Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Friday, December 2, 2016

"What Do You Women Want?": The 19 Century Women's Demand for Reform of Marital Property

This is part of a continuing series blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Today, is chapter 1.

ThomasStantonBookJacket

“What do you women want?” That was the question Elizabeth Cady Stanton was asked by the New York legislature in 1854. She responded with a long-list of demands for marital property, child custody, domestic violence protections, women on juries, tax exemptions for widows, and wholescale elimination of coverture.

These many goals were laid out by Stanton in her Declaration of Sentiments delivered at the Woman’s Rights Convention at Seneca Falls, New York in July 1848. (Now the site of the Women's Rights National Historical Park). The Declaration was Stanton’s road map for reform, in that she articulated 17 demands for reform of state, law, church, and the family in order to accomplish women’s full equality of opportunity.

Stanton began her fifty-years of legal and political advocacy for women’s rights on the issue of marital property. This was her starting point, and so it is the starting point for the book. In 1848, the NY legislature was considering reforms to the property laws that prevented married women from owning property, either separate, earned, inherited, or marital. It was supported by some expressed feminist concerns, but more by business concerns with recession, transferability of property, and family debt protection.  But the issue was at the front and center, with Married Women’s Property Acts beginning to be passed across the nation, and grassroots advocacy happening in Stanton’s close circle.

Stanton also started with the issue of marital property as it was the one that involved her personally. Her father, Daniel Cady, was a respected property and equity lawyer, legislator, and jurist. He was in the inner group of those considering legal reform, reformers who interacted with Stanton. Stanton also learned the law from her father, in what I call a “de facto apprenticeship,” observing his clients and trials, reading law with his apprentices, and serving one year as his clerk. This legal training and ability to “think like a lawyer” would serve her well. But her own attempts to own and earn separate property, to make up for her under-employed husband, ran smack into the limitations of coverture.

After introducing Stanton’s personal training and experience with the law of marital property, this chapter traces her philosophies, speeches, and proposals for legal reform. These included marital property laws that envisioned joint ownership of martial property – an idea that was not on the table in the Married Women’s Property Acts that merely allowed a woman to retain separate ownership of premarital or separately inherited (and later earned) property. She also advanced ideas of “taxation without representation,” challenging the taxation of widows’ property without the corresponding right of a property owner to vote.

The chapter also explores Stanton’s attempt to capitalize on the newly-enacted Privileges & Immunities Clause of the Fourteenth Amendment, which Stanton though was self-evidently empowering for sex equality. The Supreme Court, however, quickly squashed the expected interpretation of the clause to apply to voting or a generalized sex equality. Had Stanton’s view prevailed, much on women’s legal equality would have been different.

Here is an excerpt:  Download ExcerptStantonChap1

December 2, 2016 in Books, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, November 16, 2016

CFP Litigating Women in Medieval and Early Modern Times

Call for Papers Litigating Women: Negotiating Justice in Courts of Law c.1100-c.1750

As part of the AHRC-funded project ‘Women Negotiating the Boundaries of Justice’, and in conjunction with Swansea University’s annual ‘Symposium by the Sea’, we are pleased to announce a two-day symposium on the female litigant in the medieval and early modern period (c.1100-c.1750). The intention is to bring scholars together in order to explore women’s access to legal redress and to shed new light on individuals’ lived experiences of the law. We are seeking 25-minute papers from researchers (of all career-stages) working on any aspect of the history of women litigating in the courts across the known world during this broad timeframe. We welcome work on all courts, regions, jurisdictions, ethnicities, languages and religious and confessional identities, and on any aspect of those histories or historiographies. Post-graduate students are encouraged to apply.

 

Topics and approaches might include:

  • The operation of gender in the courts.
  • The practicalities of litigation: travel, subsistence, accommodation, planning and expense.
  • The impact of a woman’s life-stage, status or ethnicity on her experience at law.
  • The woman’s voice and barriers to its ‘audibility’.
  • Visual or textual representation of the female litigant.
  • Specific case-studies and longue durée perspectives.
  • Historiography and ‘where do we go from here?’.

Applicants are invited to submit by 21 January 2017 a proposal of c.500 words, together with a short biography for inclusion in the programme.

November 16, 2016 in Call for Papers, Legal History | Permalink | Comments (0)

Tuesday, November 8, 2016

Women's Legal History on Voting Day: United States v. Susan B. Anthony

Ann Gordon, The Trial of Susan B. Anthony, Federal Judicial Center (2005)

United States v. Susan B. Anthony was a criminal trial in the federal courts. In the federal election in November 1872, Anthony, the best-known advocate of woman suffrage, registered to vote and then voted. The government charged her with the crime of voting without “the legal right to vote in said election district”—she, in the words of the indictment, “being then and there a person of the female sex.” Her trial revealed the complexity of federalism in the post-Civil War years. She was convicted in federal court under federal law for violating state law about who was eligible to vote. New York state law prohibited women from voting, and a recent federal law provided for the criminal prosecution of anyone who voted in congressional elections “without having a lawful right to vote.”

