Friday, January 27, 2023

Study Shows Intergenerational Gap in Decisionmaking by Women Judges, with Women Coming of Age Before 1963 Voting with Significantly Higher Progressive Inclinations

Isaach Unah, Ryan Williams & Stephanie Zaino, Echoes of the Feminine Mystique: Female Judges and Intergenerational Change in the United States Courts of Appeal,  Journal of Law & Politics (forthcoming) 

Is there an intergenerational gap in decision-making among female judges? Do female judges from United States Supreme Court Justice Ruth Bader Ginsburg’s generation hold a different orientation to law and policy as compared to judges from younger generations? Reviewing different theoretical perspectives regarding gender and judging, we examine the significance of intergenerational change among female judges whose political coming-of-age occurred at different historical intervals. We explore how this change informs decisional outcomes in the U.S. courts of appeals. To designate a temporal marker of intergenerational change, we use Betty Friedan’s publication of The Feminine Mystique in 1963. Our analysis indicates that despite the traditionalistic culture in which they grew up, female judges who came of age prior to publication of The Feminine Mystique voted with significantly higher progressive inclinations compared to female judges who came of age after the book’s emergence. We explore the implications of this finding for judicial decision-making.

January 27, 2023 in Courts, Judges, Legal History | Permalink | Comments (0)

Monday, January 16, 2023

Interview with Author of New Shirley Chisholm Biography

The 19th features an interview of historian Anastasia Curwood on her new biography of Shirley Chisholm, the first Black woman elected to Congress.  The article explains why a "cradle to grave" biography about Chisholm is so important: 

Shirley Chisholm was a trailblazer: the first Black woman elected to Congress and the first Black candidate and the first woman candidate for a major-party nomination for president of the United States. Still, despite her tremendous influence on American politics, biographies of Chisholm have been immensely hard to come across. 

With her recently released book, “Shirley Chisholm: Champion of Black Feminist Power Politics,” Anastasia C. Curwood, a professor and interim chair of the Department of History at the University of Kentucky, hopes to alleviate this gap. A cradle-to-grave biography as Curwood calls it, the book gives insight into who Chisholm was as a person and how Chisolm’s many lived experiences and multiple identities shaped who she was. In the book, Curwood coins the term “Black Feminist Power Politics” to describe how Chisholm’s identity as a Black woman born to immigrant parents in a working-class family allowed her to empathize with the lived experiences of marginalized individuals and informed her politics. 

The 19th article features an interview with the author describing many themes of the book. The book was published on January 10, 2023. 

January 16, 2023 in Legal History, Legislation, Race | Permalink | Comments (0)

Wednesday, November 23, 2022

Federal Court Strikes Down Ban on Possessing Guns While Subject to a Domestic Violence Protective Order Based on History and Tradition

The case is here: US v. Perez-Gallan (W.D. Tex. Nov. 10, 2022)

Yet it wasn’t until the mid- to late-1970s before states enacted laws enabling civil protection orders barring domestic abusers from further abusing the victim.33 And it wasn’t until the mid-1990s—around the time Congress created § 922(g)(8)—that every state had some sort of civil protection order statute.

Protective orders for domestic violence then, are also a recent legal invention. And because they are so recent, a much deeper historical inquiry is needed to satisfy Bruen’s historical requirement. Thus, the Court’s straightforward historical analysis digs deeper to uncover how this Nation has historically punished domestic abusers. 

This straightforward historical analysis, however, reveals a historical tradition likely unthinkable today. Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.

A reason for that was how infrequently domestic abusers were prosecuted. For example, the Plymouth Colony court records from 1633 to 1802 represent the only jurisdiction where the prosecution of domestic violence has been studied over a long time frame.

And during that almost 200-year period, only 12 cases involving wife beating were prosecuted.36 Zero complaints during that time were for child abuse.37 Another study of the six New England colonies from 1630 to 1699 confirmed the same—only 57 wives and husbands were tried on charges of assault. One explanation for such low prosecution numbers is that “a second judicial system, the church court, existed alongside the magistrate’s court.” And church courts relied more on public shaming than anything else.

