Gender and the Law Prof Blog

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

Thursday, February 23, 2017

Book Talk (video): Elizabeth Cady Stanton and the Feminist Foundations of Family Law

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Tracy A. Thomas, Book Talk: Elizabeth Cady Stanton & the Feminist Foundations of Family Law, University of Akron, Center for Constitutional Law (Feb. 9, 2017).

In this presentation, I talk about Stanton's impact on family law, the feminist reforms of family law in the 19th century, and broader goals of mainstreaming women's legal history.

 

February 23, 2017 in Books, Legal History | Permalink | Comments (0)

Tuesday, February 14, 2017

St. Valentine's Greeting to The Lady Judge

From the archives of Judge Florence Allen.  Allen was the first woman judge elected to a state supreme court (Ohio in 1922), appointed to a US Court of Appeals (6th Circuit), and shortlisted for the US Supreme Court. She saved this card sent to her from friends. 

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February 14, 2017 in Legal History, Women lawyers | Permalink | Comments (0)

An Alternative Interpretation of America First, Circa 1924

From the archives of Judge Florence Allen's papers.  Allen was the first woman judge elected to a state supreme court, appointed to a US Court of Appeals, and shortlisted for the US Supreme Court. She saved this pamphlet from the peace movement.

This "America First" poster appears to be part of a campaign by schools, churches, and organizations to turn "the old slogan 'America First'" into a "new American Creed that voices the faith of the broader patriotism that American should be in the forefront of the movement for world cooperation." Peace, not war.  Globalism, not localism.

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   Excerpts from the poster:

    America First: not flaunting her strength as a giant, but bending in helpfulness over a sick and wounded world like a Good Samaritan.

    Not in splendid isolation, but in courageous cooperation.

    Not in pride, arrogance, and disdain of other races and peoples, but in sympathy, love, and understanding

From the explanatory pamphlet:

How the Creed Came to be Spoken

    On Sept. 7, 1924, the Rev. George Ashton Oldham, Bishop Coadjutor of the Diocese of Albany NY preached . . . the Sunday before "Defense Day." He delivered a strong peace sermon. Toward its close he spoke of the old slogan "America First," and told how he thought it should be interpreted. He was listed to with breathless interest and with evident approval.

How It Came to be Published

    Among some who heard Bishop Oldham's sermon and some who read reports of it in the papers the idea arose of giving this new interpretation of "American First" a wider circulation by issuing it in poster form. The enthusiasm of the public was immediate and great. Cards and postcards were next issued, and then, to meet an urgent demand, a poster large enough for outdoor or classroom use.

A "Baerfact"

"As a statement of principles to which every forward-looking American can subscribe, 'America First' would be hard to beat. It makes the noisy rantings of all the professional patriots sound pretty mean and cheap and silly, and recalls the noble ideas of liberty, justice, helpfulness, and cooperation in which the nation was conceived and which it must follow to attain its high destiny."--JM Baer, the "Congressman Cartoonist"

Former Supreme Court Justice Sees Possiblility of New Heaven and New Earth (John H. Clarke)

Noted Editor Counsels his Fellow Countrymen

"It does not agree with the materialistic philosophy of the cry 'My country, right or wrong!' It does not exalt any part of humanity above the whole. It does not accord with the ugly, selfish, and ignoble appeal, 'March on American, and march alone!' It does not pander to a single fear or prejudice or hatred, but it sets a task and reveals a goal for our dear country which should arouse the fervent love and increasing service of every true patriot." 

February 14, 2017 in Legal History | Permalink | Comments (0)

Monday, February 13, 2017

Teaching Seneca Falls

Movements that Move the Teaching of History

For those of us who teach, and especially those who teach courses in women’s and gender studies, the question is key, perhaps even foundational: Is the women’s and gender movement home, and, if so, does that underscore the significance and importance of teaching about Seneca Falls? Does the ribbon of women’s movement history roll out across time and space from Seneca Falls? Is this the place where it all happened, as some like to say? Does this place teach us the function of myth and its mythmaking power for social change, as Lisa Tetrault, associate professor of history at the University of Wisconsin at Madison, ventures in her history of Seneca Falls? Or do the questions posed this way open up the history of women’s movements as a contest over meaning, ritual and re-enactments for feminist futures?

 

Surely, this is, in part, what Saturday Night Live was driving at with its recent sketch featuring millennials conjuring the ghost of Susan B. Anthony at the Susan B. Anthony House in Rochester, N.Y., only to quickly lose interest in her presence. Surely, this also means (re)considering how, just a few months earlier, on Nov. 8, 2016, people lined up for hours on end to pay tribute to this suffragist, abolitionist and women’s rights campaigner on a day they imagined would be historic in its election of the first woman president of America. The SNL millennials’ short attention span disclosed their faint and passing interest in the history of the women’s movement until Susan B. Anthony uttered her opposition to abortion.

 

The point was not lost on college students watching this clip in my class. What did they know -- really know -- of women’s history? And what difference, if any, does that knowing effect in the world today? How does millennials’ seemingly fleeting or ambivalent relation to feminist history tell us more about the failures of romanticizing the past and about our own inability to see or imagine how they take up feminist history’s possibilities to act in the world?