 

Primarily a case about woman suffrage and sexual discrimination, United States v. Susan B. Anthony is also a case about Reconstruction and the balance of federal and state authority. Prior to the Civil War, the demand for woman suffrage was directed to state governments, each of which set the qualifications of voters in the respective states. Reconstruction redirected the demand. The federal government assumed some authority over the voting qualifications enacted by the states, and woman suffragists saw in that change an opportunity to extend voting rights not only to black men but also to black and white women. They called for universal suffrage.

 

Anthony and the members of the National Woman Suffrage Association, after failing to gain explicit reference to the voting rights of women in the Fourteenth and Fifteenth Amendments, set about testing the meaning of what those amendments did say and how the amendments might have changed the rights of women. Anthony was among a group of women in the country trying to establish, through test cases in the federal courts, that the amendments had so redefined citizenship and rights that women were protected by the federal government in their right to vote.

 

Image result for susan b. anthony voting

(Cartoon mocking SBA for wanting to vote)

 

Remarks by Susan B. Anthony in the Circuit Court of the Northern District of New York,  June 19, 1873

As a matter of outward form the defendant was asked if she had anything to say why the sentence of the court should not be pronounced upon her.

 

"Yes, your honor," replied Miss Anthony, "I have many things to say. My every right, constitutional, civil, political and judicial has been tramped upon. I have not only had no jury of my peers, but I have had no jury at all."

 

Court—"Sit down Miss Anthony. I cannot allow you to argue the question."

 

Miss Anthony—"I shall not sit down. I will not lose my only chance to speak."

 

Court—"You have been tried, Miss Anthony, by the forms of law, and my decision has been rendered by law."

 

Miss Anthony—"Yes, but laws made by men, under a government of men, interpreted by men and for the benefit of men. The only chance women have for justice in this country is to violate the law, as I have done, and as I shall continue to do," and she struck her hand heavily on the table in emphasis of what she said. "Does your honor suppose that we obeyed the infamous fugitive slave law which forbade to give a cup of cold water to a slave fleeing from his master? I tell you we did not obey it; we fed him and clothed him, and sent him on his way to Canada. So shall we trample all unjust laws under foot. I do not ask the clemency of the court. I came into it to get justice, having failed in this, I demand the full rigors of the law."

 

See also Doug Linder, Famous American Trials: The Trial of Susan B. Anthony and Trial Record in the Case of Susan B. Anthony

 

 

November 8, 2016 in Constitutional, Courts, Legal History | Permalink | Comments (0)

Friday, November 4, 2016

Politicizing Motherhood: A Closer Look at the Maternalism of Phyllis Schlafly's Anti-ERA Activism

Natalia Mehlman Petrzela, Politicizing and Practicing Motherhood

“I’d like to burn you at the stake,” pioneering feminist Betty Friedan famously spat at conservative activist Phyllis Schlafly during a 1973 debate about the Equal Rights Amendment. Her loathing reflected the recognition of a formidable opponent. Though our largely liberal profession took several decades to recognize Schlafly’s power in shaping political culture, the flurry of insightful reflections from historians in the wake of her recent death affirms Schlafly’s rightful place in the historical record even as her anti-feminist and anti-gay politics position her on what many agree is the wrong side of history.

 

A hallmark of Schlafly’s public persona was portraying the world as a series of stark opposites. Her feminist straw woman was joyless man-hater; in 1977, she contrasted a conservative, “positive woman” with the “miserable” who embraced the new feminist honorific “Ms.”[1] But if we treat Schlafly exclusively as the conservative complement to this caricature, we miss important dimensions of her function in the history of feminism as more than a reactionary foil. An illuminating way to read Schlafly as a more complex figure is to look beyond her rich public life to explore how she perceived motherhood not just as a political symbol but also as a personal practice.

 

I’m not the first historian to suggest that Schlafly demands a nuanced approach.[2] For one, the feminism Schlafly railed against ironically enabled her political career. Moreover, that illustrious career was constrained by the same misogyny that thwarted women of all political affiliations, as her unsuccessful attempts in the 1950s to break into the old-boys’ foreign policy network proved. For Schlafly’s homages to homemaking (and her frequent infuriating introductory anecdote that she had asked permission of her husband to speak publicly), she rivaled Friedan in her efforts to mobilize a generation of female political neophytes. She sent detailed handwritten notes to housewives, precisely instructing how to organize around “women’s issues” such as education, abortion, and “the homosexual agenda,” which made “family values” a central plank of contemporary conservatism and launched her into public life. Like her early-twentieth-century progressive foremothers, Schlafly used a form of “maternalism” to access the political arena, though in order to promote rather than challenge traditional gender roles even as her very participation embodied such a challenge.

