Martha T. McCluskey –
What does political economy have to do with the issue of gender violence that roiled Kavanaugh’s Supreme Court confirmation? One answer is that law should not separate economics from the social inequalities that mediate power. Violent enforcement of social hierarchies has long been a core capitalist strategy for securing selective economic advantage, as Angela Harris and Frank Pasquale have written in this blog.
The recent #Metoo movement suggests the strong arm and insidious shadow of physical force is common, not marginal, to the everyday economic lives of many women, a factor to bargain with in the process of securing opportunities for education or work, housing or health care. Conventional law and economics tends to assume a background of private voluntary exchange that belies continuing contests over the power to gain through violence. In contrast, a political economy perspective recognizes that government does not monopolize force. Instead, government enables and distributes private force by how law defines, punishes, monetizes, and immunizes private acts of violence. Neither formal law nor social norms have firmly settled the questions of what forcible acts and impacts count as normal, excusable, trivial, implausible, or invisible.
Over years of teaching first year Constitutional Law, I have struggled with United States vs. Morrison, one of the contemporary cases limiting federal legislative powers. Morrison invalidated a provision in the landmark 1994 Violence Against Women Act (VAWA), enacted with political support generated by Anita Hill’s allegations of sexual harassment against Supreme Court nominee Clarence Thomas. In Morrison, a 5-4 majority (including Justice Thomas) ruled that VAWA’s provision granting a private right to sue for gender-motivated damages exceeded Congress’s constitutional power to regulate commerce.
The Court majority reasoned that “[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity.” In dissent, Justice Souter criticized the Court’s refusal to credit “mountains” of Congressional evidence showing that gender violence has a substantial aggregate impact on interstate commerce, resulting in annual costs of $3 billion and impeding women’s full participation in the national economy. The majority, in contrast, considered any such impact too attenuated and incidental to what it construed as essentially noncommercial violent actions that should be left to state criminal law.
Most of my students readily accept the Court’s logic that gender-motivated violence is categorically non-economic. But private violence need not occur in the course of a formal business or monetary transaction, nor be devoid of gender animus, to serve as a powerful and pervasive method for distributing economic opportunities and burdens. The provision at issue did not supplant state criminal law, but rather conferred federal economic power – a right to damages – precisely because Congress (joined by many state leaders) determined state criminal laws were failing to equally or effectively enforce protections against gender violence.
A political economy perspective asks what economic interests might especially gain from systemic failure to fairly enforce criminal laws, rather than assuming those failures are accidental or the result of widely shared values. In Morrison, plaintiff Christy Brzonkala’s original lawsuit focused not only on the effects of an alleged rape by two college classmates, both varsity football players, or the subsequent related behavior that made her fear for her safety on campus. In addition, she claimed she was harmed when the state university’s leadership overturned a disciplinary body’s temporary suspension of one alleged assailant from college, reinstating his football scholarship. That initial lawsuit further alleged that the university leadership’s reversal was influenced by pressure from the football coach, and that the football team went on to bring in over $8 million in revenue for the year.
Whether or not the state’s lenient local enforcement in Morrison was motivated by interstate competition for college athletic entertainment dollars, the possibility helps show how VAWA’s damage remedy specifically makes sense as a means of regulating interstate economic competition. In VAWA, the private right to damages for gender violence was a potentially effective remedy not only because it bypassed unequal state criminal enforcement, but also because it took a step toward countering the political economic power that tends to undermine that enforcement. By specifically monetizing the harm from gender violence, Congress was advancing its central federal role in governing the terms and currency of national economic competition, restricting the use of force as an independent medium of individual private transactions.
In her book Down Girl, philosopher Kate Manne analyzes misogynist violence not as a problem of individual psychological animus toward most women, but instead as a “law enforcement” system aimed at defining and defending an economy of masculine entitlement to women’s service, sexual or otherwise. Overt acts of misogyny tend to be directed at women with real or imagined violations of their assumed obligation to offer care and advantages to men without expecting reciprocal exchange. Even though most men don’t assault women, privileged men broadly can nonetheless gain from a system that affirms an entitlement to advance their own interests by appropriating or deprecating women’s attention, bodies, and labor. Further, the assumption of this unequal entitlement generates what Manne terms “himpathy,” the perception that holding privileged men accountable for evidence of harm to women can be more threatening and unfair than causing any such harm in the first place.
This ideology of unequal gendered obligation to give and forgive non-mutual male pleasure, comfort, and power is not merely a relic of outdated social traditions. Instead, the economic value of enforcing this legal entitlement has increased in a neoliberal economy where access to personal care, dignity, pleasure and compassion is especially scarce, unequal and costly.
Constitutional law classes study Morrison as a limit on earlier constitutional rulings upholding Congress’s power to broadly address inequality through the commerce clause. Students often agree with Justice Douglas’s concurring opinion in Heart of Atlanta Motel v. United States, concluding that the Equal Protection clause is a better constitutional basis for federal civil rights legislation. The commerce clause appears to be a makeshift doctrinal solution to dubious historical judicial limits on Congress’ Reconstruction Amendment powers. In that view, the real constitutional problem of Morrison is that the Court went on to rule that the legislation’s private damage remedy also exceeded Congress’s power to enforce Equal Protection, favorably citing earlier anti-Reconstruction civil rights limits.
Nonetheless, a political economy perspective should further insist that equal protection against private violence is integral, not peripheral, to the national economy. Both the Court’s limited conception of equal protection and its narrowing of reasonable economic regulation operate to erase a long history of state complicity in mobilizing private violence as a means to preserve and advance unequal political economic power. Legal scholar James Gray Pope and others have argued that constitutional law courses could better illuminate contemporary cases limiting federal powers by teaching Cruikshank v. United States, an 1893 case that invalidated federal prosecution of white supremacist mass murder aimed at impeding democratic elections. The ruling in that case crucially helped entrench an unequal national political economy with persisting contemporary power to limit democracy and equality.
The Court’s recent limits on federal legislative powers have been driven by nationally organized efforts to promote particular economic ideologies and interests, not merely by deference to diverse local moral commitments. The challenge to VAWA would not likely have reached the Supreme Court without the national Center for Individual Rights’ significant, strategic investment of resources in appealing the Circuit Court’s ruling upholding the provision. More broadly, Morrison advances a well-funded long term political economic movement aimed at constitutionalizing barriers to democracy, as historian Nancy MacLean describes in her 2017 book Democracy in Chains. The ruling in Morrison can be read as a step toward the goal of that movement, which is not to generally limit federal powers but rather to redirect and enhance centralized government power to protect an ideal of “economic liberty” centered on unequal wealth and unequal political power.
Martha T. McCluskey (@MarthaMcCluskey) is Professor of Law and William J. Magavern Scholar at the University at Buffalo School of Law.