by Ruthann Robson. New York: Cambridge University Press, 2013. 266pp. Cloth $90.00. ISBN: 9780521761659. Paper $32.99. ISBN: 9780521140041. E-Book $26.00 ISBN: 9781107239722
Reviewed by Alison Staudinger, Department of Democracy and Justice Studies, University of Wisconsin-Green Bay, Email: staudina [at] uwgb.edu
If you have been reading the massive outpouring of #YesAllWomen tweets which describe everyday objectification, harassment and violence experienced by women, you will not be surprised to find out that clothing is political. Many of these tweets address how dress figures into rape cases, school dress codes, and the enacting of gender itself, as Ruthann Robson notes on her fantastic companion blog to her recent book. Yet, despite its cultural relevance, dress has not been a central concern for those who study law and politics. Robson’s very timely Dressing Constitutionally (2013) illuminates the broader American constitutional structures which frame how power relations and behavior in the world of clothing. Robson, Professor of Law and University Distinguished Professor at the City University of New York School of Law, writes an engaging and fine-grained exploration of the U.S. Constitution and dress, which turns out to be deeply entwined with nearly every aspect of the document and its jurisprudence. Despite this seemingly specific focus, the book provides a student or any interested reader a useful introduction to key concepts in constitutional law; from scrutiny levels to the commerce clause, and through nearly all of the Bill of Rights, dress shows up repeatedly. The con law junkie will be enticed by a new angle on these topics and the exploration of how hierarchies are perpetuated and produced by the adoption of “common-sense” understandings of dress which reflect existing distributions of power and related norms.
For example, who knew that hats served as shorthand for the social questions raised in the American Revolution, such that Thomas Jefferson was critiquing a “hat bill” and William Penn was able to enact civil disobedience with the help of one? More importantly, Dressing Constitutionally shows how exploring the cultural and political importance of hats, and other accoutrements, can illuminate struggles over democratic equality and civic republicanism. By focusing on what citizens can or can not wear, Robson arranges cases, famous and unknown, in new formations. Typically, even cases such as TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT (1969) or COHEN V. CALIFORNIA (1971), which are explicitly about dress, are studied through the lens of symbolic speech such that the actual clothes are obscured. Not so here.
Robson uses an impressive yet readable combination of case history, narrative detail, and historical context to flesh out her text, avoiding too much jargon or “inside baseball” in favor of illustrative [*280] examples. While her background as a legal scholar is clear here, so is storytelling skills that keep the text from reading like a casebook. Each Chapter features a way of dressing –historically, sexily or economically, for example – and explores the key cases in this area and their broader implications. There is too much rich detail to summarize here, but each chapter is so distinct that it is worthwhile to describe them all.
Chapter One establishes dress as a political concern through a survey of British sumptuary laws, and the somewhat surprising, if failed, campaign by luminaries such as George Mason and John Adams to allow the federal government to enact similar regulations in the interest of civic virtue.
This relationship is quickly tested in Chapter Two, where Robson explores the regulation of the lack of clothes, which invokes both Fifth Amendment protections in cases like the strip search or forced nudity as punishment and First Amendment in those of pornography or (unforced) nudity. Usually, undergraduate and law school courses in Constitutional Law are organized doctrinally, such that these cases would be read with others concerning the same provision or right. Robson makes an implied case for the rich analysis that can emerge when cases are read in other formations. For example, she shows how strange it is that nudity can be compelled of a prisoner (Fifth Amendment), even though that same prisoner might be prosecuted for indecent exposure if they disrobed themselves (First Amendment) (p.42). That nudity in one context may signal dehumanization, while in another either expressive speech that may be protected (or obscenity that will not) is linked in Robson’s analysis by an argument about hierarchy; for her, gender and class matter immensely for what clothing, or lack thereof, means constitutionally. To understand this problem, consider how differently the law sees men and women’s breasts.
Chapter Three deepens this analysis of clothing and sexuality, particularly through litigation around anti-cross-dressing statutes, which have generally been overturned. The exception is when applied to (school) children, such as in the widely publicized case of Constance McMillen in Mississippi, who sought to bring her girlfriend to prom and to wear a tuxedo. Even more fascinating, if disturbing, has been the role of dress in rape and domestic violence cases, where attire understood by the court as “provocative” is still used in cases, despite the passage of “rape shield” laws that seek to prevent such interrogation of alleged victims.