 

One other message in SNL’s short satire really hit home. Women’s rights legacies are not simply and only about upholding the past as some quaint object of interest: see my desk, hold a pair of my shoes and touch the stove where I cooked my meals. Rather, historical moments such as the women’s rights movement in upstate New York need to be thought about as having the capacity to stage the future over and over, a future we continue to grapple with, worry over and teach about.

February 13, 2017 in Legal History | Permalink | Comments (0)

Wednesday, February 8, 2017

A Timeline of Women's Legal History in the US

Came across this again while doing some research, and wanted to make sure to save it for future reference.  It is not complete, but quite useful.

A Timeline of Women's Legal History in the US

This webpage contains a history of significant events for women in the United States regarding their experience with the law: using it, making it, practicing it as a profession, profiting or suffering from it. It ranges from 1619 to the present, covering jury rights, voting rights, marriage rights, the right of a woman to pass on the status of free or slave to her children, the right of a woman to control her own body, the right of a woman to choose her own profession -- particularly the profession of law or lawmaker.

February 8, 2017 in Legal History | Permalink | Comments (0)

Friday, February 3, 2017

How Women's Legal Activism Developed the Right to Privacy

      

 

Jessica Lake, The Face that Launched a Thousand Lawsuits: The American Women Who Forged the Right to Privacy (Yale Law Library Press 2016)

Lake on "The American Women Who Forged a Right to Privacy"

Drawing on a wealth of original research, Jessica Lake documents how the advent of photography and cinema drove women—whose images were being taken and circulated without their consent—to court. There they championed the creation of new laws and laid the groundwork for America’s commitment to privacy. Vivid and engagingly written, this powerful work will draw scholars and students from a range of fields, including law, women’s history, the history of photography, and cinema and media studies.

 

A few blurbs:

 

"Jessica Lake’s The Face That Launched a Thousand Lawsuits is one of those rare books that truly upends conventional wisdom and changes the way readers understand an important subject. In a fascinating and well written account, Lake retells the history of the right to privacy. She shows how the activism of individual women played a central role in driving the legal recognition of that right. This book persuasively argues that we owe much to women who resisted the unauthorized circulation of photographic images of them. It is bracing and compelling from the first page to the last." -- Austin Sarat

"Cybercrimes of visuality today have a prehistory uncovered in this book, which shows how far women aggrieved at having their images circulated without their consent brought the legal cases that built the right to privacy." --Nancy F. Cott

February 3, 2017 in Books, Legal History | Permalink | Comments (0)

Thursday, February 2, 2017

The Gendered History of Citizenship by Marriage

Helen Irving, What is a Citizen?, the concluding chapter of the book, Citizenship, Alienage, and the Modern Constitutional State: A Gendered History (Cambridge University Press 2016).

Explains the history of citizenship-stripping (“marital denaturalisation”) from women who married foreign men (and the parallel conferral, by many countries, of the husband’s citizenship: “marital naturalisation”), a legal practice that was followed in virtually every country in the world between the early-to-mid nineteenth and the mid-twentieth century (and ultimately repudiated in the 1957 UN Convention on the Nationality of Married Women). The book locates this practice in the formation of modern citizenship laws and explains it as an aspect of the emergence of modern international relations. Its concluding chapter is a reflection on what this history reveals about the nature of citizenship. It challenges theories of citizenship as rights and citizenship as participation, and offers an ‘existential’ defence of citizenship that prioritises protection of the citizen on the part of the state.

February 2, 2017 in Books, Constitutional, International, Legal History | Permalink | Comments (0)

Friday, January 27, 2017

19th Century Feminist Theory of Raising "Our Girls"

I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).  See IntroductionChp 1, "What do you Women Want?"; Chp 2 "The Pivot of the Marriage Relation"; Chp 3 "Divorce is not the Foe of Marriage"; and Chp 4 "The Incidental Relation of Mother." 

Today's blog is on Chapter 5, "Our Girls" on Stanton's theories of feminist parenting and raising up a new generation free from gendered norms.

After decades of activism and proposed legal reform, Stanton grew increasingly frustrated with the lack of tangible progress. One continual sticking point was women themselves. Stanton repeatedly heard from women “I have all the rights I want.”

Women’s resistance, Stanton believed, was based on their own social and religious acculturation of female difference and inferiority. As she entered her sixties and then seventies, Stanton became convinced that these foundational norms needed to be changed if there was any hope of meaningful and sustainable change for women’s equality.

Her first strategy was to teach the next generation differently. Her goal was to raise children the same: tell girls to climb trees, play sports, and like science and teach boys to be kind, have manners, and like music. In the 1860s, Stanton toured the country 10 months of the year for 11 years, speaking to large crowds as part of the Lyceum tour. Here she featured two key speeches, “Our Girls” and “Our Boys.” These popular speeches appealed to mothers, as they gave philosophical and practical ways to raise children. She also advocated coeducation of the sexes from primary school through college, eschewing concerns that young men were too immoral to study alongside young women.

