- "Modern citizenship was created as part of the new political order courageously constructed in the era of the American Revolution. Reaching back to the Greeks and reinventing what they discovered, the founding generation produced a new and reciprocal relationship between state and citizen. They used a capacious rhetoric that ignores differences of gender, race and ethnicity, religion and class; any free person who had not fled with the British or explicitly denounced the patriots was a citizen. After the Civil War, the Fourteenth Amendment permitted no formal categories of first- and second-class citizens. Philosophically, all persons (whether or not they are citizens) are entitled to equal protection of the laws, and all citizens are bound equally to the state in a web of rights and obligations." p. xx
- "American political theory has traditionally had much to say about rights and little about obligation. This tendency is wholesome; emphasis on rights is the most progressive characteristic of American legal traditions, the aspect of American law and social practice that is most admired abroad and best understood at home. People unversed in legal complexity do understand that they are entitled to the right of free speech, to a right against self-incrimination, to the right of religious freedom, to the right to a jury trial, to the right to vote. The Tenth Amendment is crucial: rights not granted to the state are reserved to the people. It is not a bad thing to live in a system in which we so many rights we do not list them all.
In the liberal tradition, rights are implicitly paired with obligation. The right to enjoy a trial by jury is mirrored by an obligation to serve on juries if called upon. The right to enjoy the protection of the state against disorder is linked to an obligation to bear arms in its defense. The right to enjoy the benefits of government is linked to an obligation to be loyal to it and to pay taxes to support it.
Obligation is the means by which the state can use its power to constrain the freedoms of individual citizens. Our civic obligations are usually duties to which most of us would gladly consent in principle; we understand that the stability of our society rests on willingness to bear the burdens of citizenship. In common speech we often use the word "obligation" to mean a voluntary undertaking; we may refer to our obligation to vote, our obligation to be responsible parents. But in this book I use it only in its primary sense -- to be bound, to be constrained, to be under compulsion. I treat as obligations only those duties that invite state punishment if they are not performed." p. xxi
- "If we were to construct a "Bill of Obligations," what would it look like? Some obligations are wide-ranging, applying not only to citizens and resident aliens but to anyone on US territory. Among these are the general obligations not to violate criminal laws and the obligations to observe legislative and administrative requirements (such as paying the minimum wage or not discriminating on the basis of race.) In this book I treat five distinct obligations that rest on American citizens. Two are shared with all inhabitants: the obligations to pay taxes and to avoid vagrancy 9that is, to appear to be a respectable working person). Two are occasionally also imposed on resident aliens: the obligation to serve on juries and the obligation to risk one's life in military service, to submit to being placed in harm's way when the state chooses. (This obligation has slipped out of common conversation since the advent of the All-Volunteer Force in 1975, but it is a real one, and when we consider the meanings of citizenship we ignore it at our peril.) Only citizens bear the obligation to refrain from treason." p. xxii
- "Although the founding generation brilliantly revised the definition of citizenship for their new country, they did not have the heart or the energy to reconstruct the entire legal system. Even after the Declaration of Independence, the forms and procedures of American law -- the understanding of what a contract means, the manner of probating a will, the very concept of phenomena like juries or sheriffs -- all had their bases in English practice. Thirteen state constitutions, the Northwest Ordinance, and the Constitution of 1787 radically changed the relationship of state and citizen. But the United States absorbed, virtually unrevised, the traditional English system of law governing the relationship between husbands and wives.
The old law of domestic relations began from the principle that at marriage the husband controlled the physical body of the wife. (There was no concept of marital rape in American statues until the mid-1970s.) There followed from this premise the elaborate system of coverture. By treating married women as "covered" by their husbands' civic identity, by placing sharp constraints on the extent to which married women controlled their bodies and their property, the old law of domestic relations ensured that -- with few exceptions, like the obligation to refrain from treason -- married women's obligations to their husbands and families overrode their obligations to the state.
Coverture originally encompassed relations between parents (especially father) and children and between masters and servants. The early republic did away with many of those elements, but the asymmetrical relationship outlined in "the law of baron and feme" (master and woman, or lord and lady) remained. " p. xxiii
- "The revolutionary generation of men who so radically transgressed inherited understandings of the relationship between kings and men, fathers and sons, nevertheless refused to revise inherited understandings of the relationship between men and women, husbands and wives, mothers and children. They continued to assert patriarchal privilege as heads of households and as civic actors. They explicitly denied married women entry into the new political regime.
