Dear Justice Ginsburg,
I hope this letter will somehow reach you in heaven or in the afterlife. I have not seen any evidence for the existence of either place, and I will not presume you prefer one to the other. But I hope there is a place in the cosmos where you have gone after a life well-lived, and that you are happy there. I also hope your husband, Martin Ginsburg, is also there with you and for you, as he had always been. You both deserve each other for eternity.
I do not intend to put on a pretense that this letter is only for you. The message is addressed to you in death, but I mean to speak to the living. More specifically, I want this letter to be read by my fellow Vietnamese people. This is why I am writing in both English and Vietnamese. I want to talk to my people about your legacy.
I believe we cannot sincerely treasure a legacy if we do not attempt to understand it as much as we can.
We can learn a lot from you and how you lived your life. I hope this letter can explore and elaborate a bit more on that possibility. I do apologise beforehand for any misunderstanding or misconception in this letter. It is only a starting point in my own process of learning about you and your life.
We have heard in the US media in the past few days many cries of how your legacy is being threatened by the Trump presidency and the prospect of the Supreme Court consisting of six conservative-leaning judges, with just three liberal-leaning judges remaining who are likely to protect your legacy.
But I think your legacy should be understood more widely. Yes, the progressive legal advancements you left behind have been challenged and will continue to be challenged, perhaps even more vehemently.
But suppose more people worldwide understand the lessons from you and how you lived your life. In that case, I believe the forces that will protect and enhance your legacy will be grown beyond a group of three US Supreme Court justices.
So, what do I think we Vietnamese people can learn from you and your life? The first thing is feminism.
What is feminism?
I am glad to learn that you were not born a feminist (to be honest, it always seems a bit dangerous to be born with an ideology implanted in your head).
You are now a feminist icon, but you first came to feminism through a process of learning and teaching what you learned.
This is important as it suggests that any person, no matter what their gender or background, can choose and learn to become a feminist. This matters to me because I am a man born and raised in the heavily patriarchal Vietnamese culture.
The starting point for your feminism seems to be 1970 when you were a 37-year-old law professor at Rutgers Law School.
On May 1 of that year, you chaired a student panel on “women’s liberation.” Later that year, in a panel at the Association of American Law Schools’ annual meeting in Chicago, you put forward two arguments. The first is against the stereotyped characterizations of women. The second is about “the infusion into standard curricular offerings of material on sex-based discrimination.”
According to your book My Own Words (2016), you did not just wake up one day in 1970 and decide to become a feminist. It was the students whom you taught who, in turn, inspired you.
It is quite inspiring to know that in the late 1960s, there were “newly activist women law students” at the Rutgers Law School. And they inspired their professor to shift her academic focus from court procedure to women’s rights.
So, you read and researched everything you could on the subject. Within a month, you had perused every federal decision ever published involving women’s legal status, and every relevant law review article.
In 1971, you taught your first seminar on sex discrimination and the law. Later that year, you started working with the American Civil Liberties Union on two litigation matters concerning sex discrimination, one against men and one against women.
These two sex discrimination cases provided you the first opportunities to bring your academic research straight from academia’s ivory towers to the judiciary’s dusty colosseums. You retrained yourself from a law professor to become an attorney who could prepare briefs, then present and argue cases in court.
To root out sex discrimination using the US court system, you and the ACLU chose to persuade the courts that any law that seeks to discriminate purely on the basis of sex is in contravention of the US Constitution. The Equal Protection Clause in that constitution stipulates that the state shall not deny any person within its jurisdiction the equal protection of the laws.
The case involving sex discrimination against women is Reed v. Reed. While you did not argue this case in court, together with the ACLU director, you did prepare the brief, which was submitted to the US Supreme Court.
The woman in the case, Sally Reed, was not allowed to administer her deceased teenage son’s small estate. The state law stated that only men were allowed to administer the estate of relatives who died without a will.
Having heard the arguments, the US Supreme Court ruled that the state law is unconstitutional. This is because the state law did discriminate solely based on sex and thus protected Sally Reed’s husband but not her. The law, therefore, denied protecting Sally Reed at least equal to how it protected her husband.
In the case of sex discrimination against men, you acted on behalf of Charles Moritz. Moritz was denied a tax deduction for the cost of providing care to his elderly and invalid mother. The law stated that such tax deduction was only available for women and formerly married men. Moritz was a single man.
In this case, you worked in partnership with your husband, Martin Ginsburg, a brilliant tax attorney. Both of you argued the case in the United States Court of Appeals for the Tenth Circuit.
The court heard your arguments and ruled in favour of Moritz. In passing the judgment, the judges relied on the US Supreme Court’s decision in the case you had worked on earlier that year: Reed v. Reed.
