What The Hell America!

“Women seeking equality have faced many other moments of resistance and regression,” said Jill Hasday, author of new book We the Men. “We need to take the long view, rather than focusing solely on the latest headlines.”

Jill Hasday and I met up earlier this month to discuss Hasday’s important new book, We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality, published by Oxford University Press on March 13. The book uses examples from the long sweep of U.S. legal, political and cultural history to argue that, in a nation whose Constitution purports to speak for “We the People,” too many of the stories powerful Americans tell about law and society include only “We the Men.”

Hasday sees a long line of judges, politicians and other influential voices ignoring women’s struggles for equality or distorting them beyond recognition by wildly exaggerating American progress. Even as sexism continues to warp constitutional law, political decision making and everyday life in obvious and devastating ways, she argues, prominent Americans have spent more than a century proclaiming that the United States has already left sex discrimination behind.

We the Men explores some of the ways in which, as Hasday understands it, forgetting women’s ongoing struggles for equality has perpetuated injustice and promote complacency. She argues that remembering women’s stories more often and more accurately can help the nation advance toward sex equality.

Jill Hasday is a distinguished McKnight University professor and the centennial professor of law at the University of Minnesota Law School. She teaches and writes about anti-discrimination law, constitutional law, family law and legal history. Hasday graduated from Yale College and Yale Law School. After law school, she clerked for Judge Patricia M. Wald of the U.S. Court of Appeals for the D.C. Circuit. We the Men is Hasday’s third book. Her prior book, Intimate Lies and the Law (Oxford University Press, 2019), won the Scribes Book Award for “the best work of legal scholarship published during the previous year” and the Foreword INDIES Book of the Year Award for Family and Relationships.

The transcript has been edited for length and clarity, and has appeared in a longer version in Kornbluh’s Substack newsletter, History Teaches…

It remains all too common for judges, politicians and textbook writers to describe the 19th Amendment as a gift from men that ‘gave’ all women the vote. … The 19th Amendment was not a gift. It was a multigenerational battle that required suffragists to overcome furious, sometimes violent, opposition.

Jill Hasday

Felicia Kornbluh: Was Dobbs v. Jackson Women’s Health Organization, the 2022 Supreme Court decision overruling Roe v. Wade, a starting point for you?

Jill Hasday: I began working on this book before the Court decided Dobbs. 

Pre-Dobbs, I had framed my introduction on the premise that women’s rights and opportunities had expanded over the past half century, but there was more work to do.

After Dobbs, I am less certain about whether American women are better off today than they were in 1973, when Roe protected abortion. So I rewrote the introduction to observe that women have more rights and opportunities than they had a century ago.

Kornbluh: Defining things down, literally.

Hasday: I was surprised that the Court overruled Roe in one fell swoop. But the Dobbs opinion ultimately felt familiar to me. By the time Dobbs leaked, I had already uncovered a century of judicial opinions that relied on rosy pronouncements about America’s commitment to sex equality to rationalize judgments maintaining or exacerbating inequality. Dobbs perpetuates that tradition, repeatedly invoking overstated accounts of women’s advances to defend the justices’ decision to leap backward and eliminate a constitutional right that women had held for generations.

Kornbluh: It seems like you are arguing that something similar applies throughout the history of the Equal Rights Amendment (ERA), when people say, “Society has moved so far along, so we don’t need an ERA.” How do you see it showing up there?

Hasday: Phyllis Schlafly made two central arguments when spearheading the fight against ERA ratification in the 1970s and ’80s. First, she contended that the amendment was unnecessary because America had already eliminated discrimination against women. Second, that the ERA was dangerous because it would take women out of the home. My book demonstrates how a half century of anti-feminists have followed Schlafly’s two-pronged playbook. They echo her arguments when combating abortion rights, opposing government support for childcare, condemning affirmative action and fighting resurgent efforts to add the ERA to the Constitution.

