So, why have more than eighty-five countries already had female prime ministers or presidents but the United States has not? (i)
Why are we so slow? (ii) My theory is that design choices by the Founders made it less likely that a woman would ascend to the presidency. These include the choice of a singular or unitary executive that combines the head of state, head of government and commander-in-chief function all in one person. The impact of that choice can be amplified by executive activism and the power of the courts via judicial review to define the scope of the executive as more or less expansive (iii). With the failure of the first viable female candidate to ascend to the presidency just a year behind us, it’s useful to consider these design choices and how they construct our politics. (iv)
In Federalist No. 70, Alexander Hamilton argued vigorously for an energetic and singular executive (v). He described this ideal executive as decisive, with the ability to act with dispatch—traits essential to being nimble enough to protect the young country. These “agentic” attributes are not gender neutral. In fact, men are seen as more assertive and forceful and women are perceived as more nurturing and interpersonally sensitive, “communal” attributes (vi). As a result, women are less likely to be seen as congruent with an executive who possesses full plenary power to act unilaterally, as both head of state and government, and with the warrior function associated with the commander-in-chief role (vii). Such an expansive executive makes it difficult to break the stranglehold of our “monosexual” democracy, especially given the power of incumbency (viii). If one believes that gender diversity in political leadership is a desirable normative goal and fulfils the broader promise of the Nineteenth Amendment (that women should have the right to hold political office as a corollary to having the right to vote), then it’s important to understand how these structural features of our Constitution may inhibit that goal (ix).
© 2018 Paula A. Monopoli. Reprinted in part from Paula A. Monopoli, Gender and the Structural Constitution, 76 Md. L. Rev. Endnotes 17 (2016)
Sol & Carlyn Hubert Professor of Law, University of Maryland Francis King Carey School of Law; B.A., Yale College; J.D., University of Virginia.
i. For a complete list of the countries and the women who served in executive leadership positions, see EILEEN MCDONAGH, THE MOTHERLESS STATE: WOMEN’S POLITICAL LEADERSHIP AND AMERICAN DEMOCRACY 112–18 (2009).
ii. For a more comprehensive answer to this question see Eileen McDonagh & Paula A. Monopoli, The Gendered State and Women’s Political Leadership, in FEMINIST CONSTITUTIONALISM: GLOBAL PERSPECTIVES 169–87 (Beverly Baines et al. eds., 2012).
iii. See generally Paula A. Monopoli, Gender and Constitutional Design, 115 YALE L.J. 2643 (2006).
iv. McDonagh & Monopoli, supra note ii. We stated:
In her article The Fractured Soul of the Dayton Peace Agreement: A Legal Analysis, Fionnuala Ni Aolain describes the powerful psychological influence that constitutions may have on the citizens of a state:
Installing a constitution is a signal to society that the rules on political and social behavior are being regulated and will bear scrutiny. The absorption of that basic creed by a state’s citizenry may have a crucial sociological impact on their perception of the state and their status within it.
Thus, language and structure of founding documents can have an effect on how citizens view who is part of the body politic, who is not, and who is qualified to lead.
Id. at 176–77 (citing Fionnuala Ni Aolain, The Fractured Soul of the Dayton Peace Agreement: A Legal Analysis, 19 MICH. J. INT’L L. 957, 980 (1998)).
v. THE FEDERALIST No. 70 (Alexander Hamilton).
vi. See Alice H. Eagly & Steven J. Karau, Role Congruity Theory of Prejudice Toward Female Leaders, 109 PSYCHOL. REV. 573, 574 (2002) (describing agentic traits as those ascribed more strongly to men, including being “aggressive, ambitious, dominant, forceful, independent, self-sufficient, self-confident, and prone to act as a leader,” and communal traits as those ascribed more strongly to women, including being “affectionate, helpful, kind, sympathetic, interpersonally sensitive, nurturant, and gentle”).
vii. See McDonagh & Monopoli, supra note ii, at 177 (“The ancient claim that rulers derived their right to rule from their willingness to act in battle to protect those they seek to govern is also echoed in the Constitution, which connects the role of President to the role of Commander-in-Chief . . . . [B]y vesting the president with the Commander-in-Chief power, [the Founders] retained the connection between the legitimacy of the President’s claim to govern with the ancient claim of rulers’ willingness to fight in battle for those they ruled. Citizens associate all men with this attribute even though individual men may not choose to exercise it . . . . [Thus] voters are unlikely to connect women with the role of Commander-in-Chief.”).
viii. See Monopoli, supra note iii, at 2644 n.5 (2006) (citing Darren Rosenblum, Parity/Disparity: Electoral Gender Inequality on the Tightrope of Liberal Constitutional Traditions, 39 U.C. DAVIS L. REV. 1119, 1142 (2006) (noting that the term originated as a way to describe the dominantly male composition of the political class in France)).
ix. See Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 HARV. L. REV. 947 (2002) (arguing for a more synthetic interpretation of the Nineteenth and Fourteenth Amendments based on a sociohistoric reading of the suffrage amendment in American constitutional history)