Amy Dru Stanley on the Sovereign Market and Sex Difference

At the Seminar in Private Law on April 14, 2020, University of Chicago Professor Amy Dru Stanley discussed her book chapter titled, “The Sovereign Market and Sex Difference.” The chapter studies how the Commerce Clause has been invoked by Congress as the source of authority to protect human rights and explores the philosophical consequences of this move.

Stanley began by noting that American human rights legislation, including the legislation concerning hate crimes, has a dual constitutional basis. According to her, certain provisions are based on the Thirteenth Amendment, giving Congress power to enforce prohibition of slavery and involuntary servitude. However, she argued, the Thirteenth Amendment does not contain a general mandate for Congress to protect any group it wishes. Among the visibly absent characteristics is sex. Hence, Stanley said, Congress needed to find legislative authority for protecting women’s rights elsewhere and ended up relying on the Commerce Clause.

Consequently, Stanley argued, the Commerce Clause has become a charter of human rights when the reach of Thirteenth Amendment ends, in particular regarding sex-based wrongs. As a result, she said, the flow of commerce became the normative argument for protection of personhood. This move not only weakens the protections for persons, Stanley said, but also twists the logic of human rights protection. By linking the human rights protection to the protection of the market, Stanley said, the image of human beings as commodities reemerges in an unexpected way. In her view, this reveals how Congress’s power over commerce has a liberating potential, but at the same time changes the lens through which we look at persons and their rights.

In response to the COVID-19 pandemic, classes at the Law School have transitioned online. Following the suggestions of the President of the Yale University and the Dean of Yale Law School, the YLS Center for Private Law strives to continue its mission of teaching and community outreach and has moved the remainder of the 2020 Seminar in Private Law online. This year the Seminar is devoted to the theme of private law and inequality. We would like to thank Professor Stanley for her willingness to participate in this format, as well as the countless administrative and IT staff of the Law School who tirelessly work to make the transition online possible and seamless.