university of michigan law school – insights from the quad ... · transcript . page . 2. of . 53....
TRANSCRIPT
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 1 of 53
Description:
The #MeToo and Black Lives Matter movements have illuminated longstanding gender, racial, and interconnected inequalities on other grounds in life and in law. In this conversation, Catharine A. MacKinnon will discuss her recent legal proposal crafted with Columbia and UCLA law professor Kimberlé W. Crenshaw. They reenvision constitutional equality substantively and intersectionally from the ground up, focusing on rectifying the founding acts and omissions of race and sex separately and together, with further social hierarchies that ground unequal status and treatment.
Speakers:
- Prof. Catharine MacKinnon - Prof. Monica Hakimi (moderator)
00:00:04.110 --> 00:00:12.750
Monica Hakimi: Hi everyone, welcome to the Michigan Law School insights from the quad series. My name is Monica Hickey me and I'm on the faculty and one of the associate Dean's here at the law school.
00:00:13.259 --> 00:00:18.840
Monica Hakimi: We decided to launch the series because of coven. We know that many people are isolated as a result of the pandemic.
00:00:19.230 --> 00:00:28.530
Monica Hakimi: And they're isolated precisely at a time when the thirsty for serious conversations about the challenges of this country conference. So this is an effort to do what I think we do really well at Michigan.
00:00:28.950 --> 00:00:34.890
Monica Hakimi: Build a community of virtual community but still a community to engage together on some of the most important issues of the day.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 2 of 53
00:00:35.220 --> 00:00:43.890
Monica Hakimi: I'm delighted that so many of you have joined us this evening with a mix of alumni current students, faculty, staff and other friends of the law school on the call, welcome to all of you.
00:00:44.340 --> 00:00:56.160
Monica Hakimi: And I'm absolutely thrilled that to kick off our series Catherine MacKinnon will speak about her recent proposal co-authored with Professor Kimberly Crenshaw of Columbia and UCLA Law Schools for moving this country closer to equality.
00:00:56.700 --> 00:01:02.310
Monica Hakimi: Professor McKinnon really needs no introduction. She is the Elizabeth A long professor of law here at Michigan.
00:01:02.700 --> 00:01:06.300
Monica Hakimi: And the long term James bar aims visiting professor of law at Harvard Law School.
00:01:06.690 --> 00:01:11.010
Monica Hakimi: She specializes in sex equality issues under international and domestic law.
00:01:11.280 --> 00:01:21.180
Monica Hakimi: She has pioneered the legal claim for sexual harassment and has had a profound impact on the way we think about equality, not only in US law, but also in other domestic and international jurisdictions.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 3 of 53
00:01:21.930 --> 00:01:28.200
Monica Hakimi: We've decided to structure today's event like a conversation with me asking Professor McKinnon a series of questions about her recent proposal.
00:01:28.620 --> 00:01:35.490
Monica Hakimi: Thanks to those of you who submitted questions in advance. And for those of you who are still itching to ask something please do so via the
00:01:36.090 --> 00:01:43.260
Monica Hakimi: Question and Answer session on zoom. I can't promise that. We'll get to all of your questions, but we're certainly interested in knowing what they are and will definitely try
00:01:43.800 --> 00:01:55.140
Monica Hakimi: So to start, Professor McKinnon, thank you for being here and why don't you just go ahead and describe the proposal that you and Professor control have advanced and explain some of the problems that its aims to address.
00:01:57.240 --> 00:02:07.380
Catharine MacKinnon: Okay, thank you, Monica and thanks for asking me to do this and hello to everyone and, in particular, I send love to all my former students
00:02:08.580 --> 00:02:10.140
Catharine MacKinnon: I love you. I miss you.
00:02:12.000 --> 00:02:16.440
Catharine MacKinnon: I am so proud of your place in the world and everything that you do.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 4 of 53
00:02:19.650 --> 00:02:25.740
Catharine MacKinnon: Our proposal is both an act of hope and frustration.
00:02:27.390 --> 00:02:33.390
Catharine MacKinnon: It's the idea; it’s called the equality amendment or an equality amendment.
00:02:34.410 --> 00:02:37.260
Catharine MacKinnon: With a little humility in it.
00:02:38.910 --> 00:02:42.960
Catharine MacKinnon: And we proposed it because
00:02:44.760 --> 00:02:57.510
Catharine MacKinnon: Well, women were not even mentioned in the Constitution, originally. This is an amendment to the US Constitution, we propose. And once you see how people of color were mentioned in it.
00:02:59.160 --> 00:03:02.250
Catharine MacKinnon: Maybe it's kind of good, women weren't mentioned it at all.
00:03:03.420 --> 00:03:04.650
Catharine MacKinnon: In other words,
00:03:05.940 --> 00:03:19.530
Catharine MacKinnon: There was a founding subordination of all people of color and actually have race as a category, together with an exclusion of sex.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 5 of 53
00:03:20.220 --> 00:03:36.630
Catharine MacKinnon: And of all women, including women of color, from the Constitution. So, and this, in our view, has been continually re-inscribed ever since, through a variety of means. Principally
00:03:38.340 --> 00:03:48.240
Catharine MacKinnon: Despite real attempts at amending the Constitution, for example, with equal protection clause. The 14th amendment with its equal protection clause.
00:03:50.700 --> 00:04:02.370
Catharine MacKinnon: Added after the Civil War, but essentially with spit and a prayer, you know, an attempt to produce further equality and with
00:04:04.650 --> 00:04:05.460
Catharine MacKinnon: The
00:04:06.690 --> 00:04:10.980
Catharine MacKinnon: The Congress of the United States attempting to implement that amendment.
00:04:12.210 --> 00:04:23.880
Catharine MacKinnon: There's been courageous progressive initiatives advance to address those same any inequalities. But actually this at certain times, although there have been
00:04:24.540 --> 00:04:37.410
Catharine MacKinnon: Reasonably transformative moves advance throughout that including through the Civil Rights Movement initiated by African Americans in an attempt to get social equality through legal equality.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 6 of 53
00:04:39.030 --> 00:04:54.990
Catharine MacKinnon: Through those particular moves and also some by the women's movement and other movements of other peoples of color, notably actually Asian Americans whose initiatives.
00:04:56.220 --> 00:05:01.650
Catharine MacKinnon: Legal and litigation under the Equal Protection Clause have been
00:05:02.670 --> 00:05:09.330
Catharine MacKinnon: Very strong in advancing some transformation in it, and despite all of this.
00:05:12.030 --> 00:05:19.890
Catharine MacKinnon: A lot of the legal developments have seriously undermined those initiatives and at times, it seems
00:05:21.000 --> 00:05:24.540
Catharine MacKinnon: The law and the courts have been going further backwards.
00:05:25.830 --> 00:05:28.680
Catharine MacKinnon: Then forwards. Indeed they have and
00:05:29.880 --> 00:05:37.410
Catharine MacKinnon: Given all those doctrinal developments which we can talk about specifically, but certainly include the intent requirement.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 7 of 53
00:05:40.080 --> 00:05:45.090
Catharine MacKinnon: Which applies both to sex and to race under the equal protection clause.
00:05:46.230 --> 00:05:48.540
Catharine MacKinnon: Which has been particularly destructive.
00:05:49.830 --> 00:05:58.800
Catharine MacKinnon: Particularly where systemic discrimination requires no intention. So if you are required to prove intent.