That said, religious communities handed out the most severe consequences. Indeed, colonial New England, dominated by Puritans, imposed the harshest punishments on domestic violence offenders. For instance, a 1672 court sentenced a man convicted of abusing and beating his wife to be whipped with ten stripes or pay a five pounds monetary
fine to the court.***

The Puritan’s moral law, however, was not the British common law. And as society moved into the eighteenth century, Puritan morality dissipated. Indeed, like domestic violence historian Elizabeth Pleck stated, any prosecution of domestic violence charges at that point “were remnants of a much more extensive form of social policing that ended with the demise of the Puritan experiment.”

This is not to say society encouraged or turned a blind eye toward spousal abuse. Quite the opposite. One judge in 1914 stated that “wife-beating is one of the most contemptible of crimes.” Or as another scholar recounts, private citizens sometimes rebuffed abusers. Indeed, railroad workers in 1886 responded to the sounds of an assault from a nearby home by accosting the husband and taking him to the stationhouse. Or the woman who fended off a would-be abuser with a shotgun while harboring the battered wife in her home. Or the tarring and feathering of abusive husbands. Stories like these appear to have been common.

But glaringly absent from the historical record—from colonial times until 1994—are consistent examples of the government removing firearms from someone accused (or even convicted) of domestic violence.

See Duke Center for Firearms Law: Federal Judge Strikes Down Ban on Possessing Guns While Subject to a Domestic Violence Restraining Order

The Supreme Court's New Second Amendment Test is Off to a Wild Start

On Guns, This Maniacal Focus on Constitutional Originalism is Insanity

November 23, 2022 in Constitutional, Legal History, Violence Against Women | Permalink | Comments (0)

Thursday, November 17, 2022

New Book Female Genius and the Likely Origins of Gender Neutral Language in the US Constitution

Mary Sarah Bilder, Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution 

In this provocative new biography, Mary Sarah Bilder looks to the 1780s—the Age of the Constitution—to investigate the rise of a radical new idea in the English-speaking world: female genius. Bilder finds the perfect exemplar of this phenomenon in English-born Eliza Harriot Barons O’Connor. This pathbreaking female educator delivered a University of Pennsylvania lecture attended by George Washington as he and other Constitutional Convention delegates gathered in Philadelphia. As the first such public female lecturer, her courageous performance likely inspired the gender-neutral language of the Constitution.

Female Genius reconstructs Eliza Harriot’s transatlantic life, from Lisbon to Charleston, paying particular attention to her lectures and to the academies she founded, inspiring countless young American women to consider a college education and a role in the political forum. Promoting the ideas made famous by Mary Wollstonecraft, Eliza Harriot brought the concept of female genius to the United States. Its advocates argued that women had equal capacity and deserved an equal education and political representation. Its detractors, who feared it undermined male political power, felt deeply threatened. By 1792 Eliza Harriot experienced struggles that reflected the larger backlash faced by women and people of color as new written constitutions provided the political and legal tools for exclusion based on sex, gender, and race.

In recovering this pioneering life, the richly illustrated Female Genius makes clear that America’s framing moment did not belong solely to white men and offers an inspirational transatlantic history of women who believed in education as a political right.

h/t Paula Monopoli

Cover for Female Genius

November 17, 2022 in Books, Constitutional, Legal History | Permalink | Comments (0)

Tuesday, November 8, 2022

100 Years Ago This Election Ohio Elected the Nation's First Woman Supreme Court Judge and Six Women State Legislators

Thomas Suddes, When Running for Votes Gives Way to Running Gives Way to Running the Numbers, Cleveland.com

Groundbreakers: Although the anniversary seems to be passing without much notice, it was 100 years ago this week, on Election Day 1922, that Ohioans elected the first six women to be General Assembly members — and the first woman in the United States to serve on any state’s highest court, a lawyer who was a notable Greater Clevelander.