As a result of the above cases, several laws that discriminated purely on the basis of sex were changed or abolished. A lot of such laws discriminated against men as well as women.
The year 1971 was just the beginning. The years that followed saw you produce “a tsunami of articles about gender and law that flooded law journals.” You also argued and won six landmark cases on sex discrimination in the US Supreme Court.
I started this section of the letter by asking what feminism is, then together with you, I jumped from feminism to women’s liberation to women’s rights to sex discrimination.
So, what really is feminism then? Does feminism mean the absence of sex discrimination?
Yes. To you, to advance feminism is to promote gender equality.
Your feminism seems not to be focusing on the sole advancement of women’s rights at the expense of men’s rights. Both men and women deserve to have their rights protected.
Your view of feminism may be a revelation to many members of my sex. Many men view feminism with fear and disdain. For they think that feminists are coming for their rights and that the only way to satisfy a feminist is for a man to sacrifice all his rights, privileges, and entitlements.
I guess it made sense for you to adopt such a view of feminism: As a lawyer, you had to rely on the US Constitution’s powers to strike down discriminatory laws.
And that constitution, written by a group of white men in the 18th century, never mentions women, sex, or gender.
There was an attempt to introduce the Equal Rights Amendment to the US Constitution, which says that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” This amendment was passed by the US Congress in 1972, but it was never ratified by the states, and so it is now dead in the water.
Therefore, the only words in the US Constitution that could be relied on to fight sex discrimination are the Equal Protection Clause’s very words.
So that is your feminism: the legal advancement of gender equality standing on the shoulders of the giant – the US Constitution.
It is a type of feminism that is not merely for preaching. It was forged through the sleepless nights on your work desk through the myriad of lectures, seminars, debates, and then through the US courts’ intense scrutiny, including the highest court in the land.
Your legally pragmatic view of feminism is termed by legal scholars as “formal equality.” It has undoubtedly helped many men and women in protecting their rights, as we have seen from the effects of your first legal victories and the legal victories that came after.
But in reading about you, I have also learned that your view of feminism is not free from criticisms.
The limits and future of your feminism
It has been pointed out by your most vocal critics that out of the six landmark cases on sex discrimination which you won in the Supreme Court, you argued for equality for men in four of those cases.
Professor Judith Baer, in her essay titled “Advocate on the Court: Ruth Bader Ginsburg and the Limits of Formal Equality“, criticised you, saying that your legally pragmatic view of feminism is too obsessed with protecting both men and women, to the extent that it hurts women.
Because men and women are naturally different and men already enjoy certain advantages over women in society, the insistence on treating both men and women the same in the eyes of the law can actually hurt women more than men.
This is perhaps explained more clearly and vividly by Catharine MacKinnon, a radical feminist legal scholar:
“Almost every sex discrimination case that has been won at the Supreme Court level has been brought by a man. Under the rule of gender neutrality, the law of custody and divorce has been transformed, giving men an equal chance at custody of children and at alimony. Men often look like better “parents” under gender-neutral rules like level of income and presence of nuclear family, because men make more money and (as they say) initiate the building of family units. In effect, they get preferred because society advantages them before they get into court, and law is prohibited from taking that preference into account because that would mean taking gender into account.”
This failure of the law to consider the fact that a group in society may traditionally enjoy certain advantages and privileges over other groups is very significant in the eyes of many of your critics.
These critics have argued that your feminism is white feminism – a kind of feminism that seems to benefit only white women who already enjoy certain economic benefits and social privileges more than women of colour.
Having read the criticisms against your feminism, I am concerned for anyone who chooses to celebrate you as a feminist icon without first going through a critical evaluation of your feminism.
I have felt a certain uneasiness upon seeing some women of my colour celebrating you as a feminist icon purely through the universalist prism, which sees that women anywhere are the same and any difference due to race, social class, or religion does not matter at all.
But I do not agree with those who have claimed that your legal work has helped destroy all affirmative action programs that help women.
That view is deliberately exaggerated and fails to consider the facts that you advocated for women’s affirmative actions in 1975. Later, as a Supreme Court judge in 2003, you argued for affirmative action to address societal discrimination.
I am quite curious to learn more about how you square the two: the need to ensure equal protection of the laws and the need for affirmative action, or positive discrimination, to rectify “both civil and social inequalities and helps disadvantaged groups achieve a measure of freedom within the societies that oppress them”). But that is for another day.
Here, another criticism can be suggested: Your feminism helps advance formal equality for both men and women. So what?
Unlike in the United States, we have no problem with formal equality in Vietnam.
Yet, it would be an overstatement to say that the women in Vietnam enjoy a kind of gender equality that allows them to flourish.
On the global scale in 2020, Vietnam is ranked 31 out of 153 countries in ensuring women’s economic participation and opportunity, 93 out of 153 in ensuring women’s educational attainment, 151 out of 153 in ensuring women’s health and survival, and 110 out of 153 in ensuring women’s political empowerment.
