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  • Possibilities Lost and Found:Recovering the Intersectional Vision of Legal Feminism
  • Eileen Boris (bio)
Serena Mayeri . Reasoning from Race: Feminism, Law, and the Civil Rights Revolution. Cambridge, Mass: Harvard University Press, 2011. xiii + 369 pp. Notes and index. $39.95.

In 1981, at the beginning of the "Reagan revolution," political theorist Zillah Eisenstein argued that "mainstream feminism has the potential for radicalism." Equality between the sexes could disrupt the structures of the family, economy, and society. Women's demands for inclusion would curtail the separation of the private from the public upon which liberalism, no less than patriarchy, depended. In striving to enhance individual autonomy and action, feminism partook of that same liberal tradition, yet it did so on the basis of a collective categorization, that of women as a sex-class. Common exclusions would join women across differences of race, sexuality, class, and marital status. By breaking down barriers and ending discrimination on the job, in the home, and within the polity, feminism offered the possibility of more fundamental change.1

A new generation of legal scholars in the 1980s and 1990s questioned that assessment. Critical race feminists charged that advocates in government and the law promoted equality with men as if all women were similarly situated, as if the disadvantages of poor black women could be addressed by having white middle-class women represent a universal woman before the courts or by developing equality doctrine with white heterosexual plaintiffs who deviated from the male-breadwinner/female-caregiver ideal. Moreover, according to anti-essentialist theorists, treating all women as if they were the same as men could not overcome inequalities in earnings and status that stemmed from pregnancy and responsibility for childcare. Working-class women particularly needed special treatment, a kind of affirmative action that would take account of social and cultural differences not as a substitute for equality but rather as a strategy to end subordination. Women of color additionally required remedies that understood harm as coming not from gender as a separate identity but from its merger with race to produce a standing distinct [End Page 156] from both men of color and white women. Critical race feminists named this theory "intersectionality."2

Now law professor and legal historian Serena Mayeri counters these claims through a closely argued, deeply researched, and beautifully crafted history that recovers "'the lost promise' of feminist advocacy" (p. 7).3 A reassessment of liberal (what she calls legal) feminism and its "rich but often troubled" relationship with civil rights, Reasoning From Race gives intersectionality a history. Following an incisive summary of antebellum political discourse and mid-twentieth-century social science on "women and minorities," Mayeri underscores the pioneering work of Pauli Murray, the black feminist whose Fourteenth Amendment strategy in the early 1960s offered a vehicle to overcome the political fissure between supporters of the Equal Rights Amendment (ERA) and defenders of protective legislation for women. Through exploring various permeations over the next quarter century, Reasoning From Race shows the race/sex analogy "as a fluid, historically variable practice rather than as a fixed or foregone conclusion" (p. 5). An abstract parallel between race and sex in the law was not inevitable but rather had to be made, with Murray's category of "Jane Crow" set aside. For those fighting to abolish old restrictions and counter socially constructed disabilities, though, the 1970s were a decade of challenge rather than the overdetermined dress rehearsal for conservative backlash that historians now paint.

In looking beyond the published opinions of justices and highlighting cases that the Supreme Court never took, Mayeri complicates the connections between "race" and "sex" in law and social policy. It has become standard for historians to note this interplay, as with the maneuvers that introduced sex into Title VII of the Civil Rights Act of 1964. Mayeri moves the literature beyond description to trace the evolution of legal doctrine. Like Linda Kerber in No Constitutional Right To Be Ladies (1998), she makes the technical terms of law come alive through stunning portraits of litigators, theorists, plaintiffs, law clerks, and justices and by providing the social context of cases. This ability to connect the personal with the political and intellectual comes across...

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