“Even if we formally have the right to vote and we formally have equality,” legal scholar Julie Suk explains in the first episode of Looking Back, Moving Forward, “the entire infrastructure by which women have been excluded from real participation in decision making and power, that continues.”
Julie Chi-hye Suk, the honorable Deborah A. Batts distinguished research scholar and a professor of law at Fordham University School of Law, details how feminists have leveraged constitutional amendments and empowerment in democratic institutions to dismantle patriarchy in her most recent book, After Misogyny: How the Law Fails Women and What to Do About It. She also lays out a vision for a “constitution of care” here in the U.S. — and a blueprint for how we can make it happen.
As part of the first episode of the new Ms. Studios podcast Looking Back, Moving Forward, Suk talked to feminist superstar and Ms. consulting editor Carmen Rios about the misogyny embedded in our institutions, the shortcomings of our Constitution, and the kind of change women need to achieve true equality.
Suk is joined in the first episode of the new series by She the People founder Aimee Allison, New Mexico state Sen. Angel Charley, RepresentWomen founder Cynthia Richie Terrell, pollster and political strategist Celinda Lake, and professor Jennifer M. Piscopo, an expert as well in gender and politics. Together, we explore the promise of a truly representative democracy — and the lessons feminist history offers for how we can advance a feminist future.
Make sure to like, follow and subscribe to Looking Back, Moving Forward today so you won’t miss a second of the conversations and revelations to come. And be sure to keep an eye out for more bonus content from every episode in the podcast portal and here on the Ms. website!
This interview has been lightly edited and re-organized for clarity and length.
Carmen Rios: The new administration’s onslaught of regressive policies reminds us that the structures of our government and our electoral systems are, clearly, lopsided — that there’s something inherently anti-democratic about a government that can get to the point it’s at right now and be pushed to the point it’s at right now. How do you think misogyny led us here?
Julie Chi-hye Suk: The point that we’ve reached is a crisis, but it’s a crisis for, perhaps, different reasons than is often assumed. The problem is that we have a constitutional system that sets up representative institutions that actually don’t represent all the people very well.
A lot of compromises were reached in 1787 to design Congress, for example, and one of the chambers, the Senate, is very malapportioned. It represents every state equally, two senators per state, and so, that is, itself, undemocratic. The Senate’s power explains a lot of things, including its blocking of a lot of legislation and constitutional amendments in our history that could have changed our political structures to be more representative and more democratic.
No modern democracy uses an electoral college to elect the president. It’s very normal, in most modern democracies, to let the people pick the president. We have tried: Around the same time that the Equal Rights Amendment was introduced, there was an initiative in Congress to try to move to a national popular vote for the presidency.
These problems are related to the moment that we’re now in. I understand that Donald Trump did win the national popular vote and the electoral college to get into power in 2024, but I don’t think the second Trump presidency would have been possible without the first Trump presidency, and the first Trump presidency was, basically, a direct result of a system in which we don’t let the people pick the president. Hillary Clinton won the national popular vote, but he won the electoral college, and he came to power then, and his first four years in office were necessary to legitimize him and to give him the platform that enabled the second presidency that we’re now in.
If we were, in fact, not discriminating and not perpetuating anti-democratic or oppressive dynamics, you would expect gender parity in decision-making positions to emerge naturally. The fact that we don’t see that should lead us to investigate why.
Julie Suk
These are just a couple examples of having an antiquated and not totally democratic and representative set of institutions. It’s really our nation’s struggle with racism and slavery, more so than misogyny, that is directly responsible for the unrepresentative and anti-democratic nature of our basic political and legal institutions, but the two dynamics are very related, misogyny and race-based slavery, because, really, misogyny is a system.
Patriarchy is a system by which people who are in power extract benefits and value from people who have no rights. In our nation, that meant enslaved African Americans and women who did not have rights, but were expected to basically take care of our posterity, just to quote the Preamble of the US Constitution, to do all the reproductive labor necessary to perpetuate the nation throughout the generations. That inherently anti-democratic idea — that the people who govern are benefitting from the exclusion of others, who can’t govern because they’re excluded — that’s actually been maintained through institutions that are not democratic, fundamentally.