November 4, 2016 in Abortion, Family, Legal History | Permalink | Comments (0)

Tuesday, November 1, 2016

CFP Mary Wollstonecraft: Life and Legacy

CFP: Mary Wollstonecraft

MARCH 8 (International Womens Day) 2017

CALL FOR PAPERS

As part of the celebrations for Hull as UK City of Culture 2017 the University of Hull is hosting an interdisciplinary celebration of the life, work and legacy of Mary Wollstonecraft, (who spent her formative years in the nearby town of Beverley).

 

Papers are welcome on any aspect of Wollstonecrafts life, work and legacy from Gender Studies, Philosophy, Politics, History, Literature, Education or any other relevant discipline. 

 

A prize of £100 will be awarded for the best paper, which will also be published in the Journal of Gender Studies Special issue on Mary Wollstonecraft, which will follow the conference.

 

Please send abstracts of no more than 500 words to K.Lennon@hull.ac.uk  by January 6 2017

For some thinking on the legal thought of foundational feminist Mary Wollstonecraft, see Charles Reid, Jr., The Journey to Seneca Falls: Mary Wollstonecraft, Elizabeth Cady Stanton and the Legal Emancipation of Women, 10 Univ. St. Thomas L.J. 1123 (2013)

 

 

November 1, 2016 in Call for Papers, Legal History | Permalink | Comments (0)

Monday, October 31, 2016

Reading List for Law & Gender on Halloween

Bridget Bishop Hanged at Salem

Which means the Salem Witch Trials. 

Most of the victims of the trials were women.  And most of the accusers.  Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power.  They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.

Stacy Schiff, The Witches: Salem, 1692 (2015)

Carol Karlsen, The Devil in the Shape of a Woman (1998)

Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)

Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)

Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)

October 31, 2016 in Books, Courts, Legal History | Permalink | Comments (0)

Friday, September 9, 2016

Scholars Debate Whether the ERA's Defeat was Really a Loss for Feminism

NYT, Was the ERA's Defeat Really a Loss for Feminism?

When Congress submitted the Equal Rights Amendment to the states in 1972, it seemed as if a monumental feminist victory was at hand. In five years all but three of the 38 states needed for ratification had approved the measure, which asserted 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.” Then conservative forces — led by Phyllis Schlafly, who died this week at the age of 92 — fought back, killing the E.R.A. and staggering the feminist movement.  

 

Since then, Supreme Court rulings have recognized principles of equality the amendment was intended to enforce. Did feminists win even though the E.R.A. was defeated?

  Joanna Grossman, Even the ERA Couldn't Bring About Real Equality

Mary Ann Case, Supreme Court has Delivered on Many of the ERA's Promises

Elizabeth Price Foley, The ERA's Defeat Prevented More Radical Changes

Serena Mayeri, Despite Feminist Gains, Effects of ERA's Defeat are Unknown

I recently wrote a bit on this topic in a book chapter forthcoming tracing the history of the ERA back to its origins in the late suffrage movement and then up to its modern resurrection.   See Tracy Thomas, After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Lee Ann Banaszak & Holly McCammon eds. forthcoming Oxford U. Press) (with TJ Boisseau)

A key question is whether legally women need the ERA, or whether its goals of general equality and specific rights have effectively been accomplished through other means. The virtually unanimous consensus of legal scholars is that the ERA’s goals have been effectively achieved through the Supreme Court’s equal protection jurisprudence. Courts now review gendered state action under intermediate scrutiny requiring that any laws treating women differently be justified by important governmental interests and that the laws be closely tailored to those interests. Other scholars, however, have emphasized the limitations of equal protection analysis for sex equality. For gender discrimination cases under equal protection, the Court utilizes a lower standard of intermediate scrutiny, rather than the strict scrutiny used in race and religions discrimination. This lower standard tolerates many of the continuing instances of less overt sex discrimination and laws that have discriminatory effect rather than textual prohibitions on gender. The equal protection approach is also limited because it requires proof of intent--defendants thinking bad thoughts about women--which [Catharine] MacKinnon notes “doesn’t address how discrimination mostly operates in the real world,” where “the vast majority of sex inequality is produced by structural and systemic and unconscious practices” inherited from centuries of gender hierarchy. Equal protection law’s formal classification structure, she explains, which rigidly treats only exactly similar things the same, is incapable of assessing the ways in which people “can be different from one another yet still be equals, entitled to be treated equally” or where affirmative diversity is needed to treat alike those whom are different

 

Some scholars also conclude that equality for women has essentially been achieved for women without the ERA because the specific substantive goals of the amendment were accomplished through a variety of federal legislation on specific issues as well as the parallel state constitutional amendments. Twenty-three states adopted mini-ERAs and such amendments have helped strengthen women’s ability to challenge discriminatory laws in those states. Courts often interpret the state ERAs to require strict scrutiny, and two states mandate an even higher absolute standard that presumes any discriminatory law to be unconstitutional. In addition, federal legislation has mandated equal employment and education in The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Pregnancy Discrimination Act of 1978, and the Violence Against Women Act of 1994. Such piecemeal legislation, however, is subject to the political ebb and flow and can be rolled back, as the Violence Against Women Act was when the Supreme Court held in United States v. Morrison (2000) that Congress had no power to address civil remedies for domestic violence.