Elected on Nov. 7, 1922, to the Ohio Supreme Court was Judge Florence Ellinwood Allen, of Cuyahoga County (1884-1966). She was the first woman in the United States to serve at the pinnacle of any state’s judicial system. Allen served on the Ohio Supreme Court until 1934. That’s when President Franklin D. Roosevelt appointed Allen to the Cincinnati-based U.S. 6th Circuit Court of Appeals, the first woman to serve on any federal circuit court.

Also elected 100 years ago this week were the first women to serve as members of the Oho General Assembly — two state senators, four state representatives. All six were Republicans, and two were Greater Clevelanders.

Elected to the Ohio Senate in November 1922 were Sen. Maude Comstock Waitt, of Lakewood (1878-1935), and Sen. Nettie Bromley Loughead, of Cincinnati (1870-1936).

Elected to the Ohio House of Representatives in 1922 were Rep. Nettie McKenzie Clapp, of Cleveland Heights (1868-1935); Rep. Lulu Thomas Gleason, of Toledo (1864-1953); Rep. Adelaide Sterling Ott, of Youngstown (1871-1929); and Rep. May Martin Van Wye, of Cincinnati (1878-1968).

Today, according to Rutgers’ Center for American Women in Politics, 30.3% of the Ohio General Assembly’s members are women — in a state whose population is 50.7% female.

I've written about Judge Florence Allen, see Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, 27 Wm. & Mary J. Women & L. 293 (2021), and am currently at work on a book about Allen and women's longstanding demand for access to the systems of legal justice and the courts.

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November 8, 2022 in Courts, Judges, Legal History | Permalink | Comments (0)

Thursday, October 6, 2022

Tracing the Racial and Gendered Origins of Exemptions to Labor Standards

Daiquiri Steele, Enduring Exclusion, 120 Michigan L. Rev. (2022)

Economic justice has long been a part of the civil rights agenda, and minimum labor standards statutes play a crucial role in eradicating the exploitation and subordination of historically marginalized workers. While statutes establishing labor standards are characterized as “universal,” their effect has been anything but universal. Racial and ethnic minorities, women, and those at the intersection experience disproportionate violations of labor standards laws concerning minimum wage, overtime, and occupational safety and health.

Through legislative maneuvering dating back to the New Deal era, Congress carved out many female workers and workers of color from core protections of minimum labor standards legislation. Due to the vigorous advocacy of civil rights groups, amendments to these statutes expanded coverage, making these statutes more inclusive of marginalized workers. Nevertheless, the exclusionary legacy of these New Deal era-laws lingers today. Black, Latinx, and female workers are more likely to be retaliated against for asserting rights or reporting employer misconduct pursuant to these statutes.

Tracing the racial and gendered origins of exemptions to labor standards statutes from the early twentieth century to the present, this Article argues that, despite expanded coverage, female workers and workers of color remain largely excluded from “universal” workplace protections. Although anti-worker forces previously sought to thwart creation of legal rights for marginalized workers, contemporary anti-worker campaigns seek to gut marginalized workers’ protections through actual and threatened retaliation. Examination of the traditional rationales for employer retaliation reveals that the retaliation disparity is incongruent with these conventional motivations. This Article argues that securing compliance with both minimum labor standards and anti-retaliation reform should be integral parts of the civil rights agenda.

 

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October 6, 2022 in Business, Equal Employment, Gender, Legal History, Race | Permalink | Comments (0)

Tuesday, October 4, 2022

The Common Law History of Unwed Motherhood and the Right to Procreation

Lauren Gilbert, To Procreate or not to Procreate: A Right to Self-Determination, Human Flourishing: The End of Law, Forthcoming

Real stories of pregnant women, past and present, shed light on how our laws have evolved to ensure greater recognition of a woman’s fundamental right to reproductive and family autonomy. Today, these rights are in jeopardy. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Center overturning the abortion right frames the issue in terms of the states’ interest in protecting human life; yet the implications for women’s health and human dignity are ignored. I look at several case studies implicating reproductive rights from 1924 to now. I then address Dobbs, concluding that the decision, by focusing on 1868 when women were excluded from the political process, disregards developments in women’s rights in the 20th century, defines fundamental rights too narrowly and ignores evidence of animus towards women seeking to control their reproductive destinies.

