Manliness and the Constitution
Kang, John M., Harvard Journal of Law & Public Policy
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
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. …