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ICON, Volume 5, Number 3, 2007, pp. 557563 doi:10.1093/icon/mom014
Advance Access publication June 22, 2007
Book review
Beverley Baines and Ruth Rubio-Marin, eds., The Gender of Constitutional
Jurisprudence . Cambridge University Press, 2005. Pp. 356.
Reviewed by Catharine A. MacKinnon *
Asking how women are, so to speak, constituted by law around the world
reveals how vastly the unknown overshadows the known. What is a constitu-
tion in gendered terms, and why should women care about this particular legal
form? As a species of law, is it more or less conducive than others to addressing
womens problems as women? As a species of politics, do democratic constitu-
tions work to empower women, or do they more tend to institutionalize male
power? If law is male,
1
how is a constitution masculine?
For that matter, how many of the worlds women and girls live under con-
stitutions, and does that fact make a difference in their life chances? Do written
constitutions work better or worse than unwritten ones, newer better than
older, those within common law traditions better than in primarily civil law
systems, imposed constitutions worse than when women take part in creating
them? Does including the words sex or gender or women in a constitu-
tion materially improve womens lives under its aegis? Do countries that
address womens status as such under their constitutions have fewer sex-
discriminatory laws?
2
Do the particular terms in which constitutions recognize
womens rights equal protection, nondiscrimination, sex/gender equality,
rights of women, and those textually or interpretively affect outcomes in
court and on the ground? How much, in other words, does explicitness of
* Elizabeth A. Long Professor of Law, University of Michigan Law School. Email: camtwo@umich.edu

1
For an analysis arguing that it is, see CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE
STATE (Harvard Univ. Press 1989).

2
For documentation of a sampling of facially sex-discriminatory laws around the world, see
Equality Now, Words and Deeds: Holding Governments Accountable in the Beijing + 10 Review Process
(March 2004, updated May 2005), at http://www.equalitynow.org/english/wan/beijing10/
beijing10_en.pdf .
558 ICON July 2007 Vol. 5: 557
entrenchment and concreteness of language count in reality? How do factors
such as corruption, legal culture, literacy, and access to lawyers affect results?
When womens constitutional rights are mediated by facially gender-neutral
abstractions that elide inequality, such as security and privacy and due process
and dignity, are the outcomes distinguishable from adjudications of the same
issues under the express rubric of sex equality? What is the relative effect of
constitutional regulation under terms like pay, abortion, rape, prostitution,
pornography concrete words closer to those under which the issues are
lived?
Questions like these are only beginning to be systematically studied,
3
leav-
ing the comparative constitutionalism of sex mostly terra incognita. Its poten-
tial theoretical, empirical, and practical is immense. Because women are a
global group divided among mens states and nations and cultures,
4
with simi-
lar problems of inequality between the sexes arising from gender hierarchy
spanning the globe in diverse forms, comparative work provides both a large
canvas and a crucial control in studying the embodiment and enculturation of
sex and gender across time and place. These issues are further inected by
diverse legal systems, comparison offering a vast behavioral laboratory of
innovation and experimentation in solutions to womens second-class status.
The shape-shifting quality of male dominance, which critically prioritizes
certain practices in some cultures and takes wholly other forms elsewhere
property inheritance in Nepal, female genital mutilation in some parts of Africa,
pornography in Western capitalist media-dominated cultures, for instance,
while sexual abuse in families and through prostitution remain central to it
everywhere cannot obscure this fundamental dynamic once the compara-
tive forms are lined up. Seeing the male regime as a form of global rule,
5
the

3
One early investigation is Donna Greschner, Can Constitutions Be for Women Too?, in THE ADMINIS-
TRATION OF JUSTICE 20 (Dawn Currie & B. MacLean, eds., Univ. of Saskatchewan Social Research Unit
1986). The introduction by Martha Nussbaum to the symposium on Comparative Constitutional-
ism raises in general terms a good many issues that are crucial for women. See Martha C. Nuss-
baum, Introduction to Comparative Constitutionalism, 3 CHICAGO J. INTL L. 429 (2002). Useful related
forays include FIONA BEVERIDGE, SUE NOTT, & KYLIE STEPHENSON, MAKING WOMEN COUNT: INTEGRATING GEN-
DER INTO LAW AND POLICY-MAKING (Ashgate 2000) (examining and evaluating equality laws in Ire-
land, Holland, Portugal, Spain, Sweden, and the U.K.) and Martha Morgan & Ruth Rubio-Marin,
Constitutional Domestication of International Gender Norms: Categorizations, Illustrations, and Reec-
tions from the Nearside of the Bridge , in GENDER AND HUMAN RIGHTS 113 (Oxford Univ. Press 2004)
(analyzing the relationship between international gender norms and domestic constitutional law
from the domestic side, with focus on Spain and several Latin American countries). Chapter 6 of
NORMAN DORSEN ET AL., COMPARATIVE CONSTITUTIONALISM (West 2003) discusses gender, as does Chapter
X of VICKI JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW (2d ed., Foundation 1999), and
the comparative dimension throughout CATHARINE A. MACKINNON, SEX EQUALITY (Foundation
2001, 2007).