In Part I, I briefly review the common law history and treatment of unwed motherhood. In Part II, I recount some less well-known but illuminating details of the family history of Carrie Buck, who was forcibly sterilized in Virginia after the Supreme Court’s 1927 decision in Buck v. Bell. In Part III, I discuss the case of Anna Buck, who, to preserve her place in her community, hid her pregnancy and gave her baby, the bastard daughter of my great-grandfather, up for adoption. In Part IV, I tell my own story of single motherhood and the choices I made, including my own decision to have an abortion while I was living in Costa Rica, where abortions were illegal. In Part V, I discuss the Dobbs decision, and how its formalistic due process and equal protection analyses are compartmentalized so as to read out of existence any potential violations of a pregnant woman’s rights. I conclude that Dobbs is fundamentally flawed because, by focusing on 1868, a time when women were excluded from the political process, it disregards developments in women’s rights in the 20th century, defines the fundamental rights at stake too narrowly and, in finding no equal protection violation, ignores the evidence of animus towards women who seek to control their reproductive destinies.

October 4, 2022 in Abortion, Constitutional, Family, Legal History, Pregnancy, Reproductive Rights | Permalink | Comments (0)

Tuesday, September 27, 2022

A Contemporary Assessment of the Role of Women on the Jury

Vivian Rotenstein & Valerie Hans, Gentlewomen of the Jury, Michigan Journal of Gender & Law, Forthcoming 2023

This Article undertakes a contemporary assessment of the role of women on the jury. In 1946, at a time when few women served on U.S. juries, the all-male Supreme Court opined in Ballard v. United States that “The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of one on the other is among the imponderables.” Three-quarters of a century later, the legal and social status of women has changed dramatically, with increased participation in the labor force, expanded leadership roles, and the removal of legal and other barriers to civic engagement, including jury service. Theoretical developments and research have produced new insights about how gender-conforming individuals enact their gender roles. We combine these insights with a substantial body of jury research that has examined the effects of a juror’s gender on decision-making processes and verdict preferences in criminal and civil cases. We also consider how nonbinary and other gender-nonconforming people might bring distinctive perspectives and experiences to the jury. After a review of the historical record, describing shifts over time in women’s jury participation in the face of legal and societal barriers, we summarize the evidence from decision-making research, gender scholarship, and jury studies to examine whether women bring a different voice to jury service. Our review, which shows substantial overlap as a function of a juror’s gender along with significant areas of divergence, underscores the importance of full and equitable participation on the jury.

September 27, 2022 in Courts, Gender, Legal History | Permalink | Comments (0)

Friday, September 23, 2022

Maternal Instinct is a Myth that Men Created

NYT, Maternal Instinct is a Myth that Men Created

The notion that the selflessness and tenderness babies require is uniquely ingrained in the biology of women, ready to go at the flip of a switch, is a relatively modern — and pernicious — one. It was constructed over decades by men selling an image of what a mother should be, diverting our attention from what she actually is and calling it science.

It keeps us from talking about what it really means to become a parent, and it has emboldened policymakers in the United States, generation after generation, to refuse new parents, and especially mothers, the support they need.

New research on the parental brain makes clear that the idea of maternal instinct as something innate, automatic and distinctly female is a myth, one that has stuck despite the best efforts of feminists to debunk it from the moment it entered public discourse.

To understand just how urgently we need to rewrite the story of motherhood, how very fundamental and necessary this research is, it's important to know how we got stuck with the old telling of it.