00:05:59.970 --> 00:06:07.320
Catharine MacKinnon: It's precisely when discrimination is most systemic with the least can be done about it through one. And also
00:06:08.400 --> 00:06:16.920
Catharine MacKinnon: By in that is affects the sex and race, the same, but there are other doctrines that affects sex and race differently.
00:06:18.150 --> 00:06:29.010
Catharine MacKinnon: For example, race is regarded as a suspect classification under the equal protection clause, which ends up, meaning that, for example, affirmative action even when you're able to have it.
00:06:29.460 --> 00:06:41.790
Catharine MacKinnon: is harder to justify for race than for sex because the category, get it, a bit suspect, whereas sex then remains marooned in sort of middle tier scrutiny.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 8 of 53
00:06:42.390 --> 00:06:56.040
Catharine MacKinnon: With sex discrimination law. Well, sex discrimination infrequently being found for women because often sex is thought kind of a nice differency thing.
00:06:56.910 --> 00:07:09.180
Catharine MacKinnon: So far as women are concerned, whereas fairly frequently it's found with regard to men, whereas their sex is not seen as some nice differency thing when it is used to disadvantage them.
00:07:10.920 --> 00:07:15.930
Catharine MacKinnon: Thus we build a sex equality law around the status of men.
00:07:17.730 --> 00:07:33.180
Catharine MacKinnon: Which as the advantage group on the basis of sex even when disadvantaged in particular cases is not, has not positively, you know, moved the needle forward.
00:07:33.720 --> 00:07:49.080
Catharine MacKinnon: For women in the ways that it should so that these are just two doctrinal ways that sex inequality has been continuously re-inscribed through the main headings of doctrine under existing law and so
00:07:50.010 --> 00:07:55.500
Catharine MacKinnon: Our idea, actually my original idea is, look, if you're going to have something called an equal rights amendment.
00:07:56.550 --> 00:08:00.420
Catharine MacKinnon: This is like 10 years ago. More than that, it's seeming to me.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 9 of 53
00:08:01.920 --> 00:08:08.520
Catharine MacKinnon: And this is the United States. After all, if you're going to call a thing. Equal Rights Amendment, it ought to have race in it
00:08:09.570 --> 00:08:10.620
Catharine MacKinnon: Really it ought to.
00:08:12.000 --> 00:08:22.260
Catharine MacKinnon: It's, it's not going to do what it calls itself. It’s not going to deliver on a promise of being an equal rights amendment if it doesn't have race in it.
00:08:23.670 --> 00:08:39.630
Catharine MacKinnon: As I say, given the United States and also given the status of women of color and the way in which discrimination based on race gets us to undermine women of color status as women actually
00:08:40.830 --> 00:08:43.710
Catharine MacKinnon: both legally and socially so
00:08:45.870 --> 00:08:55.410
Catharine MacKinnon: A lot of us have thought that was important for a really long time. And so I've been involved with various Equal Rights Amendments all along.
00:08:55.860 --> 00:09:01.800
Catharine MacKinnon: Continue to be in favor of them we can give some of the history of how this proposal actually came to be.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 10 of 53
00:09:02.730 --> 00:09:21.720
Catharine MacKinnon: But you know, it's its main ideas are to be substantive as opposed to abstract that is substance of equality, not just formal and to be affirmative and intersectional rather than negative and categorically discreet
00:09:23.850 --> 00:09:30.360
Catharine MacKinnon: And so its various provisions aim to do that which we can talk about in more specificity. As we go ahead
00:09:31.770 --> 00:09:34.590
Monica Hakimi: And why don't we, why don't we spell out a little bit more
00:09:35.640 --> 00:09:39.720
Monica Hakimi: The content of the amendment and what the, what the various provisions would do.
00:09:41.010 --> 00:09:44.070
Catharine MacKinnon: Okay, so the content is
00:09:45.450 --> 00:09:54.570
Catharine MacKinnon: Section one says women in all their diversity shall have equal rights in the United States and in every place subject to its jurisdiction
00:09:55.080 --> 00:10:12.750
Catharine MacKinnon: So this is substantive like say (CEAFDW ), to which the Convention on the Elimination of All Forms of Discrimination Against Women, the United States, along with about two other countries in the world has not ratified, which uses the word women by this is what we mean substantive
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 11 of 53
00:10:15.030 --> 00:10:16.530
Catharine MacKinnon: And in so doing,
00:10:18.000 --> 00:10:28.140
Catharine MacKinnon: our argument is that it is intrinsically anti hierarchical rather than categorically prohibitive. This is Section one
00:10:28.950 --> 00:10:47.190
Catharine MacKinnon: So it is substantive. It is also intersectional in that women in all their diversity includes all women with everything that makes women be who women actually are, which is necessarily race, ethnicity,
00:10:48.450 --> 00:11:01.620
Catharine MacKinnon: Religion, disability, age sexuality, gender, gender identity. Every, everything that is part of the making of the group women.
00:11:03.060 --> 00:11:07.020
Catharine MacKinnon: Together with sex, sexuality and gender.
00:11:09.090 --> 00:11:09.720
Catharine MacKinnon: Is
00:11:11.280 --> 00:11:14.820
Catharine MacKinnon: Expressly recognized. So it is substantive and intersectional
00:11:16.380 --> 00:11:19.680
Catharine MacKinnon: And one can't say oh that's happened to her because of her race.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 12 of 53
00:11:20.970 --> 00:11:33.600
Catharine MacKinnon: If she's a woman, she's still a woman. See, this isn't just a. This isn't a that section one isn't race based sex based, it's women, the group. Anyone who's in there.
00:11:35.250 --> 00:11:44.850
Catharine MacKinnon: It is also affirmative in that it says women in all their diversity or I should say women in all our diversity shall have
00:11:46.770 --> 00:11:47.490
Catharine MacKinnon: Equal rights.
00:11:48.960 --> 00:11:49.710
Catharine MacKinnon: Shall
00:11:50.880 --> 00:11:55.860
Catharine MacKinnon: So far, at least in law is recognized as being mandatory.
00:11:56.910 --> 00:12:04.950
Catharine MacKinnon: Even though the Supreme Court has at times decided that there's mandatory and mandatory. But anyway, and some of it is less mandatory than others, right.
00:12:05.910 --> 00:12:18.360
Catharine MacKinnon: In Orwellian logic. But never mind. This is a new amendment, and so we shall have equal rights here and it's also horizontal in that it does not require state action do notice
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 13 of 53
00:12:20.310 --> 00:12:24.330
Catharine MacKinnon: So Section two is an upgrade on the 72 ERA.
00:12:25.590 --> 00:12:37.980
Catharine MacKinnon: It says the quality of rights shall not be denied or abridged by the United States or by any state on account of sex, which is the 1972 ERA. So whether that has passed.
00:12:39.030 --> 00:12:44.970
Catharine MacKinnon: Or recognized as past or not, which, you know, I'm also working on
00:12:46.800 --> 00:12:51.210
Catharine MacKinnon: To get it recognized as having been passed because enough states have now ratified.
00:12:54.030 --> 00:13:15.000
Catharine MacKinnon: What this provision, then does is say sex and then defines it as including pregnancy, gender, sexual orientation or gender identity. So one of the moves here is to say that all of those are included in sex, which we did before the Supreme Court did it.
