Friday, July 14, 2017
Instead of sentencing a woman to jail time for laughing during Jeff Sessions' confirmation hearing, a D.C. judge threw out the woman's conviction and called for a new trial.
Desiree Fairooz says her laughter during the attorney general's confirmation hearing in January was involuntary. (She was reacting to an assertion that Sessions treats all Americans equally.) Fairooz, who is an activist with the Code Pink organization, then protested as she was physically removed from the hearing. In May, she was convicted by a jury of disorderly, disruptive conduct and obstructing passage on U.S. Capitol grounds.
The charges carried up to a year in prison and a fine of up to $2,000. Two other protesters at Sessions' hearing faced similar charges.
But on Friday, the D.C. Superior Court judge overseeing Fairooz's sentencing called for a new trial instead.
Ryan Reilly of the Huffington Post reports that Chief Judge Robert Morin decided that the government improperly argued that Fairooz's laugh alone — not her reaction to being removed from the courtroom — would be enough to find her guilty.
Wednesday, June 28, 2017
Karen Patricia Heath, New Directions in the History of Conservative Women
Kirsten Marie Delegard. Battling Miss Bolsheviki: The Origins of Female Conservatism in the United States. Philadelphia: University of Pennsylvania Press, 2012. 313 pp.; ill. ISBN 978-0-8122-4366-6 (cl).Erica J. Ryan. Red War on the Family: Sex, Gender, and Americanism in the First Red Scare. Philadelphia: Temple University Press, 2015. xii + 220 pp. ISBN 978-1-4399-0884-6 (cl); 978-1-4399-0885-3 (pb).Michelle M. Nickerson. Mothers of Conservatism: Women and the Postwar Right. Princeton, NJ: Princeton University Press, 2012. xxvi + 231 pp.; ill., maps. ISBN 978-0-6911-2184-0 (cl); 978-0-6911-6391-8 (pb).Leslie Dorrough Smith. Righteous Rhetoric: Sex, Speech, and the Politics of Concerned Women for America. New York: Oxford University Press, 2014. x + 241 pp. ISBN 978-0-1993-3750-7 (cl).
As these four monographs ably demonstrate, scholars in the field of US women's history are now accustomed to taking conservative activists and their ideas and organizations seriously. All of the authors treat their historical actors with dignity, meaning that as a group, these works serve to normalize conservative female activism within an academic environment that, in the past, neglected such women and their politics. And yet, certain problems of definition, analysis, and methodology remain: How permeable are the borders between progressivism and conservatism, and between moderation and extremism? And how do these relationships change over time? How should scholars who self-identify as feminists and progressives situate themselves vis-à-vis the conservative women they study? And where should scholars direct their attention in the immediate future, in order to further develop this vital subfield on the history of conservative women?
Friday, June 2, 2017
From Chapter 6, "Our Girls," in Tracy A. Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016)
Toward the end of Elizabeth Cady Stanton's long career advancing women's rights and legal reform, she renewed her efforts to deconstruct the foundations of women's continued subordination. Why did many women themselves not endorse reform and equality? Why did so many women say "I have all the rights I want." Stanton located the source of social subordination in the teachings of the church, which women heard every week from the pulpit and every day in the papers. She dedicated her last decade of life to challenging the gendered interpretations of the Bible and offering alternative feminist understandings of religious doctrine.
As part of that, Stanton drew on new emerging ideas of anthropology of matriarchal societies which she used to show that female power and women-ruled societies were viable alternative ways to structure power. Almost a century later, at the 1977 National Women's Conference in Houston, Gloria Steinem embraced Stanton’s theory of the matriarchate, using it similarly to emphasize the viability of an alternative system of female power.