It is not anachronistic to raise this point. It was possible in the mid-eighteenth century to conceive of alternatives. "If . . . all were reduced to a state of nature," asked James Otis, one of the most important lawyers in colonial Massachusetts, in 1764, "had not apple women and orange girls as good a right to give their respectable suffrages for a new King as the philosopher, courtier. . . and politician? Were these and ten millions of other such . . . consulted?" " p. 9
- "In stabilizing the Revolution, founding-era legislators minimized differences between white men in comparison to what they had been before the war -- all were theoretically equal, a shoemaker was as good a man as John Hancock. But at the same time the founders maintained in place a legal system which heightened difference between free women and men, especially between married women and men. As the suffrage expanded to embrace more and more white men, the difference between them and their wives, who could neither vote, nor hold office, nor serve on juries, expanded. As white men increasingly freed themselves from the constraints of public patriarchy, they sustained a fully developed, complex system of law that maintained the private privileges of patriarchy. "Do not put such unlimited power into the hands of the Husbands," Abigail Adams urged in 1776. "Remember all Men would be tyrants if they could." But her own husband laughed at this remark, and male rebels against royal tyranny resisted acknowledging their own all too human capacity for it. The legal treatises of the early republic describe American households as hierarchical as if Locke had never written, as if the Revolution, and all the radical change associated with it, had never taken place.
Yet the new nation made women citizens. The fact of women's citizenship contained deep within it an implicit challenge to coverture." pp. 12-13
- "Under the old law of domestic relations, a woman's only freely chosen obligation was to her husband. Once she made that choice, he controlled her body and her property; there were relatively few constraints on what he could do with either, though she was nearly always guaranteed the use of one-third their combined property during her widowhood." p. 15
- "To confiscate a loyalist's property required that the property could be identified with precision. As we have seen, in English law coverture ensured that the property which a married man held was almost never fully his, free and clear; one-third of his real estate was always reserved to his wife for her use during widowhood -- that is, until she remarried or died. This dower property -- the "widow's thirds" -- was understood to be an equitable recompense for the woman who had given up control of her property at marriage, and British law treated her rights to it with great care. The dower property even of widows whose husbands had been hanged, drawn, and quartered for treason was carefully preserved. In confiscating loyalist property, most patriot legislatures left dower as a recognized claim on the estate." p. 17
- "At the height of the French Revolution, an anonymous contributor to a conservative Boston newspaper expressed confusion about women's claim to citizenship. " 'No cit[izen]ess to my name, I'll have,' says Katey, '[it] means, A woman of the town.' " "Katey" dismisses the potential of female citizenship, literally linking -- as the ancient Greeks had done -- the woman of the polis to woman of the streets. To make no distinction between the woman who participates in public life and the woman who makes herself sexually available in public has for millennia been a conservative political device. The story of Martin v. Commonwealth of Massachusetts emphasizes the conservative outcome of the American Revolution, as men who had supported independence nevertheless undertook in its aftermath to defuse the memories of revolutionary violence and upheaval, to constrain the renegotiation of gender roles, and to limit the political responsibilities of married -- by which they actually meant adult -- women. They found it impossible to imagine respectable adult women as anything other than wives. They could not separate the sexual monopoly which a man exercised over his wife in marriage from the political monopoly which he exercised over her property. They could not imagine the adult woman with her own obligation to the state." pp. 33-34
- "Citizenship is basic to all other claims which individuals make on the state, or the state makes upon them. At its founding, the American government assumed that any free person who had not fled with the British or explicitly denounced the patriots was a citizen." p. 36
- "Americans were rarely consistent in what they meant when they said a woman was a citizen of the United States, and even less consistent when they said a married woman was a citizen. For example, in 1822 a Kentucky judge expressed a capacious definition of citizenship which included married women in its boundaries: "A citizen," Benjamin Mills wrote, ". . . is one who owes taxes to the government, allegiance, service, and money by way of taxation, and to whom the government in turn, grants and guarantees liberty of person and of conscience, the right of acquiring and possessing property, or marriage and the social relations, of suit and defense, and security in person, estate and reputation." But he was outvoted; the majority, in a judgment that echoed the decision in Martin, ruled that women and infants "are generally dependent upon adult males, through whom they enjoy the benefits of those rights and privileges." It was thus an easy step when in 1855 Congress extended the principle of marital unity to provide that "any woman who might lawfully be naturalized under the existing laws, married, or shall be married to a citizen of the United States shall be deemed and taken to be a citizen." That is, foreign women who married male citizens did not need to go through a naturalization process or even take an oath of allegiance, because they absorbed citizenship through their husbands' identity." p. 37
- "But until the full emancipation of the Thirteenth Amendment in 1866, the law of domestic relations continued to treat the relations of husband and wife, parent and child, master and servant as part of a single continuum. The civil contract was not between individuals of equal civil capacities; the obligations of wife to husband continued to be considerably more severe than the obligations of husband to wife.