4
For discussion of this assertion, see CATHARINE A. MACKINNON , Introduction: Womens Status, Mens
States, in ARE WOMEN HUMAN? 13 (Belknap Harvard 2006).

5
See MACKINNON, supra note 1, for elaboration.
Mackinnon | Book review 559
world is already a federal system. The ranking of some men over other men
within states, and some mens states over others, is also critical to this system.
Comparative analysis potentially illuminates central questions of the relation
between law and society and the role of law in social change, including, for
example, whether what law calls a thing matters say, a crime or a civil rights
violation, a statutory or constitutional breach, an abstract or concrete legal
issue, an inequality (formal or substantive) or one of its myriad (dis)guises.
In the absence of comparative analysis, such questions are debated and
strategized more on the basis of instinct and experience than evidence and
information.
Beverley Baines
6
and Ruth Rubio-Marins
7
edited collection, The Gender of
Constitutional Jurisprudence , performs the service of bringing together twelve
country essays to pioneer the comparative study of womens situation under
constitutions around the world. Latin America, Europe, and former British
colonies are well represented. Certain omissions none Asian other than
India,
8
none African other than South Africa
9
are not explained. Only the
South African contribution makes race central by placing women of color up
front. Expectably, although there is a lot to learn here from the experts on
each country,
10
the quality of the essays is somewhat uneven, varying in
texture as well as breadth of information, depth of analysis, and relation
between the two. The contribution on Spain by coeditor Rubio-Marin stands
out for conceptual sophistication and penetrating insight.
11
Hilal Elvers
analysis of Turkey, the only one to consider issues raised by Islamic law in
any depth,
12
masterfully conveys the relation between legal developments
and lived-out realities, past and present, a theme often overlooked through-
out in favor of focus on law-in-itself, although at times these are beautifully
integrated, as in the study of Israel.
13
Granted that the action in French law

6
Professor, faculty of law, womens studies program, Queens University, Ontario, Canada.

7
Professor of constitutional rights, Universidad de Sevilla, Spain.

8
See, e.g., Annette Marfording, Gender Equality and the Japanese Constitution , 26 VERFASSUNG UND
RECHT IN UBERSEE 324 (1996).

9
See, e.g., FAREDA BANDA, WOMEN, LAW, AND HUMAN RIGHTS: AN AFRICAN PERSPECTIVE (2005) on the
relation between customary law and constitutions, discussed productively by the essay on South
Africa in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE, at 230, 254.

10
Some of the papers seem dated, citing ongoing developments as of 2000.

11
Ruth Rubio-Marin, Engendering the Constitution: The Spanish Experience, in THE GENDER OF CONSTI-
TUTIONAL JURISPRUDENCE, at 256.

12
Hilal Elver, Gender Equality from a Constitutional Perspective , in THE GENDER OF CONSTITUTIONAL
JURISPRUDENCE, at 278.

13
Ran Hirschl & Ayelet Shachar, Constitutional Transformation, Gender Equality, and Religious/
National Conict in Israel: Tentative Progress, in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE, at 205.
560 ICON July 2007 Vol. 5: 557
is largely other than constitutional, Eric Millards contribution focuses
almost exclusively, to uncertain conclusion, on the philosophical question
whether Frances innovative parit amendment requiring most elections
list an equal number of men and women candidates is consistent with
French universalism.
14

The volume as a whole leaves the comparative task largely to the reader and
touches consistently on few of the central empirical and analytic questions
posed above.
15
For one example, protectionism, a paradoxical tool of male
power, solidies male rule while appearing to relinquish or cushion some of it.
Observations like that of Hilal Elver that The Court acts as protectively as
possible of women if the issue ts within the traditional understanding of patri-
archal Turkish society, yet acts as conservatively as possible if the issue is
related to womens status as an individual and if the identity of women threat-
ens family values (p. 284) ring this bell for many a legal system and could
have generated productive transnational analysis. The book even allows its
readers to draw their own conclusions as to what the titular gender of consti-
tutional jurisprudence is. This volume is nonetheless important and ground-
breaking in beginning to ll the huge gap a gender gap in contemporary
comparative constitutional analysis (p. 2).
The introduction helps frame the volumes mandate to think about consti-
tutions in a gendered way (p. 5). If overlooking some comparative features
that stand out in the book itself, its dimensions pull together some diverse
strands but often lack coherence and analytic edge. No doubt the
tone of pulling punches in much of the introduction reects a decision not to
come to premature conclusions in so new a eld. At least the questions that
need to be addressed might have been more directly stated, and through less
descriptive and more analytical dimensions that do not overlap.
16
The