In the early 1890s, Elizabeth Cady Stanton added to her historical argument of the perversions of the church, by offering an alternative to this ordained gender structure of “the matriarchate.” She incorporated this theory of maternal power into addresses to national conventions, writings on Wyoming’s new grant of women’s suffrage, and in other essays on women’s rights.[i] Stanton drew on emerging anthropological theories of matriarchal societies, prehistoric cultures like the Amazons, Iroquois, and others in which women ruled as the creative force wielding power and peaceful governance. The theory of matriarchy was a popular idea that emerged in the late nineteenth century, originating with Swiss lawyer and jurist Johann Jakob Bachofen and advanced by Marxist thinker Friedrich Engels and others.[ii] The theory of a matriarchal prehistory held that earlier societies existed in which women controlled government and property, created the first families, developed agriculture, and were worshipped as goddesses because of their reproductive and caregiving abilities. A “patriarchy cataclysm” disrupted the peace, harmony, and ecological balance of these matriarchal systems with intervening wars and weapon development, after which patriarchy evolved as the superior social structure and provided survival and advancement.[iii]
Stanton wrote from England in 1890 that she had “been reading the whole year to glean these facts” about the matriarchate by studying British scholars.[iv] She was likely also influenced by her colleague, Matilda Joslyn Gage, who was developing similar theories about religion on matriarchy later published in her magnum opus, Woman, Church, and State.[v] Stanton, like Gage, appropriated the anthropological matriarchal theories of the nineteenth century for her own feminist purposes. For these theories had been developed to justify the converse, the superiority of patriarchy. They held that society had evolved from the unsophisticated, chaotic matriarchal systems into ordered and aggressive systems grounded in patriarchy. Stanton, interpreting the theory through her feminist lens, concluded that the matriarchate provided historical evidence of women’s ability and superior powers and the negative influence of the destructive forces of male aggression and patriarchy. “Thus, instead of being a ‘disability,’ as unthinking writers are please to call it, maternity has been the all-inspiring motive or force that impelled the first steps” toward “the birth of civilization.” Matriarchal theory was attractive because it freed women’s rights advocates from the “charge of their critics that male dominance was biological and eternal, and therefore inevitable and unchangeable.” Stanton used this evidence not to advocate a return to female supremacy, but rather as evidence of women’s capabilities sufficient to support an “Amphiarchate,” a shared power between women and men in the “as yet untried experiment of complete equality.[vi] Second-wave feminists of the late twentieth century resurrected these ideas of the matriarchate bolstered by archeological finds of prehistoric fertility goddesses and a strong current of feminism seeking support for alternative gender structures of power.[vii]
[i] “Matriarchate,” 227; “Her Political Status,” Evening Star, Feb. 25, 1891; “The Matriarchate Mother-Age,” Woman’s Tribune, Feb. 28, 1891; “The Matriarchate or Mother-Age,” National Bulletin, Feb. 1892; ECS, “Wyoming,” Woman’s Tribune, July 5, 1890; ECS, “Wyoming Admitted as a State into Union,” 134 Westminster Review 280 (Sept. 1890); “Antagonism”; Mrs. Stanton on Our Foremothers, Woman’s Journal, Dec. 29, 1894; ECS and SBA, “Women’s Rights,” in Johnson’s Universal Cyclopedia v. VIII (Charles Kendall Adams, ed. 1895).
[ii] Bachofen, Mother Right: A Study of the Religious and Juridical Nature of Gynecocracy in the Ancient World (1861); Friedrich Engels, Origin of the Family, Private Property, and the State (1884).
[iii] ECS, “Karl Pearson on the Matriarchate,” Women’s Penny Paper, Nov. 8, 1890; ECS, “The Matriarchate, or Mother-Age,” National Council of Women, Feb. 22-25, 1891; ECS, “The Antagonism of Sex,” National Bulletin, June 1893; ECS, “Then Woman Said: ‘I Will,’” Dec. 23, 1894; ECS, “Moral Power, or Brute Force?” Boston Investigator, Feb. 25, 1899; ECS, “The Antagonism of Sex,” Boston Investigator, Mar. 16, 1901; Woman’s Bible, 25; Cynthia Eller, Gentlemen and Amazons: The Myth of Prehistory, 1861-1900 6-7 (2011); Cynthia Eller, The Myth of Matriarchal Prehistory 3-15 (2000).
[iv] ECS to Clara Colby, Feb. 21, 1891; ECS, “Reminiscences,” Woman’s Tribune, Mar. 19, 1892.
[v] Fitzgerald, xxi; Kern, 67; HWS, v.I, 753; Matilda Joslyn Gage, “The Matriarchate,” 2 The Open Court 1480-81, Jan. 5, 1889. Gage’s son-in-law, Frank Baum, actualized Gage’s theory of matriarchal power in his “The Wizard of Oz” book series.
[vi] “Matriarchate,” 227; “Antagonism”; Woman’s Bible, 25; Eller, Amazons, 123, 130-32.
[vii] Gloria Steinem, Wonder Woman, in Eller, Myth, 1-2; Merlin Stone, When God Was a Woman (1976); Riane Eisler, The Chalice and the Blade (1987).
Friday, May 12, 2017
In 1894, Ida Platt became the first African-American woman lawyer in Illinois. She was one of only five black women lawyers in the country and the only one able to maintain a law practice. Throughout her thirty-three year career, Platt served as head of her household, providing for her mother and sisters, without marrying or having children. She accomplished these feats by employing a fluid racial identity, passing as white in her professional life, and by avoiding the dominant gender roles that excluded women from the masculine legal profession. In 1927, at the age of sixty-four, Ida Platt retired, married Walter Burke, a white man, and moved to England. Twelve years later, Ida Burke died. As is the practice in England, there was no race designation on her death certificate.
Platt’s choice to employ a fluid racial identity allowed her to pursue her career as a lawyer amidst a racist and sexist society that particularly discriminated against black women. She entered the law when Jim Crow was taking root, race lines were hardening, and elite, white, male lawyers were intensifying their opposition to women’s rise within the profession. Platt’s life and career offer insights into how law and the legal profession responded to the complexities of race and tender a new story of the lived experience of race as it intersects with gender. It suggests that Platt’s pragmatic strategy of changing her racial identity both contested and shaped the ways in which race, gender, and identity were constructed and represented in American society, as it exposed both the rigidity and permeability of these constructions.
Wednesday, May 3, 2017
Women, Gender and Law: Essays from the Gender and Medieval Studies Conference, 43 Historical Reflections (2017)
In the last 30 years the focus of medieval scholars has turned increasingly to nontraditional subjects, especially to women, children, and marginalized others in medieval society. . . . In examining formerly invisible “Others,” medievalists have changed the discourse of the past to one that is both more inclusive and more equivocal: no longer can the certainties that shaped, for example, the nineteenth century’s view of the past as populated by public males and private females, and energized by the confident triumphalism of Western Christianity, be maintained.