00:13:16.200 --> 00:13:19.500
Catharine MacKinnon: But they recently have they haven't done it for pregnancy yet actually
00:13:21.090 --> 00:13:28.830
Catharine MacKinnon: They've done it with gender, sexual orientation and gender identity, which some of us thought was pretty astounding.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 14 of 53
00:13:30.780 --> 00:13:36.660
Catharine MacKinnon: But anyway, we read what they read the term sex includes those things.
00:13:38.850 --> 00:13:46.650
Catharine MacKinnon: And then it says and or race. So the and or is although it may seem a little awkward is our best
00:13:47.880 --> 00:14:01.800
Catharine MacKinnon: Attempt to allow the classifications to be fully separate when they are separate and together when they are together that is in life so that law will track life.
00:14:03.840 --> 00:14:19.260
Catharine MacKinnon: So sex and or race means race is already then added to ERA separately and entirely as a category. So a whole new jurisprudence of race is invited here.
00:14:20.340 --> 00:14:28.890
Catharine MacKinnon: But at the same time intersectionality is built into it so that anytime you have an and, and often say with men of color.
00:14:30.060 --> 00:14:41.040
Catharine MacKinnon: It’s intersectional for them as well. It's based on race, but actually it's because they are men of color that they are being discriminated against. Lynching. For instance,
00:14:43.320 --> 00:14:46.080
Catharine MacKinnon: This happens like still and
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 15 of 53
00:14:47.610 --> 00:14:54.060
Catharine MacKinnon: So often there's an unrecognized intersectionality in the discriminate and discrimination against men of color.
00:14:56.550 --> 00:15:15.360
Catharine MacKinnon: So then we say after race that it includes ethnicity, national origin, or color. So what we're doing there is racing those classifications by saying, actually. Those are raced in this country and they need to be recognized.
00:15:16.680 --> 00:15:30.660
Catharine MacKinnon: In the in their prohibition as contributing to the strength of the classification race, even as they have their own specific groundings so
00:15:31.560 --> 00:15:47.790
Catharine MacKinnon: That's what we say and then we add and or like grounds of subordination, such as disability or faith. Now, this we can talk later about having given rise to various controversies disability doesn't seem to give rise to much
00:15:49.320 --> 00:16:01.680
Catharine MacKinnon: As a major ground of structural subordination. In the United States, the disadvantages that are recognized as attached to it.
00:16:02.970 --> 00:16:16.230
Catharine MacKinnon: Have been prohibited under certain statutes to some effect, but it's not in the Constitution and needs to be. And we're saying it is a like ground of subordination, and can be separate.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 16 of 53
00:16:16.980 --> 00:16:40.980
Catharine MacKinnon: Or can also be combined. For example, the very high rates of sexual abuse of disabled women. There's a is an intersection of recognition here and faith we added because of the particular subordination of people of
00:16:42.000 --> 00:16:47.130
Catharine MacKinnon: non dominant faith groups in the United States, and here
00:16:48.450 --> 00:16:54.570
Catharine MacKinnon: We can talk later. I guess about push back on the ordinance, or rather the, the amendment.
00:16:55.710 --> 00:17:00.120
Catharine MacKinnon: Be because that's basically the only place we've gotten pushed back but
00:17:02.070 --> 00:17:12.840
Catharine MacKinnon: By some people who think face should be taken out of it because they think it will be misused by dominant religions and actually the way this is structured dominant religions can't be subordinate
00:17:13.980 --> 00:17:24.930
Catharine MacKinnon: except possibly an extremely exceptional circumstances in which case it should be recognized, but overwhelmingly dominant religions are dominated and
00:17:26.430 --> 00:17:40.650
Catharine MacKinnon: religions that are subordinated are subordinated on the basis of religion and anybody who can read Title seven law. We'll see what happens, say to his people of the Islamic faith Muslims after 911
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 17 of 53
00:17:41.790 --> 00:17:56.280
Catharine MacKinnon: And I'm also some of it under the protection clause, and some of it in my opinion is disgraceful law, including especially the constitutional cases in the way intent is used all of that. It's like
00:17:57.690 --> 00:18:02.850
Catharine MacKinnon: Okay so needs to end. And so this would do that. And then we say
00:18:03.630 --> 00:18:11.460
Catharine MacKinnon: No law or its interpretation shall give force to common law disadvantages that exist on grounds enumerated in this amendment.
00:18:11.850 --> 00:18:29.190
Catharine MacKinnon: So what that means is the way say races built in and has been previously built into various common law adjudications. What this does is say, for those of you who know Shelley and Kramer, which is a pretty well-known case.
00:18:31.350 --> 00:18:33.330
Catharine MacKinnon: It says that
00:18:35.160 --> 00:18:37.200
Catharine MacKinnon: What it's been limited to its fact
00:18:38.790 --> 00:18:49.770
Catharine MacKinnon: It says that that is raised to a constitutional level principle across the board to all categories so that if you use one of these classifications as
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 18 of 53
00:18:51.060 --> 00:18:54.630
Catharine MacKinnon: In embedded in common law that that has to go as well.
00:18:55.950 --> 00:19:02.400
Catharine MacKinnon: It just being explicit about that. The third provision is an implementation provision that requires
00:19:02.970 --> 00:19:12.600
Catharine MacKinnon: That the rights be fully realized by Congress and the states that is that they have to take legislative and other measures.
00:19:13.500 --> 00:19:23.760
Catharine MacKinnon: To prevent or redress disadvantage suffering by individuals or groups because of past and or present inequality as prohibited here.
00:19:24.630 --> 00:19:43.290
Catharine MacKinnon: So you know that gets us to. You got to do it. A further recognition express of disadvantage, which current equal protection law has excluded from recognition, which is why we need a new amendment among the many reasons and also
00:19:44.970 --> 00:19:45.690
Catharine MacKinnon: To
00:19:47.610 --> 00:19:53.190
Catharine MacKinnon: It's customary to speak of past discrimination as if it's all way back in the bad old days.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 19 of 53
00:19:54.210 --> 00:20:07.860
Catharine MacKinnon: When actually, it's very present. And so we say PAST AND and OR present and now we say, and shall take all steps requisite an effective, we said requisite and effective instead of necessary and proper.
00:20:09.240 --> 00:20:32.730
Catharine MacKinnon: Is existing language and we like requisite and effective much better to abolish prayer laws, policies and constitutional provisions that impede equal political representation. What this is about is that equality needs to keep on being implemented and that can only happen if the
00:20:34.770 --> 00:20:50.490
Catharine MacKinnon: Voting and electoral structure actually provides for equality as it today does not do so, this doesn't say how that is to be changed. For example, the Electoral College, which I think this has squarely and excites
00:20:51.900 --> 00:21:00.000
Catharine MacKinnon: Doesn't say it all, how that will be changed, but it does say it has to be because equality is not what it provides for us, I think, well known.
00:21:01.350 --> 00:21:04.800
Catharine MacKinnon: And actually the Electoral College was created.
00:21:06.210 --> 00:21:07.620
Catharine MacKinnon: As a compromise.
00:21:08.670 --> 00:21:13.200
Catharine MacKinnon: In light of the recognition of the existence of slavery at the time.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 20 of 53
00:21:14.460 --> 00:21:36.030
Catharine MacKinnon: And it's racist to the core. And so, you know, there's a good. There's a history behind that that can be brought to bear in whatever litigation would be inevitable. In that connection, the fourth section says simply nothing in section two which is negative equality.