What had been virtually unquestioned at the beginning of the century was, over the course of it, subjected to heavy attack -- the law of master and servant by people opposed to slavery and to indentured servitude; the law of husband and wife by women's rights advocates. Often these were the same people. The Declaration of Sentiments drafted by Elizabeth Cady Stanton for the Seneca Falls Convention of 1848 made legal demands for women's rights, attacking the rules and assumptions of coverture. These demands led to married women's property acts in many states; most were developed after the Civil War. The Thirteenth Amendment made slavery illegal and the Fourteenth Amendment's guarantee of citizenship to "all persons born or naturalized in the United States" made the word "white" in the naturalization legislation of 1790 and thereafter unconstitutional. (However, state and federal laws excluded Asians from citizenship. In 1870 California required "Mongolian, Chinese, of Japanese females" to convince the Commissioner of Immigration that they came voluntarily and were not prostitutes; in 1875 federal law placed a similar burden on all women immigrants from Asia.) Although no single statute ended coverture as a system, each rubbed away at one or another raw edge. By 1870 a new, magisterial treatise on the law of domestic relations by James Schouler spoke of "confusion and uncertainty." " pp. 38-39
- "Ethel Mackenzie, who had been born in California, married Gordon Mackenzie, a British subject, in 1909 -- two years after the passage of the Expatriation Act of 19007. Mackenzie was active in the woman suffrage movement in California, and when it was successful in 1911 she worked in the San Francisco voter registration drive. When the Board of Election Commissioners denied her application, holding that upon her marriage to a British subject she had 'ceased to be a citizen of the United States," she refused to let her husband apply for citizenship and instead challenged the law, claiming that Congress exceeded its authority. She could not believe that Congress had actually intended to deprive her of the citizenship she understood to be her birthright. But the Supreme Court ruled that she had "ceased to be a citizen by her marriage," grounding its decision on what it called the "ancient principle of our jurisprudence": the "identity of husband and wife."
Ethel Mackenzie had claimed that citizenship was a right, a "privilege and immunity which could not be taken away from her except as a punishment for crime or by her voluntary expatriation." But Justice Joseph McKenna observed that the "marriage of an American woman with a foreigner . . . is as voluntary and distinctive as expatriation and its consequence must be considered as elected" (emphasis is the author's).
The decision in Mackenzie angered and energized suffragists. American women needed suffrage to protect themselves against expatriation and statelessness." pp. 41-42
- "Historian Gerald Jaynes argues persuasively that the point of the contract system was less to keep blacks at work than it was to keep them at work on a commercial crop, which could, in predictable quantities, enter the national and international markets. Left to themselves, freedpeople opted for subsistence farming. Plantation work, with all its associations with slavery, they avoided when they could. Whites rarely trusted freedpeople to develop an acquisitive ideology of the sort that had, in the eighteenth and early nineteenth centuries, propelled other peasant societies into commercial and industrial societies. Southern contracts were generally framed with the bulk of the payment at the end, after the crop had been sold; in the interval the best employees could get was an advance on wages, which bound them even more tightly to the contract. Commonly workers received a share of the crop. Because they did not get paid until the end of the year, workers in effect, as historian Harold Woodman has pointed out, granted a year's credit to their employers. Meanwhile they generally were charged high interest on goods they purchased on credit, while they waited to be paid themselves.