14
Eric Millard, Constituting Women: The French Ways, in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE,
at 122.

15
For example, the introduction notices that the postwar (meaning World War II) period marked
the beginning of notice of sex equality in constitutions, with womens participation being
unclear, but that during the 1980s and 1990s, women began to engage actively in processes of
constitutional renewal. Beverly Baines & Ruth Rubio-Marin, Introduction: Toward a Feminist
Constitutional Agenda , in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE, at 1, 7. While this observation
thus touches on the temporal and participatory points, analysis of either, or their potential
interconnection, is not signicantly advanced.

16
For example, two such dimensions are women and constitutional rights and women and
constitutional equality doctrine, the second obviously being a subset of the rst. Constitutional-
izing womens reproductive rights and sexual autonomy is a third section, although this, too,
is a partial subset of constitutional rights and also raises equality issues (which are mentioned).
The dimension called women and constitutional agency overlaps somewhat with the sexual
autonomy discussion, given that many of womens initiatives for self-determination have in-
volved violence against women, discussion of which is scattered all over the place. No theory of the
eld is embodied in the analytical vectors selected.
Mackinnon | Book review 561
introduction seems torn between formal legal categories and substantive social
ones; those dimensions that work best combine the two.
17

To take up the editors invitation that others continue what we have
begun by de- and reconstructing our agenda themes (p. 5), more might have
been made of some simple behavioral facts, even given the small number of
constitutions involved. The time in history when each constitution is
enacted United States 1789, Germany 1949, India 1950, France 1958,
Spain 1978, Canada 1985, Colombia 1991, South Africa 1996 is one. Not
to buy into the myth of progress, but reading the respective essays on each
constitution almost suggests a temporal ranking in progressiveness of consti-
tutional language for women, epochally if not linearly, certainly for those fol-
lowing 1980, when the inuence of the contemporary womens movement
began to register strongly. For another simple behavioral measure, nearly
every essay describes womens participation in politics and as judges quanti-
tatively, including how many are on the countrys highest court, as being
crucial to (if not simplistically determinative of) the efcacy of its constitution
for women. Yet this question has, to my knowledge, never been systemati-
cally studied. Many countries have quotas of various kinds to guarantee
women more equal political participation.
18
Women in India, who insisted on
formal equality, got nowhere in politics in any numbers until their views were
overridden and reservations for women were instituted.
19
The connection
between demography and mission, between being biologically female and
acting in womens interest, could use empirically based illumination.
Comparative analysis is where to look.
Certain technical devices such as constitutional writs and standing
doctrines that give women vastly different access to constitutional rights are

17
Women and constitutionally structured diversity, addressing structural constitutional issues,
is an example, although it could have mentioned the ruling in U.S. v. Morrison (substantively on
violence against women, formally on structural questions, well discussed by the Siegel contribu-
tion) and emphasized racial issues more strongly. Womens rights and the constitutional deni-
tion of the family is also relatively more successful. Mention of women and throughout seems
redundant as well as analytically marginalizing, as each topic contributes to the analysis of consti-
tutional rights, structure, and participation as such, not only to a constitutionalism of womens
half of the population.

18
Examples are Costa Rica, Alda Facio, Rodrigo Jimnez Sandova, & Martha I. Morgan, Gender
Equality and International Human Rights in Costa Rican Constitutional Jurisprudence , in THE GENDER
OF CONSTITUTIONAL JURISPRUDENCE, at 99, 109; France, supra note 15, passim ; Colombia, Martha I.
Morgan, Emancipatory Equality: Gender Jurisprudenyce Under the Colombian Constitution , in THE
GENDER OF CONSTITUTIONAL JURISPRUDENCE, at 75, 88; India, Martha Nussbaum, India, Sex Equality and
Constitutional Law , in THE GENDER OF CONSTITUTIONAL JURISPRUDENCE, at 174, 187.