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As part of this redirection of the next generation, Stanton advocate for legal reform of child custody laws. At common law, fathers were solely given custody rights, in the case of separation, but also to make decisions about apprenticeships or guardianships at his death. In this one area, the courts kept pace with Stanton’s demands. The courts had begun to evolve away from the paternal right of custody to stronger assumptions of the right of maternal custody especially for young children of “tender years.” This law matched the social norms of the reverence for mothers, although still rendering judgments about “unfit” mothers based on political views or personal relationships.  The custody issue was an issue that triggered large grassroots support among the women Stanton spoke to, as many had experienced the legal loss of their own children.

Stanton’s second grand strategy was to extirpate the origins of the norms of gender inferiority which she located in religious doctrine. The problem, she said, was that women heard everything Sunday from the pulpits of how women was morally inferior, having succumbed to the temptation of evil in the Garden of Eden, and created second to man for the sole purpose of being his help mate. Women believed that their inferiority of law and society was God ordained, and thus fundamentally resisted other ideas.

Her work was to reinterpret the biblical texts that had been used to subordinate women.  Having been trained in Greek, the eighty-year old Stanton set out to offer alternative interpretations of key portions of the Bible in her book The Woman's Bible.  In what we might now call feminist theological interpretation, Stanton questioned the bias of the text, went to the original meaning of the Greek words, and read women’s experience and stories back into the biblical lessons. This work, however, was too radical even for the women suffrage reformers.  They censored her and the book and cast her out from the organization she had founded and lead for fifty years. Stanton didn’t care: her goal was for meaningful and permanent change for women’s equality.

 

January 27, 2017 in Books, Family, Legal History | Permalink | Comments (0)

Monday, January 23, 2017

Elizabeth Cady Stanton on Law, Constitutional Intent, and Human Rights

Elizabeth Cady Stanton testifying before the House Judiciary Committee in 1872 on women's right to vote:

Some object that it was not the "intention" of the framers of the original Constitution, nor of the amendments, to enfranchise woman. When ordinary men, in their ordinary condition, talk of the "intentions" of great men specially inspired to utter great political truths, they talk of what they can not know or understand. When by some moral revolution men are cut loose from all their old moorings, and get beyond the public sentiment that once bound them, with no immediate selfish interest to subserve as, for instance, our fathers in leaving England, or the French Communes in the late war in hardship and suffering they dig down to the hard-pan of universal principles, and in their highest inspirational moments proclaim justice, liberty, equality for all.

Visiting Chicago not long since, I saw great pieces of rock of the most wonderful mineral combination gold, silver, glass, iron, layer after layer, all welded beautifully together, and that done in the conflagration of a single night which would have taken ages of growth to accomplish in the ordinary rocky formations. Just so revolutions in the moral world suddenly mould ideas, clear, strong, grand, that centuries might have slumbered over in silence; ideas that strike minds ready for them with the quickness and vividness of the lightning's flash. It is in such ways and under such conditions that constitutions and great principles of jurisprudence are written; the letter and spirit are ever on the side of liberty; and highly organized minds, governed by principle, invariably give true interpretations; while others, whose law is expediency, coarse and material in all their conceptions, will interpret law, Bible, constitution, everything, in harmony with the public sentiment of their class and condition. And here is the reason why men differ in their interpretations of law. They differ in their organizations ; they see everything from a different standpoint. Could ideas of justice, and liberty, and equality be more grandly and beautifully expressed than in the preamble to our Federal Constitution?

It is an insult to those Revolutionary heroes to say that, after seven years' struggle with the despotic ideas of the old. world, in the first hour of victory, with their souls all on fire with new-found freedom, they sat down like so many pettifogging lawyers, and drew up a little instrument for the express purpose of robbing women and negroes of their inalienable rights. Does the preamble look like it? Women did vote in America at the time the Constitution was adopted. If the framers of the Constitution meant they should not, why did they not distinctly say so? The women of the country, having at last roused up to their rights and duties as citizens, have a word to say as to the "intentions" of the fathers. It is not safe to leave the "intentions" of the Pilgrim fathers, or the Heavenly Father, wholly to masculine interpretation, for by Bible, and Constitution alike, women have thus far been declared the subjects, the slaves of men.

But able jurists tell us that the "intention'' of the framers of a document must be judged by the letter of the law. Following this rule the Supreme Court of the District of Columbia has decided that the XIV. Amendment does affect the status of women; that it advances. Amendment does affect the status of women; that it advances them to full citizenship, and clothes them with the capacity to become voters. The exact language of Judge Cartter, who spoke for the court, is as follows:

All that has been accomplished by this amendment to the Constitution, or its previous provisions, is to distinguish them (women) from aliens, and make them capable of becoming voters. In giving expression to my judgment, this clause does advance them to full citizenship, and clothes them with the capacity to become voters.

If so much has been done, we have already gone beyond the "intention" of the framers of the amendments, if, as some say, they did not intend to touch the status of woman at all. But with or without intent, a law stands as it is written "Lex ita scripta est." The true rule of interpretation, says Charles Sumner, under the National Constitution, especially since its additional amendments, is that anything for human rights is constitutional. "No learning in the books, no skill in the courts, no sharpness of forensic dialectics, no cunning in splitting hairs, can impair the vigor of the constitutional principle which I announce. Whatever you enact for human rights is constitutional, and this is the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding." 