Vietnamese women, on average, still earn $130 less than Vietnamese men per year.
On a more micro-scale view I can still see that many women in my country suffer from sexual abuse, domestic violence, and extreme misogyny.
I am ashamed to see that some of this Vietnamese misogyny has been shown in many things written about you on the Vietnamese social media in recent days.
Some Vietnamese people seem unable to get over the fact that you supported the women’s right to abortion. They claimed that you were obsessed with killing unborn children.
The fact is that you simply supported women’s right to choose, following your feminism. As you said to the US Senate in your confirmation hearing, “[i]t is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex“.
More than anything, such a hostile attitude towards abortion rights – which tends to be seen amongst Vietnamese men of older generations – betrays an underlying belief that Vietnamese women are not entitled to own and control their wombs.
Suppose a Vietnamese woman’s decision to abort offends a Vietnamese man’s religious belief in the sanctity of her child’s life. In that case, it is the Vietnamese woman who is wrong, not the Vietnamese man. That seems to be what some Vietnamese people, men, and women, still believe, 74 years after the Vietnamese Constitution proudly announced that women shall have the same rights as men.
So, it appears we need more than “formal equality”, to make Vietnam a better place for women.
Does that mean your feminism is obsolete to us Vietnamese? That would be an overstatement based on only a partial understanding of your feminism.
Professor Joan Williams argued that, as a lawyer, you fought for women’s rights with more than just a steely insistence on gender equality.
In your legal briefs and later court decisions, you aimed to deconstruct the traditional male-female divide in which men must be the bread-winners, and women must be the dependants and caregivers.
For example, in the case of Charles Moritz we discussed earlier, Moritz was discriminated against by the law because the law back then refused to recognise the possibility that a single man can be a caregiver for his elderly mother. Caregivers must be women or formerly married men (who have family members they could care for).
Your legal arguments did not just point to the Equal Protection Clause. You sought to deconstruct that traditional assumption that caregivers must not be single men. In doing so, you reconstructed a new premise for the law: caregivers can be women, married men, single men, whoever has someone they have to care for.
Social roles are social constructs. If a social role results in unfairness, we must attempt to deconstruct and then reconstruct that social role.
It is another surprise to learn that your feminism originally was not only inspired by your law students. It was inspired by your research on Swedish laws and legal reforms in the 1960s.
Back then, Swedish advocates argued that “imprisonment in the masculine role is at least as great a problem to men as conformity to a feminine ideal is to women” and “that a debate on liberation and equality must be about how men as well as women are forced to act out socially determined stereotypes.”
Adopting such stances, you became a constructive feminist who “defines equality as treating men and women the same but only after deconstructing the existing norms defined by and around men and masculinity, and reconstructing existing institutions in ways that include the bodies and traditional life patterns of women.“
Maybe you described your constructive feminism best in your own words:
“[W]ere I Queen, my principal affirmative action plan would have three legs. First, it would promote equal educational opportunity and effective job training for women, so they would not be reduced to dependency on a man or the state. Second, my plan would give men encouragement and incentives to share more evenly with women the joys, responsibilities, worries, upsets, and sometimes tedium of raising children from infancy to adulthood. (This, I admit, is the most challenging part of the plan to make concrete and implement.) Third, the plan would make quality day care available from infancy on. Children in my ideal world would not be women’s priorities, they would be human priorities.”
Here are perhaps hints of a future of gender equality that the Vietnamese people can consider.
We have formalised gender equality, but how far have we attempted to reconstruct the existing norms and institutions to free both men and women?
Why is it so easy for Vietnamese men to assume and joke that if a young woman is wealthy, she must have a “sugar daddy”?
Why were many Vietnamese people irked to see a 17-year-old girl celebrating a bit prematurely when she was on the verge of winning a television contest against three male opponents?
Maybe I am reading too much into these behaviours. Still, I suspect they are because of the expectations deeply rooted in our culture about how women should live and should behave. Such expectations seem to dictate that, in her role, a young woman cannot become rich on her own; and that, in her role, a young girl should not over-celebrate and should not live true to her emotions.
On the other side of the coin, I suspect that there are other deeply rooted expectations that imprison the Vietnamese men in specific roles as much as the Vietnamese women.
I have yet to see these expectations, roles, and social norms being debated and deconstructed by the Vietnamese people. But I am hopeful that one day they will be.
The letter is now quite long. I do not want to bore both you and my Vietnamese audience too much, so I will stop here.
I hope to write to you another time. So that I can discuss more things I have learned from you, things that my Vietnamese people can also know to further their pursuits of freedom and happiness.
I thank you for your feminism, and I wish you a good eternal rest.