September 23, 2022 in Family, Gender, Legal History, Masculinities, Pop Culture | Permalink | Comments (0)

The Argument that a Federal Abortion Ban May Violate Fifth Amendment Due Process

Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, Stanford L. Rev. (forthcoming)

For many Americans, Dobbs v. Jackson Women’s Health Organization signaled the end of things once thought secure: the constitutional right to reproductive autonomy, a vision of women as equal citizens, and the belief that the Supreme Court can rise above politics to protect cherished liberties.

To many anti-abortion groups, however, Dobbs was just the beginning. Merely permitting states to prohibit abortion was never the endgame; their goal has always been a nationwide ban. One path for accomplishing it runs through Congress in the form of a federal statutory ban. A second runs back through the Court in the form of constitutional fetal personhood, or the argument that an unborn fetus is a “person” whose life states would be compelled to protect under the Fourteenth Amendment.

In this Article, I examine the legal future of both pathways in light of the Dobbs majority’s own historical analysis. With respect to a federal abortion ban, many have focused on Congress’s Article I authority. Yet if Congress has the power to codify a statutory right to abortion, it also has the power to ban it. I thus consider a different possibility: even if there were no deeply rooted liberty interest in abortion when the Fourteenth Amendment was enacted against the states, as Dobbs posits, such a history arguably did exist when the Fifth Amendment was enacted against the federal government. For as Dobbs admits, every single state at the founding permitted abortion before quickening, at roughly 16-18 weeks of pregnancy. Dobbs’s own history and tradition test thus plausibly suggests a surprising result: a federal abortion ban may violate the Fifth Amendment Due Process Clause.

With respect to fetal personhood, Dobbs concedes that even as of the Fourteenth Amendment’s enactment in 1868, some states continued to permit abortion early in pregnancy. In truth, Dobbs severely undercounts that number: as many as 21 states, not the 9 Dobbs suggests, permitted pre-quickening abortion. This casts doubt on the fetal personhood argument because it shows that when the Amendment was ratified, most states did not understand unborn fetuses to be “persons” with respect to the precise question at hand. To recognize fetal personhood would require one to conclude that a majority of states were violating the very amendment they’d just ratified.

September 23, 2022 in Abortion, Constitutional, Legal History | Permalink | Comments (0)

Tuesday, September 20, 2022

CFP Book Chapters, Women and Conflicts of Law

CFP Call for Chapter Proposals: Women and Conflicts of Law

Call for Book Chapters:

 Nineteenth- and Twentieth-Century Women and Conflicts of Law:

Global Perspectives, 1815-Present

EXTENDED DEADLINE AND BROADENED FOCUS

We invite chapter submission for inclusion in an edited collection on Nineteenth- and Twentieth-Century Women and Conflicts of Law.

The volume discusses the consequences for women when law systems clashed--between independent nations, colonizers and colonized, majority and minority religions, or between secular and religious laws. The nineteenth and twentieth centuries saw industrial nations draw more and more of the globe into the orbit of their law systems, and these were also the centuries in which women contested their legal positions vigorously. Thus, this period offers an ideal forum for studying the effects of legal differences across the globe. Conflicts of law were inevitable whenever people crossed borders, converted to different religions, or married/divorced someone of a different class, religion, or locality. Women were often harmed by conflicts of law, but this was not inevitable. In other words, these clashes offered both a challenge and an opportunity.

This volume has no geographical limitations; we welcome proposals from historians of all parts of the world. The most important factor for selection will be the authors’ ability to highlight women’s experiences when law systems clashed. Possible topics include, but are not limited to, the following:

  • Conflicts between criminal and civil law
  • Conflicts over differing national laws of marriage, divorce, and child custody
  • Women in imperial law systems
  • The interaction between gender and other factors such as race, class, and sexual orientation in the law courts
  • Conflict between secular and religious courts
  • The consequences of the lack of legal recognition for lesbian and transgender families
  • The regulation and criminalization of sex work across national borders
  • Women as actors in the international legal community
  • Feminist efforts to eliminate women’s disabilities caused by conflicts of law
  • Disputes over nationality, dual nationality, and statelessness in peace and war

The proposed schedule is as follows:

January 15, 2023 – Proposals due; these should be of no more than 300 words, accompanied by a one-page C.V.

