Manliness, Part I: Anyone Call for a Knight?

I am John Kang, associate professor of law at St. Thomas University (Florida).  First, I hasten to thank Bridget for kindly offering me a chance to blog on Feminist Law Professors.

I am presently researching the connection between manliness and the law, specifically the Constitution.    I’ve written about this connection in “The Burdens of Manliness” (33 Harvard Journal of Law and Gender 477 [2010]) and “Manliness and the Constitution” (32 Harvard Journal of Law and Public Policy 261 [2009]).

I know that this blog is called Feminist Law Professors but it seems to me that much of feminism as an ontology is also about masculinity or issues of manliness (consider that notwithstanding its title MacKinnon’s Feminism Unmodified is in substantial ways an untrammeled exploration of hypermasculinity and manliness).

One of the things that caught my eye as I did research on manliness was how some judicial opinions, including a few written by Supreme Court justices, organized themselves around the theme of men as knights who were arriving to save damsels in distress. More than colorful tropes, the images of knights and damsels, did the work, or much of the work, of legal reasoning by helping judges to justify why a given party should lose and another win.

Curious, don’t you think?

Here’s a couple of examples.

In Bradwell v. Illinois 83 U.S. 130 (1873), the Supreme Court Court upheld an Illinois law that denied Myra Bradwell a license to practice law because she was a woman.  Justice Bradley penned an unforgettable concurrence. He explained that “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres
and destinies of man and woman.”  For Justice Bradley, “[m]an is, or
should be, woman’s protector and defender. The natural and proper timidity
and delicacy which belongs to the female sex evidently unfits it for many of
the occupations of civil life.”  Notice the work being done by the trope of knights and damsels, so to speak:  women are damsels–with their “timidity” and “delicacy” who must be protected from the rough and tumble world of legal work and men must, like knights, serve as “woman’s protector and defender” and prevent women from being harmed.

This theme comes up again in Justice Brandeis’s concurrence in Whitney v. California, 274 U.S. 357 (1927).  Regarded by some prominent con law scholars as being perhaps the greatest judicial exposition of the right of free speech, Justice Brandeis’s opinion depends crucially on the image of knights and damsels.  Women make only one appearance in his lengthy and sometimes lyrical opinion.  He describes colonial America as a time when “[m]en feared witches and burnt women.”

Men, obviously, shouldn’t let this happen, Justice Brandeis argued:   “To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the process of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.”  Men, Justice Brandeis tells us, must be “courageous, self-reliant” in order to protect women from being “burnt.”  It’s a weird, if macabre, example, especially for an opinion written in 1927, about, no less, a woman (Anita Whitney) who was an exemplar of courage (see my “Manliness and the Constitution,” at 328).  By contrast, Justice Brandeis, heralded as a champion of free speech and despite the rhetorical brio of his concurrence, meekly acquiesced Whitney’s criminal conviction for merely belonging to a socialist political organization.

Lest you think Justice Brandeis’s opinion a bit archaic, there are contemporary examples of judges relying on this knight/damsel trope.  If interested, check out my articles.  This exploration is part of a larger project; hence, comments, criticisms, and questions warmly welcome.