In last week’s New York magazine, journalist E. Jean Carroll recounts her rape in a New York department store dressing room, some 23 years ago. “[He] opens [my] overcoat, unzips his pants, and, forcing his fingers around my private area, thrusts his penis halfway —or completely, I’m not certain —inside me.” The alleged rapist? United States President Donald J. Trump.
Carroll joins more than a dozen other women who have publicly accused the sitting president of sexual assault or harassment, with no consequences yet for Trump.
In part, that’s because of his small army of lawyers and much larger number of fans. And yet America’s apparent inability to cope with sexual assault and harassment speaks to the wider limitations of its rule of law — the failure of its basic legal and moral code to protect each person.
This problem is fundamental and systemic, rooted in long histories that someone like Trump simply brings into the open.
In the age of Trump, “the rule of law” normally refers to a proper balance and separation of powers, which he obviously dislikes. But the idea of a general code for society, a legal endoskeleton for all rules, runs much deeper in American and western history.
Throughout early modern Europe, kings and other sovereigns tried to monopolize violence within their territories. They broke up private armies, repressed duelling and promised to protect the lives — or at least the estates — of their people.
In British contexts, especially, the sovereign focused on protecting property in all its proliferating forms: stocks and bonds, for example, as well as farms and houses. Anxious to protect creditors from distant debtors in America, British courts insisted that contracts were “sacred” and had to be fulfilled.
Although they rejected monarchy as the basis of political authority, the U.S. founders embraced these foundations of the rule of law.
Indeed, the preamble of the 1787 U.S. Constitution pledges to “establish Justice,” a contemporary term for enforcing contracts, as well as to secure “the common defense” and “domestic Tranquility” for future generations.
For many American conservatives, the rule of law ended there. Government exists for national defence and the enforcement of contracts, period. Anything else is a threat to (their) liberty.
Trump seems to like this kind of rule of law, which privileges the wealth and reputations of rich men rather than the wellbeing of the people at large or the dignity of every individual.
For their part, liberals and progressives usually focus more on policy choices than legal contexts. They only talk about “the rule of law” to defend the independence of courts or journalists.
And so the rule of law trudges along, mired in very old ideas about the society it ultimately controls. It’s especially regressive in terms of gender roles, since in Anglo-American traditions women, children and other “dependents” were often treated as domestic wards rather than autonomous individuals.
Small wonder, then, that in the United States, as in Canada and other western countries, husbands could not be prosecuted for raping their wives until the 1980s and ‘90s, and that loopholes in these new laws still linger. Small wonder that sexual assault is so rarely reported and prosecuted, and thus that so many rapists walk among us, free and clear of the evil they have done.
Is the rule of law incorrigible? Is it hopelessly reactionary and even misogynist? Americans would be entitled to think so, especially after watching Brett Kavanaugh — a big believer in strict obedience to the United States Constitution — join the Supreme Court.
Beneath the sound and fury of American politics, however, many of the rules of everyday life — especially about gender — have been changing. Trump’s ascent may well have pushed these changes into high gear.
Take Title IX, the forgettable name of one part of the 1972 Education Amendments in the United States. It prohibits discrimination on the basis of gender. It took a while to sink in, but now there are Title IX Offices in universities across the nation.
In response to the women’s movement, and, more recently, the #MeToo wave, such offices have targeted sexual assault and harassment by rewriting codes of professional conduct and student rights. Many other schools, associations and institutions have followed suit, confronting predatory behaviours long accepted as part of life.
Consider the Title IX Office at the University of Virginia, one of the leading public universities in the nation. It directs everyone on campus to foster a “caring community” based on “fairness, dignity, and respect.”
Isolated and ignored, such words are nothing but wind. But taken together, they represent a new era of constitutional creativity by sub-state actors, a bold model for the rule of law that may soon carry the force of law.
Just last week, for example, the New York legislature passed groundbreaking bills to protect employees from sexual harassment and compel employers to respect and advance that goal. . The new legislation will thus apply within the department store where E. Jean Carroll was allegedly assaulted, not to mention the many buildings that President Trump owns in the city.