Key to the struggles of freedpeople for a meaningful freedom were efforts to keep all African-American workers out of gang labor, to keep women and children from field labor, and to choose the time, place, and terms of employment. Seeking alternatives to gang labor, which, like slavery, permitted no self-direction and was intensively supervised by overseers, freedpeople found work they chose was often self-employed, freelance, seasonal, odd-job, such as hauling and loading, hunting and fishing -- fluid versions of work that together could well add up to subsistence or more, but are not really observable and left room for their own fluid choices. Inadvertently freedpeople found themselves navigating not the invigorating possibilities of the meaning of free labor, but the accusation that they were not working at all; that they were, in short, vagrants. Americans of European descent had long criticized Native Americans men for laziness because the work they did was not observable, contractual, and regular; after the Civil War the same complaints were made by whites about blacks." pp. 57-58
- "In a context that permitted "any minor to be bound as an apprentice," until the age of twenty-one, "by his or her father, mother, or guardian," it became the duty of sheriffs and other civil officers to identify, and the duty of the county judge to apprentice "all indigent or vagrant minors . . . and, also, all minors whose parent or parents have not the means, or who refuse to support said minors" (emphasis by the author)." p. 39
- "Nearly everywhere, failure to appear to be working on a binding contract was defined as vagrancy, and vagrancy was severely punished. Some vagrancy codes were written as though they applied to black and whites alike, but in fact were largely enforced against blacks and the few whites who were as desperately impoverished as most freedpeople." p. 60
- "The old law of domestic relations was -- as we noted in Chapter 1 -- gradually destabilized over the course of the nineteenth century, but that destabilization had only just begun when enslave women emerged into freedom. Married women everywhere largely lacked independent civil status and husbands still controlled their wives' property and the money wives earned by taking in boarders, doing laundry, and working at odd jobs. Husbands' control of their wives extended to the concept of vagrancy, particularly for African-Americans. Black men had their own obligation to work. But they also had an obligation to see to it that the women and children for whom they were responsible also worked. Black families came under suspicion if the work of women and children was conducted privately in their own households. In the service of the male heads of those households. In the revised race and class relations of the postbellum South, black men did not become more "manly" when they protected their wives and children from the workforce. In the emerging postwar social order, whites expected black men to serve, not to be served. As individuals freedwomen shared with white women an obligation to work; as wives they were similarly obligated to their husbands, who stood between them and the state." pp. 63-64
- "Of course, many white women did not work for wages; the census of 1870, which generally undercounted all women workers and seriously undercounted domestic workers, reported that nearly one out of four nonfarm earners was a woman. The proportion would remain relatively steady for the next fifty years. Even white women found it difficult to carry respectability with them across the lines of class if they could not show that they were provided for by husbands or fathers. Only about 7 percent of white married women worked outside the home in 1880; in sharp contrast to the 35 percent of black married women who did so. Schoolteaching, for example, was respectable, but only if it did not cross the color line. When white women volunteered to teach black children, they were often welcomed by blacks but virulently abused by other whites. The usual accusation was that they were common prostitutes, superficially an irrational accusation, but one that reflected the assumption that a woman out of place had made herself sexually available.
Freedwomen were not wrong to discern that white women had a differently calibrated obligation to work than did African- American women. Nowhere did white women have an obligation to enter extended work contracts. Even the most impoverished white women generally worked in the fields only sporadically, at harvest and planting time, not steadily, on yearlong contracts." pp. 66-67
- " "Broadly drawn vagrancy statutes," writes William Cohen, "enabled police to round up idle blacks in times of labor scarcity and also gave employers a coercive tool that might be used to keep workers on the job. Those jailed on charges of vagrancy or any other petty crime were then [given the] . . .'opportunity' to sign a voluntary labor contract with his former employer." Those who did not sign faced convict labor. Between 1890 and 1910 nearly all the former Confederate states adopted new and harsher vagrancy laws, most of which lasted well into the 1960s.
In the more than a century that has passed since Reconstruction, Americans have earned wages within pervasive systems of job segregation by sex and by race. Black women have been paid between one-half and two-thirds of the wages of black men, who in turn lived within pay scales considerably lower than those governing the work of white men. White women and women of color rarely performed similar tasks or shared the same workplaces; that remains true as the twentieth century draws to a close. The structural barriers encountered by all working women have meant, as historian Joanne Goodwin has put it, that "the majority of women could not work their way out of poverty as men theoretically were able to do."