Kornbluh: Don’t a lot of elected Democrats find at least the first half of that anti-ERA argument persuasive?  Most didn’t push very hard for the ERA in the last few years.

Hasday: The ERA is important for at least two reasons.

Most broadly, the ERA could help transform how powerful and ordinary Americans understand the relationship between women and the Constitution. Generations of legal authorities have excluded women from the center of constitutional law. Justice Antonin Scalia argued in 2011 that the Constitution does not prohibit sex discrimination at all because: “Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”  This argument was never compelling. Men barred women from voting on both the original Constitution and the 14th Amendment prohibiting states from denying “any person” the “equal protection of the laws.” But in any event, women are unquestionably not an afterthought to the ERA. Adding that amendment to the Constitution would affirm women’s equal citizenship and women’s centrality to constitutional law.

The ERA could help expand women’s rights and opportunities. The amendment’s opponents have spent over a half century describing the ERA as simultaneously unnecessary and menacing. The first claim has always depended on denying persistent sex discrimination and dismissing ongoing disparities. The second line of attack has recently focused on arguing that the ERA would provide constitutional protection for abortion rights.

That latter argument has an ironic dimension, as antiabortion politicians and activists ordinarily refuse to acknowledge any connections between abortion rights and sex equality. But antiabortion attacks on the ERA suggest the impact the amendment could have—eventually, if not necessarily with the current Supreme Court.  

The experiences of women, enslaved and not, were as much a part of the Founding as the experiences of men.

Kornbluh: It sounds like women are being gaslit and essentially told, “You think you’re being discriminated against? You’re really not.”

Hasday: Yes, and powerful Americans issuing premature declarations of victory over sex discrimination aren’t just gaslighting women. They target all of us.

For example, my book explores generations of textbooks that promote complacency by glossing over persistent inequality and its many defenders. One 1918 textbook assured young readers, “All men and women are regarded as equals before the law.” At the time, 33 out of 48 states maintained sex-based restrictions on voting. Discrimination against women at work, in marriage and in every other arena was still legal and pervasive throughout the nation.

Kornbluh: That seems to be connected to your other argument about how progress is presented as though it occurred naturally, as a result of beneficent male legislators doing things differently.

Hasday: I was surprised to discover how frequently legal authorities and popular writers marginalize women even within discussions of women’s status.

When judicial opinions mention women, judges often write as if men decided on their own to expand women’s rights and opportunities. I call these tales “spontaneous enlightenment stories,” and they feature in generations of popular press and political debates as well. These stories attribute progress to consensus and men’s wisdom while erasing the conflict and female agency that forward momentum required, with women needing to fight for reform against determined opponents.

For example, it remains all too common for judges, politicians and textbook writers to describe the 19th Amendment as a gift from men that “gave” all women the vote. That account is doubly misleading.

First, the 19th Amendment prohibits sex-based denials of the franchise, but framing that amendment as conclusively establishing women’s access to the polls misdescribes reality and implicitly centers white women. Laws on the books or tactics on the ground have denied many women the vote since 1920, especially women of color. Battles over voting and voter suppression rage to this day.

Second, the 19th Amendment was not a gift. It was a multigenerational battle that required suffragists to overcome furious, sometimes violent, opposition.

One 20th-century textbook even described enfranchising women as a logical inevitability “[s]ince the United States wanted to be democratic.” Assumptions about the inevitability of woman suffrage became easy to make after the 19th Amendment was no longer controversial. But the uncomfortable reality is that many Americans at the time thought democracy did not require female voting.

Kornbluh: Do you think this has particular resonance today? I think it’s largely true that the 19th Amendment is uncontroversial, but there are members of the Trump coalition for whom that doesn’t seem to be true.

Hasday: The 19th Amendment has become a bit more controversial lately. At least a few Trump allies question whether female enfranchisement is a good idea.

That said, I think that reading my book can be a source of hope in anti-feminist times. As I discuss, women seeking equality have faced many other moments of resistance and regression. We need to take the long view, rather than focusing solely on the latest headlines.