History of Woman Suffrage, v.2:511-13; The Selected Papers of Elizabeth Cady Stanton & Susan B. Anthony, v.6:92-93 (Ann D. Gordon ed.)

 

 

January 23, 2017 in Constitutional, Legal History | Permalink | Comments (0)

Friday, January 20, 2017

Book Talk on the Legal History of Feminist Reform of Family Law

Hudson Book Talk ECS

January 20, 2017 in Books, Legal History | Permalink | Comments (0)

Monday, January 16, 2017

Sex v. Race, Again

A few years ago, I wrote an essay Sex v. Race, Again later included in the book Who Should Be First? Feminists Speak Out on the 2008 Presidential Campaign.  The book was about the perceived battle between race and sex seen in the political campaign between Hillary Clinton and Barack Obama for the Democratic presidential nomination.

The essay connected that presidential context to the historic context of the battle for suffrage rights and how race and sex were set against each other. It showed how historically in law, we have spent time arguing "which is worse," discrimination on the basis of race or gender.

On this MLK Day of reflection on race, and as the March for Women's Rights is planned -- attracting criticism for being both too little and too much about race -- it may be useful to revisit one small piece of this history.     

Sex v. Race, Again

The struggle between Hillary Clinton and Barack Obama to make history as either the first woman or first African-Americanpresident resurrects the unfortunate historic battle between sex and race. The current debate presents striking parallels to the battle for voting rights after the Civil War when infighting between abolitionists over race and sex created deep separatism that pitted allies against each other and diluted their political strength. The potential fallout from this false dichotomy today threatens political credibility and social justice and demands a rethinking of the alleged opposition.


In the late nineteenth century, the debate over the constitutional right to vote became a clash of race versus sex. Women’s rights leaders, most notably Elizabeth Cady Stanton and Susan B. Anthony, battled black men for the right to vote. Rather than unifying against the shared concern of the white male monopolization of political power and legal rights, the representatives of the disenfranchised classes fought each other to obtain rights first.


It began with the Fourteenth Amendment to the U.S. Constitution, ratified in 1868, which precluded the rights of women voters by expressly penalizing states that improperly excluded male citizens from voting.2 This subordination of women’s rights continued in the debate over the Fifteenth Amendment when civil rights leaders abandoned the universal suffrage platform of voting rights for all citizens, temporarily advanced in 1866 by the combined forces of feminists and abolitionists, in favor of prioritized rights for black men. Frederick Douglass, previously one of the staunchest supporters of women’s suffrage, rejected the women’s issues as less urgent and asserted that the failure to grant strategic priority to black male suffrage was a major betrayal of the former slave and constituted outright racism.3 Douglass insisted:

I must say I do not see how any one can pretend that there is the same urgency in giving the ballot to woman as to the negro. With us, the matter is a question of life and death, at least, in fifteen States of the Union When women, because they are women, are hunted down through the cities of New York and New Orleans; when they are dragged from their houses and hung upon lamp-posts; when their children are torn from their arms, and their brains dashed out upon the pavement; when they are objects of outrage and insult at every turn; . . . then they will have an urgency to obtain the ballot equal to our own.

Douglass acknowledged that the same persecution was true for a black woman, “but not because she is a woman, but because she is
black.”

Stanton had earlier taken up the cause of black women when abolitionists began narrowing their focus on the rights of black men: “May I ask just one question based upon the apparent opposition in which you place the negro and the woman? Do you believe the African race is composed entirely of males?” The women’s rights leaders tried to highlight the plight of black women to expose the erroneous opposition of race and gender. A similar point was made one hundred years later by author and black activist bell hooks, who argued that the forced opposition between black power and women’s liberation ignored the reality of black women and unfairly narrowed the social and political debate.

Women in the nineteenth century lost the battle for universal suffrage, and were told that it was the “Negro’s hour” and that they must wait patiently for their time to come (which would be fifty years later). Some women’s rights leaders, like Lucy Stone, eventually acquiesced, and split from the nationalorganization for women’s rights. Others, like Stanton, refused to support a law that discriminated against women and granted preferential power to black men. As Phoebe Couzins, a law student and associate of Stanton’s proclaimed, “I repudiate the Fifteenth Amendment, because it asks me to acquiesce in an assertion to which I utterly refuse to assent, i.e., the inferiority of women.” 

January 16, 2017 in Books, Legal History, Race | Permalink | Comments (0)

Tuesday, January 10, 2017

Rediscovering Queen Victoria as a Feminist Icon

Queen Victoria is trending these days with 2 new books and an upcoming TV series.  I have just finished both books, the fictional Victoria by Daisy Goodwin and the non-fiction Victoria: The Queen by Julia Baird.  I am always interested in books that show us how we have been getting it all wrong.  See also Queen Victoria's Story is More Inspiring, and More Badass, Than We've Seen Before

These books argue that the myth around Queen Victoria as a moralistic, strict leader of women's domestic role was manufactured by men -- particularly those male editors of her papers. These editors omitted all letters to and about women, on grounds that women's issues were irrelevant and not of interest to posterity. They rewrote Victoria's language to reflect the demure, submissive status expected of women. Victoria's youngest daughter Beatrice later edited her mother's papers to omit any signs of the intimate and volatile relationship with her husband, Albert. Modern author Julia Baird argues that the "Victorian" era would have been better named the "Albertine era" as it was Prince Albert who was more moralistic and leading of the domestic sphere and women's inferiority, even for his own wife and Queen. The books also present Victoria as a passionate, engaged, and hot tempered woman who demanded respect, power, and control.