As the obligation to work was reconstructed for those who had been enslaved, it was constructed distinctively for black women in ways that differentiated their obligations from those borne by white women. W. E. B. Du Bois memorably pointed out that even when white workers received low wages they were "compensated in part by a . . . public and psychological wage. They were given public deference. . . because they were white. They were admitted freely, with all classes of white people, to public functions [and] public parks." What it could mean for a white woman to fulfill the obligation to work without the "wage of whiteness" was memorably described in 1912, when a national magazine interviewed a forty-year-old widow, the mother of three children, who had been a domestic servant "in one capacity or another in white families in Atlanta since she was a child of ten. A half century after the Civil War, she understood herself to be stuck in a servitude policed by vagrancy laws:
More than two-thirds of the Negro women here, whether married or single, are compelled to work for a living -- as nurses, cooks, washerwomen, chambermaids, seamstresses, hucksters, janitresses, and the like. . . . Tho' today we are enjoying nominal freedom, we are literally slaves. . . .
I frequently work from fourteen to sixteen hours a day. I am compelled by my contract, which is oral only, to sleep in the house. I am allowed to go home to my own children. . . .only once in two weeks. . . .You might as well say that I'm on duty all the time -- from sunrise to sunrise, every day in the week. . . . And what do I get for this work -- this lifetime bondage. The pitiful sum of ten dollars a month!
We have no labor unions or organizations of any kind that could demand for us a uniform scale of wages for cooks, washerwomen, nurses, and the like; and, for another thing, if some Negroes did here and there refuse to work for seven and eight and ten dollars a month, there would be hundreds of other Negroes right on the spot ready to take their places and do the same work, or more, for the low wages that had been refused. So that, the truth is, we have to work for little or nothing or become vagrants! and that, of course, in this State would mean that we would be arrested, tried, and dispatched to the "State Farm," where we would surely have to work for nothing or be beaten with many stripes. " pp. 69 - 70
- "Skeptics might sneer, but as long as the demand for a family wage persisted -- and it remains a familiar demand at the turn of the twenty-first century -- it has carried with it the understanding that women do not have the same implicit obligations to support themselves with paid work that me do. Furthermore, as long as the demand for a family wage has been voiced, it has generally been articulated in contexts in which it is understood to apply only to white families. Rarely, when articulated by integrated labor unions, or more recently by the Nation of Islam in the 1995 Million Man March, has it been framed as the claim of black men to a family wage so they can keep black women out of the waged work force." pp. 71-72
- "When the Social Security law was extensively amended in 1939, drafters of the legislation continued their blissful assumption that all women were married to wage-earning men. They were untroubled by a structure that filtered women's claims through their husbands' entitlements; indeed, as historian Alice Kessler-Harris has emphasized, 'the very first set of amendments . . . added Old Age Insurance benefits for wives and widows who had not paid for them." " p. 73
- "As the feminization of poverty proceeded through the last quarter of the twentieth century, poverty among younger women and their children outpaced poverty among elderly women. Poverty among women of color rose more sharply than for white women. "The public cannot seem to decide whether it expects or even wants mothers of young children to work," observed sociologist Mary Jo Bane in the mid-1980s; "the levels of support for female-headed families are stingy and the harassment great." By 1996 the public had decided; the Welfare Reform Act of that year required wage labor of virtually all recipients, including mothers of preschool children." p. 77
- "William Cohen offers one succinct example: "In 1937, when depression-ridden Miami, Florida, could not find the funds to maintain its trash collection schedule, it began to use Negro prisoners as garbage men." The Miami Daily News reported that when there weren't enough Negro prisoners available, the police "promptly went out and rounded up a hatful of vagrants." There was no similar roundup of whites." p. 78
- "As John Adams put it, the "representative assembly . . . should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them." " p. 94
- "As long as women conceded that their own civic identity was absorbed by husbands and fathers, they simultaneously conceded that husbands and fathers virtually represented their interests in the civic sphere. As long as widows and spinsters conceded that they were in effect non-civic beings, neither sheltered by men who enacted their similar interests nor claiming the right to speak on their own, they too were virtually represented by male members of the community. But as the century wore on, fewer women were willing to make either concession. Once women had decided -- as Abby and Julia Smith decided in 1873 -- that it was possible to have interests, as women, that were different from the interests of men of their own class and even their own family, then virtual representation would no longer do. Once they reached that point, the language of the revolutionary era rang freshly in their ears, and the promise that the destructive force of the obligation to pay taxes would be softened by the opportunities of representation grew in significance.