February 15, 2023 – Authors receive notice of editorial decision.

November 15, 2023 – Full manuscripts due to the editor. Manuscripts should be standard length for journal articles, approximately 7,500-8,500 words (including notes).

Those interested in contributing should direct all correspondence to the volume editor, Dr. Ginger Frost at: gsfrost@samford.edu

September 20, 2022 in Books, Legal History, Scholarship | Permalink | Comments (0)

Monday, September 19, 2022

Balkin on "Abortion and Partisan Entrenchment"

Jack Balkin has posted Abortion and Partisan Entrenchment on SSRN in draft format. The abstract states:  

In overturning Roe v. Wade, The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization achieved a long-sought victory of the Republican Party. Dobbs is part of a larger conservative constitutional revolution. This revolution has been achieved through a strategy of partisan entrenchment, in which political parties, led by Presidents, stock the courts with jurists allied with the party's commitments of ideology and interest.

Over time, partisan entrenchment by both parties can keep the Supreme Court's ideological center roughly aligned with the center of national public opinion. But this alignment need not occur, and the Court's current constitutional revolution reflects this fact. Moreover, if the country is highly polarized, as it is now, there is even less reason to think that the ideological center of the Supreme Court will have much relationship to the center of public opinion. It is far more likely to reflect the center of elite opinion in whichever major party currently controls the Court.

Although Republicans dominated Supreme Court appointments between 1969 to 2020, Roe v. Wade survived for half a century. This was partly due to luck. But another important reason is that members of the conservative legal movement did not constitute a majority of the Court until 2018. Once that happened, Roe's demise became almost certain. Entrenchment of movement-identified legal conservatives, and not simply Republicans, was the key to overturning Roe.

Once the conservative legal movement has achieved most of its central goals, however, it may lose cohesion, as the country faces new issues and the Republican Party continues to evolve into a Trumpist party. Different parts of the conservative legal movement may find themselves increasingly at odds. New issues will emerge for which the conservative legal movement was not organized. These new issues may create fractures among Court’s conservative majority.

Moreover, Roe's demise has created new problems for the Republican Party. Party coalitions affect the exercise of judicial review--that is the point of partisan entrenchment--but the exercise of judicial review also affects party coalitions. Judicial review can make it easier for a political party to maintain its base of voters; or, conversely, judicial review can create openings for a party’s opponents to pick off its voters and split its coalition.

Roe v. Wade made the modern Republican Party possible. Staunchly pro-life voters could join with voters who supported some abortion rights but voted Republican for other reasons. The latter could vote Republican because no matter how much Republican politicians catered to pro-life voters, Roe kept them from banning abortion completely. Dobbs made abortion prohibition possible and highly salient, and placed different parts of the Republican coalition in tension with each other. To keep their coalition together, Republican politicians may now try to change the subject. But the party's most avidly pro-life voters, who dominate primary contests, may not let them. Although the long-term electoral result is not foreordained, Dobbs has created opportunities for opposition politicians to shrink and fracture the Republican coalition.

Politicians always act in the shadow of other institutional features of the American constitutional system, including judicial review. The Court’s decisions affect political coalitions, but that is because of decisions made by political actors over whom they have no control. Supreme Court decisions may make or break political coalitions, but not as the Justices either understand or intend.

September 19, 2022 in Abortion, Constitutional, Courts, Judges, Legal History | Permalink | Comments (0)

Friday, September 16, 2022

Historian's Study Uncovers Newspaper Reports of Abortion in the US from 1820 to 1860

Patricia Cohen, Married Women and Induced Abortion in the United States, 1820-1860 

Results of a study of 225 publicized abortion cases in US newspapers from 1820 to 1860; with attention to married women who comprise a small fraction of the set.