00:21:37.290 --> 00:21:39.960
Catharine MacKinnon: That is government shall not
00:21:41.280 --> 00:21:46.860
Catharine MacKinnon: infringe upon which requires the actual existence of a law that does right
00:21:47.310 --> 00:21:57.180
Catharine MacKinnon: So it says nothing in section two shall invalidate a law program or activity that is protected or required under section one or three. So that means
00:21:57.600 --> 00:22:07.620
Catharine MacKinnon: If we have legislation under section three or litigation under section one that actually have that ends discrimination.
00:22:08.520 --> 00:22:26.460
Catharine MacKinnon: Against these various groups, we cannot do what we do now, which is, oh, people who were privileged by that discrimination are now being disadvantage by either a law or a piece of litigation that is going after ending the discrimination.
00:22:27.720 --> 00:22:37.230
Catharine MacKinnon: So we're saying if something is required under one or three under four, it is not allowed to disallow that
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 21 of 53
00:22:38.280 --> 00:22:42.240
Catharine MacKinnon: The simple idea is that undoing discrimination is not discrimination.
00:22:43.920 --> 00:23:03.930
Catharine MacKinnon: As formally quality tends to think and is categorical approaches to equality things. And in other words, promoting any quality and does any quality, you're actually promoting equality. Your undoing any quality, you're not forcing it
00:23:05.280 --> 00:23:06.900
Catharine MacKinnon: substantively speaking
00:23:08.190 --> 00:23:10.200
Catharine MacKinnon: Even if abstractly.
00:23:11.490 --> 00:23:20.550
Catharine MacKinnon: It may be seeing that you are, which is why this whole thing is substantive in the first place, rather than have strict. So those are the four provisions and how they look.
00:23:20.730 --> 00:23:25.140
Monica Hakimi: Okay, that's great. Thank you so much. And so, I hear you saying that
00:23:26.280 --> 00:23:36.600
Monica Hakimi: You know what you want. The reason you want to have this done as a constitutional amendment is that you want to override a number of the constitutional and statutory doctrines that have developed
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 22 of 53
00:23:36.990 --> 00:23:54.630
Monica Hakimi: To entrench various forms of inequality. And I guess. So one follow up question would be what would keep courts from applying those same doctrinal tricks to undercut your amendment if passed in ways that have vitiated prior constitutional attempts to secure equality.
00:23:56.700 --> 00:24:06.840
Catharine MacKinnon: Yeah. And you know, that's a really good question. Um, and certainly does arise in people's minds. Having seen these maneuvers.
00:24:07.770 --> 00:24:28.680
Catharine MacKinnon: undercutting. What was the clear intent of Equal Protection Clause. At the time it was entrenched and also of the Reconstruction Amendments at the time that they were passed. Um, what we are. Our view is that
00:24:29.970 --> 00:24:34.380
Catharine MacKinnon: There's a very basic constitutional doctrine which is if you have
00:24:36.120 --> 00:24:36.750
Catharine MacKinnon: A
00:24:38.010 --> 00:24:40.530
Catharine MacKinnon: More recent amendment that you are
00:24:41.970 --> 00:24:53.010
Catharine MacKinnon: litigating under or invoking that the whole point of having a new amendment is to supersede prior amendments, in other words, it wouldn't be needed.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 23 of 53
00:24:53.580 --> 00:25:06.780
Catharine MacKinnon: If all the same old approaches worked. So by definition, because it is a new amendment, it can't use the same old ideas. So, you know, it may be that there's ways of coming up with
00:25:07.620 --> 00:25:17.880
Catharine MacKinnon: Yet other ways of squaring the circle, you know, of making sure that this can't work. It's just that we've had, you know,
00:25:19.050 --> 00:25:23.520
Catharine MacKinnon: A good HUNDRED AND HOW MANY YEARS NOW of experience with
00:25:25.080 --> 00:25:32.430
Catharine MacKinnon: Overt attempts to make sure that equal protection did not mean actually equality for the people who needed it the most.
00:25:33.180 --> 00:25:49.140
Catharine MacKinnon: And those have been ingenious and appeared. Oh so neutral on their face, you know, as if they don't have as if they weren't they didn't as if they didn't exist to entrench white rights.
00:25:49.950 --> 00:26:02.460
Catharine MacKinnon: And men's rights which, in any event, whatever their intention that is what they have done, and we're most interested in those outcomes and so
00:26:03.480 --> 00:26:06.960
Catharine MacKinnon: having that experience. I mean, this is built on
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 24 of 53
00:26:08.700 --> 00:26:19.590
Catharine MacKinnon: countering that experience and figuring out what where it comes from, for example, Aristotle, it comes from formerly quality. That's like old
00:26:20.190 --> 00:26:25.950
Catharine MacKinnon: And, you know, he thought. Didn't think slavery was a violation of equality.
00:26:28.050 --> 00:26:36.570
Catharine MacKinnon: It, the idea that women couldn't be citizens wasn't a violation of his likes a like unlike, unlike treatment, you know, he already had.
00:26:37.800 --> 00:26:50.820
Catharine MacKinnon: Equal people within his polis, you know, and his whole idea of equality was to keep those guys from fighting with each other, you know, so that's why he said likes a like unlike, unlike
00:26:52.920 --> 00:27:04.290
Catharine MacKinnon: And, you know, that doesn't work in a society with intrinsic entrenched structural inequalities previously built in. Indeed, Aristotle didn't even intend it to be used.
00:27:05.970 --> 00:27:15.000
Catharine MacKinnon: In such context. See intended it to be used after you already had one a society in which a narrow elite was ruling.
00:27:16.050 --> 00:27:22.620
Catharine MacKinnon: And the people they ruled where it. It wasn't even a question as to whether that was an unequal structure.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 25 of 53
00:27:24.360 --> 00:27:38.610
Catharine MacKinnon: So I think, you know, once we figured out all that and the built in disadvantages calling for an entirely different approach than this so called common sense equal sign.
00:27:39.630 --> 00:27:46.770
Catharine MacKinnon: A notion of equality. In other words, you first have to be the same in order to be treated the same. Well,
00:27:47.880 --> 00:28:05.370
Catharine MacKinnon: Okay, diversity is already a completely different idea. It means that differences among people are affirmatively valued and people are treated the same based on their differences from each other. In other words, equally hired equally admitted to higher education.
00:28:06.660 --> 00:28:09.840
Catharine MacKinnon: Equally recognized as capable of everything.
00:28:10.920 --> 00:28:19.200
Catharine MacKinnon: In the society and, you know, so the whole idea of diversity is itself the most anti Aristotelian idea around
00:28:20.430 --> 00:28:24.090
Catharine MacKinnon: So long as you don't build in diversity from
00:28:25.200 --> 00:28:37.410
Catharine MacKinnon: White privilege, you know, diversity from male dominance know if you build that in, then you're just starting over again we entrenching the same hierarchies within it.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 26 of 53
00:28:38.670 --> 00:28:54.900
Catharine MacKinnon: But if the recognition is to undo the hierarchies and to value everyone's uniqueness and the contributions that all communities brain and the members of all those communities bring forward from their experience.
00:28:55.980 --> 00:29:09.690
Catharine MacKinnon: You know, then you have something more like what we're talking about. And you know that foundation doesn't allow for the preexisting yeah you know routes around over under around
00:29:10.770 --> 00:29:14.550
Catharine MacKinnon: The quality record that we've seen in the past.
