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10 Const. Comment. 319 (1993)
Constitutional Law: Feminist Critiques of the Public/Private Distinction

handle is hein.journals/ccum10 and id is 325 raw text is: CONSTITUTIONAL LAW: FEMINIST CRITIQUES OF THE PUBLIC/PRIVATE DISTINCTION Frances Olsen* Most of the work that I have published that deals with the topic of this symposium (Private Power and the Constitution) raises questions about the private part of the title.' Private is not a natural attribute nor descriptive in a factual sense, but rather is a political and contestable designation.2 Thus, for me, the topic suggests such questions as, What does the person who wields power gain by successfully characterizing his power as 'private'? and What role does our written Constitution play in that advantage? One of the main things a power-holder gains from successfully characterizing his power as private is a degree of legitimacy and immunity from attack. Thus, it is predictable that people will try to characterize their use of power as private and to characterize power deployed against them as not private-that is, as public, * Professor of Law, University of California, Los Angeles. Except for notes 2, 4, 14 and 15, the footnotes were added by Christina Bull, UCLA Class of 1994, to this talk I presented to the AALS meeting in January, 1993. 1. E.g., Frances Olsen, Does Enough Work Make Women Free? Part-Time and Full- Time Work Strategies for Women in the United States and Germany, 53 Indian J. of Social Work 599 (1992); Frances Olsen, Sex Bias in International Law: The UN Convention on the Rights of the Child, 53 Indian J. of Social Work 491 (1992); Frances Olsen, Children's Rights. Some Feminist Approaches to the United Nations Convention on the Rights of the Child, 6 Int'l J.L. & Family 192 (1992); Frances Olsen, Unraveling Compromise, 103 Harv. L. Rev. 105, 109-17 (1989); Frances E. Olsen, The Myth of State Intervention in the Family, 18 U. Mich. J.L. Ref. 835 (1985) (Myth); Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex. L. Rev. 387, 387-90 (1984); Frances E. Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497 (1983) (Family and Market). 2. There is more to the assertion that privacy is contestable than simply that public and private are matters of degree rather than all-or-nothing: If one thing seems less public than another, the first may be considered private with respect to the more public thing, even though it might seem public if compared to something more private. More than this, how- ever, public and private are used as normative claims about how something should be treated rather than just descriptions of the nature of that thing (or the agreed perceptions in our society about the thing). Privacy can be asserted or denied in numerous and varied contexts. Cf. Olsen, Myth at 835, 858-61 (cited in note 1) (illustrating some of the ways that state intervention in the family may be perceived as taking place or not taking place, even in similar circumstances).

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