From the conclusion: 

My search for married women exercising reproductive choice produces glimpses of such women—in Luceba Parker’s and Mme Restell’s rooms and in Horatio Storer’s fevered brain. A series of inferences lend support to the trend. We know the birth rate was falling in this period, first and fastest in New England; some, maybe most of that was due to contraception, equally shunned by Storer. We know that missed menstrual periods were common and were thought to require treatment, including uterine penetration. My newspapers stories show that some doctors were willing to perform abortions, so similar to menstrual regulation techniques. And we know that early pregnancy was hard to detect and hard to prove. When done successfully and discretely, an abortion left few clues. Finally, there had to be some degree of activity by married women for Storer’s outsized claims to seem plausible.

What I am most struck by now, after having amassed all this material, are the crucial differences between then and now. In both eras, legal doors are closing. But back then, those new laws were rarely enforced. Few were prosecuted; fewer still convicted. It is clearly a very different world today, one shaped by powerful tools of surveillance, modern regulatory bureaucracy, unyielding religious beliefs, and determined enforcement.

September 16, 2022 in Abortion, Legal History, Media | Permalink | Comments (0)

Thursday, September 15, 2022

Black Women and Voter Suppression

Carla Laroche, Black Women & Voter Suppression, 103 Boston U.L. Rev.   

Black women vote at consistently high rates during elections in the United States. States, however, have excluded Black women from voting by regulating when a person convicted of a crime may be eligible to vote. These efforts are known as felony disenfranchisement but amount to voter suppression. With the alarming rate of conviction and incarceration of Black women, criminal law intersects with civil rights to bar their involvement in the electoral process.

By reconceptualizing conviction-based voter suppression through the experiences of Black women’s access to their voting rights, this Article adds a new perspective to the rich scholarship analyzing voting rights. This Article examines the history of Black women’s exclusion from the ballot box in the United States, including how the racist legacy of Jim Crow continues through mass incarceration and voter suppression schemes. Using Florida’s disenfranchisement maze as a case study, this Article shows that while Black women and other advocates have led attempts to abolish voter suppression schemes, permanently, they have yet to succeed through the judicial, executive, and legislative branches.

The ostensible reasons for these voter suppression schemes vary, but the outcome has been the devaluing of the interests of Black women and their communities while preserving the voting priorities of white communities. This Article concludes by demanding the dismantling of these voter suppression schemes. Until then, society will continue to bar Black women from the ballot box disproportionally

September 15, 2022 in Constitutional, Legal History, Legislation, Race | Permalink | Comments (0)

Tuesday, September 13, 2022

New Book on the UK's Married Women's Association and Reform of Family Law in the Mid-20th Century

Sharon Thompson, Quiet Revolutionaries: The Married Women's Association and Family Law

This book tells the untold story of the Married Women's Association. Unlike more conventional histories of family law, which focus on legal actors, it highlights the little-known yet indispensable work of a dedicated group of life-long activists.

Formed in 1938, the Married Women's Association took reform of family property law as its chief focus. The name is deceptively innocuous, suggesting tea parties and charity fundraisers, but in fact the MWA was often involved in dramatic confrontations with politicians, civil servants, and Law Commissioners. The Association boasted powerful public figures, including MP Edith Summerskill, authors Vera Brittain and Dora Russell, and barrister Helena Normanton. They campaigned on matters that are still being debated in family law today.

Quiet Revolutionaries sheds new light upon legal reform then and now by challenging longstanding assumptions, showing that piecemeal legislation can be an effective stepping stone to comprehensive reform and highlighting how unsuccessful bills, though often now forgotten, can still be important triggers for change. Drawing upon interviews with members' friends and family, and thousands of archival documents, the book is compulsory reading for lawyers, legal historians, and anyone who wishes to explore histories of law reform from the ground up.