Linda E. Mitchell, Introduction: Women, Gender, and Law and Remembering Shona Kelly Wray
Niki Megalommati, Women and Family Law in Byzantium: Some Notes
Nina Verbanaz, Envisaging Eternity: Salian Women's Religious Patronage
Mireia Comas-Via, Widowhood and Economic Difficulties in Medieval Barcelona
Stanley Chojnacki, Wives and Goods in the Venetian Palazzo
Friday, April 28, 2017
Kara Swanson, Rubbing Elbows and Blowing Smoke: Gender, Class, and Science in the 19th Century Patent Office, 108 J. History of Science 1 (2017)
The United States Patent Office of the 1850s offers a rare opportunity to analyze the early gendering of science. In its crowded rooms, would-be scientists shared a workplace with women earning equal pay for equal work. Scientific men worked as patent examiners, claiming this new occupation as scientific in opposition to those seeking to separate science and technology. At the same time, in an unprecedented and ultimately unsuccessful experiment, female clerks were hired to work alongside male clerks. This article examines the controversies surrounding these workers through the lens of manners and deportment. In the unique context of a workplace combining scientific men and working ladies, office behavior revealed the deep assumption that the emerging American scientist was male and middle class.
Tuesday, April 25, 2017
In Finding Feminism: Millennial Activists and The Unfinished Gender Revolution, sociologist Alison Dahl Crossley presents multi-year research that suggests the whole notion of feminist history in terms of waves is not only incorrect but deleterious to the movement itself. Crossley, the Associate Director at the Clayman Institute for Gender Research, interviewed and surveyed over 1,400 students at three different colleges across America—Smith College, the University of California at Santa Barbara, and the University of Minnesota—to ground her argument that feminism is not built on a wave framework but is persistent and waveless.
Waveless feminism, she asserts, “emphasizes the persistence of feminism over time, the variations in feminism, and the interaction between feminism and other movements.” She continues, “To be clear, ‘waveless’ does not mean serene or flat. Rather … [it] is akin to a river. Sometimes there are rapids, sometimes it is very shallow or deep, sometimes there are rocks or other obstacles that divert its course, sometimes it is wide, at other times narrow, sometimes it overflows the banks, sometimes there is a drought.”
Noting that “lesbians have historically played a major role in perpetuating feminist organizations and nurturing feminist culture,” Crossley’s data shows that this influence has continued to today: “Survey data indicate that gay/lesbian, bisexual, and queer study participants were more likely to identify as feminist than heterosexual students. And those survey respondents who identified as queer were the most likely of all participants to identify as feminist.” ***
Through her research, Crossley identifies how feminism on college campuses, feminism as it exists online, and feminism in our daily lives combine to prove that the feminist movement is too complex and nuanced to be construed in waves. The historical framework of the wave, too, is limiting and contributes to what she rightly perceives to be a whitewashing of the movement: “The erasure of women of color in the mainstream narratives about feminism specifically impacts public viewpoints and the central narratives of feminism,” she observes. While an academic text tailored to college audiences, this sociological study is easy to read and the material, especially the interviews with students, are engaging. Crossley’s concept of waveless feminism very well may help us move beyond the stalled gender revolution.
Thursday, April 6, 2017
I'm always interested in new examples of women's historical agency and use of the law.
In February 1783, Belinda Sutton petitioned the Massachusetts General Court for a pension from the estate of Isaac Royall Jr, her late master. (In this petition she names herself simply ‘Belinda, an Affrican’, but in later documents she gave the surname Sutton, her married name.) She had been born in Ghana 70 years earlier and kidnapped by slavers when she was just 12 years old. The petition is one of the earliest narratives by an African-American woman, and an early demand for reparations for the injustice and exploitation of slavery. The court ordered that she should have her pension, but she had to petition again a number of times in later years to continue receiving it.
The Petition of Belinda an Affrican, humbly shews.
That seventy years have rolled away, since she on the banks of the Rio da Valta received her existence. The mountains covered with spicy forests, the valleys loaded with the richest fruits, spontaneously produced, joined to that happy temperature of air to exclude excess, would have yielded her the most compleat felicity, had not her mind received early impressions of the cruelty of men, whose faces were like the moon, and whose bows and arrows were like the thunder and the lightning of the clouds. The idea of these, the most dreadful of all enemies, filled her infant slumbers with horror, and her noontide moments with cruel apprehensions! But her affrighted imagination, in its most alarming extension, never represented distresses equal to what she hath since really experienced. For before she had twelve years injoyed the fragrance of her native groves, and e’er she realized, that Europeans placed their happiness in the yellow dust which she carelessly marked with her infant footsteps, even when she, in a sacred grove, with each hand in that of a tender parent, was paying her devotions to the great Orisa who made all things, an armed band of white men, driving many of her countrymen in chains, rushed into the hallowed shades! Could the tears, the sighs and supplications, bursting from tortured parental affection, have blunted the keen edge of avarice, she might have been rescued from agony, which many of her countrys children have felt, but which none hath ever yet described. In vain she lifted her supplicating voice to an insulted father, and her guiltless hands to a dishonoured deity! She was ravished from the bosom of her country, from the arms of her friends, while the advanced age of her parents, rendering them unfit for servitude, cruelly separated her from them forever!
