Constitutional Law: Feminist Critiques of Public/Private Distinction
By
Frances Olsen

INTRODUCTION
Frances Olsen (born on February 4, 1945) is a professor of law at UCLA. She teaches Feminist Legal Theory, Dissidence & Law, Family Law, and Torts. Feminist Legal Theory is just over a decade old in the United States and is even younger in most other countries. Here, Frances Olsen presents one of her articles from within this burgeoning field.
The topic of “private/public” has been actively debated in various scholarly discourses for many years. The factors such as the protection of individual decisional autonomy (private) from state regulation (public), and the preservation of communal interests (public) vis-à-vis personal pursuits (private) creates a conceptual tension.
The present article particularly deals with the attempts of the female critiques/ advocates to challenge and even eliminate the distinction between private and public spheres.
Frances Olsen presents the arguments of the feminists’ critiques of the public private divide that in many situations, this divide disadvantages women and the institutions with which women are traditionally associated such as the family.
The author further says that by classifying family as ‘private’ the public private distinction often serve to shield abuse such as domestic violence. Domestic violence is illegal in every state. However, confusion about whether this is a public or private problem has not disappeared.
I take this review to be the perfect pretext for me to talk about a philosophical issue that I am most fond of, namely the distinction between public and private sphere by feminist critiques. In the present days, there has been significant shift in approach to woman’s advancement and empowerment. So it would be interesting to note down the distinction which exists between public and private.
AUTHOR’S OUTLOOK
The topic of “private/public” has been actively debated in various scholarly discourses for many years. The topic above 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?”
The author observes that the whole debate over the public/private dichotomy is the struggle over power i.e. an actor or an entity who characterize his activity as private gain certain constitutional advantages. Firstly, the designation of conduct as private relates to “State Action Doctrine” and it limits the application of the fourteenth amendment of the U.S Constitution to state actors, thereby excluding actions of private individuals. The constitution protects against “public” violations, not “private” violations. Under State Action Doctrine, private parties outside of government do not have to comply with procedural or substantive due process under the fourteenth amendment.
The author further says that the locus of one of the criticism of public/private distinction is state action issue. He gives an illustration of a case commonly known as “creditor self-help case” i.e. Flagg Brothers vs. Brooks wherein the Court held that the state-allowed re-sale provision did not constitute state action, and thus, the plaintiff (Brooks) did not possess a colorable federal due process claim.
Secondly, an actor/entity may describe his action as a private matter and invoke ‘Privacy’ as a right which itself provides a substantive limit on state action permitted by the constitution. The constitutional right to privacy has been invoked to protect intimate family decisions from state intervention. Here, the author brings to the attention of the reader that in some cases the court has relied on the fourteenth amendment due process clause and not to the right to privacy to protect individual’s right outside the family structure.
Third significant advantage of characterizing behavior as “private” is particularly more relevant to feminist critiques of public/ private distinction. An actor/entity may discourage state action that would inhibit his use of power on the basis that domestic life should remain free from government regulation than other aspects of life.
The author went on further to elucidate in his article about the American Feminism which played an important role in the history and culture of the United States and it focused its attention upon women’s exclusion from public life.
He also talked about the consciousness raising groups which was a crucial institution of feminism in the 1970s and 1980s which promoted solidarity by providing a forum for individual women to see how much they had in common with others.
The author also says how violence against women such as domestic violence, rape are treated as a private affair and the indifferent attitude of judiciary and police officers in these aspects.
The author concludes by saying that female critiques of private/public distinction is multi-faceted and she argues by saying that it is not necessary that everything should be public or everything should be private but it’s the time to bring about significant and far reaching improvement in the role and status of women.

CRITIQUE AND CONCLUSION
The author, through her article, has presented the feminist critiques and arguments regarding the private/public divide with which I completely agree. Violence against women is seen as a private matter between couples or as a random act committed by a stranger.
Violence against women such as rape is not seen as a social problem but rather a private matter. Society often blame on the victim of violence and it leads to questions like what was she wearing? Why was she there so late at night? A common slogan of the feminist movement in the late 1960s was the “personal is political”. This phrase developed various shades of meaning, but its main thrust involved making a connection between women’s personal problems and the structure of power in society. It was first framed as a public concern following the consciousness raising efforts of 1960s and 1970s, which brought women’s experiences to the center of the analysis and demanded a revolutionary reframing of the private sphere.
I agree with the author when she says that domestic violence is treated as a private matter. Today, domestic assault or violence is illegal in every state. However, confusion about whether this is a public or a private problem has not disappeared. On one hand criminalization of domestic violence transforms into a problem warranting intervention and even sanctions or punishments. But on the other hand, very low reporting levels, police and judicial indifferent attitudes and a pattern of blaming the victim all suggests that many people, including some victims, continue to see domestic violence as a private matter.
I agree with the author when she talks about the private power which men exercises. The exercise of private power threatens women’s liberty and equality. Violence against women feeds off discrimination and serves to reinforce it. When women are abused in custody, when they are raped by armed forces or when they are terrorized by violence at home, unequal power relations between men and women are both manifested and enforced. I completely agree with the author and the feminists’ demands that the state and the general public respond to violence against women in a more meaningful way.
Violence against women occurs both at home i.e. within family and in public sphere. To best help women, we need to stop treating public and private violence as separate issues.
There is an unbroken spectrum of violence that women face at the hands of people who exerts control over them. Here, State have the obligation to prevent, protect against and punish violence against women whether perpetrated by private or public actors. States have a responsibility to uphold standards of due diligence and take steps to fulfill their responsibility to protect individuals from human right abuses.
There has been significant improvement in the status of women. Certain conventions and conferences have been held to address the violence against women. Here the author has not mentioned about the various conventions and conferences which favors women. The 1993 UN Declaration on the Elimination of Violence against Women for the first time provided a definition of violence and included psychological violence in the definition. Another worth mentioning conference is the World Conference on Human Rights, Vienna, 1993. This declaration asserted for the first time that woman human rights must be protected not only in courts, prisons, and other areas of public life but also in the home. Another international milestone in addressing the violence against women is the Convention on the Elimination of all Forms of Discrimination against Women, 1979 which guarantees women equal rights with men in all spheres of life, including education, employment, health care, nationality and marriage.
I would like to conclude by saying that today rapid and liberal economic development has realigned the interface between the public and private domains. I would like to cite a case from India which united feminists around the world to fight for justice. The recent brutal gang rape that took place on a bus in Delhi in December 2012 galvanized feminists both in India and around the world. After this horrific incident, Government and experts from across Asia and the Pacific gathered together to unify efforts to end violence against women. Following this, 57th Session of the Commission on the Status of Women (CSW) was held in March 2013 in New York with a specific focus on preventing violence against women.

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[ 1 ]. Biography on UCLA Law School website.
[ 2 ]. Frances Olsen, Constitutional Law: Feminist Critiques of the Public Private Distinction, 10 Const. Comment. 319 (1993)
[ 3 ]. Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978)
[ 4 ]. Cruzan vs. Missouri Dep’t of Health, 497 U.S. 261 (1990)
[ 5 ]. Bevacqua, Maria 2000 Rape on the Public Agenda: Feminism and the Politics of Sexual Assault. Boston: Northeastern University Press.
[ 6 ]. Kelly, Kristina 2003 “Feminist Re-Visions of the Public/Private Dichotomy.” In Domestic Violence and the Politics of Privacy. Ithaca N.Y: Cornell University Press. Pp. 32-58.