00:29:14.700 --> 00:29:17.430
Monica Hakimi: Mm hmm. That's great. And so
00:29:18.660 --> 00:29:25.470
Monica Hakimi: In addition to that, I mean. So when I think about some of the proposal’s strong points just in my own line include
00:29:25.980 --> 00:29:41.460
Monica Hakimi: First of all, the intersection, will the recognition of intersectionality. Second of all, the requirement that the, the lack of a requirement that there be state action. So the effort to remedy any qualities in relationships that are not structured around the state.
00:29:42.840 --> 00:29:46.110
Monica Hakimi: And third of all, not just the obligation.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 27 of 53
00:29:46.800 --> 00:29:54.480
Monica Hakimi: Not to intrude or cause any qualities, but also affirmative obligations to take steps to promote equality. So those are some
00:29:54.750 --> 00:30:09.150
Monica Hakimi: In my view, really strong points. I'm wondering what I'm missing. So what else you think are among the proposals really strong points and then if you could also identify what you think some of the most salient criticisms, one might lodge against the proposal would be
00:30:11.550 --> 00:30:14.190
Catharine MacKinnon: Yeah, um, you like those
00:30:14.850 --> 00:30:17.580
Catharine MacKinnon: That you like I'm very much
00:30:19.410 --> 00:30:26.910
Catharine MacKinnon: And the two pillars of it really substantive at an intersectionality are conceptually fundamental and
00:30:28.650 --> 00:30:37.860
Catharine MacKinnon: The idea being to transform sex and raise both concretely at know as lived
00:30:38.910 --> 00:30:40.650
Catharine MacKinnon: Through an in law.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 28 of 53
00:30:41.790 --> 00:30:45.300
Catharine MacKinnon: Through you know through law and as live um
00:30:46.770 --> 00:30:53.520
Catharine MacKinnon: The idea is to, you know, undo white male supremacy basically
00:30:54.720 --> 00:30:57.870
Catharine MacKinnon: The structural that the structure that we're in.
00:31:00.540 --> 00:31:11.850
Catharine MacKinnon: And, you know, so we see those goals, but as its strongest points as being its core.
00:31:13.050 --> 00:31:17.640
Catharine MacKinnon: commitments and centrally built into it. Um,
00:31:18.990 --> 00:31:21.450
Catharine MacKinnon: No, I, I don't guess
00:31:24.090 --> 00:31:26.550
Catharine MacKinnon: Well, okay, so one
00:31:29.070 --> 00:31:30.180
Catharine MacKinnon: There are
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 29 of 53
00:31:31.830 --> 00:31:37.230
Catharine MacKinnon: There there's also the categories that are not mentioned, but which are permitted
00:31:38.850 --> 00:31:39.960
Catharine MacKinnon: That is to say,
00:31:42.450 --> 00:31:45.840
Catharine MacKinnon: When we say, including or
00:31:47.040 --> 00:31:51.060
Catharine MacKinnon: Like grounds of subordination such a disability or faith.
00:31:52.320 --> 00:31:54.060
Catharine MacKinnon: That is an expansion joy.
00:31:55.500 --> 00:31:57.270
Catharine MacKinnon: And I think that's also a strong point
00:31:58.530 --> 00:32:17.250
Catharine MacKinnon: That deserves being thought of that thought about that is categories that we may not even know about. Now, but will become more vivid as time goes on, more clear as more equality comes to be
00:32:19.800 --> 00:32:21.630
Catharine MacKinnon: On the grounds that we do know.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 30 of 53
00:32:23.370 --> 00:32:27.630
Catharine MacKinnon: The other thing is there are grounds that we know about now.
00:32:29.010 --> 00:32:37.740
Catharine MacKinnon: That we haven't mentioned that are not prohibited under existing law, of which the primary one in my mind is class economic class.
00:32:40.410 --> 00:32:50.610
Catharine MacKinnon: And that would need to be fully developed in terms of being structural which, in my opinion, it is without question.
00:32:51.840 --> 00:32:52.380
Catharine MacKinnon: But
00:32:53.460 --> 00:32:55.830
Catharine MacKinnon: In litigation could be
00:32:56.880 --> 00:32:57.450
Catharine MacKinnon: A
00:32:59.190 --> 00:33:01.050
Catharine MacKinnon: Unnamed but analogous ground.
00:33:02.370 --> 00:33:12.210
Catharine MacKinnon: So that I would say would be another strong point and maybe it's a weak point that it is mentioned I wanted one could say that as a criticism of
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 31 of 53
00:33:14.490 --> 00:33:15.210
Catharine MacKinnon: One.
00:33:16.290 --> 00:33:19.170
Catharine MacKinnon: But I think the main criticism of it is that it's a law.
00:33:22.020 --> 00:33:29.850
Catharine MacKinnon: That and it's a constitutional amendment. So there's the question of the constitutional amending project.
00:33:30.960 --> 00:33:45.810
Catharine MacKinnon: Not only the difficulties of achieving it politically, which requires a lot of states and would have to go through those states we actually think that isn't maybe all that hard right now, but maybe we're under estimating that
00:33:47.070 --> 00:33:49.440
Catharine MacKinnon: Some of the groups that are most interested in this.
00:33:50.550 --> 00:33:56.520
Catharine MacKinnon: As something to forward because it embodies the society they want to live in.
00:33:58.110 --> 00:34:03.330
Catharine MacKinnon: Think that they could get it through the states of course it has to go through
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 32 of 53
00:34:05.040 --> 00:34:10.680
Catharine MacKinnon: The, you know, the Congress as first as well. The
00:34:14.730 --> 00:34:17.040
Catharine MacKinnon: So that may be a drawback.
00:34:18.120 --> 00:34:29.700
Catharine MacKinnon: But I would think would just be seen as a difficulty. But anyway, that's as a as a process question, but that is a law. I just want to like stress, a little bit more, which is
00:34:39.240 --> 00:34:44.460
Catharine MacKinnon: We don't think that you get equality, just because it says so in law.
00:34:46.680 --> 00:35:11.760
Catharine MacKinnon: What our take is that, first of all, one of the ways you get equality is by fighting for it, including in law, but that that's a much broader political process. And so this is intended to be a partial focal point for a broader social conversation that the process of which, having
00:35:13.860 --> 00:35:16.950
Catharine MacKinnon: Is helpful in moving toward
00:35:18.210 --> 00:35:27.780
Catharine MacKinnon: The equality goal at least as much as actually having the law. Another way of saying it is you get what you fight for. And that means you got to fight for it first.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 33 of 53
00:35:29.160 --> 00:35:42.120
Catharine MacKinnon: And in order to have it. And so that there is no necessary magic in it being in LA. At the same time, it's hard to imagine having the kind of equality that we are
00:35:42.960 --> 00:35:55.830
Catharine MacKinnon: Proposing which is real, which is the undoing of hierarchies without law. So it isn't that the law is a sufficient condition for getting that equality, but it may be one of the necessary ones.
00:35:58.200 --> 00:36:06.540
Catharine MacKinnon: So that's, that's our idea that is equality we think is unlikely to be produced without law.
00:36:09.360 --> 00:36:14.040
Catharine MacKinnon: But that the process of a democratic political engagement.
00:36:15.330 --> 00:36:28.650
Catharine MacKinnon: That is necessary to produce an amendment, like this one is a lot what creates the preconditions for the equality to be real wants it exists.
00:36:29.940 --> 00:36:31.590
Catharine MacKinnon: In as a constitutional
00:36:32.940 --> 00:36:47.280
Catharine MacKinnon: And then of course there's the obvious legitimacy that the existence of such a thing in the in the Constitution gives that we are currently deprived because I said, you know, we might already been mentioned in the Constitution and the mention
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 34 of 53
00:36:48.780 --> 00:36:56.070
Catharine MacKinnon: Of people of color is denigrating in the extreme and so both of those.