 My interest in Queen Victoria stems from her name repeatedly invoked by Elizabeth Cady Stanton as the model of a strong woman. During my research for my book on American feminist and legal thinker Stanton, I came across many references where Stanton cited Victoria as the ideal strong woman -- a woman with power, employment, but also domestic authority as the mother of nine children. Stanton told mothers they should act "queenly" and she used the history of queens as evidence of women's capacity for political power. I was puzzled by Stanton's continued reverence for Victoria, who is typically depicted as the role model for the domestic, not feminist. She is known as being obsessed and grieved by her husband's early death, the bearer of strict Victorian morality, and the icon for motherhood and domestic sphere (even a Queen should relegate to her domestic role).

I concluded that Stanton must have used Victoria simply because she was the most well-known figure to her audiences and that as Queen she generically illustrated women's potential for power. It may have also been that Stanton saw a little of herself in Queen Victoria. They were about the same age and lived almost the same 80 years (Stanton 1815-1902, Victoria 1819-1901), both were very short (Victoria was 4'11), both had large families (Stanton 7 children, Victoria 9). Stanton visited England in 1840 when Victoria was at the height of her popularity as the new queen and recently married, and Stanton visited England again in the late years of the century as Victoria continued as the longest serving monarch (until Queen Elizabeth II in 2015).

As I learn more about Victoria, I understand Stanton's references better. Stanton's theory of feminism was holistic. She envisioned equality for women in all spheres, both private and public. To her, feminism meant equal autonomy for women in all aspects of life -- public, politics, employment, religion, and family. Significantly, it also meant embracing and elevating the power of motherhood.  Victoria represented this public and private power harmonized with the role of motherhood as authority, not subservience.

 

January 10, 2017 in Books, Legal History, Pop Culture | Permalink | Comments (0)

Thursday, December 22, 2016

Chapter Previews of New Book on Founding Feminist Elizabeth Cady Stanton and Family Law Reform

ECSBookJacket
  

I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).  

Introduction

Chapter 1, "What do you Women Want?" (Marital Property)

Chapter 2 "The Pivot of the Marriage Relation" (Marriage reform)

Chapter 3 "Divorce is not the Foe of Marriage" (Divorce reform)

Chapter 4 "The Incidental Relation of Mother" (Reproductive control) 

 

And coming soon, the rest of the book: 

Chapter 5 "Our Girls" (Feminist parenting, maternal custody, and shifting societal norms of gender)

Chapter 6 "Still Many Obstacles" (Stanton's legacy to feminism and the modern reform of domestic relations law)

December 22, 2016 in Books, Family, Legal History | Permalink | Comments (0)

Friday, December 16, 2016

"The Incidental Relation of Mother" and 19th Century Demands for Women's Reproductive Control

 I have been blogging about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016).  See Introduction, Chapter 1 (Marital Property), Chapter 2 (Marriage reform), and Chapter 3 (Divorce reform). Today I want to talk a bit about Chapter 4 “The Incidental Relation of Mother.”

Stanton’s philosophical point in identifying motherhood as "incidental" was that women’s role of mother did not define her legally or socially, but rather was one incident of her life. In a time when the cult of motherhood and the idealization of the domestic sphere of the home defined women, and denied them all public and legal rights as married women, Stanton clashed with the accepted status quo and challenged the notion that motherhood was the defining attribute of women’s citizenship.  But one of the hardest audiences to convince of this was women themselves. Still she persisted in trying to shift the culture, as he wrote to the Seventh National Woman’s Rights Convention in 1856: “The woman is greater than the wife or the mother; and in consenting to take upon herself these relations, she should never sacrifice one iota of her individuality to any senseless conventionalisms.” Stanton herself had seven children, and presented a credible authority of one who could challenge the legal restriction of motherhood, even as she appreciated and enjoyed the role. 

Both chapter 4 and chapter 5 of the book further develop the specific concrete rights and actions that Stanton then demanded under her philosophy of incidental motherhood. Chapter 4 addresses Stanton’s views of reproductive rights, most namely the right to “voluntary motherhood” and control of sexual relations and procreation.

This chapter to me was one of the most important chapters as I worked to set the record straight. For today, Stanton has been adopted as a poster-child of the prolife movement. Quite literally, her image and words are used on posters, flyers, and commemorative coffee mugs put out by the prolife organization, Feminists for Life. She is cited, repeatedly, in US Supreme Court amicus briefs as evidence of a feminist history against abortion. However, as I detail in the book and here, Stanton was not a prolife advocate. Not at all. In fact, I found only one reference in all of the thousands of historical documents I reviewed in which Stanton even mentioned the word abortion. In this one line, she lists it as one of many social problems identified by reformers, but which she traces back to the core problem of women’s inequality and lack of control in marriage and social and sexual relations. 