Scenes which her imagination had never conceived of – a floating world – the sporting monsters of the deep and the familiar meetings of billows and clouds strove but in vain to divert her melancholly attention, from three hundred Affricans in chains, suffering the most excruciating torments; and some of them rejoicing that the pangs of death came like a balm to their wounds.
Once more her eyes were blest with a continent – but alas! how unlike the land where she received her being! Here all things appeared unpropitious – she learned to catch the Ideas, marked by the sounds of language, only to know that her doom was slavery, from which death alone was to emancipate her. What did it avail her, that the walls of her lord were hung with splendor, and that the dust troden underfoot in her native country, crowded his gates with sordid worshipers? The laws had rendered her incapable of receiving property, and though she was a free moral agent, accountable for her actions, yet she never had a moment at her own disposal!
Fifty years her faithful hands have been compelled to ignoble servitude for the benefit of an Isaac Royall, untill, as if nations must be agitated, and the world convulsed for the preservation of that freedom which the Almighty Father intended for all the human race, the present war was commenced. The terror of men armed in the cause of freedom, compelled her master to fly and to breathe away his life in a land where lawless domination sits enthroned, pouring bloody outrage and cruelty on all who dare to be free.
The face of your petitioner is now marked with the furrows of time, and her frame feebly bending under the oppression of years, while she, by the laws of the land, is denied the injoyment of one morsel of that immense wealth, a part whereof hath been accumilated by her own industry, and the whole augmented by her servitude.
Wherefore casting herself at the feet of your honours, as to a body of men, formed for the extirpation of vassalage, for the reward of virtue, and the just returns of honest industry, she prays, that such allowance may be made her out of the estate of Colonel Royall, as will prevent her and her more infirm daughter from misery in the greatest extreme, and scatter comfort over the short and downward path of their lives
And she will ever pray.
Petition of an African slave, to the legislature of Massachusetts (full text of the printed version of Belinda’s petition, reprinted in William & Mary Quarterly)
Tuesday, March 21, 2017
Robert Percival, The Judge Who Climbed Mountains, 69 Stanford L. Rev. (March 2017)
Shirley and Seth Hufstedler loved to climb mountains. The week before the U.S. Department of Education opened its doors in 1980, a profile of them reported that their “favorite hobby is mountain climbing” and noted they had made five trips to the Nepalese Himalayas. When interviewed decades later, Shirley Hufstedler fondly recalled how she and Seth “walked up and down mountains all over the world.
Those were not the only mountains Shirley Hufstedler climbed. To ascend to the highest ranks of the legal profession she had to overcome enormous obstacles then facing women who pursued a legal career. Although the dream of making a woman’s first ascent to the Supreme Court ultimately eluded her, she blazed a trail for those who followed.***
Judge Hufstedler opened her own one-woman law practice. Her big break came when a former professor invited her to help defend the state of California in the Arizona v. California water rights dispute being heard by the Supreme Court. Her brief-writing work on the case quickly earned widespread admiration, though she was not at the counsel table when the case was argued before the Supreme Court.
California Governor Pat Brown took notice of Shirley Hufstedler’s extraordinary legal talent and appointed her to the Los Angeles County Superior Court in 1961. She then was the only woman out of 120 judges on that court. She quickly established herself as a valuable member of the court, pioneering a procedure for issuing tentative decisions that helped reduce the court’s enormous backlog of cases. When asked whether she felt like she had to do anything special to fit into a male-dominated world, Judge Hufstedler replied: “No, I just did my job. And I think doing my job and doing it capably was adequate to be able to help everybody else make a judgment that they didn't have a fox in the hen house.”
In 1966 Governor Brown elevated her to become an Associate Judge on the California Court of Appeal. Two years later, President Lyndon Johnson appointed her to the U.S. Court of Appeals for the Ninth Circuit. Judge Hufstedler was only the second woman ever to serve as a judge on a U.S. Court of Appeals [after Florence Allen] and the only woman serving at the time.
The Hyde Amendment, a ban on the Medicaid funding of abortion, is once again at the center of the abortion wars. For the most part, critics of the Hyde Amendment argue that it authorizes discrimination against poor women. Using original archival research, this Article show that the amendment has had a far greater impact.
In popular debate, proponents of the Hyde Amendment helped to forge an idea of complicity-based conscience that has recently transformed fights about everything from same-sex marriage to contraceptive access. Constitutionally, the fight for the Hyde Amendment also revolutionized the rights-privilege distinction in constitutional law. In abortion-funding cases, the Court held that there was no constitutional problem with laws that created practical obstacles to abortion access so long as the obstacles themselves were not controlled or created by the state. This approach has resonated outside the context of abortion law.
The Court’s recent decision in Whole Woman’s Health v. Hellerstedt makes a challenge to the Hyde Amendment realistic and compelling. The cases upholding the Hyde Amendment regard as constitutional any burden on a woman’s right to choose that is neither created nor controlled by the government. Whole Woman’s Health explicitly rejected this approach, looking instead at how the formal terms of law interact with forces beyond the government’s control. For this reason, the Article shows that Whole Woman’s Health undermines the core premises of the Hyde Amendment and creates an opening for those seeking to revisit the distinction between negative and positive rights.