Popular political understanding and professional legal understanding are not always congruent. When taxation and representation were linked in the writings of the theorists of the founding generation the reference was normally to t he representation of towns in state legislatures or of states in Congress, not of individuals by their representatives. A generation after the Revolution, in his magisterial treatise on the Constitution, Justice Joseph Story devoted most of a lengthy chapter on taxation on reflections on how a general, substantive power to tax could be made congruent with a limited government. He found the answer not in representation, but in the words of the Constitution which gave Congress the power in the same sentence that it was charged with providing for the common defense and the general welfare. The italics are implicitly Story's; the taxes levied by Congress must benefit the entire community.
All that was left, it seemed to many suffragists, was to establish that women were part of the community. Suffragists welcomed the task; it seemed an easy one, especially after the passage of the Fourteenth Amendment. If all "persons" were citizens, and entitled to the privileges and immunities of citizenship, all one had to ask was whether women were persons. but just what element of personhood and citizenship undergirded voting? Was voting reciprocity for taxpaying, or reciprocity for physical protection? Was it both? Neither?
Popular narratives, valuing as they did the Boston Tea party, continued to convey that civic authority was related to democratic control of taxation. Resistance to England what been built out of the arguments that even a little bit of misused authority to tax could quickly become the power to destroy; that those who were taxed had a reciprocal right to name the representatives who would do the taxing. Suffragists believed this argument and sought to use it for their own purposes.
But there were other ways of understanding the obligation to pay taxes, alternatives implicit even in Story's own interpretation. If the key justification of the power to tax was the common defense and the general welfare, then it was an easy step to the argument that the reciprocal of taxpaying was not suffrage but the enjoyment of the protections government offered. This latter argument was articulated forcefully in the 1870s. Henry Bowditch's keen eye noticed that theories of taxation linked payment as frequently to protection as to representation. "The King and Parliament also proposed to tax the colonists for their own protection," observed Bowditch, "but the colonists wholly failed to see that this made any difference, or that the tax was any less tyrannical in consequence. They preferred to determine for themselves exactly how, when, and where such protection should be exerted. In this mode women were like aliens who were taxes without representation, and for whom the reciprocal of taxation was protection." pp. 112-114
- "Most southern states had excluded African-American men from voting by using intimidation, "literacy" tests, and poll taxes; in those states black women could vote no more easily than black men, and suffrage was an empty victory." p. 119
- "Tax analyst Edward J. McCaffery has argued persuasively that lowest income earners still face a pronounced marriage penalty; among middle-class and wealthier two-parent households, "the high marginal tax rates facing a potential earner and the inadequacy of the child-care credit strongly encourage one spouse to stay home." US tax structures continue to combine with social traditions to sustain a system in which wives are understood to be secondary earners and their participation in the waged labor force understood to be a matter of choice. "If a married mother leaves the home to go into the workforce," McCaffery points out, "she must earn at least double the costs of child care and other work-related expenses because for every dollar she earns, the government will take one-half. . . . working wives are taxed without being benefited; stay-at-home wives are benefited without being taxed." " p. 122
- "Although judges instructed juries in the applicable law, members of the founding generation were insistent that -- as John Adams asserted in 1771 -- a juror had not only the right but the "Duty . . . to find the Verdict according to his own best Understanding, Judgment, and Conscience, though in Direct opposition to the Direction of the court." When Alexander Hamilton faced a sedition charge he insisted that conceding to juries a broad range of discretion was an important protection for the citizen against arbitrary judges. By the early nineteenth century, however, judges were asserting greater control over juries, claiming heightened authority to find the law, to supervise the fact-finding process, and to narrow the range of jurors' independence. Although no state now sustains the right of the jury of judge the law -- limiting juries rather to judgment of facts alone -- the assertion of the claim of "jury nullification" continues to thrive, as juries in the late twentieth century exercise their power to bring in a verdict that challenges both law and facts as the judge has summarized them.