 

The renewed campaign for an ERA emphasizes the continued systemic harms to women of economic inequality, violence against women, and pregnancy discrimination and the limits of existing laws to address these concerns. Proponents of ERA emphasize the need for a permanent constitutional guarantee to control an overarching legal and social principle of women’s equality. The U.S., unlike the majority of other countries, has refused to incorporate such an express guarantee in its written constitution or adopt the international women’s bill of rights by ratifying the United Nations’ treaty.  The absence of an express guarantee permits traditional literalists like Justice Antonin Scalia to opine: “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.” The ERA offers a corrective to this thinking and the equivocal state of women’s rights under the law. It offers a textual guarantee of sex equality, an inspiration for public policy, and a powerful symbolic support of women’s equality in all social and legal venues.

 

September 9, 2016 in Constitutional, Legal History | Permalink | Comments (0)

Thursday, September 8, 2016

The Anti-Feminism of Phyllis Schlafly

Arch anti-feminist Phyllis Schlafly died this week.  She has ironically, as Slate notes, become "doomed to represent the feminism she hated."

I recently wrote about Schlafly and her leadership of the political movement that stopped ERA.   After Suffrage Comes Equal Rights? ERA as the Next Logical Step, in 100 Years of the Nineteenth Amendment: An Appraisal of Women’s Political Activism (Lee Ann Banaszak & Holly McCammon eds.) (Oxford Univ. Press forthcoming) (with TJ Boisseau).

The face of women’s opposition to ERA was conservative activist Phyllis Schlafly and her STOP ERA (Stop Taking Our Privileges) organization. Schlafly, a mother to six children, offered herself to the anti-ERA movement as a voice for stay-at-home mothers in need of special privileges and protections under the law. The irony that she, much like all the most prominent reformers historically lining up on either side of the ERA amendment (such as Alice Paul, Florence Kelley, and Pauli Murray), held a law degree and enjoyed a flourishing decade-long career in the public eye, was utterly elided in her rhetoric.

 

Doggedly focused on women’s roles as mothers and home-makers, Schlafly trumpeted the cause of women’s difference from men—championing the special rights of women as citizens who, ideally, did not work outside the home.  She asserted that equality was a step back for women: “Why should we lower ourselves to ‘Equal Rights’ when we already have the status of ‘special privilege?’”  She and other ERA opponents reframed the issue as forcing women into dangerous combat, co-education dormitories, and unisex bathrooms.  Feminist advocates responded by clarifying that privacy rights protected concerns about personal living spaces in residences and bathrooms, but their counsel was unheard in the din of threat to traditional family and gender roles. Opponents equated ERA with homosexuality and gay marriage, as the amendment’s words “on account of sex,” “were joined with ‘sexual preference’ or homosexuality to evoke loathing, fear, and anger at the grotesque perversion of masculine responsibility represented by the women’s movement”  Schlafly hurled insults at the ERA supporters, urging her readers to view photographs of an ERA rally and “see for yourself the unkempt, the lesbians, the radicals, the socialists,” and other activists she labeled militant, arrogant, aggressive, hysterical, and bitter. When ERA supporters “gathered at the federally financed 1977 International Women’s Year Conference in Houston and endorsed homosexual rights and other controversial resolutions on national television, they helped to make the case for ERA opponents.” 

 

The shift in debate slowed and then stopped ratification of the ERA. In 1974, three states ratified the amendment, one state ratified in 1975 and in 1977, and then ended with only 35 of the 38 required.  At the same time, states began to rescind their prior ratifications, with five states voting to withdraw their prior approval. The legality of the rescissions was unclear, but these efforts had political reverberations in the unratified states. When the deadline arrived without the required three-fourths approval, Congress voted in 1978 to extend the ratification deadline three years to June 30, 1982.  Not a single additional state voted to ratify during this extension.

 

 

September 8, 2016 in Legal History, Pop Culture | Permalink | Comments (0)

New Autobiography of one of the First Woman Law Profs

Barbara Babcock's Memoir "Fish Raincoats" Recounts a Woman Lawyer's First, Quid Pro Books

The life and times of a trailblazing feminist in American law. The first female Stanford law professor was also first director of the District of Columbia Public Defender Service, one of the first women to be an Assistant Attorney General of the United States, and the biographer of California’s first woman lawyer, Clara Foltz. Survivor, pioneer, leader, and fervent defender of the powerless and colorful mobsters alike, Barbara Babcock led by example and by the written word — and recounts her part ofhistory in this candid and personal memoir.