The Supreme Court’s recent decision in Whole Woman’s Health v. Hellerstedt represents the Supreme Court’s most important intervention in the constitutional politics of abortion. However, as this Article shows, Hellerstedt does not represent the clean break some commentators identify. Instead, the decision comes at the end of a decades-long movement-countermovement conflict about the meaning of an unconstitutional undue burden on a woman’s right to choose abortion.
Positioning Hellerstedt in historical context matters because doing so underscores the Court’s ongoing responsiveness to popular views of what the Constitution says about abortion. The history studied in the Article also reveals what should happen in the next front of the abortion wars, when the Court considers fetal-protective, rather than woman-protective, antiabortion laws. To maintain the delicate balance created by Casey, the Court should require evidence that both fetal-protective and woman-protective abortion regulations are substantially related to their stated goal.
Thursday, March 16, 2017
In a recent blog I wrote for NYU Press, I ruminated about my work in "women's" legal history, and my reluctant embrace of "women's history month." See Tracy Thomas, The Legal History of Elizabeth Cady Stanton, From the Square.
More aspirationally, my goal was that the book [Elizabeth Cady Stanton & the Feminist Foundations of Family Law] might help to mainstream women’s history. Women’s history has been confined to a niche area of study, a segregated “other” type of law and history that is deemed ancillary—and subordinate and irrelevant to, the dominant understanding. Even beginning in grade school, when I thrilled to read the girls’ biographies of famous women like Maria Mitchell and Elizabeth Blackwell, the girls’ books covered in burnt orange were segregated from the boys’ books bound in olive green and shelved separately in the school library. Long before the debate over pink and blue toy aisles in Target, the world of knowledge for me had been demarcated by sex.
That stark image of women’s historical segregation has stayed with me, and expanded as I studied women’s fiction in colleges and now women’s history in law. Yet the more one read’s women’s legal history, the more it is clear that women’s experience was not in fact this segregated or hidden from the popular understanding. For example, Stanton’s work was done in the New York state legislature, the leading national reform organizations, the leading national newspapers out of New York, and in decades of national lecture tours. This history was not hidden under a bush or in private diaries in an upstairs attic. It was public, known, with a clear record trail – and forgotten. Of course those in power are the ones to create history in the topics they chose to write about, remember, and revere.
We have a women’s history month to help us make sure we give due attention to the missing pieces. To pause in the dominant patriarchal view of history and law and find there are many other missing pieces that remain to be told and analyzed; narratives that significantly alter our accepted understanding of law and history. It remains jarring, however, that women’s history is considered important only 1/12th of the year. While I resist that marginalization, I resist even more the absence of women’s history in the discussion. Thus I join in the celebration of women’s history month. In my own work, the goal for what I teach and write is to mainstream women’s history so that it is no longer merely segregated into one month, but integrated as the default norm.
Tuesday, March 7, 2017
Gillian Thomas, NYT, "Four Days That Changed the World": Unintended Consequences of a Woman's Rights Conference, reviewing:
Marjorie Spruill, Divided We Stand: The Battle Over Women's Rights and Family Values
To answer these riddles requires understanding how we got here, and Marjorie J. Spruill’s “Divided We Stand” offers a detailed if sometimes dense primer. Spruill, a professor of women’s, Southern and modern American history at the University of South Carolina, convincingly traces today’s schisms to events surrounding the National Women’s Conference, a four-day gathering in Houston in November 1977. At the time, Ms. magazine called the event — a federally funded initiative to identify a national women’s rights agenda — “Four Days That Changed the World.” So why is it that today, as Gloria Steinem recently observed, the conference “may take the prize as the most important event nobody knows about”?
In Spruill’s telling, the Houston conference was world-changing, but not entirely for the reasons the organizers had hoped. The event drew an estimated 20,000 activists, celebrities and other luminaries for a raucous political-convention-cum-consciousness-raising session. The delegates enacted 26 policy resolutions calling not just for ratification of the Equal Rights Amendment (then just three states shy of the 38 needed) but a wide range of measures including accessible child care, elimination of discriminatory insurance and credit practices, reform of divorce and rape laws, federal funding for abortion and — most controversially — civil rights for lesbians. Those “planks” later were bundled as a National Plan of Action and presented to President Jimmy Carter, amid much fanfare, in a report entitled “The Spirit of Houston.”
The conference had an unintended, equally revolutionary consequence, though: the unleashing of a women-led “family values” coalition that cast feminism not just as erroneous policy but as moral transgression. Led by Phyllis Schlafly, a small but savvy coalition of foot soldiers mobilized against the conference’s aims. These activists found common cause in their deep religiosity and opposition to feminism’s perceived diminishment of “real” womanhood. And although their leadership denied it, the group also had ties to white supremacists. “Divided We Stand” argues that the potency of these advocates and their successors reshaped not just the nation’s gender politics, but the politics of the Democratic and Republican Parties as well.