00:36:57.600 --> 00:37:09.930
Catharine MacKinnon: Would be shifted substantially in terms of legitimacy. The other I guess critique that as I mentioned before, that's been leveled is
00:37:11.220 --> 00:37:17.790
Catharine MacKinnon: Included the, the inclusion of faith in the in the
00:37:19.260 --> 00:37:20.220
Catharine MacKinnon: In section two
00:37:23.850 --> 00:37:34.140
Catharine MacKinnon: I am unmovable in this question, but it's not up to me, you know, entirely but my view is that as I alluded to previously.
00:37:34.950 --> 00:37:49.590
Catharine MacKinnon: Well, okay. So there are a lot of people who are litigating constantly these days against people asserting religious claims and there are a lot of religious rights already in the in the Constitution and in statutory law.
00:37:50.610 --> 00:37:54.540
Catharine MacKinnon: Both under Title seven and the refa the
00:37:55.920 --> 00:37:58.230
Catharine MacKinnon: Religious Freedom Restoration Act is
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 35 of 53
00:37:59.880 --> 00:38:03.960
Catharine MacKinnon: And those are being used against equality rights.
00:38:05.550 --> 00:38:09.300
Catharine MacKinnon: And so what that suggests to the people who are
00:38:10.590 --> 00:38:13.800
Catharine MacKinnon: On the equality side and entrenched in litigation.
00:38:14.970 --> 00:38:19.230
Catharine MacKinnon: against religion is that they don't want to give even a little tiny bit more
00:38:20.310 --> 00:38:43.470
Catharine MacKinnon: Possibility to that side. And my view on that is number one, sometimes when first of all we are everybody. And if you're going to give rights, the kinds of rights that we all need it's possible that some people whose side you may not be on will get those rights.
00:38:44.850 --> 00:38:52.410
Catharine MacKinnon: And I'm actually kind of for that. I mean, I'm actually a lot for that. I don't need people to be on my side to have rights
00:38:52.950 --> 00:39:03.990
Catharine MacKinnon: Um, everybody ought to have them is my opinion. And then if we have conflicts and you can't entirely eliminate conflicts of rights.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 36 of 53
00:39:04.800 --> 00:39:25.500
Catharine MacKinnon: In a, in a document like this then you fight those out. You litigate those out. But it's a much more. It's a more square, more fair, more level playing field for once. In other words, the idea here is this gives us a fighting chance
00:39:26.670 --> 00:39:32.730
Catharine MacKinnon: Against say religious requirements that are anti sex equality.
00:39:33.870 --> 00:39:43.800
Catharine MacKinnon: Because those two will then be equally posed against each other or even not so equally because most of them just to get a little finger pointing here.
00:39:44.220 --> 00:40:00.810
Catharine MacKinnon: Are in the name of the Christian religion which is not a subordinated religion. So whether they could even bring that under this is something they would have to first win in order to have even quite frankly a level playing field against sex equality, which is here.
00:40:02.070 --> 00:40:18.900
Catharine MacKinnon: Is recognized here, given that it is overwhelmingly women and women sex equality, right, such as being pregnant while teaching and religious schools, for example, which is now being fought over under Title seven and in connection with RFRA also
00:40:20.490 --> 00:40:22.260
Catharine MacKinnon: And has yet to be fully resolved.
00:40:24.600 --> 00:40:36.900
Catharine MacKinnon: And disliked not is not decisively get resolved, and it also the possibility that this might create yet another forum in which that could be raised.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 37 of 53
00:40:37.350 --> 00:41:02.550
Catharine MacKinnon: Is not something that I think is worth eliminating the spiritual and conscientious faith based rights that a lot of people are affirmatively discriminated against in the subordination sense of the term. People are subordinated because of their faith, and that includes Jews, for example.
00:41:03.840 --> 00:41:12.450
Catharine MacKinnon: And there are rights that exists that can yet still be asserted already, but some of us don't think there are enough
00:41:13.890 --> 00:41:16.530
Catharine MacKinnon: anti-Semitism is alive and well.
00:41:18.090 --> 00:41:19.350
Catharine MacKinnon: And the
00:41:20.430 --> 00:41:27.030
Catharine MacKinnon: In many respects documented as stronger every day and
00:41:28.320 --> 00:41:35.010
Catharine MacKinnon: You know, I, for reasons like that and others that I previously mentioned, I think we need this in there.
00:41:36.300 --> 00:41:42.990
Catharine MacKinnon: So you know that's both saying something that I think some people think is a weak point that
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 38 of 53
00:41:45.060 --> 00:41:51.360
Catharine MacKinnon: I'm defending as defensible. And to me, one of its
00:41:53.460 --> 00:41:54.210
Catharine MacKinnon: Stronger
00:41:55.410 --> 00:41:55.920
Catharine MacKinnon: Revisions
00:41:57.150 --> 00:41:59.640
Catharine MacKinnon: And that isn't to say there's no opposition.
00:42:01.320 --> 00:42:11.640
Monica Hakimi: That makes sense. So maybe we could shift gears a little bit and I could just ask you about the writing process. So this is a joint proposal that you and Professor Crenshaw developed together.
00:42:12.000 --> 00:42:26.850
Monica Hakimi: And you each have substantial body of work on your own terms. And so I was just wondering if you could talk a little bit about how you would describe each of your most distinctive contributions to this particular proposal and to the article in developing it.
00:42:29.400 --> 00:42:30.750
Catharine MacKinnon: Yeah, um
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 39 of 53
00:42:32.100 --> 00:42:46.380
Catharine MacKinnon: A major well Kim and I have worked together a lot for decades, many decades, including ever since, especially she established the African American Policy Forum at her request.
00:42:47.130 --> 00:42:54.480
Catharine MacKinnon: You know, if you participated in any number of events there but also she and I just have worked together all through the decades, literally.
00:42:56.130 --> 00:42:56.730
Catharine MacKinnon: And
00:42:57.840 --> 00:43:10.290
Catharine MacKinnon: Her work has always actually been substantive not abstract in the sense of being animated by a concrete analysis of structural hierarchy.
00:43:10.830 --> 00:43:24.870
Catharine MacKinnon: The dynamics of real political and social power that's always been there in her work, but she hasn't theorized that she's just done it. Okay. And similarly, my work has always been intersectional
00:43:27.330 --> 00:43:37.050
Catharine MacKinnon: And, you know, in the sense of embodying and understanding that race in particular is part of sex or sex is incomplete.
00:43:38.280 --> 00:43:52.920
Catharine MacKinnon: And you can find that all the way back to 1979 my book. You know, it's got a whole section under women subset black pages, dot, dot, dot, black subset capital B. By the way, 79
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 40 of 53
00:43:54.060 --> 00:44:01.080
Catharine MacKinnon: Subset women dot dot dot see also etc and you know, it
00:44:03.000 --> 00:44:03.570
Catharine MacKinnon: But
00:44:05.070 --> 00:44:10.110
Catharine MacKinnon: Without again. I haven't see I didn't see theorize intersectionality Kim did
00:44:11.130 --> 00:44:20.970
Catharine MacKinnon: Know, so once she theorized it so brilliantly. It became it's become possible to
00:44:23.100 --> 00:44:34.080
Catharine MacKinnon: At once she pioneered the theorizing of it in such a brilliant way starting from 1989 it's become possible to do so much more with it so
00:44:35.430 --> 00:44:39.660
Catharine MacKinnon: Those are, you know, the two pillars of the piece. And what we contributed to it.