 

"For woman lawyers, Barbara Babcock has led the way. How? By being smarter and tougher than the men; also, more empathetic and self-aware. Funny, shrewd, and telling, her memoir Fish Raincoats is a joy to read.”
— Evan Thomas, author of Being Nixon: A Man Divided

 

“Life will afford you no better sherpa on the extraordinary journey women have taken in the legal profession than Barbara Babcock. This book should be required reading for anyone who isn’t certain that they have a place at the lawyers table. Babcock’s amazing life has made a space for so many of us. Her story will do the same.”
— Dahlia Lithwick, Senior Editor, Slate

Here is also a book review I wrote of Babcock's key work on the biography of California's first lawyer Clara Foltz. Book Review: Woman Lawyer: The Trials of Clara Foltz (Stanford Press 2011).

 

September 8, 2016 in Books, Legal History, Women lawyers | Permalink | Comments (0)

Thursday, August 25, 2016

Feminist Legal History Website and Visual History

This website Click! The Ongoing Feminist Revolution  launched last fall tells the backstory of modern feminist and legal history from about 1940 to present.  It includes terrific videos, photos, book resources, and detailed news that fill in the backstory of the women's political and legal movement.  Great stuff to show in class or use for research.

For example, here is the entry and links for the 1963 Equal Pay Act

This amendment to the Fair Labor Standards Act prohibits pay discrimination on the basis of sex when workers perform substantially equal work and has been credited as one factor in the rise of women’s wages overall. The passage of the Lilly Ledbetter Fair Pay Act of 2009 demonstrates that work in this area is not complete.

Text of the Equal Pay Act.

Photos, John F. Kennedy Library

JFK Signs the Equal Pay Act.

 

 

August 25, 2016 in Equal Employment, Legal History | Permalink | Comments (0)

Friday, August 12, 2016

Book Review: Women in Early America

Zoe Detsi, Review, European J. American Studies, Thomas A. Foster, ed. Women in Early America (NYU Press 2015)

Women in Early America is an intriguing collection of essays offering richly diverse readings of women’s lives and experiences in 17th- and 18th- century America. This volume is a significant contribution to the scholarship concerning the role of women in history and their participation in historical moments of political change and cultural negotiation. From Gerda Lerner’s seminal work on The Woman in American History (1971) to Linda Kerber’s enlightening book titled Women’s America: Refocusing the Past (6th ed., 2004), to Mary Beth Norton’s meticulous transatlantic study Separated by their Sex: Women in Public and Private in the Colonial Atlantic World (2011), scholarly efforts have been made to deepen our understanding of women’s history by initiating a shift of focus from their domestic role and dependent status to their active involvement in political, military, and economic affairs, as well as cultural production.

 

The scope of the volume’s methodological approach to the history of early women in America is very broad. The essays cover an impressive range of women’s experiences from the colonial period to the American revolutionary war offering a number of perspectives that embrace cultural history, gender theory, race studies, while resenting a multitude of women’s voices from different social, cultural, political, ethnic backgrounds, and geographical areas. All eleven essays provide scholars and researchers with a wealth of archival material – diaries, letters, narratives, documents – and with fresh insights into examining women in history as active agents in their own right challenging social conventions and political decisions. Either as aristocratic women in New Mexico or indentured servants in Virginia and Maryland, as slave owners in Jamaica or runaway slaves, as interpreters in Puritan Massachusetts or traders in  French America and Detroit, as Loyalist women during the revolution or proponents of female education in the new nation, early women in America were deeply involved in (inter)cultural practices and greatly affected by economic policies and social changes.

The Table of Contents is here.

August 12, 2016 in Books, Legal History | Permalink | Comments (0)

Monday, July 11, 2016

Books: Women as Aggressors of Marital Violence in Antebellum American

Robin Sager, Marital Cruelty in Antebellum America (LSU Press 2016)

In Marital Cruelty in Antebellum America, Robin C. Sager probes the struggles of aggrieved spouses shedding light on the nature of marriage and violence in the United States in the decades prior to the Civil War. Analyzing over 1,500 divorce records that reveal intimate details of marriages in conflict in Virginia, Texas, and Wisconsin from 1840–1860, Sager offers a rare glimpse into the private lives of ordinary Americans shaken by accusations of cruelty. * * *

 

Correcting historical mischaracterizations of women’s violence as trivial, rare, or defensive, Sager finds antebellum wives both capable and willing to commit a wide variety of cruelties within their marriages. Her research provides details about the reality of nineteenth-century conjugal unions, including the deep unhappiness buried within them.

h/t Legal History Blog

 

July 11, 2016 in Family, Legal History, Violence Against Women | Permalink | Comments (0)

Monday, May 23, 2016

The Feminist Philosophy of Mary Wollstonecraft as both Equality and Complementarity

Paul Kerry (BYU, History), Mary Wollstonecraft on Reason, Marriage, Family Life, and the Development of Virtue in A Vindication of the Rights of Woman, 30 BYU J. Public Law 1 (2015)

