Manliness and the constitution.

• Author: Kang, John M.

INTRODUCTION I. THOMAS HOBBES: HOW HYPERMASCULINITY NECESSITATES ABSOLUTE MONARCHY II. ROBERT FILMER: THE AUTHORITY OF THE FATHER AND THE MANLY MONARCH III. LOCKE'S ATTACK ON PATRIARCHALISM AND ABSOLUTE MONARCHY IV. THE AUTHORITY OF THE PEOPLE A. Civility 1. Criticism of the King 2. Enlightenment Embrace of Civility 3. Necessary for Adjudication B. Deliberation V. THE AMBIVALENT PLACE OF THE GENTLEMAN II THE CONSTITUTIONAL ORDER INTRODUCTION

Men as a group are saddled with at least three broad, and not necessarily baseless, caricatures: the hypermasculine brute, the dutiful gentleman, and the independent thinker who is his "own man." These portraits do more than populate our culture; they inform the Supreme Court's constitutional jurisprudence.

First, let us consider the image of men as hypermasculine brutes who are consumed by a propensity for atavism, violence, and domination. (1) A characteristic of hypermasculine men is the desire to avenge violently perceived wrongs done to them, including wrongs in the form of public slights. (2) This description may call to mind the rabid Miami Dolphins fan who feels compelled to punch the loudmouth at the other end of the sports bar who has dishonored the reputation of Dan Marino. We may also think of the enraged husband who beats his wife for publicly humiliating him. Mindful of insult's role in hypermasculinity, the Supreme Court has sought to preempt conditions where it can provoke violence. A stark example is the fighting words doctrine, created by the Court in Chaplinsky v. New Hampshire. (3) The Court allowed a prohibition on fighting words when construed as those that "men of common intelligence would understand would be words likely to cause an average addressee to fight." (4) Fighting words can be "threatening, profane or obscene revilings," especially when uttered "face-to-face." (5) Fighting words, the Court declared, should not receive constitutional protection because "by their very utterance, [they] inflict injury or tend to incite an immediate breach of the peace." (6) The Court elaborated:

It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. (7) Notice that the fighting words doctrine targets men and draws from a gendered worldview. "[M]en of common intelligence" and "ordinary men" (8) are the touchstone and, although women theoretically can also retaliate with violence against men or women, the Chaplinsky Court never refers to the female perspective. For the Court, only men threaten the public peace with their anger and, thus, only men must not be needlessly aggravated.

Against this image of hypermasculinity stands the ideal of the gentleman: civil, dutiful, gracious, and protective of the weak. (9) Here is the man who unfailingly absorbs the casual parade of daily slights with stoic politeness and, in his old-fashioned and perhaps vaguely chauvinistic way, always opens doors for women. The gentleman also differs from the hyper masculine brute by being mindful of his civic responsibilities. (10) In 1996, the Virginia Military Institute (VMI) case afforded the Supreme Court an opportunity to ponder the meaning of being a gentleman. (11) The Court rejected VMI's policy of denying admission to women applicants, because the policy violated the Equal Protection Clause and, more specifically, VMI's policy stood as an obstacle to the Court s advancement of gender neutrality. (12) For Justice Scalia, who dissented, the Court's vindication of gender neutrality defeated a public sanctuary where young men could develop virtues as gentlemen. Justice Scalia found "powerfully impressive" the school's requirement that its students abide by a list of rules for good behavior known as the "Code of Honor." (13) The Code insisted, among other things, that a gentleman:

Does not go to a lady's house if he is affected by alcohol. He is temperate in the use of alcohol. Does not lose his temper; nor exhibit anger, fear, hate, embarrassment, ardor or hilarity in public. [N]ever discusses the merits or demerits of a lady. Does not put his manners on and off, whether in the club or in a ballroom. He treats people with courtesy, no matter what their social position may be. Does not "lick the boots of those above" nor "kick the face of those below him on the social ladder." (14) These responsibilities are surely arduous for many men, especially of college age, but VMI formally expected its recruits to embrace opportunities to fulfill the Code's tenets. To be a gentleman at VMI was to attain a lustrous nobility, a premise that finds expression in the Code's preface:

Without a strict observance of the fundamental Code of Honor, no man, no matter how "polished," can be considered a gentleman. The honor of a gentleman demands the inviolability of his word, and the incorruptibility of his principles. He is the descendant of the knight, the crusader; he is the defender of the defenseless and the champion of justice ... or he is not a Gentleman. (15) Somewhat complementary to the image of the gentleman is the ideal of men as independent and, especially in the political realm, as independent thinkers. (16) No judge articulated the latter view with more poignancy than Justice Brandeis in his famous concurrence in Whitney v. California. (17) Conventionally lauded for its bracing support of free speech, Justice Brandeis's opinion is partly a discourse about male identity. He argued that men must possess a stout courage to exercise their constitutional rights. The Framers, Justice Brandeis asserted, "believed liberty to be the secret of happiness and courage to be the secret of liberty." (18) Unfortunately, Justice Brandeis provided little direct explanation for the statement's meaning. He simply announced that courage must counteract the pathology of fear because "fear breeds repression ... repression breeds hate ... hate menaces stable government" and "the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies." (19) Courage is not exclusive to men, but its etymology in Greek, Latin, and Hebrew derives from the word for "man," as if to be courageous is necessarily to be manly and vice versa. (20) This correlation was not lost on Justice Brandeis. Although the Whitney case concerned Charlotte Anita Whitney, a woman, and probably a courageous one, (21) Justice Brandeis's only reference to women as a gender in Whitney hardly rendered them courageous: "Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears." (22) Justice Brandeis depicted women as passive objects of men's superstition or enlightenment; for him, men were the sole political actors, and that is why he urged men, and not women, to be courageous.

The American constitutional enterprise, according to Justice Brandeis, invested its hopes in men, but, on the other hand, the fighting words doctrine and the Supreme Court's decision in the VMI case imply that men can present threats to it. The tension may cause us to wonder how to make sense of male identity in the American constitutional order. This Article examines the tension by delving into the historical origins of male identity and its relation to the American Constitution.

This examination begins in the sixteenth and seventeenth centuries of early modern England, for the American colonists would eventually have to grapple with ideas that arose from this period. Two of the most prominent conceptions of male identity in early modern England made constitutional democracy, as the Americans understood it, philosophically unrealistic. Thomas Hobbes represents one conception, and Robert Filmer the other.

Part I presents a picture of early modern England where the spectacle of men engaged in public brawls over issues of honor was common. Reacting to this public violence, the seventeenth-century philosopher Hobbes bemoaned that men's hypermasculinity made them ineligible for the disciplined and mature enterprise of self-government. Only an absolute monarch, Hobbes insisted, could control men for purposes of collective peace.

Part II shows that Filmer, another prominent seventeenth-century English philosopher, also believed that men were generally incompetent for self-government. Unlike Hobbes, Filmer argued that men were psychologically infantile and thus lacked the manly independence for self-government. Only the king, wrote Filmer, had the requisite manliness of a powerful father, and men required the father's love and guidance while owing him complete obedience. By the late seventeenth century, however, philosophers like John Locke began to challenge absolute monarchy in a manner that would influence how the American colonists thought about male identity and its relationship with political authority. Part III outlines this shift.

Although the American colonists were not the first to challenge absolute monarchy, they were the first to create a government that completely did away with a king. This radically democratic move, in turn, required the colonists to imagine conceptions of male identity that would help to underwrite their change in governance. The colonists first had to parry Hobbes's and Filmer's arguments for the king's authority. Instead of bestowing upon the king the mantle of indispensable referee or loving patriarch, the Americans, as illustrated in Part IV, ridiculed him as a hypermasculine brute. By delegitimizing the king, the colonists cleared a philosophical path for a new government where all authority formally resided with the people themselves. That move in turn prompted the colonists to develop an account of public virtue that expected men to behave in a manner that would demonstrate their competence for self-government. Against Hobbes, the...