00:44:41.880 --> 00:44:49.200
Catharine MacKinnon: It kind of major discovery for me in all this. Although, you know, as I say, we've always worked together. And it's always worked
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 41 of 53
00:44:50.310 --> 00:44:52.230
Catharine MacKinnon: Is that we don't disagree about a single thing.
00:44:53.670 --> 00:45:00.960
Catharine MacKinnon: You know, I don't go into things, assuming I agree with anybody. You know, it's just we wanted to do this together so we
00:45:02.160 --> 00:45:05.460
Catharine MacKinnon: Actually in the process. The way this happened was,
00:45:06.660 --> 00:45:15.090
Catharine MacKinnon: As a celebration of the combination of 100 years of women's suffrage with the first year that all 18
00:45:15.120 --> 00:45:27.270
Catharine MacKinnon: Top Law School EICs were women somebody noticed that someone at Duke and proposed there be like a joint a combined something
00:45:27.840 --> 00:45:46.230
Catharine MacKinnon: That celebrated women's suffrage by all of the all of the law reviews so Yale wanted me and obviously Columbia UCLA wanted Kim and Michigan brilliantly chose Denise Brogan Kator a graduate of our school
00:45:47.610 --> 00:45:53.160
Catharine MacKinnon: As their contribution and as Michigan's contribution, Harvard, it seems chosen no one
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 42 of 53
00:45:54.090 --> 00:45:54.210
Catharine MacKinnon: To
00:45:54.600 --> 00:45:55.410
Catharine MacKinnon: figure that one out.
00:45:57.630 --> 00:46:02.700
Catharine MacKinnon: And although their EIC participated very actively
00:46:04.170 --> 00:46:13.380
Catharine MacKinnon: Well you anyway. There's a volume and we'll go to were told, write whatever you want and said some things about how you can write about your own life and stuff. I don't want to write about my own life.
00:46:14.010 --> 00:46:31.560
Catharine MacKinnon: I want to write about women’s lives and what we need. Yet, if we're going to publish something out here. So, Kim and I decided we would do that together. And there was a little bit of pushback on you know, together, really. I'm like,
00:46:32.970 --> 00:46:43.200
Catharine MacKinnon: So anyway, we. That's how we came to write this article, but to back up a little. We came to write this thing together the
00:46:44.340 --> 00:47:03.750
Catharine MacKinnon: The amendment because I was originally working on it with Charles Ogletree at Harvard and yeah and Tree was going was about to with Kim and all the other people acknowledged in it that is Mari Matsuda
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 43 of 53
00:47:05.430 --> 00:47:06.480
Catharine MacKinnon: Chuck Lawrence
00:47:08.610 --> 00:47:20.820
Catharine MacKinnon: Terry O’Neill was the President of NOW at the time, Gloria Steinem who's been for this and behind it strongly ever since we thought, you know, this thing needs race in it, and all this anyway. We were all ready to
00:47:21.900 --> 00:47:25.890
Catharine MacKinnon: Go forward and then Professor Ogletree
00:47:27.330 --> 00:47:43.170
Catharine MacKinnon: became ill and at around about the same time, we were thinking of having a meeting at Harvard Law School with bringing everybody together to workshop, the thing and Harvard decided they weren't going to pay for lunch.
00:47:45.300 --> 00:48:02.190
Catharine MacKinnon: So I said to Kim, Hey, how about we do this at the Center on Intersectionality and Policy studies at Columbia and the African American Policy Forum sponsored within. She said, great. She invited us all paid for lunch.
00:48:03.600 --> 00:48:11.130
Catharine MacKinnon: And everybody went to New York. And actually, it turned out to be easier for at least a lot of the New York based people were able to attend.
00:48:12.030 --> 00:48:25.020
Catharine MacKinnon: And they are all acknowledged in the beginning of the piece. And so we workshopped it in a time that turned out to be a couple weeks after the 2016 election for President.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 44 of 53
00:48:26.850 --> 00:48:28.860
Catharine MacKinnon: And then we workshopped it again.
00:48:30.210 --> 00:48:40.080
Catharine MacKinnon: Much later, and so all those contributions, together with Kim's in mind, became the product and then Kim and I wrote the article.
00:48:41.580 --> 00:48:54.900
Catharine MacKinnon: Discussing what all our thoughts around it were and we just Kim is amazing, with not only brilliant, but amazing with technology. So once we met together and she stuck the whole thing up. Put our draft up
00:48:55.440 --> 00:49:02.490
Catharine MacKinnon: On a thing on the wall so we can see it all and then she would go through and say, you know, sort of think this and maybe
00:49:02.820 --> 00:49:09.030
Catharine MacKinnon: Let's get this. So it really does it and then we got it so it really did it and then we thought, you know, that's going to scare everybody to death.
00:49:09.630 --> 00:49:15.720
Catharine MacKinnon: So let's back it off a little bit. That was her kind of contribution, I kind of never made that contribution.
00:49:16.200 --> 00:49:26.430
Catharine MacKinnon: But was able always to come up with a way to back off with the thought that Kim had so I'd like write it down on paper and then we'd stick it up, she put it up there.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 45 of 53
00:49:27.210 --> 00:49:39.510
Catharine MacKinnon: So we revise the whole thing a bunch of times. And then my amazing Harvard students where I was at the time did a cite check and were able to you know help
00:49:40.290 --> 00:49:50.010
Catharine MacKinnon: With the footnotes. And so we were able to do the kinds of things you want to do with footnotes which is both substantiate what you have to say, but also at times note.
00:49:50.430 --> 00:49:59.220
Catharine MacKinnon: You know a lot of people don't agree with this, and this is their thing with that there as well. So anyway, that's how the process came, but
00:49:59.640 --> 00:50:11.460
Catharine MacKinnon: It kind of began to strike me after we've been talking sometimes for hours. So we don't disagree on anything. And not even strategically, which is often the hardest
00:50:12.390 --> 00:50:22.920
Catharine MacKinnon: But certainly not in substance or content or history or anything. And that, to me, was kind of incredible I it would have been fine if
00:50:23.520 --> 00:50:39.570
Catharine MacKinnon: You know, we had disagreements and we think, you know, we built them in and work them, you know, said things or around them that you know presented them both, or however we did it, they would have been just fine. But it turned out not to be necessary. So
00:50:40.890 --> 00:50:41.220
Catharine MacKinnon: Anyway,
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 46 of 53
00:50:42.900 --> 00:50:49.290
Monica Hakimi: I have not had that experience of not disagreeing with anyone. So I look forward to that opportunity for myself.
00:50:49.440 --> 00:50:56.640
Monica Hakimi: And I think we have time for one more question. And this is a question that comes from a current student and I think probably reflects
00:50:57.180 --> 00:51:13.140
Monica Hakimi: What a lot of current students want to ask, which is, okay, so, seeing as this amendment is not yet enforced. How can members of the legal profession take tangible action to promote equality, when the system as it currently stands is, so, in their view fundamentally an equitable?