In Chapter Four, the theme of women’s dress is moved to the venue of the workplace, where Robson finds that “if all professional dress codes were subject to a strict judicial scrutiny ... or even to a rigorous rational basis judicial scrutiny requiring a truly legitimate employer interest to which the dress code was rationally related – few would survive constitutional review” (p.80). Here, again, dress is used to enforce hierarchy, with the added twist that corporations are granted deference in enforcing their “brand,” even when this enforcement seems to disproportionately harm certain races or genders. This chapter provides many new views on famous cases involving uniforms, including BOY SCOUTS OF AMERICA V. DALE (2000), where the majority argued that a gay rights [*281] activist could not wear the uniform of the Boy Scouts without limiting the ability of an organization to control its message. Robson also delves into the clothing of judges themselves, making an argument for the connection between judicial robes and judicial power. She notes “an argument in favor of this metonymic relationship is that robes not only obscure individualism, but that they foster the judicial independence important to democratic constitutionalism,” – or, at least, its appearance (p.98).
If clothing can preserve privilege, it can also can create situations where “dressing disruptively” (Chapter Five) may seem appropriate, such as when the required attire is perceived as overly normalizing or symbolic. Here is where we find TINKER, the first case I thought of when I read the title of this book. Robson deftly uses the black armbands of TINKER to show how infrequently the court has protected expressive speech rights for students, moving from its concern for protecting the “rights of others” to disallowing clothing that provokes a substantive disruption. She also links the famous jacket from COHEN V. CALIFORNIA to “’saggy pants,’ which signal African American identity and urban sexuality and masculinity” and have frequently been banned despite the constitutional weakness of this law (p.119) – but also to “stop and frisk” procedures which may be prompted by certain styles of dress. Drawing a fascinating connection between gang attire and laws seeking to inhibit white supremacists, she shows the contradictions of symbolic speech, which reach an apex in the case of the KKK hood, as “the mask is prohibited because of what it conveys, but it does not possess sufficient expression to support a First Amendment claim” (p.125).
To show how tensions between the free exercise and establishment clause can sometimes amount to a constitutional protection of religion over speech, see Chapter Six for concrete illustrations. “Dressing Religiously” shows how both the importance of dress for religious practice and the complexity of the first amendment's various protections interact to muddy the case law substantially.
Perhaps the most interesting chapter for me is the seventh, “Dressing Economically,” because it shows the complexity of the historical importance of dress for gender, race, class. When we consider constitutional treatments of race, we often forget that King Cotton, a textile of course, is key to understanding slavery and the convict leasing schemes that replaces it (p.162). And it is too easy to read Lochner era battles over the constitutional limits of the commerce clause without remembering the importance of events like the Triangle Shirtwaist Fire and union organizing in the garment industry, but not after Robson’s text.
While the book is written in an engaging style and carefully researched, it is not without flaws. As is evident from the variety in the summary above, there is so much detail that it is difficult to draw all the chapters together theoretically. For a text on clothing, which is related in such complex ways to the constitution of identity and gender, it is odd that Robson does not draw more explicitly on historical, feminist or sociological treatments of clothes, although, granted, that is not her point. It also would have [*282] been nice if the text ended with a more extended rumination on some of the more interesting aspects of her analysis – such as asking what employers’ ability to "trump" the rights of individuals when it comes to clothing means for workers and gender. The text ends abruptly without a concluding chapter to pull together the various chapters or make clear what Robson’s central claims about hierarchy and dressing constitutionally should prompt us to do. If her goal is a critique of how “common sense” understandings of the law necessarily reflect the bias of society and the marginalization of others, this theme could be made more explicit. It is most evident in the middle of the text when she compelling criticizes Judge Richard Posner for his approach, “or what some might call slovenly interpretations” (p.106). Yet these moments seem somewhat out of place without a conclusion or theoretical framework that helps the reader see all the implications of this critique. It may be that a first step towards a critical jurisprudence skeptical of the hierarchies overshadowed by “common-sense” is to bring these contradictions into the light, as Robson does here.
Overall, DRESSING CONSTITUTIONALLY adds a new layer to constitutional thinking on equality, although of course it does not reach every corner of American constitutional law and politics. This makes it a text more appropriate for a specialized course, say on one of the rights at issue, or on gender or sexuality and the law – although it could also be paired with historically oriented cases to create a unique approach to teaching a constitutional law class focused on civil rights and liberties. Beyond the classroom, this book is a compelling addition to critical readings of constitutional law and history, and reminds us how different familiar cases can look when read outside of their standard doctrinal groupings.
BOY SCOUTS OF AMERICA V. DALE 530 U.S. 640 (2000).
COHEN V. CALIFORNIA 403 U.S. 15 (1971).
TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT 393 U.S. 503 (1969).
Copyright 2014 by the Author, Alison Staudinger