Gendering the President Male: Executive Authority Beyond Rule-of-Law Constitutionalism in the American Context

Abstract

Law, like other methods of disciplining behavior, has a gender dimension. Consciously or not, male elites in the United States, like those in other nations, continue to protect the male gender borderlands of behavior norms in ways that affirm for those behaviors a privileged role of the standard by which male and female conduct is judged. And there is no more powerful set of behavior norms than law, and especially constitutional law, in the United States. This essay considers the gender hierarchy and behavior presumptions just under the surface of Harvey Mansfield’s recent suggestion that rule of law constitutionalism ought to be limited to the legislative an judicial branches, which are meant to be cooperative and nurturing institutions, but that the President’s Constitutional powers extend beyond the mere execution of the laws, and can include extra-legal acts. “Thus it is wrong to accuse President Bush of acting illegally in the surveillance of possible enemies, as if that were a crime and legality is all that matters.” After a short introduction, Part II starts with a discussion of the relation between gender hierarchy and law. It sets out the parameters within which gender analysis of institutional action and facially genderless arguments can be understood as embracing gender assumptions of three kinds—first a gender hierarchy in which the male is privileged over the female, second a set of assumptions about those behaviors that are inherently female and those inherently male, and third, a behavior legitimating reflex avoiding the legitimacy of males or male institutions assuming female behavior roles. This analysis provides the context for Part III, which analyses Harvey Mansfield’s argument that the assertion of a power in the 1 Visiting Professor of Law, Tulane Law School, New Orleans, LA; Director, Coalition for Peace and Ethics, Washington, D.C.; Professor of Law, Pennsylvania State University, State College, PA. An earlier version of this essay was presented as part of a panel entitled “Masculinity, Maleness and the Constitution,” at the 12 Annual LatCrit Conference, October 6, 2007. My thanks to Professor John Kang for organizing the panel, to the participants at the presentation, whose questions and comments were extremely insightful, and to my research assistant, Augusto Molna (Penn State ’09) for his excellent work on this project. 342 FIU Law Review [3:341 president to act extra-legally is legitimate as a robust application of basic principles of American constitutional law.