The history of women’s struggles for equality makes clear that progress is unlikely to be quick, easy or achieved by anyone acting alone. Generations of women have learned that lesson and persisted nonetheless.

Kornbluh: What do you want to happen now?

Hasday: The book outlines an unfinished reform agenda that spans teaching, commemoration, political representation, legislation, litigation and everyday life. I start with teaching because it is so formative.

Kornbluh: So you want women’s history every day, rather than just for one month?

Hasday: Yes. The origins of this book reach back to when I was in law school. So many of the stories I heard in class treated men’s lives as the ordinary baseline and women’s lives as exceptions to either skip over or mention as footnotes. I thought: Women are not an exception. We are half the population. Our experiences within and outside of the law are just as important as men’s experiences.

I decided to write We the Men now because the nation’s 250th anniversary in 2026 presents an immediate opportunity to include women in the stories America tells about itself. Past commemorations of milestone anniversaries have treated women as an irrelevance or an afterthought. When the nation’s semi-quincentennial arrives in 2026, women should not be an afterthought.

Kornbluh: I loved your narration of the American Centennial in 1876.

Hasday: Susan B. Anthony was a tireless woman’s rights advocate. She spent more than a year determined to mark July 4, 1876, with what she called a “Centennial Screech for freedom,” a “Woman’s Centennial growl.” When the men leading the official centennial celebration refused to give suffragists any time on the program, Anthony and four other suffragists showed up anyway. The women disrupted the official proceedings and distributed their Declaration of Rights of the Women of the United States to the crowd.

A century later, the 1976 celebrations continued to place women at the margins of the nation’s stories about itself. President Gerald Ford began the bicentennial year by lauding the American people for dedicating themselves in 1776 “to the principles of liberty, equality, individual dignity, and representative government,” which did not describe how the new nation had treated any woman or many men. 

I want America’s 250th anniversary celebrations in 2026 to be different. When Americans remember the Founding, we should remember all of it. Freedom and self-government were part of the Founding, and so were slavery and subjection. The experiences of women, enslaved and not, were as much a part of the Founding as the experiences of men.

Kornbluh: I hope people listen. The Trump administration might not. They might not put you on the committee.

Hasday: I am not expecting the Trump administration to offer me a place on any committee. I do think it is significant that Trump has already launched his plans for marking America’s 250th anniversary and named himself as chair of the task force. Commemorations are fought over because all sides recognize that historical memory shapes present thought and future action.

Kornbluh: In a perverse way, they are very interested in history.

Hasday: Yes, but I would like to end this conversation on a happier note. I really enjoyed researching and writing We the Men because the book tells the stories of so many women who deserve to be remembered.

One of my favorite stories centers on Anne Davidow, a trailblazing attorney in Detroit. She represented four women who sued to block a 1945 Michigan law that prohibited women from bartending in cities with fifty thousand or more people, unless the woman was “the wife or daughter of the male owner” of the bar. The Michigan statute was part of a wave of anti-barmaid legislation that the male-only bartenders’ union helped push through statehouses after Prohibition ended in 1933.

Challenging the constitutionality of Michigan’s law was an uphill battle because generations of judges had already upheld many other restrictions on women’s work. Yet Davidow was undaunted and appealed Goesaert v. Cleary (1948) all the way to the Supreme Court. She later reported that Justice Felix Frankfurter heckled her from the bench while informing her that “the days of chivalry aren’t over.” Presumably, Frankfurter either failed to recognize the irony or felt that Davidow’s effrontery in bringing this suit excused him from any obligation to act like a gentleman. He wrote an opinion for the Court that dismissed Davidow’s arguments in less than three pages.

Kornbluh: It’s a perfect illustration of your argument. Frankfurter is treating her in a sexist way while saying “everything is fine.”

Hasday: Exactly, and more Americans should know this story.