FFLPictureECSPoster

 

What Stanton did talk about was voluntary motherhood.  Voluntary motherhood was the ideology of both feminists and conservative women reformers which advocated the right of women to control when they engaged in sexual relations with their husbands.  It reject the marital sexual privilege of the husband and the presumed right to unlimited sexual access. Instead, it placed the sole control of sexual relations with the wife, as it was the wife that bore the physical, emotional, and social consequences of pregnancy. It was a theory of abstinence that placed the right of reproductive control within the singular hands of the woman.

Stanton also wrote a great deal about infanticide, rather than abortion.  Infanticide was the more shocking claim as it alleged a woman had killed her infant after its natural birth. Stanton defended women accused of infanticide and demand mercy rather than the death penalty. She trumped the defense of Hester Vaughn, an eighteen-year-old English working-class girl convicted of infanticide when her baby was found dead next to her where she had given birth alone, starving, in a freezing cold tenement.  Stanton used infanticide to illustrate the injustice of a legal process that included women as jurors, judges, lawyers, lawmakers and even witnesses. For in heavy-handed prosecution of this crime, without prosecution of the male partner or attacker who caused the crime and without mercy from women who understood the situations of such a pregnancy, the law was patently unjust.

December 16, 2016 in Abortion, Books, Family, Legal History | Permalink | Comments (0)

Wednesday, December 14, 2016

Chap. 3 Stanton & Family Law: "Divorce is Not the Foe of Marriage"

I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform. Chapter 2 was "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage. Today is Chapter 3 on divorce reform and domestic violence.

From the Introduction to the chapter:

The “marriage question,” as it was called in the nineteenth century, was less about marriage and all about divorce. America inherited the divorceless legal tradition of England derived from canon law, prohibiting divorce but allowing separation and annulment. A few colonies and states experimented with divorce, slowly expanding the fault grounds for divorce by the middle of the nineteenth century, with a few states adopting broad grounds for any misconduct or cause. Legislatures were guided by legal concepts of individualism and contract theory, and influenced by temperance arguments for the protection of women. As the country grew through expansion, immigration, and industrialization, divorce increased. Numbers went from 9,937 in 1867, the first year a national census on divorce was taken, to 33,461 in 1890 and to 167,105 by 1920. The moral outcry was loud, as clergy and moral reformers predicted the deterioration of the family and the downfall of society.

Stanton was at the forefront of the very public debate on divorce. She viewed divorce as an important issue of women’s rights because it freed women from marriage, where their legal status was denied and their personal freedoms curtailed. Viewing marriage as a trap, she was supportive of any legal means for women to escape, including no-fault or “easy divorce.”Taking this a step further, Stanton argued that women had a duty, an obligation to divorce, in cases of domestic violence and intemperance, to protect themselves and their children.

Divorce had been seen historically and biblically as a way for men to “put away their wives,” but Stanton reframed it as a legal remedy for women. She “single-handedly shifted the age-old idea of divorce as a male prerogative to a right demanded by women on humanitarian grounds.” Women needed divorce, Stanton argued, to escape domestic violence, abuse, poverty, and simple unhappiness. “Liberal divorce laws for oppressed wives,” Stanton proclaimed, “are what Canada was for Southern slaves.” The majority of divorces, over two-thirds, were filed by women—a key fact for Stanton proving the importance of this issue for women and the propriety of including it within the women’s rights platform. Divorce was not a morality crisis, but simply a consequence of women’s assertion of rights. “This is woman’s transition period, from slavery to freedom, and all the social upheavings, before which the wisest and bravest stand appalled, are but necessary incidents in her progress to equality.” Divorce provided the self-help remedy that let women enforce their own rights and expectations of marriage, with the secondary effect of transforming marriage into a more egalitarian structure.

Stanton’s tenaciousness on divorce, however, alienated colleagues and divided the women’s rights movement. Her vocal support of divorce outraged reformers, increased opposition to women’s rights, and contributed to the split in the organized women’s movement. Stanton remained undeterred, convinced of the necessity of divorce to women’s full equality. As the eighty-year-old Stanton recalled, “[S]o bitter was the opposition to divorce for any cause that but few dared to take part in the discussion.” But, she said, “I was always courageous in saying what I saw to be true, for the simple reason that I never dreamed of opposition. What seemed to me to be right I thought must be equally plain to all other rational beings.”

Stanton initially presented divorce as woman’s duty to free herself and her children from an alcoholic husband and domestic violence.

She first wrote of her support for divorce in 1850 in a short article aptly titled “Divorce,” published under the pseudonym “Sun Flower” in the women’s temperance newspaper, the Lily. At this time, a New York legislative committee had proposed a bill to expand divorce beyond the cause of adultery to include desertion, imprisonment, drunkenness, and insanity. Stanton brought this to her readers’ attention and gave it her vote. “I see there is a bill before the Legislature providing some new doors, through which unhappy prisoners may escape from the bonds of an ill assorted marriage. . . . I hope that bill may pass.” She strongly endorsed divorce in the context of intemperance and abuse. “The Legislature, so far from placing any barrier in the way of a woman wishing to leave a drunken husband, ought to pass laws, compelling her to do so.” Divorce, she suggested, would be woman’s duty in such circumstances. Going further, Stanton proposed a broader right to no-fault divorce. “If, as at present, all can freely and thoughtlessly enter into the married state, they should be allowed to come as freely and thoughtfully out again.”

