AFFIRMATIVE - CRITIQUE - FEMINIST CRITIQUE OF PRIVACY 154

ANSWERS TO FEMINISM CRITIQUE–NO LINK–PRIVACY LAW DOESN’T HURT WOMEN

LIBERAL PRIVACY RIGHTS DO NOT NECESSITATE INEQUALITY AND SUBORDINATION OF WOMEN

Linda C. McClain, Professor of Law, Hofstra University School of Law, March, 1999; WILLIAM & MARY LAW REVIEW, " RECONSTRUCTIVE TASKS FOR A LIBERAL FEMINIST CONCEPTION OF PRIVACY," EE2001, hxm P.

As the work of Siegel and other feminist theorists amply illustrates, it is undeniable that historical doctrines of family privacy and the sanctuary of the marital bedroom have contributed to the unequal protection of women in their homes and sanctioned enormous injustices to women and children within the family. n94 As I have explained elsewhere, however, a liberal commitment to a principle of personal sovereignty, or a realm of autonomy, does not entail an unqualified jurisdictional principle of govern-  [*777]  mental noninterference with "private" life. n95 With the notable exceptions of John Stuart and Harriet Taylor Mill, liberal political theorists historically have paid inadequate attention to the problem of unequal power in the "private" sphere. I believe these are sins of omission rather than fatal flaws of liberalism. n96 As John Rawls has said of political liberalism, in response to Susan Moller Okin's critique of its apparent stance of toleration of injustice within the family, n97 "[i]f the so-called private sphere is alleged to be a space exempt from justice, then there is no such thing," for "[t]he equal rights of women and the basic rights of their children as future citizens are inalienable and protect them wherever they are." n98 Nor do constitutional privacy rights, contrary to some feminist arguments, plausibly support the notion of a private sphere within which government abdicates any responsibility for protecting women against abuses of power by men. n99

PRIVACY CAN BE NON-PATRIARCHAL IF IT IS THE RIGHT KIND OF PRIVACY

Linda C. McClain, Professor of Law, Hofstra University School of Law, March, 1999; WILLIAM & MARY LAW REVIEW, " RECONSTRUCTIVE TASKS FOR A LIBERAL FEMINIST CONCEPTION OF PRIVACY," EE2001, hxm P.

The second, related paradigm begins with the legacy of the denial of meaningful privacy to women (especially within marriage). Notwithstanding feminist critiques of privacy, Allen's important work on the normative value of privacy and private choice for women suggests that we might enlist women's experiences with "bad" forms of privacy and the absence of "significant opportunities" for privacy and private choice to argue for the goods of privacy. n62 She persuasively argues that an adequate account of privacy should rid itself of the legacy of domestic life as the sphere of confinement, subordination, and sacrifice of self. n63 One part of women's privacy problem has been too much of the wrong kind of privacy-unwanted isolation, the legacy of separate spheres and of norms of maternal self-sacrifice, the brutal injustice of the law's drawing the curtain on private life, and leaving married women largely unprotected against intimate violence. n64 As Allen has argued, women have not had enough of the right kind of privacy. n65 "Privacy" can play a significant role in fostering self-development and affording a space in which persons prepare themselves for roles, relationships, and  [*772]  responsibilities, while allowing the realization of goods such as solitude, chosen intimacy, and retreat. n66 "Private choice," or decisional privacy, can allow women the development and exercise of their moral powers. n67

EVEN THOUGH GOOD AND BAD PRIVACY MIGHT NOT BE PERFECTLY DISTINGUISHABLE, WE SHOULD STILL TRY FOR THREE REASONS

Linda C. McClain, Professor of Law, Hofstra University School of Law, March, 1999; WILLIAM & MARY LAW REVIEW, " RECONSTRUCTIVE TASKS FOR A LIBERAL FEMINIST CONCEPTION OF PRIVACY," EE2001, hxm P.

Of course, one vulnerability of sorting out "good" and "bad" kinds of privacy is that such a process might suggest that privacy is so indeterminate and unruly a conception that it is neither stable nor useful. n71 Liberals and liberal feminists might appear to be saying to their critics, "Oh, but we don't mean that kind of privacy. Trust us, we mean this kind of privacy." To this, I have three basic responses. First, as with any legal and cultural concept subject to evolving understandings (e.g., liberty and equality), although we need to subject the various deployments of privacy  [*773]  in law and culture and its role in our social practices to critical scrutiny, it does not follow that we should abandon the concept completely. n72 Second, to equate deployments of privacy that have legitimated patriarchy and impaired women's equal citizenship with liberalism ignores the extent to which fundamental liberal principles, and certainly liberal feminist principles, should serve instead as an indictment of those deployments (as discussed below concerning the problem of "private" violence). n73 Third, related concepts such as autonomy (or self- determination), self-development, and self-constitution may help get at the goods that privacy helps to secure without carrying all the negative associations. n74