The aim of the argument here is to show how A Vindication of the Rights of Woman presents a view of the equal dignity and intellectual capacity of the sexes embedded in the proposition that males and females are beholden to the same standard of virtue and chastity. Wollstonecraft further argues that both women and men have the same obligation to develop virtue by living lives that are ordered to duties by reason. Reason guides the passions and is exercised through the use of moral agency. Although her treatise calls for certain kinds of female independence, there are also spheres of interdependence and complementarity on which she insists in marriage, childrearing, and family life, but also in the development of virtue. Indeed, in the quest to develop virtue, men and women need each other: “The two sexes mutually corrupt and improve each other. This I believe to be an indisputable truth, extending it to every virtue.” Although Wollstonecraft accords religion a central teaching role as well, it is critical to the philosophical underpinnings of her treatise that human reason (God given, in her view) can derive the principles she puts forward and as such her arguments resonate with those made by natural law advocates. Without this set of arguments, Wollstonecraft's compelling philosophical insights are only partially understood if not largely missed, reduced as they are to calls for specific kinds of action rather than understood as reasoned contributions to political thought. A part of the work here must include restoring Wollstonecraft's argument through her own words by close reading.
This begs an important question: How could Wollstonecraft's many words on key elements of complementarity between man and woman in marriage, childrearing, family life, and the development of virtue and the role of reason go undetected or be neglected? Some of Wollstonecraft's ideas are explained away strategically by suggesting that she had to work within the accepted idioms of her time to revolutionize from within the prevalent discourse. On this view, Wollstonecraft is seen to pose her arguments “within a framework that was minimally acceptable to popular prejudices.” The implication is that she cloaked her real arguments inside of language and tropes that would allow other, less acceptable ideas of the time, to be granted passage into the public discourse. Yet, her ideas, those presented here, are strongly present, in some cases tirelessly omnipresent, in her treatise. She holds these up not as the husk in which to hide the real kernel of her meaning, but as essential to her argument--they are the root of her philosophical thinking. It is strangely myopic to classify her thinking on chastity, marriage, the family, and the complementarity of the sexes as mere window dressing because her views are not radical nor break decisively with traditional thinking.
Another answer to the question is that Wollstonecraft's insights are often placed onto a procrustean bed of feminist theory. Wollstonecraft's place in intellectual history has changed along with the political fortunes of the women's movement. Sometimes it appears as if A Vindication of the Rights of Woman is caught in an interpretative struggle over the meaning of feminism, rather than allowing the treatise to challenge and broaden what feminism means. It is tempting to confer on this text a status as a forerunner of modern feminism, but, depending on what a critic defines this to be, such a status can lead to distortions in understanding the text. The risk of “vile anachronism”is always present when studying any thinker from an ideological or theoretical perspective. Finely textured ideas of past thinkers run the risk of becoming flattened to fit an agenda. This apprehension is conveyed in the words of one critic: “One can see how the moral analysis and the social description in A Vindication could be appropriated for a more conservative social theory, which . . . would confine [women] to a desexualized domestic sphere as wives and mothers.” Certainly the multivalent meanings in A Vindication of the Rights of Woman might disturb a tidy reading that would grant it some kind of prototypical status or bind it to one end of a political spectrum. The high aim of scholarship, of course, is to attempt to understand Wollstonecraft's treatise without pressing it tendentiously into one's particular agenda, theoretical, political, or otherwise. Yet, warning about conservative appropriation can easily chill legitimate efforts to rehabilitate a key text in ways that might threaten the dominant feminist paradigms that have confined A Vindication of the Rights of Woman to a narrower reading than is borne out by the evidence. Rather than pre-emptively silencing or ignoring potentially “contradictory implications” it could be that the most interesting insights are to be found in exploring the tensions rather than in pulling or pushing the text in one ideological direction or another.

May 23, 2016 in Legal History, Theory | Permalink | Comments (0)

Tuesday, May 17, 2016

New $10 Bill Appropriately Features Elizabeth Cady Stanton, But She's About More than Suffrage

More from me blogging on why it is appropriate that Elizabeth Cady Stanton will appear on the new $10 bill.

Who is Elizabeth Cady Stanton and Why is She on the New $10 Bill

Elizabeth Cady Stanton, however, stands out from this respectable group [of women suffrage leaders on the new $10 bill] as the leading philosopher and advocate of the nineteenth-century women’s rights movement. As I discuss in my book Elizabeth Cady Stanton and the Feminist Foundations of Family Law, Stanton was the “radical conscience” and founding mother of feminism. She was also a leading legal thinker advancing a full array of women’s rights. Stanton is memorialized today at the National Women’s Rights Museum located in Seneca Falls, New York. There, a waterfall pours over her prophetic words written in the Declaration of Sentiments.

 

In Stanton’s Declaration, she laid out seventeen demands for women’s rights in addition to the vote. These included the right to equal opportunity in education, employment, and religion. And they included rights within the family designed to assure gender equality, such as joint marital property, no-fault divorce, domestic violence protections, maternal child custody, and equal access to lawmaking through women jurists, lawyers, and juries. Stanton rejected the prevalent idea of the separate sphere of domesticity confining women to the “protection” and isolation of the home. Instead, she saw integrating women into the public sphere of political action and employment as important, while also elevating women as an equal power in the family with rights to property, autonomy, and parenting.