At the beginning, obviously, enslaved Africans did not vote, and women did not vote, and even when we corrected that — by way of the 19th Amendment and by way of the amendments that were adopted after the Civil War — creating formal equality or a formal right to vote, unabridged on account of sex, was not enough to dismantle the vast infrastructures, enforced by law, that continued the extraction of value, and the expectation that women perform the reproductive labor and raise the nation without compensation and without other important rights, that continued. Even if we formally have the right to vote and we formally have equality, the entire infrastructure by which women have been excluded from real participation in decision making and power, that continues.
Rios: A big focus of your book, After Misogyny, is constitutional change to advance what you call a parity democracy. Can you talk to me a little bit about what true gender parity in the U.S. would look like? What should our government look like? What should our political sphere look like if we were a truly equitable, real democracy?
Suk: If we were truly committed to equal participation, equal representation, and equal rights for all people, regardless of race and gender, you would see decision-making positions occupied by roughly equal numbers of men and women or people of all genders. You would probably see, in decision-making positions, roughly proportionate representation by people of all races that are in American society.
I’m not saying that you would see this because we would force it through the imposition of quotas. I’m just saying that if we were, in fact, not discriminating and not perpetuating anti-democratic or oppressive dynamics, you would expect gender parity in decision-making positions to emerge naturally. The fact that we don’t see that should lead us to investigate why, and I don’t think that leading us to investigate why requires us to impose strict gender parity quotas in every aspect of life.
One thing that has been helpful in many democracies around the world is having gender parity rules with regard to positions of economic and political power. They’ve operated in many different ways in different countries, but requiring institutions to have roughly equal numbers of women and men, or at least a minimum threshold in some instances, has gone a long way to ensuring an equal voice for all.
Rios: What do you think it’s going to take? What kind of movement do we need to build to rebalance power in US politics and democracy?
Suk: It is really important whether we focus on the gender dimension or not. It is really important to be having a conversation with young people about all the ways in which the Constitution that we have entrenches forms of representation in organizing ourselves that are unrepresentative and undemocratic. Over the next generation or so, there needs to be an openness to revisiting the basic institutions that we have.
This is a very difficult needle to thread right now, because, first of all, I think we grow up in a culture of constitutional veneration. In this culture, we tend to believe that the Constitution we have is the greatest democracy in the world, but there are no real alternatives that’ll make us more democratic. If you actually look at the institutions that are created by the Constitution and compare them to constitutions that were written in the 20th century, and sometimes in the 21st century, it’s just not true that the 18th century institutions that we have do the best job at representing people — given that we have had legislatures at the state level basically gerrymandering to make it so that even the proportionately-representative House of Representatives is not really as representative as it really should be, and at the state legislature level, it’s also true that the vast majority, 80 or 90 percent of state legislative seats, are not competitive, and there’s gerrymandering at the state level that ensures that people who have power keep power.
That undermines the foundations of representation. People who want to make a change — it really limits their options for how to organize and build power. These are dynamics that young people need to look at. Looking at a lot of other models around the world, there’s no one democracy that has a perfect model, but there are many other things that seem to work a little bit better, including proportional representation, including ranked-choice voting.
Some of these things might include having a national popular vote to elect the president of the United States, because even though it is true that Donald Trump won the national popular vote, that doesn’t really tell us that much about whether that’s democratic. Imagine a world in which we had a national popular vote and not the electoral college. There are all these people who are registered to vote in California that don’t show up to vote on Election Day because they know that, under the electoral college, it’s already pretty predictable, like 99 percent certainty predictable, who’s going to win your state. There are a few purple states, and the candidates only campaign in those places.
That’s a skew right there. If you lived in a national popular vote system, people would show up, and the additional people showing up would probably lead to completely different dynamics in how campaigns are run, and who actually wins the national popular vote. I don’t even think that the fact that Trump won the national popular vote is an argument for his mandate, because if we actually had a national popular vote system, people would be voting and showing up differently and campaigning differently — and maybe someone else would have the mandate.
I’m just giving you a few examples of things that are in our Constitution that make it difficult for people who want change to organize in ways that are likely to have success, to take power in institutions and to enact those changes. What it will really take is an openness to really rethinking the way that we’ve designed our basic political and legal institutions and an openness to not only amending the Constitution, but even changing the way that we amend the Constitution.
The way we amend the Constitution is also very anti-democratic, because only Congress and the state legislatures are the gatekeepers of constitutional amendments. You need these very high supermajority thresholds in Congress where, in a very polarized party, polarized Congress, it’s impossible to imagine two-thirds of both houses of Congress agreeing to anything, and it’s very difficult to imagine three-fourths of state legislatures then ratifying anything that two-thirds of both houses of Congress got to agree to.
