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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
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
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
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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