Emphasis on the role of juries continues to be a distinctive mark of the American system of justice. France adopted a form of jury service in the era of the French Revolution, but only echoes of it remain. Western European nations now commonly use mixed panels of lay jurors who sit with professional judges. The Japanese constitution, negotiated by a victorious United States with a defeated state, echoes the American constitution in may respects -- and goes it one further by embedding an equivalent of the Equal Rights Amendment directly in the text -- but has no provision for jurors; the victors did not trust the judgment of the defeated, nor were juries familiar devices in Japanese traditions of justice. Not all former British colonies have adopted Britain's jury system; it is strong in Canada and Australia, but not in India." pp. 129-130
- "Judith Sargent Murray was the member of the founding generation who wrote most extensively about women's relationship to the state; she was well known in New England for her short stories and political essays, published from the mid-1770s until the end of the century. "Are not women equally concerned with men in the public weal?" she asked, and she did not mean her question to be rhetorical. Murray formulated her generation's major structural criticism of a system of jury service that excluded women, a criticism that would be echoed late into the twentieth century. In 1797 she wrote to a friend: "I have sometimes thought that we Women are hardly dealt with by since strictly speaking, we cannot legally be tried by our Peers, for men are not our Peers, and yet upon their breath our guilt or innocence depends -- thus are our privileges in this, as in many other respects, tyrannically abridged . . . . I object to a male decision upon a female question." " p. 131
- "In New York State, for example, where women's groups were considerably stronger than in Florida, the struggle for a mandatory jury service law absorbed a substantial amount of energy of the League of Women Voters, the Women's City Club, and the National Woman's Party for decades." p. 141
- " "Getting the word 'male' out of the jury statues is requiring something very like a second suffrage campaign -- laborious, costly and exasperating," observed the executive secretary of the League of Women Voter in 1930. The lengthy struggles in Florida, New York, and Massachusetts suggest that what may seem self-evident now was once highly problematic." p. 143
- "Raya Spiegel Dreben had graduated from Radcliffe in 1949. Because Harvard Law School did not then admit women, she had entered Columbia. The following year Harvard decided to admit women, but when Dreben applied she was told they would not accept transfer students. She was eventually admitted; she graduated high in her class in 1954. After a federal clerkship and a period as a teaching fellow at Chicago Law School -- where she met Harry Kalven, but was not involved in the Chicago Jury Project that he led -- she returned to Boston. The opportunities for women lawyers in Boston in the late 1950s -- even those who had come out first on the state bar examination, and held distinguished postgraduate appointments -- were dismal, generally limited to staff positions in insurance companies or in real estate law. Neither option intrigued Dreben, whose law school peers had moved directly into entry positions in major law firms. She had young children. "I offered my part-time services free," she says now, still amazed, "to legal aid and voluntary defenders. The turned me down." When Ehrmann asked a friend if he knew a good lawyer who was available on a part-time basis, Dreben welcomed the chance. At Goulston & Storrs, her name would not be on the door. "I had to write letters to clients on stationery that had every name in the firm on it except mine. It was humiliating." Only a decade before, she recalls, "some Boston law firms had placed typewriters on the desks of women lawyers, so that visiting clients would take them for secretaries. it was less embarrassing to the firm than to admit that they had actually hired women attorneys."
Although Ehrmann met occasionally with Gwendolyn Hoyt, he turned over to Dreben most of the work of preparing the case for the Supreme Court. She had no staff apart from modest secretarial help. For assistance in making the arguments that it was anachronistic to excuse women from central obligations of modern society, she turned outside the profession, to Barbara Miller Solomon, a historian who was developing the fledgling Radcliffe Women's Archive, and Esther Peterson, head of the Women's Bureau of the Department of Labor in Washington. Reflecting now on what goes into the making of a case that could convince the Supreme Court to break a long-standing precedent, Dreben muses, "It's a chance and money. Now you have women justice projects [like the Women's Rights Project at the ACLU]. If this had happened later, after feminist issues had been articulated more publicly, I would have had more assistance." pp. 165-168
- "In 1944 the Swedish economist Gunnar Myrdal devoted a chapter in An American Dilemma, his magisterial book about race relations in the United States, to "the important similarities between the Negro problem and the women's problem.' " p. 184
- Other names mentioned in this connection: Dorothy Kenyon and Ruth Bader Ginsburg