For these reasons, it’s not surprising that most people don’t really think about constitutional amendment as a way of making our institutions more democratic, because the amendment process itself is one that has not been successful at bringing about changes that vast majorities of people want, including the Equal Rights Amendment.
Unless and until we focus on structure and infrastructure by which power is exercised, we’re not going to make a lot of progress.
Julie Suk
There needs to be an openness to creating an amendment process in which the people have a say. We don’t have to imagine that far, because most of the states have a constitutional amendment process that involves a popular referendum. The legislature adopts the amendment, and then you have a popular referendum in many states. You’ve seen the success of reproductive rights amendments in many state constitutions in the last few years.
It’s also possible for the people to amend the Constitution without ever getting approval from the legislature. They can introduce an amendment through an initiative and then have it ratified by referendum. If you have gerrymandered state legislatures that are not representing the people, you could go around those legislatures through the initiative and referendum process. That’s why, in states like Ohio and Missouri, when the state legislature is not representing the people and banning abortion at six weeks, you get people organizing an initiative and referendum to put a reproductive rights amendment in their state constitution. We don’t have to go beyond what we see in a lot of our states, including states that are controlled by conservatives in the legislatures. We don’t have to go that far to imagine different ways of having an amendment process, even at the federal level, that might make it more democratic.
We need to be open to that, and over a generation, we need to lose our constitutional veneration culture and really think about: What are the institutions that can better represent and better organize the will of the people?
The reason I say this with a little bit of hesitation right now is that it’s a difficult moment to talk about making the Constitution more open to change, because Donald Trump is doing that.
Donald Trump is saying, I’m going to do all these bold things. They’re creative, innovative readings of the Constitution, and it’s possible that the only bulwark we have against some of the most oppressive executive orders that we’re seeing is the Constitution. But I want to remind everyone that the constitution we have doesn’t create a great bulwark against Donald Trump, because it’s written in terms that make it not that obvious that his assertions of presidential power are, obviously, unconstitutional. One can only hope that the courts will stick to not just the text, but the jurisprudence of the separation of powers, or the jurisprudence they’ve developed on birthright citizenship, in addition to the text of the 14th Amendment, to stop some of what Donald Trump is doing.
At the end of the day, the Constitution itself is not that clear in providing a bulwark against autocracy — but at the same time, you don’t want to make it too easy to change everything, because, in addition to empowering people who are friends of democracy, it may empower autocrats to seek easy ways of changing the Constitution to entrench their own power for good. We’ve seen that in other countries where there’s been democratic backsliding.
Rios: It’s been shocking to realize that we have an entire system of government that was basically designed to prevent kings and kingmakers, and yet, we see someone on day one ruling like a king. The idea that there’s so much confusion, too, about what the limits are, has me wondering: What is possible? What do we listen to? What can’t he change?
Suk: It may be obvious to you and me, Carmen, that the Constitution did not create a king in the presidency, but I should remind you that the Supreme Court decided Trump vs. the United States last July. That’s a case in which the Court holds that the Constitution requires absolute immunity for the president from criminal prosecution, even for criminal acts committed in the exercise of his official constitutionally-prescribed powers.
If you have the Supreme Court and another branch of government going against received understandings and precedence about having a president who is not above the law, radically changing that — and now reading the Constitution to require broad immunity so that we could have a robust executive and claiming that the founders intended for us to have such a robust executive — he comes pretty damn close to being above the law and pretty damn close to being treated like a king, at least in this respect with regard to immunity.
It’s not really clear to me that the institutions, including the Supreme Court, created by the Constitution and the text of the Constitution, is really going to be the bulwark against autocracy that everyone hopes they will be.
I don’t even think that the fact that Trump won the national popular vote is an argument for his mandate, because if we actually had a national popular vote system, people would be voting and showing up differently and campaigning differently — and maybe someone else would have the mandate.
Julie Suk
It’s so important for people who are interested in feminism and ending patriarchy and misogyny to focus their energies on structures, the political structures by which we try to pursue our feminist ends. The focus on structures is going to look a little bit different from focusing on rights, but part of the reason our rights are under siege is that the structures of power have not been changed. Instead of just trying to litigate the cases to assert rights to gender equality or rights to equal pay or whatever it is, until we focus on structure and infrastructure by which power is exercised, we’re not going to make a lot of progress.
