Race and Sex. Is a different Constitution possible?

Nilda Garay Montañez

The Greek elections of January 2015 promised change. The Syriza party prevailed over the conservative New Democracy party, which took second place. The Neo-Nazi party Golden Dawn was the third most voted political force. Europe, - and the world -, awaited Syriza’s new political actions with bated breath. Its proposals generated uncertainty in the established neoliberal order that predominates in the heart of Europe, and hope in the impoverished population. Spain was an eager onlooker.

For the time being no historical changes are expected. The absence of women in the new government’s cabinet reflects the gender relationships of its society. Its political program obviates the problematic women’s inequality and prioritizes the economic crisis. As it did not attain an absolute majority Syriza had to come to an agreement with the Independent Greek party ANEL, conservative, nationalist, anti-immigration, defender of a confessional State and the patriarchal family. In this setting, the presence of a Golden Dawn party that legitimizes itself with racist proposals is significant.

It is clear that, in the 21st century and in Greece, the cradle of civilization and the origin of the West, the social contract, as historically defined by racist ideas and gender typification, still survives. Although it has taken different shapes, one can identify the same dimensions that make up the original contract of the 18th century that Carole Pateman calls the “Colonial Contract”. A contract with a patriarchal character conceived and concluded by certain European white men in defense of their interests. In 1988, Pateman explained how this contract also implied a sexual contract through which women remained subordinate to men. Twenty five years after she published The Sexual Contract (Stanford University Press), she concluded that the original contract has three dimensions: the social contract, the sexual contract, and the racial contract. Three simultaneous dimensions that served to seal “the” contract: the Constitution. Those three historic dimensions contain the vices of Constitutionalism. Vices of consent, as confirm Charles Mills in The Racial Contract (Cornell University Press, 1997). The social, sexual and racial contracts together make up the Domination Contract as enshrined by hegemonic Constitutionalism. The Contract that serves to secure Capitalism.

Constitutionalist history shows how the theoretical propositions of Bodin, Hobbes, Locke and Rousseau founded the Domination Contract . Theories that influenced the first Declarations and excluded non-occidental men (considered “non-white”) as well as women. Theories that became reality by free and equal men through the social contract that held such domination-subordination relationships in place. There was a counterforce of protest movements against these theories.

The Declaration of Independence of 1776 of the American colonies was contested by a liberal feminist movement backed by Paine, Abigail Adams, and others. The proposals to end Negro slavery were encompassed by the first draft of that Declaration. In 1848, in Seneca Falls, an American feminism inspired by the 1776 Declaration reacted to its domination contents.

The French Declaration of 1789 was challenged by a feminist Constitutionalism, developed during the Illustration and made visible with the 1791 Declaration of the Rights of Woman and the Female Citizen. Moreover, it was challenged by an antislavery Constitutionalism which had come to a boiling point with the Haitian revolution (1791). The Declaration of Independence of Haiti of 1804 made evident how the color of the skin was being introduced as an important element of the Contract Theory which had already been included in the French Constitution.

In the first Spanish liberal Constitutionalism, the Creole, who were not considered “white” in Europe, demanded equality in the Metropolis as one of their prime claims in the Assembly of Cadiz. Once they obtained this equality, the American representatives participated in the Assembly making use of the rules of the domination contract. The “Reglamento para el Gobierno Interior de las Cortes” (Regulations for the Internal Management of the Assembly) (1810) as approved by both Creoles and Spanish prohibited the entry of women. The contract they concluded in 1812 restricted access of the indigenous people, the Castas (men of African descent) and all women to citizenship.

Historically, the visible face of the contract, the Constitution, has been interpreted on the basis of those vices. In U.S. Constitutionalism we must remember the decision Dred Scott v. Sandford (1857) which considered that Negroes did not form part of the constitutive power (they were not contracting parties). For a long time, its domestic legal order denied citizenship to the native population. Since the 20th century its Congress continues to obstruct the approval of the Equal Rights Amendment that prohibits sex discrimination. Racial discrimination extends to citizens of non-western origin (Latin, Asian, and Arab, amongst others). We must recall, for instance, cases such as Korematsu v. United States (1944), United States v. Brignoni-Ponce (1975) and Arizona v. United States (2012) as examples of racial profiling. In France and the rest of Europe, citizens originating from former colonies as well as the Romany collective, do not manage to be considered equal partners to the contract. Assimilation has not solved the conflicts. Persons considered to be “non-white” cannot feel equal partners to a profoundly white contract (Mills). They are banned from the official public space, giving cause to a proliferation of petit apartheid. The same applies to women, who cannot identify with a profoundly patriarchal contract. Present day Constitutionalism is still debating whether parity equals real democracy; the gender wage gap remains, laws against gender violence are being challenged, a full use of women’s rights is questioned. In short, a contract vitiated by patriarchy assaults women’s dignity. Political parties boosted by their racial and patriarchal programs decide in the parliaments of the 21st century. Their nationalist, patriotic and patriarchal discourses converge, re-creating those historical vices. Though from different ideologies, they make deals that re-invent the tools of racial and gender relations, perpetuating the excluding social contract.

Spain is no stranger to these problems. Submerged in an economic crisis, like Greece, the possibility of a new contract, a new Constitution, is pondered. The Spanish Transition to democracy was not founded on the rupture with the past that such a constitutional process requires. The actual contract contains undemocratic restraints to change. In 2011 the Constitution was changed in order to give priority to the payment of foreign debt. That constitutional reform meant strengthening the domination contract as it increased inequality. This context should generate a need for elaborating a new Constitution. What type of contract do we want? A new domination pact like we have imitated historically since the 18th century? Or just reforms to the social, racial and sexual contract we have inherited from 18th century thinking? How do we re-negotiate the European Union contract that reinvented itself when we began referring to “PIGS” or the two-speed Europe? Are we aware that historical change requires overcoming the vices of the original contract? It seems unavoidable to include in the debate those vices of the contract on which our Constitutional edifice is built. The Domination Contract could not have been put into effect without the legitimation of those vices as social constructs. And, as such, the possibility of change exists. Do we change the vitiated contract or do we start anew?