19
See Nussbaum, supra note 18, at 186 187.
562 ICON July 2007 Vol. 5: 557
inadequately investigated under the editors rubric of agency.
20
In enabling
women to assert their constitutional rights, the tutela in Colombia (p. 76), the
amparo (p. 258 and n. 4) and burden of proof (p. 262 and n. 23) in Spain, South
Africas accessible forums (p. 254), the collective actions possible in Costa
Rica (p. 101), and the broad standing doctrines of India and Canada are inno-
vations that would reward comparative study in depth. Access is what women
have not had, giving these formal devices major importance. The horizontal
versus vertical axis of constitutional rights meaning whether rights function
only vertically between citizen and state, as is traditional, or also horizontally
between citizens, as in South Africa (p. 80) and Spain (p. 265) and, in a sense,
through the concept of Drittwirkung in Germany is another comparative
dimension of immense signicance. The introduction notes the issue briey
(p. 10) but without bringing the specics from the country papers critically to
bear. Given that womens subordination has been at least as critically enacted
by men against women in civil society (the horizontal trope missing the ver-
ticality of gender hierarchy) as by states, fewer issues are more crucial.
Similarly, the central substantive issue of mens violence against women is
strongly analyzed in some pieces, mentioned in most, absent in others. Few fol-
low the lead of Rubio-Marins analysis (pp. 272 275) to discuss sexism in the
media and commercialization of the female body under law in their countries.
The same problems of sex inequality clearly arise in varying forms throughout
highly diverse cultures, with distinctions among legal systems underlining the
need for diversely tailored solutions. A provisional list of best constitutional
practices for promoting equality for women as women could be constructed
from such cross-cutting dimensions.
Should more evidence be needed of the utter absence of ideas in the consti-
tutional law of the United States concerning the status and treatment of
women, Reva Siegels accurately descriptive (rather than critical) essay on the

20
My own opinion is that this overused ambiguous word should be retired in favor of the many
terms for which it stands as a ag to be saluted: freedom, action, choice, participation, pursuit of
self-interest, acting on ones own behalf. The terms popularity (which dates from the pornography
debate, where it was used to describe activity that was subordinating on the basis of sex as if it was
meaningfully freely chosen) seems to be predicated on the misconception that a critique of wom-
ens inequality presupposes that women are passive in that process. That is a stereotype. To be
subordinated or victimized does not mean one is passive. It means that the dominator/victimizer
had and exercised more power under the circumstances. The activity took place in a context of
inequality. The main function of the word agency seems to be to cover up the relevant inequal-
ity and its potent effect under the circumstances (often blaming its victims in the process) by sug-
gesting that women have power they do not have or that the context of inequality is irrelevant. In
this setting, how women are free under conditions of inequality is never explained, or even seen as
in need of explanation. One useful observation in the Baines Rubio-Marin book on the substance
of this topic (not using this clichd and ambiguous if still trendy term) identies a kind of power
women do have but have not used. Rubio-Marin refreshingly notes that women could do more
than they have to claim constitutional rights available to them in Spain, supra note 12 , at 276.
Mackinnon | Book review 563
somnolent subject of U.S. constitutional doctrinal tools, appropriately bringing
up the rear of the volume, amply provides it. In a book otherwise crackling
with engagement, these tools set against this backdrop of brilliant trajecto-
ries, audacious interventions, imaginative forays, determined advances, inno-
vative and inspiring initiatives fearlessly pursued around the world by women
who have their eyes on the prize of real equality look as worn out and tired as
they are. Siegels opening observation (p. 306) that constitutions work both
to enforce and to unsettle the institutions, practices, and understandings that
regulate social status of men and women is deeply telling if applied to U.S.
constitutional equality doctrine specically. Imagine an equality approach
that produces inequality as well as equality and you have the United States.
The U.S. evidently still does not even recognize the distinction between formal
and substantive equality
21
that is so clearly understood and traced in virtually
every other essay in the volume formal equalitys pitfalls clear in Australia
and France, substantive equalitys potential apparent in Canada and
Germany leaving the U.S. with little possibility of real forward motion on the
equality front. The comparative setting of this book highlights just how stuck,
how going nowhere, U.S. constitutional law on this subject is. Related and
equally mired (not critically noted) is the relative failure of the United States to
embrace and engage international law and legal approaches from other coun-
tries where womens rights are concerned.
22
Anyone who still maintains that
sex equality is somehow an American idea will learn how deluded that is from
this volumes representation of (to adapt the Latin American saying, see p. 97)
the road women make by walking.

21
For a short presentation of how this distinction, as made in earlier work, is now almost univer-
sally understood, including in the volume under review, see CATHARINE A. MACKINNON , Toward a New
Theory of Equality , in WOMENS LIVES, MENS LAWS 44 (Harvard Univ. Press 2005).

22
This factor is noted in the books introduction, supra note 16, at 10 11.