed in a bureaucratic state. Because enemies fall outside the territory marked by law, they “need to be faced with extra-legal force.” (Mansfield 2006).
Of course, this binary, as proposed ignores a number of things. Two are highlighted here. First, Mansfield appears to invert the traditional understanding of outlaw. And second, the binary, thus inverted, is at odds with American understanding of the relationship of law to all human activity. With respect to the first, it might be worth noting that to engage in violations of law, for example by activity deemed criminal, was to fall outside the law. Outlaws could include any individual from the poor person who stole a loaf of bread to feed a starving family to a foreign Queen, resident, deemed to have engaged in political acts of treason. In contrast, enemies did not fall outside the domestic law, for never having been within it, but they consequence fell within the rule systems guiding conduct among combatants, with both hard and soft content. Mansfield would reverse these ancient understanding to suit his very modern purpose. With respect to the second, suggesting that enemies are conceptually incapable of being treated as criminals, is to reject the fundamentally American project, since the Nurnberg and Tokyo trials of defeated political enemies, of constructing an international system that does just that. Post War American efforts (to the political establishment’s current chagrin it seems) have produced an international consensus that tends to view all anti-social activity as criminal irrespective of its nature or consequence. The regime of international political criminality, subsumed within the regimen of the Rome State of the International Criminal Court (International Criminal Court 1998/99), suggests that there may no longer be much of an area of activity “outside” the law. It is true enough that Americans have resisted this current implication of its international activities. But the conceptual framework that gave it life is as much a core set of American jurisprudential values as any recognized within the framework of the federal constitution.
Yet the law/outlaw binary also serves to reinforce the gendered basis of Mansfield’s argument. The core binary is the unsurmountable division between the male and the female that served as the basis for Mansfield's foray into sex equality (Mansfield 2006b), in which women are "weaker" and constructed in relation to men. (Id.). Law and criminality are tied to the domestic, the internal matters of state. Criminals are a matter of family. Enemies are tied to a public space, to external activities, and to the world of non-domestic work. This gendered distinction, which feminist theory has explored in the construction of national and international legal systems, and in the social spaces produced thereby (Olsen 1993) becomes the crucial first step in Mansfield’s project to articulate an essentially male space “beyond” law.
Having asserted the possibility of a dual space for anti social activity—within and without the law—Mansfield invokes a complex parallelism of related binaries that will build on each other to produce the necessary support for his thesis: that the American federal constitution provides the President with a grant of “extra-legal” power to be used in the President’s discretion against the enemies of the nation. That grant of extra legal power is foundational to the nature and character of the executive authority granted to the Chief Executive created through Article II of the federal Constitution, without which it would be impossible to understand the office of the chief executive as an independent and co-equal branch of the federal government. The federal constitution, Mansfield tells the reader, created a strong executive. “A strong executive is one that is not confined to executing the laws but has extra-legal powers such as commanding the military, making treaties. . . and pardoning the convicted, not to mention a veto of legislation.” (Mansfield 2006). This is a thesis far broader than the usual iteration of similar notions in the traditional “unitary executive” theory. (Calabresi 1992). Rule of law unitary executives remain firmly grounded in the rule of law system of the constitution and subject to its constraints. (Fleming v. Page 1850; Youngstown Sheet & Tube Co. v. Sawyer 1952) Mansfield’s executive is not.
To get to this understanding of extra legal Presidential power, grounded in the law of the constitution, Mansfield deploys his second great binary—law/discretion—and suggests its inversion as well. In fleshing out this binary, a key concept in the argument Mansfield makes, he deploys a series of parallel supporting binaries each to serve as an analogue for and reflection of the others, and all intimately tied to the foundational governing binaries of the American state, which lurk in the background until the very end—survival/destruction, strong/weak, male/female.
Presidential extra legal activities, like surveillance, are not illegal merely because they fall outside the law, Mansfield argues. Assertions of extra legal power are legal, because the American rule of law system, founded on the federal constitution, permits lawless activity under the circumstances therein specified. “Thus it is wrong [Mansfield relates] to accuse President Bush of acting illegally in the surveillance of possible enemies, as if that were a crime and legality is all that matters.” (Mansfield 2006). Notice here the conflation of binaries criminal/enemy and law/extra legal.
It is at this point that Mansfield makes his alternative, and critical, argument. He suggests that constitutional rule of law must be understood as constitutionally limited, that is, of occupying only part of the governance space described by the constitution in the government it creates. This leads to an interrogation—and ultimate limitation—of the scope of a properly understood constitutional rule of law system. Mansfield suggests that there is no identity between constitutional rule of law and constitutionalism, at least in the American context. “The Constitution took seriously a difficulty in the rule of law that the republican tradition before 1787 had slighted.” (Mansfield 2006). Rule of law, understood as a form of “standing rules” is an appropriate subject for ordinary legislative functioning—power in the hands of many, rule supremacy over discretionary power, etc. It is focused on the domestic sphere. In a domestically focused context, legislative power can be favored over the executive and law over discretion.