She later then wove divorce reform of no-fault divorce and equal fault divorce into her speeches to the New York legislature and to the public, “speaking wisdom to the popular ear.” But the notorious McFarland v. Richardson trial gave her a national stage on which to play out her critique of marriage and solution of divorce.  McFarland, with premeditation, shot his ex-wife’s lover, a famous journalist. The jury acquitted on grounds that McFarland was entitled to defend his property of his home and his wife. Even though his wife had divorced him (out-of-state). And even though he had committed domestic violence against her.

  McFarlandTrialDayOne

 Stanton then repeated her shocking demand for free and easy divorce a year later in the context of the Laura Fair trial in San Francisco. Fair was sentenced to death for shooting her longtime lover when he returned to his wife. Stanton argued the disparate inequalities in the law that would starkly excuse the murder by a husband, but condemn the same murder by a woman.  

Laura Fair

December 14, 2016 in Books, Family, Legal History | Permalink | Comments (0)

CFP The Intimate State: Gender, Sexuality and Governance in Modern US History

CFP: The Intimate State:Gender, Sexuality and Governance in Modern U.S. History

The Intimate State: Gender, Sexuality, and Governance in Modern U.S. History
Call for Proposals: Due April 10, 2017
Editors: Margot Canaday, Nancy Cott, & Robert Self
We are soliciting original history essays—archive-based research on specific topics, as well as conceptual essays addressing more abstract questions—regarding gender, sexuality and the state for a new edited volume. We seek to bring twenty-five years of scholarship on gender, sexuality, and the family to bear on the history of modern state authority in the United States (1865 to the present). While the volume will reach back to the Reconstruction era and value this history as such, we also hope to point toward a usable past in an uncertain present.
The historical study of state power (its accumulation at various scales, its structures,and its modes of operation) is a longstanding field while that of gender, sex, and sexuality is relatively young though very vibrant. For the most part, these two fields have produced their profoundest insights and advancements without substantial dialogue with one another. Yet contemporary developments and recent scholarship have made it plain that government action at the local, state and federal levels is entwined with incentives, obligations and punishments related to gender and sexuality, and that decisions imagined as personal and intimate choices are almost always already structured by state rules.
These collected essays will aim to demonstrate that the involvements of government authority in intimate life warrant greater historical analysis and theorization than they have generated to date. We envision a volume that encourages scholars whose primary intellectual commitment is to the history of gender and sexuality to leverage that scholarship in the service of new understandings of modern state power (whether at local, state, regional, national, or transnational scales) and that scholars of state authority will also be persuaded to attend more to the insights of gender and sexuality studies in their scholarship. How might the history of American state development—its periodization, its overall theorization—look different at every governmental level from the local to the federal when questions of gender and sexuality move to the center of the analytical frame? The volume invites intersectional approaches to that question, foregrounding the relationship of gender, sexuality, and state power to race, class, and other categories of analysis and experience, and also welcomes contributions that are transnational or comparative in their approach.
Possible topics might include gender/sexuality and:
--borders of the nation/immigration
--racism, racial violence
--political economy
--penal power and incarceration
--electoral/party politics
--citizenship
--militarization and war
--empire
--indigeneity
--national security
As well as state power/regulation and:
--forms of marriage, nonmarriage, marital dissolution
--commercialized sex/sex work
--sexual violence
--sexual science, eugenics
--pornography
--obscenity
--reproduction, contraception, abortion
--heterosexuality
--LGBT rights
--HIV/AIDS
--transgender lives and experiences
Please send an abstract of no more than 750 words, including references to major sources for the research if archive-based, to Margot Canaday (mcanaday@princeton.edu), Nancy Cott (ncott@fas.harvard.edu), and Robert Self (robert_self@brown.edu) by April 10, 2017, along with a one-page CV. Authors will be notified by June 1, 2017, of their selection to participate in a conference to be held at Brown University in January of 2018. Essays (of no more than 10,000 words) to be circulated for the conference will be due December 15, 2017.

December 14, 2016 in Call for Papers, Conferences, Legal History | Permalink | Comments (0)

Thursday, December 8, 2016

Elizabeth Cady Stanton on Frederick Douglass' Interracial Marriage

 I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform and Chapter 2 was "The Pivot of the Marriage Relation" on marriage equality and restructuring marriage.

ECSFD

 

 Sticking with Chapter 2, here is an excerpt I have been reading at book talks:

Stanton’s second goal was to offer a solution that would transform marriage into a relation respecting women’s equal individuality. Her proposal was to conceptualize marriage legally as a contract, rather than a sacrament or status, which would allow freedom to designate the terms and the termination of the marriage.[i] Socially, she advocated an egalitarian vision of marriage as a union of soul mates that fully respected the freedom of each individual as they worked together as partners in the joint enterprise of the family. This transformational vision of marriage required little state regulation, permitting free divorce and other restrictions on choice of marital partner. Stanton believed in the theoretical ideal of free love, resulting “whenever compulsion and restraint, whether of the law or of a dogmatic and oppressive public opinion, are removed.”[ii]

 

So when her friend Frederick Douglass remarried to Helen Pitts, a white woman, she sent her personal congratulations and support for his subversive act. She noted that

there’s much hostile criticism on your condescension in marrying a white woman. After all the terrible battles and political upheavals we have had in expurgating our Constitutions of that odious adjective “white” it is really remarkable that you or all men should have stooped to do it honor. The “white” feature of this contract is bad enough, but “the woman” is still worse.