 

 

Stanton’s advocacy for sex equality is integrated into the legal history of family law. She advocated for change to the laws of marital property, equal marital partnerships, no-fault divorce, domestic violence remedies, women’s reproductive control, maternal custody, and de-gendered parenting. It turns out that almost all of Stanton’s radical ideas for the family seem innocuous today only because they have become the law. Turns out she was right, even if she was one hundred years too early.

 

 

May 17, 2016 in Legal History | Permalink | Comments (0)

Beyond #TheNew10: A Better Process for Making Money

Genevieve Blake Tung (Rutgers) & Ruth Anne Robbins (Rutgers), Beyond #TheNew10: The Case for a Citizens Currency Advisory Committee

Abstract:

On April 20, 2016, ten months after promising to place a woman’s portrait on the $10 bill, Treasury Secretary Jacob J. Lew announced sweeping design changes in American currency. Citizens have been asking for these types of changes for at least 95 years, and we hope that Treasury will bring them to fruition rapidly. Until now, the portraiture and imagery featured on American currency has consistently asserted and reified the singular importance of one type of American: White, male politicians and statesmen, largely from the executive branch. This article explores the administrative framework that has enabled these representational shortcomings to persist as long as they have. From the beginning, the process for designing federal paper money has been characterized by arbitrary and arguably autocratic decision-making and resistance to open processes that consider the creativity and insights of the public. The way that Treasury approached its announcement was fraught with challenges for those citizens trying to have their voices heard in what they believed should be an authentic democratic process. It took a small, private organization, Women On 20s, to highlight this fact for the country - an organization that deserves pages in Treasury’s history books. After reviewing the history of the Treasury Department’s role in the design of currency - and coinage - and compare it with that of other agencies tasked with choosing the people and events worthy of commemoration. We argue that for an alternative process for future currency design that will permit meaningful citizen input.

This article also answers the question of when and how the decision was made to put Andrew Jackson on the $20 bill.
 

May 17, 2016 in Legal History | Permalink | Comments (0)

Thursday, May 12, 2016

Annette Gordon-Reed on Becoming a Lawyer and Historian

Last Lecture: Annette Gordon-Reed Traces Her Journey from Texas Childhood to Lawyer and Historian

[After working as a lawyer] she finally decided to enter academia. She felt, she said, that moment “was the only shot I had to be able to write, to be able to think about issues, to be able to use all of the things that I had been thinking about up to this moment—to be thinking about society, to be writing about society in a way that I thought would be useful.”

 

“Law is important. Obviously I believe that. But the kinds of human relations, the kinds of things we’re talking about in both of these books, transcend it,” Gordon-Reed said. “Sometimes you have to look beyond it, because the law is not put in place for everybody, is not made to work for everybody. It’s our hope that we can try to make it work for everybody, but the historian understands that there are moments when that just was not the case, and slavery was one of them."

May 12, 2016 in Books, Legal History, Women lawyers | Permalink | Comments (0)

Friday, May 6, 2016

Republican Motherhood

  The law provides that Mother's Day is a ... flag day?

36 USC 117 - Mother's Day

(a)Designation.— The second Sunday in May is Mother’s Day.
 
(b)Proclamation.—
The President is requested to issue a proclamation calling on United States Government officials to display the flag of the United States on all Government buildings, and on the people of the United States to display the flag at their homes or other suitable places, on Mother’s Day as a public expression of love and reverence for the mothers of the United States.
Ah, Republican Motherhood.  See Linda Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (UNC Press 1997)
 
 

May 6, 2016 in Legal History, Theory | Permalink | Comments (0)

Thursday, April 28, 2016

New in Books: Gender Remade: Citizenship, Suffrage, and Public Power

From Legal History Blog, VanBurkleo's "Gender Remade", Abstract and TOC:

Sandra F. VanBurkleo, Associate Professor of History at Wayne State University, has published Gender Remade: Citizenship, Suffrage, and Public Power in the New Northwest, 1879–1912 (Cambridge UP).

Gender Remade explores a little-known experiment in gender equality in Washington Territory in the 1870s and 1880s. Building on path-breaking innovations in marital and civil equality, lawmakers extended a long list of political rights and obligations to both men and women, including the right to serve on juries and hold public office. As the territory moved toward statehood, however, jury duty and constitutional co-sovereignty proved to be particularly controversial; in the end, 'modernization' and national integration brought disastrous losses for women until 1910, when political rights were partially restored.

April 28, 2016 in Books, Legal History | Permalink | Comments (0)

New in Books: Gender Remade

From Legal History Blog, VanBurkleo's "Gender Remade", Abstract and TOC:

Sandra F. VanBurkleo, Associate Professor of History at Wayne State University, has published Gender Remade: Citizenship, Suffrage, and Public Power in the New Northwest, 1879–1912 (Cambridge UP).