Rule of law constitutionalism is female space and, for Mansfield, insufficient. He tells the reader: “Yet the rule of law is not enough to run a government” (Mansfield 2006), and it was government that the Constitution created. Rule of law, and even constitutional rule of law constitutionalism, must then itself be limited within an overall theory of governance. For Mansfield, implicit in the Constitution is the idea that an appropriately constituted government needs “both the rule of law and the power to escape it—and that twofold need is just what the Constitution provides for.” (Mansfield 2006). The Constitution thus provides a framework in which two conceptions of governance co-exist. The first is the ordinary rule of law state of democratic governance and legislative superiority, but also of “inflexibility of the rule of law.” (Mansfield 2006). The other is a system of discretionary authority that is always subject to the risk of Caesarism in our executive. The echoes of Aristotle’s family/state political theory are strong. (Aristotle 350 B.C.). Rule of law corresponds to law and criminality; discretion corresponds to extra legal power and enemies of the state.
How does the Constitution provide space for both a limited rule of law system and democratic Caesarism? Mansfield suggests that the doctrines of separation of powers and checks and balances starkly highlight this constitutional binary between (rule of) law and discretion. Law is built into the legislative and judicial branches—but not into the core of the executive function. The legislature and the judiciary are bound by rule of law constitutionalism, law is the thing they produce and manage and to which they are subject. This Mansfield describes as the choice aspects of constitutionalism. But the higher law of the constitution constitutes the lawful power of the president differently. The “executive power represents necessity in the form of responses to emergencies.” (Mansfield 2006). He elaborates:
The Constitution mixes choice and necessity, reflecting our desire, reflecting our desire for self-government which takes effect in our legislature) and our recognition of the limitations of human foresight and the imperfection of human laws. These are opposite principles made into opposing elements of our government.” (Mansfield 2006)
Together, they form the entirely of the constitution of lawful power that may be asserted by the state. Thus, Mansfield uses traditional separation of powers analysis as the basis for the support of a none rule of law legal system. Separation of powers serves as a proxy for the split between the rule of law governance (by legislation and the judiciary) and extra legal executive power.
But they are also complementary principles. By fiercely asserting the bases of each of their power, the three branches serve to check the others, producing a democratic whole. “The Constitution maintains both opposite principles by arranging for an interested party or parties to support [its organizing principle] in exercising its power.” (Mansfield 2006). Checks and balances thus serves as a proxy for the only constitutionally permitted basis for controlling the ascendancy of either a hide bound rule of law state, on the one hand, or Caesarism, on the other. “No, [Mansfield states] there will be conflict between discretion and the rule of law, each party aware of the other principle but more convinced by its own.” (Mansfield 2006). And thus the Constitutional framework is reduced to a great binary in motion: the American government is thus a combustion engine that operates as the force of a constant series of explosions among the branches moving the “pistons” of state from monarchy to republicanism while avoiding the extremes of tyranny and demagogic democracy. Still, this argument would have to confront over a century of jurisprudence suggesting significant limits to Presidential “extra legal” power (Fleming v. Page 1850). Though he devotes no time to it, it might be reasonable to assume that Mansfield would dismiss over a century of rule of law jurisprudence that clearly views the President in a far less extra legal power capacity as partisan—that is as efforts by one branch to control another—and on that basis to constitute a less authoritative interpretive source.
The law/discretion binary thus serves as a cover for a number of parallel binaries—active/passive, individual/group, monarchy/republic, separation of powers/checks and balances. But Mansfield is not done with separation of powers. He elaborates by reference to the Federalist Papers (Federalist Papers 1789), as “the most authoritative source for understanding the thinking of the Framers.” (Mansfield 2006). Mansfield reads this Federalist Papers to strengthen the idea that the framers had meant to constitution a republican monarchy. Responsibility is vested in the executive. “To be sure of responsibility you must fix it on one person; true responsibility is sole responsibility. That is why, under our republican Constitution, the people, when they want to hold the whole government responsible, end up holding the president responsible.” (Mansfield 2006). The logic of this progression is not beyond dispute and indeed, its simplicity and naiveté seem to serve as the greatest arguments against it. Whatever the value of Mansfield’s insight, he uses it to buttress the law/discretion binary, and its formal incorporation into the American constitutional order.