Rios: In your book, you give us a tour of these movements from around the world — stories about gender and constitutional law, how they intersect, how activists address them. In what I would consider, like you said, a crisis moment in the U.S. for women, and for lots of other marginalized communities, what can we learn from women, from feminists, from activists, who are leading these fights or have led these fights for democracy, for equality, for fundamental human rights in the face of autocracy and polarization and a lot of what we’re seeing here in the U.S?
Suk: One thing that I’ve studied in my work, which I think raises some eyebrows in the United States, is provisions in many European constitutions that say that mothers shall deserve the care and protection of the community or the special protection of the state.
This is something that emerges, in some constitutions, after World War I and World War II, even though they don’t have near gender parity. They have a handful of women at the constitutional conventions or the constituent assemblies that produce these 20th century constitutions — which is still more than what we had in 1787 in Philadelphia. Four is still more than zero.
In Weimar, Germany or then in Bonn, in what becomes West Germany after World War II, you have these women from different sides of the political spectrum, everything from social democrat to center right to Christian democratic women, but it seems like this is one issue on which they agree, or actually, two issues on which they agree: Equal rights between women and men and the special protection of mothers.
You can see how conservative women and progressive women might have very different ideas about who benefits from the protection of mothers. If you protect women, are you protecting women so that they could get financial support to fulfill their traditional gender roles within the family, or are you just accepting the social reality that a lot of those responsibilities are going to fall on women, and therefore, compensating the disadvantage? That’s almost inevitable, right?
People have a lot of different views about what equal rights is going to mean. Is it going to mean you can have special protections from others, or is it going to mean that you can have special ways of compensating disadvantages faced by women for a variety of reasons, or does it mean strict gender neutrality? What is interesting is that, at some moments where you get key provisions, including commitments to gender equality, you get them because people from different sides of the political spectrum may not even have a shared idea of what they’re agreeing to, and sometimes, they’re even aware that they don’t have a shared idea, but they’re able to form a coalition.
There are some compromises, of course, that come with engaging in a kind of coalitional politics, and for us in the United States, it’s so hard to consider that, because there’s so much polarization that makes people, across partisan lines, very distrustful. What if you offer a compromise, but the other side doesn’t compromise? It’s really important for us to reimagine both our institutions and the way that we form coalitions and alignments. I say that realizing it’s easier said than done, and I would love to learn from the activists on the ground about strategies by which we can move more in that direction.
Rios: What impacts have you witnessed from some successful movements to advance women’s power and representation, to rebalance politics elsewhere and political systems. What’s the evidence that we can point to that shows how parity lifts all boats, improves women’s lives, improves communities? What kind of changes do we see after these kinds of movements take shape?
Suk: It’s not a perfect example, but one example is France. In France, women got their right to vote after World War II, way later than us — but they also got, basically, an equal rights provision in the Constitution in 1946.
Then, decades later, the legislature tried to pass a law requiring at least a certain minimum number of women on some political party lists for certain municipal elections — so gender parity, but not quite parity, because it was only something really modest. You had to have at least 25 percent. But the Constitutional Court struck that down. It’s just like how the US Supreme Court is breaking down race-based Affirmative Action. The French Constitutional Council struck down what they saw as gender-based Affirmative Action.
And then you see mobilization. This was in 1982, where women were just like, we need to amend the Constitution. We need to make it clear that Affirmative Action for women is not only allowed, but possibly required. There’s a mobilization, and they do end up amending the Constitution in 1999.
Then, there’s another constitutional amendment in 2008, because what was not clear after 1999 was whether or not that amendment was broad enough to also apply to legislation requiring gender parity not just elections for public office, but also for private sector corporate boards, There’s another amendment that’s much broader that gets adopted in 2008, after a mobilization — and then what’s really interesting is that because you have the legitimation and then new legislation requiring gender parity, not just in municipal elections, but in parliamentary elections as well, in all kinds of elections for public office in France, you do see a pretty rapid rise in women’s participation, or women being elected to these positions because they’re, by law, required to observe gender parity. Then, what was really remarkable to witness over the last 2 or 3 years, was the way, led by a very large critical mass of women in the French Parliament, they reacted to the Dobbs case in the U.S. by saying, let’s be the first country in the world that enshrines reproductive freedom, the freedom of elective abortion, in particular, in a national constitution.