Gender Remade explores a little-known experiment in gender equality in Washington Territory in the 1870s and 1880s. Building on path-breaking innovations in marital and civil equality, lawmakers extended a long list of political rights and obligations to both men and women, including the right to serve on juries and hold public office. As the territory moved toward statehood, however, jury duty and constitutional co-sovereignty proved to be particularly controversial; in the end, 'modernization' and national integration brought disastrous losses for women until 1910, when political rights were partially restored.

April 28, 2016 in Books, Legal History | Permalink | Comments (0)

Monday, April 25, 2016

Who is Elizabeth Cady Stanton and Why is she on the $10 Bill

The news focused on Harriet Tubman on the $20 bill, but more women will be featured on the $10 bill.  Five women suffrage leaders will appear on the back of the $5 bill.  These five are Susan B. Anthony, Lucretia Mott, Alice Paul, Elizabeth Cady Stanton, and Sojourner Truth.

ECSBookJacket

I have spent the last 10+ years researching and writing about Stanton.  My focus has been her contributions to the philosophical development of legal feminism and her work for legal reforms of gender equity in the private sphere of the family. 

Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press forthcoming Oct. 2016)

From the abstract for the book:

Elizabeth Cady Stanton was the principal feminist thinker, leader, and “radical conscience” of the nineteenth-century woman’s rights movement. Stanton initiated the women’s rights movement on July 19, 1848, in Seneca Falls, New York, where she issued her feminist manifesto, the “Declaration of Sentiments,” demanding women’s right to vote. This is generally all that history has remembered of Stanton. Her Declaration, however, demanded seventeen other rights for political, religious, social, and civil rights equality. These included the right to public office, marital property, divorce, education, employment, reproductive control, and religious autonomy. As Stanton explained, the institutions of government, church, family, and industrial work constituted “a fourfold bondage” of women, with “many cords tightly twisted together, strong for one purpose” of woman’s subordination. They were all intertwined, so that “to attempt to undo one is to loosen all.” As Stanton later explained, to break down this complexity required women to have “bravely untwisted all the strands of the fourfold cord that bound us and demanded equality in the whole round of the circle.” Holistic reform was required to break down the complex system of women’s oppression. 

The family was one centerpiece of Stanton’s feminist agenda. The family, governed by patriarchal laws and sentimental gender norms, created and perpetuated women’s inferiority. “If the present family life is necessarily based on man’s headship,” Stanton argued, “then we must build a new domestic altar, in which the mother shall have equal dignity, honor and power.” The private sphere of the family was not segregated from the public sphere, as both nineteenth-century suffrage reformers and twentieth-century feminists often argued, but instead was intertwined with the other institutional strands strangling equality. As a result, radical concrete change to the family institution was required in the forms of egalitarian partnerships, economic rights, free divorce, and maternal autonomy. Stanton’s commitment to women’s equality in marriage and the family was longstanding -- from Seneca Falls to her last writings. As Stanton said, she “remained as radical on the marriage question at the age of eighty-six as [she] had been a half a century earlier.” 

Stanton’s family reforms seem less shocking today because most of them have become law. Her proposals to reconstruct marriage and the family, detailed in this book, are now mainstream. Women have separate and joint marital property rights. Spouses inherit equal shares of estates when one partner dies without a will. Common law marriage is prohibited in most states, and civil marriage requires procedural safeguards. Divorce is available for irreconcilable differences or for misconduct equally applicable to both spouses. The law supports domestic violence protections, reproductive choice, and maternal custody.

Recovering Stanton’s feminist thinking on the family reveals the longevity and persistence of women’s demands for family equality. Contrary to popular wisdom, these feminist ideas were not invented in the 1970s, but instead reach back more than a century earlier as part of the original conceptualization of women’s rights. This longer perspective bolsters the truth and credibility of such feminist demands, dispelling their characterization as a modern anomaly and demanding legitimization and consideration in the law. As these issues of family, marriage, work/life balance, pregnancy, and parenting continue to challenge the law and confound feminism, Stanton’s work adds historical evidence of important principles that should be part of the legal equation. Her work shows that feminism and the family have not been historically in opposition, as we usually think. To the contrary, feminists have existed not apart from the family, but within it. 

See also:

Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012) (on Stanton’s theory and advocacy of maternity)

Tracy A. Thomas, Elizabeth Cady Stanton and the Notion of a Legal Class of Gender, in Feminist Legal History (Tracy A. Thomas & Tracey Jean Boisseau, eds. 2011) (on foundations of constitutional sex equality inquiry)

Tracy A. Thomas, Elizabeth Cady Stanton on the Federal Marriage Amendment: A Letter to the President, 22 Constitutional Commentary 137 (2005) (on marriage equality and divorce)

Tracy A. Thomas, Introduction to Symposium, The Origins of Constitutional Gender Equality in the Nineteenth-Century Work of Elizabeth Cady Stanton, 7 ConLawNOW 1 (2016)

Tracy A. Thomas, The New Face of Women's Legal History, 41 Akron L. Rev. 695 (2008) (on Truth and Stanton)

 

April 25, 2016 in Books, Legal History | Permalink | Comments (0)