Yet he also uses selective references to the Federalist Papers for another purpose: to privilege the constitutional principle of efficient government (corresponding to European constitutional notions of effect util) over the anti-tyranny principle built into rule of law governance. He conflates the idea that the Framers sought to make a strong executive “in order to have both power and security,” (Mansfield 2006) with a fundamental reconsideration of the meaning of separation of powers. That reconsideration leads to a reconstitution of the unitary part of the unitary executive. Separation of powers is characterized as a 17th century invention improved by the Framers. That improvement consisted of a strengthening of the executive. “They enabled the executive to act independently of the legislature [something Mansfield now suggests would be impossible in a monopolistic rule of law constitutional order] and not merely to serve as its agent in executing the laws.” (Mansfield 2006). What does Mansfield mean? Perhaps he is suggesting that the executive, in order to be denominated such, must exist not merely as a servant of the legislature and the courts, but must be able to assert power in his own right. But the only sort of power that the executive may assert in his own right must be extra-legal—that is extra legislative—power. Otherwise he remains merely the subordinate and minister of the legislature and the courts. If the Constitution means what it says—and it says that it created three co-equal branches of government that together constitute the state, then the executive must be able to assert an authority equal to and independent of that of the other branches. This extra-legal power may only be asserted in emergencies, Mansfield seems to suggest, but asserted it must if the executive is to be co-equal. Thus, separation of powers suggests that to assert lawful power, the President must be able (in an emergency) to disregard the law. His actions may be illegal (that is contrary to the power of Congress to legislate and the courts to hear cases) but not unconstitutional (that is exceeding the lawful powers of his office as set forth in the Constitution itself). “Emergency action of this kind may be illegal but not unconstitutional; or since the Constitution is a law, it is not illegal under the Constitution.” (Mansfield 2006).
The law/discretion binary is thus critical to the development of Mansfield’s constitutional theory of a constitutionalism in which rule of law aspects of the constitution is separable from a legal power to avoid law. But the law/discretion binary subsumes a number of other binaries running in parallel. And it is those supporting binaries, to binaries that seem drawn from “natural” that Mansfield invokes. And it is in this effort that Mansfield’s reliance on strict gendering, and the conflation of power, law, and social organization in gendered terms is most easily visible. Mansfield speaks of the binary law/discretion in terms of responsibility versus irresponsibility, of efficiency of individual action versus inefficiency of consensus or institutional action, of the rule of law versus necessity in extremis. But, again grounding analysis on his extractions from the Federalist Papers (Federalist Papers 1787 No. 70), he focuses on another set of binaries that he suggests run in parallel or serve to illustrate the law/discretion binary: energy versus stability, “terms taken from physics to designate discretion and law. Energy has its place in the executive, and the foremost guarantee of energy is unity. . . . Unity facilitates ‘decision, activity, secrecy, and dispatch.’” (Mansfield 2006). The President must be understood as a constitutionally mandatory nexus point for energy, discretion, unity, singularity, and responsibility. Thus, the president appears as the embodiment of the male principle. The legislature and judiciary are not. These institutions represent the female principle. Stability, nurture, standing rules, consensus, limitation of power serve as the constitutionally mandatory expression of the construction of an institutional and limited assertion of its form and content. Mansfield thus constructs a constitutional theory based on those binaries at the heart of gendered social ordering. Male/female, strong/weak, public/private, these are the parallels used to justify a division in which men dominate the state and women are relegated to civil society. (Olsen 1993 154).
And here Mansfield is able to begin to bring the analysis around to its conclusion—that secrecy is the sort of action that is most consonant with energy, and the responsibility, properly understood, of the executive. Thus, Mansfield argues, “secrecy is compatible with responsibility because, when one person is responsible, it does not matter how he arrives at his decision.” (Mansfield 2006). Secrecy is incompatible with law—with stability—a telling point, but not for Mansfield. Instead, that parallelism suggests the need for lawlessness in the executive rather than an absence of secrecy within government, considered as a whole. Secrecy is incompatible with law, but perfectly compatible with responsibility bound up in the body of a singe executive. This practice Mansfield suggests, is truer to American cultural practice than a more collegial and institutionalized decision-making process subsumed under the legislation rule of law model. Thus the attempt to bring secrecy under the law is the same, for Mansfield, as bringing the President under Congress and the Courts as a mere minister of enforcement of law. It is in this context that Mansfield would prefer surveillance and torture to be understood in the American constitutional context: the rule of law cannot apply when law does not apply—in those emergencies in which a President must assert a lawless, masculine, virile, protective, singular power. “You have to do what you have to do” reminds Mansfield quoting John McCain on the issue of torture. (Mansfield 2006). Surveillance reasserts a private/public distinction at the heart of gendered ordering of law and politics. (Gavison 1992 3).