They did it in March 2024. They added an amendment to the French Constitution that recognizes that elective abortion is a fundamental freedom that the legislature will recognize and promote. What’s really interesting about that development, too, was that the abortion guarantee didn’t end up looking exactly the way that the initial proponents of abortion rights really wanted it to look. They wanted it to say right to abortion, and they wanted it to be judicially enforceable. They got something that, by all accounts, is a watered-down version. It’s mostly a symbolic provision that declares that elective abortion is a fundamental freedom or a guaranteed freedom.
Misogyny is a system, patriarchy is a system by which people who are in power extract benefits and value from people who have no rights.
Julie Suk
Having a constitutional recognition that’s mostly symbolic of the guaranteed freedom of elective abortion is definitely better than having no mention at all. They were able to make this happen, not only because there is a critical mass of women in the legislature who, I think, over time, that kind of critical mass was enabled by the commitment and constitutionalization of authorization of gender parity, but also because the women who were in Parliament were of all different political parties and across the political spectrum. There were a lot of compromises that led to the ultimate outcome with regard to what the amendment actually said and what it does.
Let’s be really clear. The commitment to gender parity doesn’t necessarily lead to all-around feminist power-building. A commitment to gender parity probably, also, enables the rise of women in right-wing parties, and so, in France, it’s also very much part of the story of the development of French politics in the recent decade or so, that the head of the far-right party is Marine Le Pen, a woman. She’s the daughter of Jean-Marie Le Pen, who was the original founder of a very far-right anti-immigrant party. I don’t want to give the impression that once you get gender parity, you just get feminism. That’s just not true. But one of the things that you get is women climbing up the ranks in a variety of parties and organizations.
Rios: This podcast celebrates the last half century and more of feminist writing and feminist organizing. We’ve seen so much change in those years, even if we are seeing this terrifying backslide right now. What do you hope has changed, 50 years from now, when it comes to these issues of democracy and gender equality and feminism in politics?
Suk: I really hope that, 50 years from now, we have made our representative institutions more representative. There are many different ways that we could do that, but the first step is that we have to address gerrymandering, and secondly, we have to address any kind of distortions with regard to who votes and who’s actually able to vote.
One thing I’ve been very disturbed by is the introduction in Congress this term of legislation that would require documentation of citizenship, either with a birth certificate or a passport, in order to register to vote. This is going to disenfranchise a lot of married women who do not have documentation if they’ve changed their names. I’ve read that maybe 80 or 90 percent of American women change their names when they get married, and that’s going to make it harder if they don’t have a passport that reflects their new name. It’s going to make it harder for them to produce the documentation required to register to vote. My hope is that a bill like that doesn’t have much chance of passing in this Congress.
There have been many efforts at inhibiting the ability of non-white people and women to vote, and so, that’s one thing that also distorts the outcome of our elections to make them less representative and less democratic. Gerrymandering makes it such that, even when we have a proportionately-representative institution, like the House of Representatives or state legislatures, there’s a lot of entrenched power. I hope that we’re able to move the needle on those problems so that at least the representative institutions we have are more representative of the actual people and citizenry of the United States.
If we could do that, that might be enough to put us in a better place in terms of actual law making and making it possible to protect some things that I think are important, including reproductive rights. Beyond that, we have to think seriously about how we’re going to modernize the institutions that have made it more difficult. The Senate is one, but the Senate’s going to be very hard to change, because Article V makes it possible to amend. You can’t change the equal representation of the states and the Senate, even using the very hard amendment rule. That’s something that’s kind of protected. You need every state whose equal representation would be changed to agree to the change under Article V.
That’s basically a unanimity, which gives every state veto over changing the Senate in any meaningfully more democratic or more representative way. That’s a real problem. But I hope, at least if we have a conversation about why that’s a problem for democracy, when people are aware of it, there might be varying comfort levels with reorganizing — whether by constitutional convention or other means — ways of making the Senate more democratic. Fifty years from now, I hope that we could see more movement towards having a national popular vote for the presidency.
Another conversation that’s been going on a long time, over the past decade, has been the need to reform the Supreme Court. Life tenure has meant that people stay on for a long time. The polarization in Congress, especially the willingness of some people in power to play hardball around judicial appointments, has led to a very skewed composition on the Supreme Court that is lasting way longer than any composition like that should, in any normal democracy, because we have life tenure for the judges, which is also highly abnormal.
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