"[Patti] Murray's memo became part of the PSWC report, published in 1963 as American Women: Report of the President's Commission on the Status of Women. The report was full of surprising information about the range and extent to which sex discrimination was embedded in American law -- not only in divorce and child custody but in matters like eligibility for credit, choice of domicile, access to unemployment benefits. Inspired by the President's Committee, many governors appointed state commissions to make similar inquires, and the state commissions found much the same conditions. The people who were appointed to these commissions ere rarely radical; they were likely to be people who had worked in state politics for may years. As a result, hundreds of influential, middle-of-the-road citizens came to be convinced not only of the persuasiveness of sex discrimination in American law, but also that relying on the Fourteenth Amendment and litigating one issues at a time would be exhausting and impractical. And Equal Rights Amendment began to look efficient to many of the same people who had only recently opposed it." pp. 192-193
- "When thirty-eight-year-old Ruth Bader Ginsburg and ACLU Director Mel Wulf wrote the brief for Sally Reed, the appellant in Reed v. Reed in 1971 -- a case testing the competing claims of separated parents to serve as administrator of their dead son's estate, in which the US Supreme Court would rule for the first time that discrimination on the basis of sex is an unconstitutional denial of equal protection of the laws -- they placed the names of Dorothy Kenyon and Pauli Murray on the title page as co-authors alongside their own. Neither Kenyon nor Murray had actually participated in the writing of the brief, but Ginsbugh was determined to acknowledge the intellectual debt which contemporary feminist legal argument owed to "those brave women." The succession of names on the Reed brief was the sign of a torch passed by one generation and aggressively claimed by another." p. 199
- "We can now look back at 1971-75 as years of an extraordinary legal transformation in the situation of women in the United States; the principle that discrimination on the basis of sex was a burden, not a privilege, challenged law and custom in virtually every sector of American life, from the workplace to schools to intensely private matters of sexuality." pp. 203-204
- "By the end of the war [World War II], some 350,000 women -- 4,000 of them African-American -- had been involved in military service." p. 264
- "In 1973, upholding Frontiero's demand for dependent's allowance for her husband, the Supreme Court treated gender discrimination as something less serious than race discrimination but close to a "suspect classification," requiring the discriminator to show not merely that discrimination was "reasonable" but that it was necessary in order to achieve a constitutional objective." p. 276
- "What we are learning -- in the enrollment of women into other units of state force and violence, notably police departments and corrections forces, as well as the gradual absorption of women into military roles accompanied by scandals like Tailhook and the vulnerability of gay servicepeople to loss of jobs and to violent physical attack -- is that it is possible to revise even this most traditional system of gender difference while at the same time keeping systems of male domination intact." p. 301
- "The political history of women in the United States is generally told as three separate stories. The first is the long struggle for suffrage, successful in 1920; the second, sometimes omitted entirely, is the period 1920-70 that some historians have called "the doldrums,' during which little progressive change was made; the third is the account of the Second Wave feminism, energized by the Supreme Court's decision in 1971 that discrimination on the basis of sex could indeed be recognized as unequal treatment in violation of the Fourteenth Amendment.
But the political history of women in the United States is better understood as a single narrative. Different generations brought to their tasks different energies and faced different opponents, some more formidable than others. Even after suffrage, the agenda that Elizabeth Cady Stanton and hr colleagues had articulated at the Seneca Falls convention in 1848 largely remained to be accomplished. Rather than describing the years after 1920 as 'the doldrums," we can now see them as a period when the resistance to progressive change for women was powerful and successful. The American medical Association had not seriously resisted suffrage, but it did fight vigorously the Sheppard-Towner legislation of the 1920s, which sought to expand prenatal care for pregnant women; the National Association of Manufacturers had not resisted suffrage, but if did fight effectively against the Child Labor Amendment; the opening of vast educational opportunities to male World War II veterans was accompanies by attacks on women for taking up classroom seats that could be held by a man. Reformers who learned their politics in the years of 'the doldrums" would be indispensable to the successes of the 1970s and thereafter; they are part of the same narrative." pp. 306-307
- "Not until 1992 did the Supreme Court specifically announce that it would no longer recognize the power of husbands over the bodies of their wives. That is the moment when coverture, as a living legal principle, died." p. 307
- "We cannot embrace the rights without acknowledging the obligations." p. 308
- "Impoverished women, whether black or white, have never been able to claim the fictional "constitutional" right to be "ladies." Women with property have at least the responsibility to be realists: to ask at whose expense they have claimed that fictive right. And even if, having considered the situation, a majority of women should conclude that they do indeed want to be "ladies" and to collect the "wages of gender," as an historian I can only reply that those wages are not there to collect." p. 309
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last updated Dec 1, 2000