00:51:15.300 --> 00:51:27.540
Catharine MacKinnon: Yeah, know our thought has been that this piece and the principles articulated in this amendment could be seen as a
00:51:28.680 --> 00:51:32.340
Catharine MacKinnon: Guide to, first of all, interpreting
00:51:33.660 --> 00:51:37.620
Catharine MacKinnon: The existing proposed equal rights amendment which
00:51:38.790 --> 00:51:43.350
Catharine MacKinnon: Although it most probably requires state action, although that hasn't yet been decided.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 47 of 53
00:51:45.780 --> 00:51:52.830
Catharine MacKinnon: That if we pass that we could use this as an interpretive tool.
00:51:54.870 --> 00:52:11.730
Catharine MacKinnon: And build in an anti-hierarchical approach at least the sex, which as Ogletree once put it to me, you know, even if we don't get race added. I just want to be clear to you that we are for the ERA that gets most of our people.
00:52:12.810 --> 00:52:16.830
Catharine MacKinnon: You know, so we would then want to build in
00:52:18.210 --> 00:52:28.470
Catharine MacKinnon: An approach to sex that necessarily was intersectional, even though it doesn't express and notice it on the face of the text. You can do that by interpretation.
00:52:30.690 --> 00:52:37.680
Catharine MacKinnon: So, you know, that would be an idea and also potentially with the Equal Protection Clause, although it's more difficult.
00:52:39.600 --> 00:52:50.880
Catharine MacKinnon: Given everything you know that it has been done with it, and is recognized here, but also so far as political activism goals as well as policy.
00:52:51.900 --> 00:52:55.260
Catharine MacKinnon: Policy development could can be predicated on this.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 48 of 53
00:52:56.370 --> 00:53:01.470
Catharine MacKinnon: Implementing a whole range of existing provisions, including state.
00:53:03.390 --> 00:53:06.060
Catharine MacKinnon: Era, which a lot of states have
00:53:08.010 --> 00:53:15.120
Catharine MacKinnon: As well as legislation federal legislation and state legislation state human rights provisions.
00:53:16.440 --> 00:53:40.350
Catharine MacKinnon: Could be used for. It's also usable in terms of principles under international law and that's possible in the international legal system, but also to more effectively utilize international human rights principles in the domestic legal system which it is in serious need of
00:53:41.460 --> 00:53:44.190
Catharine MacKinnon: And then, as I say, for political activism.
00:53:45.660 --> 00:53:54.450
Catharine MacKinnon: A lot of it recognizes that, for example, the inadequacies of the political activism around women's suffrage.
00:53:55.530 --> 00:53:58.410
Catharine MacKinnon: The actually racist ways
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 49 of 53
00:53:59.790 --> 00:54:02.100
Catharine MacKinnon: White supremacist racist ways
00:54:03.300 --> 00:54:06.510
Catharine MacKinnon: At the women's suffrage movement at times.
00:54:08.250 --> 00:54:17.820
Catharine MacKinnon: Developed and its exclusion of African American women who were passionate in its favor and wanted to vote.
00:54:19.620 --> 00:54:34.380
Catharine MacKinnon: And whose support was ultimately extremely powerful in advancing the cause, but that you know that racism in that movement set back of
00:54:35.490 --> 00:54:38.550
Catharine MacKinnon: Advancement for women in serious ways
00:54:39.810 --> 00:54:45.450
Catharine MacKinnon: It's a lesson. And there's a lesson in the contemporary women's movement also where
00:54:46.770 --> 00:54:56.460
Catharine MacKinnon: Women of color have always been its leaders they have always been in its leadership, but the mass media doesn't seem to think they even exist.
00:54:58.290 --> 00:55:02.940
Catharine MacKinnon: And that's a lie and it needs to be combated.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 50 of 53
00:55:04.170 --> 00:55:12.420
Catharine MacKinnon: And also, then those images get super imposed on reality to where everybody has to think this is some white woman's thing when it never has been.
00:55:14.670 --> 00:55:22.710
Catharine MacKinnon: And it's, it's a nice like an exclusion of the contributions of women of color throughout in building that movement.
00:55:23.700 --> 00:55:34.140
Catharine MacKinnon: That sees it in that way. So, and then that contributes to their further exclusion. Which isn't to say white women in the women's movement don't need constant checks on racism
00:55:35.190 --> 00:55:44.940
Catharine MacKinnon: And in fact, white privilege that of course needs to happen not acting like that isn't there. I'm just saying that women of color are there always have been.
00:55:46.650 --> 00:56:10.530
Catharine MacKinnon: And still very much are so the combination of sex and race as a way of forwarding political activism. This know which younger people understand quite well in fact very well, is another way that you know this work, but of ours can contribute to that of theirs
00:56:12.000 --> 00:56:12.600
Monica Hakimi: Great. Well,
00:56:13.770 --> 00:56:18.750
Catharine MacKinnon: One thing to it in there is there's a real reason why we started off here.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 51 of 53
00:56:19.770 --> 00:56:29.640
Catharine MacKinnon: This piece, recognizing the contribution of native peoples to constitutional thinking there's a big historical debate about it and
00:56:30.240 --> 00:56:45.240
Catharine MacKinnon: You know whether the Iroquois Confederacy was fundamental as Benjamin Franklin said it was to the construction of the US Constitution, people who rely on written records say there's no indication of that will Yo, you know,
00:56:46.260 --> 00:57:03.570
Catharine MacKinnon: Wampum a written record. I should point out, but also not everybody can read it and you know there's lots of different ways of creating history and native peoples who were subjected to genocide and today to cultural forms of it
00:57:05.310 --> 00:57:20.100
Catharine MacKinnon: contributed substantially to the Constitution. But two things were left out from the Iroquois Confederacies rules. One women's equality, which they had and two the vision of needing to look at
00:57:21.150 --> 00:57:22.620
Catharine MacKinnon: Far generations.
00:57:24.090 --> 00:57:33.750
Catharine MacKinnon: That the sort of long distance vision view, which is why our piece begins unto the seventh generation.
00:57:34.950 --> 00:57:43.290
Monica Hakimi: That's great. Um, well thank you so much for this wonderful conversation Catherine has been really nice seeing you, and I hope
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 52 of 53
00:57:43.320 --> 00:57:44.580
Monica Hakimi: You in the audience.
00:57:44.610 --> 00:57:50.850
Monica Hakimi: WILL JOIN ME virtually, and thank you, Catharine, I will do the clapping on behalf of all of us. Thank you so much for being here.
00:57:51.150 --> 00:58:00.420
Monica Hakimi: And to all of you in the audience. I hope you'll join me for future events in this series. The next one, just to mark your calendar is scheduled for September 29 at 5pm
00:58:00.840 --> 00:58:14.130
Monica Hakimi: And it will cover the legal responses to the COVID-19 pandemic our speakers will be Professors Nick Bagley, Kyle Logue and Nicholson Price. So I hope to see you then. And again, Catharine. Thank you so much for being here. It's been really wonderful talking to you this evening.
00:58:15.150 --> 00:58:22.320
Catharine MacKinnon: It's been wonderful. Thank you for your questions and to the audience for your contributions and for being here. I miss seeing you.
00:58:23.520 --> 00:58:29.850
Catharine MacKinnon: And I hope at some time in the not too far future will be able to have our paths cross in person.
00:58:30.750 --> 00:58:32.340
Monica Hakimi: I really hope so too. Thank you.
University of Michigan Law School – Insights from the Quad Series 2020-21 Moving Toward Equality September 15, 2020 TRANSCRIPT
Page 53 of 53
00:58:34.440 --> 00:58:35.130
Catharine MacKinnon: Thank you.