Friday, March 3, 2017
Tracy Thomas was watching a Ken Burns documentary about Susan B. Anthony [& Elizabeth Cady Stanton] one night about 12 years ago when she heard him mention Elizabeth Cady Stanton in passing.
Thomas, director of the Center for Constitutional Law at the University of Akron, wanted to learn more about Stanton, a 19th century abolitionist.
“She was instrumental in making changes to divorce and domestic violence laws, but I wasn’t finding much online,” said Thomas. “I just started reading Stanton’s papers because I teach family law. The more I read I thought, `Someone needs to know about this.’ “
While Stanton’s contemporary, Susan B. Anthony, became focused just on women’s right to vote, Stanton became a social activist fighting for women’s issues as a whole. Her causes included parental and custody rights, property rights, employment and income rights, divorce and birth control.
“She was very much a holistic thinker – state, church and public,” Thomas said. “As the suffrage movement got more conservative, Stanton kept going. I used to call her the Oprah of Women’s Rights. Everyone knew her then. But people don’t really know her today.”
Thomas is hoping her new book, “Elizabeth Cady Stanton and the Feminist Foundation of Family Law” will change that.
The book explores Stanton’s intellectual and personal contributions to family law. Thomas argues that Stanton’s positions on divorce, working mothers, domestic violence, childcare and other topics were extremely progressive for her time.
“Stanton had seven children,” Thomas said. “Her husband, Henry Brewster Stanton, was an abolitionist who later became a state legislator. He was gone 10 months out of the year. He was always gone from their farm. Her own work was trying to raise the kids while trying to change the world, although she eventually hired a cook and a live-in housekeeper. She wrote important speeches while she was nursing babies. Susan B. Anthony had to baby-sit.”
Thomas became increasingly intrigued the more she read of Stanton’s writings.
“She very much illustrated feminist legal theory,” said Thomas. . . . .“She cared about work-life balance issues. Part of the concern is that we’re losing that message. For her, mothering was very important but she didn’t think it should define her. `Feminism’ is such a charged word, but it’s really just understanding things on a woman’s level.”
Stanton became interested in women’s causes while watching a lot of her attorney father’s cases and clients at their home.
“She didn’t like to do housework or needlepoint,” the professor said of Stanton. “As a woman, you had no rights to your personal property. Her father had money and property but her husband never did. She felt the frustrations herself and she heard the stories early. She would write how frustrating it was to stay here with the kids while her husband got to go out.”
Stanton proposed 22 different legal reforms including no-fault divorce, equal divorce, joint property rights and a woman’s rights to her own income, and all but two are laws today.
“She didn’t want people to be in marriages unless they wanted to be,” Thomas said. “She thought people should have to be 25 to get married, but that you should be at least 18. The age at the time was 13 or 14. Her reforms seemed very crazy at the time.”
New Books: The Trope of the Female Poisoner. How a Jury in an 1840 Murder Trial was Influenced by a Cultural Metaphor
Sara Crosby, Book Talk (audio), Poisonous Muse: The Female Poisoner and the Framing of Popular Authorship in America, New Books Network
In this episode of the H-Law Legal History Podcast I talk with Associate Professor of English at The Ohio State University at Marion, Sara L. Crosby about her new book, Poisonous Muse: The Female Poisoner and the Framing of Popular Authorship in Jacksonian America (University of Iowa Press, 2016). Crosby discusses how the trope of the female poisoner permeated popular literature in the mid-nineteenth century. In her analysis of the 1840 murder trial of Hannah Kinney, we see how the partisan press used the accused as a vessel through which to fight-out central political battles of the day. We then see how jury decisions may serve as a metric for determining which metaphors and cultural frames are prevailing at a point in time. Following a popular metaphor enables Crosby to track the cultural tides influencing law and politics in Jacksonian America.
Thursday, March 2, 2017
Women’s History Month honors and celebrates the struggles and achievements of American women throughout the history of the United States. American women have struggled throughout our history to gain rights not simply for themselves but for many other under represented and disenfranchised groups in America.
Women’s History Month had its origins in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as “Women’s History Week". As requested by Congress, President Reagan issued Presidential Proclamation 4903 proclaiming the week beginning on March 7, 1982 as the first "Women’s History Week" and recognizing the vital role of women in American history.
Throughout the next five years, Congress continued to pass joint resolutions designating a week in March as "Women’s History Week" and authorizing the President to issue a proclamation to inform the country of this recognition and urge the people to study the contributions of women to U.S. history. In 1987 after being petitioned by the National Women’s History Project, Congress passed Pub. L. 100-9 which designated the month of March 1987 as “Women’s History Month.” This law requested the President to issue a proclamation calling upon the people of the United States to observe this month with appropriate activities and ceremonies. President Reagan then issued Presidential Proclamation 5619 proclaiming March 1987 as "Women’s History Month" and calling upon all Americans to mark the month with observances to honor the achievements of American women. Between 1988 and 1994, Congress passed additional resolutions requesting and authorizing the President to proclaim March of each year as Women’s History Month.
Since 1995, Presidents Clinton, Bush and Obama have issued a series of annual proclamation designating the month of March as “Women’s History Month.” These proclamations celebrate the contributions women have made to the United States and recognize the specific achievements women have made over the course of American history in a variety of fields.