There is thus a space within American constitutionalism, Mansfield argues, “when liberties are dangerous and law does not apply.” (Mansfield 2006). Lawlessness of this sort is both moral and lawful, precisely because it rejects the weakness and stability of rule of law constitutionalism. The higher law of the Constitution is said to solve this problem by making lawful lawless actions. The make principle is thus embedded in the uniqueness of the Presidential office. And in this way Mansfield would undo two hundred years of American jurisprudence, built in the blood of the colonists English forbearers, who took down a Stuart king of England and Scotland, to defend the primacy of law, organic, extra governmental, and binding, on a monarch who would also assert the virile power of lawless activity. The bent once bent the neck of the King to the power of law. Mansfield forgets that the American republic was built on that scaffold.
For Mansfield, then, a federal Constitution that is bound solely by rule of law constitutionalism, a constitution in which legislative and interpretive power appears to set the boundaries of executive action, is a constitution that is defective, and defectively male. Rule of law constitutionalism is essentially defectively male, and thus female, and the male principle—energy, discretion, responsibility, singularity and unity must provide a space in which lawlessness is lawful. Mansfield builds on binaries with significant gendered tones to present a picture of an appropriately manly construction of the constitution. Law, then, is defectively male—that is, female—and must be cabined to a well-defined domestic space. And rule of law as the whole of the constitutional order produces an effeminate legal order.
Yet, Mansfield’s underlying gendered analysis causes an inversion of doctrine and a perversion of traditional male ordering. Still, the ordering survives his analysis. That is because gendered action is still at the core of the value system at the foundation of the Republic. The essay suggested the ironies inherent in Mansfield’s articulation of manliness through Presidential extra legal muscularity. A central great irony centers on Hamilton’s poorly remembered justification for union as a means to protect rights and the rule of law set out in Federalist No. 8 (Federalist Papers 1787). Hamilton suggest that the United States, like Great Britain can profit form union because of its geographic position as a state insulated form constant warfare and the need to defend its territory. In such a context, the rights of people (and their resolve to protect them) would be strengthened and their otherwise justifiable fear of a military state would be diminished (Federalist Papers 1787, No. 8).
There is a wide difference, also, between military establishments in a country seldom exposed by its situation to internal invasions, and in one which is often subject to them, and always apprehensive of them. . . . The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors. The transition from this disposition to that of considering them masters, is neither remote nor difficult; but it is very difficult to prevail upon a people under such impressions, to make a bold or effectual resistance to usurpations supported by the military power. (Federalist Papers 1787 No. 8).
Mansfield will take this insight and turn it on its head, suggesting a notion of rule of law as both effeminate and passive that was once more appropriately the province of more totalitarian ideologies (Mussolini 2004). But even the focus on surveillance suggests inversion: the object of strong executive extra legal power is surveillance in the protection of the state. But surveillance is itself was traditionally gendered female—the sort of thing gentlemen do not do (CITE). But surveillance appears to become male in the face of a greater failure of maleness—the resort to terror in lieu of traditional acts of war between equals. Terror is depicted as cowardly, sneaky, conspiratorial, dishonorable, uncontrolled, reactive, all of the attributes of the traditionally depicted defective male (Backer 1996). It follows that terror would itself likely to be gendered female, causing a “cure” or at least a rehabilitation of surveillance.
Mansfield thus suggests that Presidential power, gendered male, clearly suggests that the President’s Constitutional powers extend beyond the mere execution of the laws. “Thus it is wrong to accuse President Bush of acting illegally in the surveillance of possible enemies, as if that were a crime and legality is all that matters.” (Mansfield 2006). If law is male, he suggests, then rule of law is defectively male (and thus subordinate as female)—passive, docile, and risk averse. He effectively suggests an Aristotelian political effeminacy—and not as a source of strength. And by imposing and enforcing these differences, differences based on a need to distinguish male from female behavior--more from less valued—Mansfield’s exercise in “manliness” is symptomatic of the more subtle and corroding subversive nature of the hierarchy of male gendering. Intra-sexual gender role hierarchies, based on a normative model of male role supremacy, continue to marginalize the normatively female both within each sex and between the sexes. When this marginalization becomes the stuff of constitutional analysis, caudillismo cannot be too far behind.
And yet, even if Mansfield's extra legal constitutionalism is wrong--and two hundred years of male dominated American jurisprudence suggests that it is, the gendered legal order still survives, intact. Theory merely reverts to the traditional binary which genders rule of law as male, and the domestic portion of the private sphere, female and thus extra-legal (and here is the ultimate inversion of Mansfield--the idea at unregulated space, that is extra legal space is traditionally gendered male, when in fact forms, as feminist theory has long understood, the core of "unregulated space" gendered female (and unregulated because it does not merit the attention of positivist state theory (Austin 1879) or traditional rule of law constitutionalist theory (Dicey 1915).
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