John Min Kang, “Manliness and the Constitution”

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Abstract:
Much of the legal scholarship regarding gender focuses justifiably on discrimination against women; accordingly, if such scholarship does discuss men, it does so chiefly to illuminate the ways in which women have been oppressed by them.

My article seeks to explore men’s identity as its own topic, specifically in its relation to the Constitution. I begin my exploration with early modern England, for the American colonists would have to grapple with the ideas that arose during this time. My argument proceeds as follows. Prominent conceptions of male identity in early modern England made constitutional democracy, as the eighteenth century Americans understood it, philosophically unrealistic. Thomas Hobbes represented one view, Robert Filmer the other. Hobbes argued that men’s violent hypermasculinity made them ineligible for the disciplined and mature enterprise of self-government; he believed that only an absolute monarch could control men for purposes of collective peace. Filmer also argued that men were generally incompetent for self-government. But unlike Hobbes, he argued that men were psychologically infantile and thus insufficiently manly for self-government. Filmer insisted that only the king had the requisite manliness of a powerful father and that men required the former’s love and guidance while they owed him complete obedience.

The American colonists constructed a new understanding of male identity, one that was compatible with the logic of self-government in their constitution. Against Hobbes, the colonists pressed American men to embrace civility rather than being driven by a violent hypermasculinity. Against Filmer, the colonists urged American men to evince their manly independence by deliberating political truths instead of deferring to social betters. I then explain how these views by the colonists were manifested in the federal Constitution.

Published in Harvard Journal of Law and Public Policy, Vol. 32, pp. 261-332, 2009 and available for download here.

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