As recently as the 1970’s, women’s history was virtually an unknown topic in the K-12 curriculum or in general public consciousness. To address this situation, the Education Task Force of the Sonoma County (California) Commission on the Status of Women initiated a “Women’s History Week” celebration for 1978.
The week March 8th, International Women’s Day, was chosen as the focal point of the observance....
In 1979, Molly Murphy MacGregor was invited to participate in The Women’s History Institute at Sarah Lawrence College, which was chaired by noted historian, Gerda Lerner and attended by the national leaders of organizations for women and girls. When the participants learned about the success of the Sonoma County’s Women’s History Week celebration, they decided to initiate similar celebrations within their own organizations, communities, and school districts. They also agreed to support an effort to secure a “National Women’s History Week.
The first steps toward success came in February 1980 when President Carter issued the first Presidential Proclamation declaring the Week of March 8th 1980 as National Women’s History Week. In the same year, Representative Barbara Mikulski, who at the time was in the House of Representatives, and Senator Orrin Hatch co-sponsored a Congressional Resolution for National Women’s History Week 1981.
President Jimmy Carter’s Message to the nation designating March 2-8, 1980 as National Women’s History Week. As Dr. Gerda Lerner has noted, “Women’s History is Women’s Right.” – It is an essential and indispensable heritage from which we can draw pride, comfort, courage, and long-range vision.
See also WomensHistoryMonth.gov: (photo collection). The Library of Congress, National Archives and Records Administration, National Endowment for the Humanities, National Gallery of Art, National Park Service, Smithsonian Institution and United States Holocaust Memorial Museum join in commemorating and encouraging the study, observance and celebration of the vital role of women in American history.
As we begin women’s history month, I thought I would share a women’s legal history reading list, recently updated. I've developed this list over the last decade with what I think are the seminal articles and books on particular topics, used in connection with my own research and for teaching a Women's Legal History seminar.
This foundational work is critical to filling in the gendered gaps of the conventional history, and it is also just plain interesting. It's interesting that Florence Kelley was responsible for the Brandeis brief and the use of social science in legal argument; that abortion in the first trimester was not illegal for a century until 1865; that some leading women’s rights advocates like Elizabeth Cady Stanton pushed for no-fault divorce in the 1860s and that feminists in the 1970s were largely absent from the no-fault divorce reform; that women lay lawyers invented legal aid lawyering and problem-solving courts; that female advocates and reformers challenged the marital rape exemption 100 years before need for change first “discovered” in the 1970s. The list goes on and on.
My scholarly goal is that one day these "women's" topics will be mainstreamed into traditional wisdom as embodied everywhere from constitutional law texts to high school history books. But for now, at least, the history is being recovered and analyzed, and the transmission of that discovery has been started.
Women’s Legal History: A Reading List
Tracy A. Thomas
Tracy Thomas & Tracey Jean Boisseau, Eds., Feminist Legal History (NYU Press 2011)
Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1999)
Joan Hoff, Law, Gender & Injustice: A Legal History of US Women (1994)
Felice Batlan, Engendering Legal History, 30 Law & Soc. Inquiry 823 (2005)
Understanding Feminist Legal Theory
Martha Chammallas, Introduction to Feminist Legal Theory (2d ed. 2003)
Nancy Levit, Robert Verchick, & Martha Minow, Feminist Legal Theory: A Primer (2006)
Joan Williams, Unbending Gender: Why Family and Work Conflict and What to do About it (2000)
Nancy Cott, The Grounding of Modern Feminism (1987)
Louise Michele Newman, White Women’s Rights: The Racial Origins of Feminism in the United States 5 (1999)
Tracy Thomas, The Beecher Sisters as Nineteenth-Century Icons of the Sameness-Difference Debate, 11 Cardozo Women's L. J. 107 (2004)
EEOC v. Sears, 628 F. Supp. 1264 (N.D. Ill. 1986), 839 F.2d 302 (7th Cir. 1988)
Haskell & Levison, Historians and the Sears Case, 66 Tex. L. Rev. 1629 (1988)
Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of America Society (1997) (Anne Hutchinson trial, jury of matrons)
Kristin Collins, “Petitions Without Number”: Widows’ Petitions and the Early Nineteenth-Century Origins of Marriage-Based Entitlements, 31 Law & History Rev. 1 (2012)
Mary Beth Norton, In the Devil’s Snare: The Salem Witchcraft Crisis of 1692 (2003)
Jane Campbell Moriarty, Wonders of the Invisible World, 26 Vt. L. Rev. 43 (2001)
Peter Hoff, The Salem Witchcraft Trials: A Legal History (1997)
Coverture, Marital Status in the Family, Marital Property
William Blackstone, Commentaries on the Law of England, Of Husband and Wife (1769)
Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (1982)
Richard Chused, Married Women’s Property Law:1800-1850, 71 Georgetown L.J.1359 (1983)
Tracy A. Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (2016)
Reva Siegel, Home as Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850-1880, 103 Yale L J. 1073 (1994)
Ariela R. Dubler, Governing Through Contract: Common Law Marriage in the Nineteenth Century,” 107 Yale Law J.1885 (1998).