 

Stanton commented on the gender implications of the controversy, in which his “large circle of admiring friends protest” against him risking his legacy as a black civil rights leader on white interests, especially those of a mere woman.[iii] Stanton wanted to draft a public announcement of support for Douglass from both her and Anthony and invite him to speak at the next women’s rights convention. Anthony refused, concerned with the potential backlash on “the subject of amalgamation” against the growing consensus on women’s suffrage. Anthony wrote to Stanton, “I do hope you won’t put your foot into the question of intermarriage of the races. It has no place on our platform, any more than the question of no marriage at all, or of polygamy, and so far as I can prevent it, shall not be brought there.” She pleaded, do not “throw around that marriage the halo of a pure and lofty duty to break down race lines.”[iv] For Stanton had publicly supported interracial marriage before, attending legislative hearings in Boston to repeal colonial miscegenation laws and printing an editorial in her newspaper in support of interracial marriage.[v] But this time, she backed down.

 

Despite the suggestion that marriage was not a proper issue of women’s rights, for Stanton, it was central to her vision of equality. Changing the marriage relation, she wrote early in the movement, “is at the foundation of all reforms.”[vi]

 

Notes

[i] ECS, “Side Issues,” Rev., Oct. 6, 1870; ECS, “The Kernel of the Question,” Rev., Nov. 4, 1869.

[ii] DuBois, “On Labor,” 65.

[iii] ECS to Frederick Douglass, June 27, 1884; see Maria Diedrich, Love across Color Lines (New York: Hill and Wang, 1999).

[iv] SBA to ECS, Jan. 27, 1884; Newman, 4.

[v] ECS to Elizabeth J. Neall, Feb. 3, 1843; “Theodore Tilton’s Opinion of Anna E. Dickinson,” Rev., Nov. 5, 1868.

[vi] ECS to SBA, Mar. 1, [1852].

 

 

December 8, 2016 in Books, Family, Legal History | Permalink | Comments (0)

Tuesday, December 6, 2016

Stanton, Feminism & the Family:  “The whole question of women’s rights turns on the pivot of the marriage relation.”

I have been blogging, chapter by chapter, about my new book, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Chapter 1 was "What Do You Women Want?" on marital property reform.  

Today, is chapter 2.

ThomasStantonBookJacket

Chapter 2, “The Pivot of the Marriage Relation” addresses Stanton’s key philosophical premise that equality in marriage was as important as equality in public, church, and state.

I do not know that the world is quite willing or ready to discuss the question of marriage. . . . It is in vain to look for the elevation of woman, so long as she is degraded in marriage. . . . The right idea of marriage is at the foundation of all reforms. . . . I feel this whole question of woman’s rights turns on the pivot of the marriage relation, and sooner or later it will be the question for discussion.

—Elizabeth Cady Stanton to Susan B. Anthony, Mar. 1, [1852]

Marriage needed “pivot,” to do an about-face from the slave-like subordinated status of married women under coverture to an autonomous, individual partner of a marital partnership. For this first feminist, family was not opposed to women’s rights, but was a key site of needed change. The public and private spheres were not segregated as feminist theory first developed.

Stanton’s critiques and theories of marriage were colored by her own disappointing personal experience in marriage. She had dreamed, and often espoused, the idea of a close companion, a soulmate, with whom a woman shared family, work, and intimacy. Instead, she was married to abolitionist and some-time lawyer Henry Stanton who was fully absorbed in his own (unrealized) political ambition. Henry spent most of their married life living elsewhere, working on a political campaign or issue in another city or state, while Elizabeth raised their seven children. The two finally set up separately households in their fifties, visiting and remaining cordial for family events.

Philosophically, Stanton’s first objective was to establish that marriage was a problem. She made her point sometimes symbolically, using metaphors like slavery which her audience understood, and lamenting the wife’s duty to obey and take her husband’s name, “Mrs. Henry Stanton.”    

Stanton’s radical “Man Marriage” critique presented in speeches and newspaper editorials conveyed this idea of the oppressive nature of marriage on a more sophisticated level. Like modern feminist legal theorists, she deconstructed the seeming objectivity of the law to show how the laws of marriage were made “by and for the benefit of men.”  She applied this critique to the controversy over Mormon polygamy, subversively suggesting that polygamy was no worse than monogamy for women.

Stanton’s second objective was to offer a corrective solution to the problem of marriage. Her reconstructive ideal conceptualized marriage as a contract. Marriage as a contract, rather than a status, changed everything legally for Stanton. It supported the notion of a legal partnership of equals, free modification of termination of that contract by divorce, as well as state laws of higher age for marriage and abolition of common law marriage.

December 6, 2016 in Books, Family, Legal History | Permalink | Comments (0)

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)