Author:Hershkoff, Helen
Position:Symposium: The Constitution in the Age of Trump

That President Trump ignores, defies, and might destroy the norms long taken for granted in America's democracy is a view expressed by scholars, (1) politicians, (2) journalists, (3) and many everyday Americans. (4) An obvious example of Trump's deviant conduct is his perverse use of the "bully pulpit" to express vulgar and degrading statements about women, (5) showing more of the bully than of the pulpit. (6) That these utterances, made as a candidate and while in the White House, violate equality and dignity norms at the core of constitutional aspiration is an understatement. (7) Their egocentric quality has triggered questions about the President's psychological stability. (8) They also have elicited strong negative reaction in the form of global public demonstrations (9) and have jumpstarted the political campaigns of women--Democratic, Republican, and Democratic Socialist--to run for state or federal office. (10) On a parallel track--but fueled by Trump's election (11)--women have mobilized about sexual harassment through the social media campaign called #MeToo, (12) and companies and government offices have felt compelled to clean house. (13) In highly publicized incidents, CEOs and government officials have resigned, (14) been fired, (15) been investigated by the FBI, (16) or face criminal prosecution because of sexual misdeeds (17)--and the list grows longer. (18) The establishment of Time's Up--founded by female farmworkers and celebrities committed to using status and wealth on behalf of gender issues--signals further development of a growing "resistance" in civil society that strategically combines social opprobrium with civil litigation, (19) and steadily is expanding from women who are white professional elites to women of color, women in low-wage jobs, gender non-conforming women, and trans persons. (20)

Trump campaigned for the White House on a platform of disruption, (21) urging America's return to a golden time when white men of privilege ruled home and country. (22) In the greatest of ironies--proof-positive of the law of unintended consequences (23)--the President's best legacy may end up as a change-agent of gender norms. At least at the level of discourse, there's no question that what Americans talk about when they talk about women has changed since Trump became President. (24) Features of gender relations that for decades have been suppressed or side stepped are now front and center. (25) It is not simply that Trump's coarse and violent language has spotlighted his own misogyny and the persistence of sex-role stereotyping. (26) Even more, he has lifted the curtain on the "dirty secret" (27) about women and work: that the workplace too often is a gendered arena in which countless women are targets of physical abuse, sexual exploitation, psychological domination, and reduced opportunity simply because they are women and typically due to the misconduct of men, (28) who often, but not always, are in superior employment positions. (29) Energized by the Administration's extreme positions, women have refused to draw that curtain closed. (3)" Each woman may be differently situated in the workplace, but as a person who is not a man each shares what Professor Kathryn Abrams described twenty years ago as "a continuing history of being subject to exclusion and devaluation." (31)

The theme of this Symposium is the Constitution in the age of Trump. Across fields, commentators have questioned whether America's constitutional regime is adequate to meet current concerns. (32) President Trump's toxic attitudes about women make us ask: Does it remain appropriate for the Constitution to omit all mention of women from the text, (33) or to limit women's constitutional possibility to the rights and liberties deemed significant by the male (and white) Founding Fathers? (34) To be sure, before Trump entered the White House, the Court's interpretation of the federal Constitution with respect to sex discrimination had slowly begun to shift from a formal approach that compares essentialized men with essentialized women, to one that more broadly probes why social practices and legal requirements accommodate the needs of some persons (usually male) and not those of others (usually female), (35) and, further, that interrogates a unitary vision of men and women as white, elite, and conformist. (36) But the interpretive movement was not all forward. During this period the Court also impeded women's advancement by making it more difficult for Congress to create and enforce social and economic rights that are critical to meaningful and not merely formal equality. (37)

Looking forward, many commentators expect President Trump's policy agenda to harm women across multiple dimensions, contributing to a loss of physical autonomy, decreased financial status, and increased social vulnerability. In addition, these approaches will disproportionately worsen the lives of women of color, of women whose sexual identity does not conform to a male/female divide, and of women who are poor or in low-wage jobs. (38) Nevertheless, it is anticipated that the Constitution likely will provide women with neither a sword nor a shield against mounting gendered inequality; to the contrary, the Trump Court more than likely will raise the Constitution as a cudgel against women. (39) Many of Trump's deregulatory initiatives that impact women will be impervious to constitutional challenge because of the weak standard of rationality review that the Supreme Court applies to social and economic regulation. (40) Nor is it likely that the Constitution will be applied to support affirmative claims against the government; unlike the constitutions of the states or of most industrialized liberal democracies, the Constitution does not explicitly provide for the health, education, housing, or employment of its citizens, (41) and it has not been interpreted to hold the government accountable for economic inequality, whether gendered or racialized, that government action does not directly cause. (42) Although the Due Process Clause so far protects women's reproductive choices, the Court's First Amendment jurisprudence could further jeopardize women's liberty interests and cut more deeply against a federal right to reproductive choice. (43) Moreover, for some Justices, respect for gender equality has been viewed as tantamount to taking "sides in the culture wars" and not as a principle of constitutional merit. (44)

Part I of this Article contextualizes women's current resistance to the Trump Administration's policies, discussing how women's absence from the Constitution coincides with their economic and social inferiority, especially since the economic meltdown of the early twenty-first century. The problems identified in this Part were an entrenched feature of American life before Trump became President but elected officials frequently overlooked or pushed them to the side.

Part II turns to the Trump Administration's policy agenda, which has privileged financial elites, cut back worker protections, and sought to dismantle health and welfare protection, including those that bear on women's reproductive choice. Looking at an illustrative sample of the President's policies, we examine their anticipated impact on women and show that they are likely to exacerbate gendered trends of social and economic disadvantage.

Part III takes an unusual turn, at least for a symposium that is focused on constitutional law. We look not at the Supreme Court, but at the lower federal courts, and explore not the Constitution and the substantive law of gender equality, but the Federal Rules of Civil Procedure. These rules involve basic litigation devices such as arbitration agreements, motions to dismiss, summary judgment, and class certification. Our focus on procedure should not be regarded as "a technical affair" or off the mark for those interested in gender equality. (45) Constitutional scholars, studying the Civil Rights Movement and the campaign for marriage equality, have argued that popular mobilization can motivate and legitimate the progressive reordering of constitutional doctrine. (46) Procedural rules--long regarded as critical to rights and liberty (47)--provide a pathway through which social movements translate constitutional aspirations into constitutional doctrine. Civil procedure plays this role by shaping, channeling, and encouraging--or discouraging--the flow of information to and from the court and ultimately to the public. (48) Activism in resistance to President Trump's policies concerning women offer interpretive resources that are critical to the reframing of constitutional narrative. (49) As we show, there is a danger that information about women's experiences will be filtered from public knowledge through procedural decisions that seem distant from constitutional struggles. In our view, anyone seriously interested in the transformative power of women's mobilization must take account of procedural rulings that potentially blunt the communicative force of a social movement and thereby diminish its legal and political potential. (50)

This Article certainly is not the first to associate the application of federal procedural rules with gendered effects. (51) Some would argue that these judicial trends are evidence of stealth activism--not by liberal judges seeking to adapt the Constitution to current concerns, but by conservative judges cutting back on equality-favoring laws enacted by earlier political coalitions. (52) Others might equate them with an unspoken assumption that "women's issues" are not worth the federal courts' time and trouble--consistent, for example, with the exclusion of domestic-relation cases from federal jurisdiction. (53) Our contribution is to examine the linkage between adjudicative procedure and the potential impact of social mobilization on constitutional culture. We raise the question whether procedural decisions, by...

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