Jill Hasday, Contest and Consent: A Legal History of Marital Rape, 88 Cal. L. Rev. 1373 (2000)
Naomi Cahn, Faithless Wives and Lazy Husbands: Gender Norms in Nineteenth-Century Divorce Law, 2002 U. Ill. L. Rev. 651
Ken Burns, Not For Ourselves Alone: The Story of Elizabeth Cady Stanton & Susan B. Anthony (video)
Declaration of Sentiments, July 1848
History of Woman Suffrage, v.I (Elizabeth Cady Stanton, Susan B. Anthony, Matilda Joslyn Gage, eds)
Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)
Nancy Isenberg, Sex and Citizenship in Antebellum America (1998)
Ellen DuBois, Feminism & Suffrage: The Emergency of an Independent Women's Movement in America, 1848-1869 (1978)
Ellen DuBois, Outgrowing the Compact of our Fathers: Equal Rights, Woman Suffrage, and the US Constitution, 1820-1878, 74 J. Amer. History 836 (1987)
Doug Linder’s Famous Trials Website, The Trial of Susan B. Anthony (including trial documents)
Minor v. Happersett, 88 U.S. 162 (1974)
Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920 (1998)
Iron Jawed Angels (2004) (video)
Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 945 (2002)
Felice Batlan, Notes from the Margins: Florence Kelley and the Making of Sociological Jurisprudence, in Transformations in American Legal History: Law, Ideology, and Methods (Daniel Hamilton & Alfred Brophy 2010)
Nancy Woloch, Muller v. Oregon: A Brief History with Documents (1996)
Muller v. Oregon, 208 US 412 (1908)
Adkins v. Children's Hospital, 261 US 525 (1923)
The Triangle Shirtwaist Fire Article, 7 Green Bag 2d. 397 (2004)
Leigh Ann Wheeler, How Sex Became a Civil Liberty (2012)
Mary Ziegler, After Roe: The Lost History of the Abortion Debate (2015)
Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992)
James Mohr, Abortion in America: The Origins and Evolution of National Policy (1979)
Tracy A. Thomas, Misappropriating Women’s History in the Law and Politics of Abortion, 36 Seattle L. Rev.1 (2013)
Linda Gordon, The Moral Property of Women: A History of Birth Control Politics in America (2000)
Linda Greenhouse & Reva Siegel, Before Roe v. Wade (2010)
Sarah Grimke, Letters on the Equality of the Sexes and the Condition of Women in The Feminist Papers (Alice Rossi, ed. 1973).
Fred Strebeigh, Equal: Women Reshape American Law (2009)
Serena Mayeri, A New ERA or a New Era? Amendment Advocacy and the Reconstitution of Feminism, 103 Nw. U. L. Rev. 1223 (2009)
Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (2011)
TJ Boisseau & 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 J. McCammon, eds.)
Deborah Brake, Revisiting Title IX's Feminist Legacy, 12 Am.U.J. Gender, L.& Soc. Pol.462 (2004)
Deborah Brake, Title IX as Pragmatic Feminism, 55 Clev. State L. Rev. 513 (2008)
Deborah Brake, Getting in the Game: Title IX and the Women's Sports Revolution (2010)
Jill Hasday, Fighting Women: The Military, Sex, and Extrajudicial Constitutional Change, 93 Minn. L. Rev. 96 (2008).
Cleveland Board of Ed. v. LaFleur, 414 U.S. 632 (1974)
Deborah Dinner, Recovering the LaFleur Doctrine, 22 Yale J.L. & Fem. 343 (2010)
Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, in Justice on the Shores of Lake Erie: A History of the Northern District of Ohio (Paul Finkelman & Roberta eds. 2012)
Pauli Murray, Jane Crow and the Law: Sex Discrimination and Title VII, 43 G.W. Law Rev. 232 (1965)
Emma Coleman Jordan, Race, Gender and Social Class in the Thomas Sexual Harassment Hearings, 15 Harv. Women's L.J. 1 (1992)
Carrie Baker, The Woman’s Movement Against Sexual Harassment (2007)
Gillian Thomas, Because of Sex: One Law, Ten Cases, and Fifty Years That Changed American Women's Lives at Work (2016)
Joanna Grossman, Nine to Five:How Gender, Sex, and Sexuality Continue to Define the American Workplace (2016)
Women in the Courts
Marina Angel, Teaching Susan Glaspell's A Jury of Her Peers and Trifles, 53 J. Legal Educ. 548 (2003)
Holly McCammon, The U.S. Women's Jury Movements and Strategic Adaptation: A More Just Verdict (2012)
Joanna Grossman, Women's Jury Service: Right of Citizenship or Privilege of Difference?, 46 Stan. L. Rev. 1115 (1994)
Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (2015)
Felice Batlan, The Birth of Legal Aid: Gender Ideologies, Women, and the Bar in New York City, 1863-1910, 28 Law & History Rev. 931 (2010).
Viriginia Drachman, Sisters in Law: Women Lawyers in Modern American History (2001)
Bradwell v. State, 83 U.S. 130 (1872)
In re Lockwood, 154 U.S. 116 (1894)
Women’s Legal History Biography Project, at http://wlh.law.stanford.edu
Thursday, February 23, 2017
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.
Tuesday, February 14, 2017
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.
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.
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.
"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."
Monday, February 13, 2017
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.