See also Sharon Thompson, The Untold Story of a Mid-20th Century Group of Women Fighting for Equality in Marriage and Why It Matters Today

In 1938, a group of feminist agitators came together in London to tackle what they saw as the most pressing issue of their time: inequality in marriage. For the Married Women’s Association, the right to vote – won for women over 30 in 1918 – was just the beginning of women’s emancipation. The legal status of housewives was next.

If you were a married woman in the early 20th century, you had no rights in your home, nor in the housekeeping money your husband gave you, nor even in the bed you slept in, unless you had used your own money to buy it.

You were also paid less than men, while all the work in the home was exclusively your domain and was unpaid. Your husband, by contrast, would be paid an inflated income to support his dependants, termed a “family wage”, to which, ironically, you had no rights to whatsoever. In the eyes of the law, you were essentially invisible.

These women’s story has long been overlooked. As I show in my new book, Quiet Revolutionaries (and accompanying podcast), what they were fighting for remains highly topical.

September 13, 2022 in Books, Family, International, Legal History | Permalink | Comments (0)

Thursday, September 8, 2022

Justice Ginsburg's Cautious Legacy for the Equal Rights Amendment

Julie Suk, Justice Ginsburg's Cautious Legacy for the Equal Rights Amendment, 110 Georgetown L.J. 1391 (2022)

History will remember the late Justice Ruth Bader Ginsburg (RBG) as the “founding mother” of constitutional gender equality in the United States. This Article unpacks her legacy for inclusive constitutional change, unearthing her lifelong commitment to the Equal Rights Amendment (ERA), which was adopted fifty years ago by Congress in 1972. It took nearly half a century for the Amendment to be ratified by the thirty-eight states required by Article V, with Virginia becoming the last state to ratify it in 2020—the year of Justice Ginsburg’s death. Because the last three ratifications occurred decades after congressionally imposed time limits, RBG publicly expressed doubts about the viability of the ERA, as it was being disputed in Congress and in the courts. This Article unpacks RBG’s ambivalent stance toward the ERA, tracing it to her understanding of the process of constitutional change toward greater inclusion, located in her legal scholarship of the 1970s. As a scholar, RBG focused not only on sex discrimination but also on legal procedure. She was keenly aware that the procedural paths taken toward important socio-legal changes, including women’s equal citizenship, would shape their potential to endure as law.

This Article puts the spotlight on RBG’s often-neglected writings as a scholar before her judicial career. RBG’s transformative vision of constitutional gender equality had an institutional and procedural dimension that accompanied its ambitious substantive ideals. A modern constitutional democracy would fully include women in the rights and responsibilities of citizenship and power, by eliminating gender stereotypes from the law and by implementing public policies to enable the participation of people of all genders. Legislatures, rather than courts, are best equipped to complete this project. To legitimize such large-scale constitutional change, RBG viewed Congress as the appropriate institutional driver of the constitutional amendment process. Accordingly, Congress had plenary power over the procedural incidents of constitutional amendments such as the ERA, including ratification time limits and rescissions. RBG’s legislative constitutionalism on both the substance and procedure of the ERA point to cautiously viable paths forward for both the resurgent ERA and future amendments aiming to secure the inclusion of previously disempowered people in our democracy.

September 8, 2022 in Constitutional, Judges, Legal History, Legislation | Permalink | Comments (0)

Thursday, August 25, 2022

Book Review, Formidable: American Women and the Fight for Equality 1920-2020

Book Review, Formidable: American Women and the Fight for Equality, 1920-2020

This snapshot illustrates the merits of Elisabeth Griffith’s engaging, relevant and sweeping chronicle of women’s fight for equality in the United States — and by examining 100 years of history through a feminist lens, a pattern emerges: Each blow from the patriarchy is countered by a well-aimed and calculated retaliation from American women.

 

Books of true feminist history are rare. Rarer still are these histories intersectional; feminist history tends to be synonymous with white women’s history. Not this book. Griffith delivers a multiracial, inclusive timeline of the struggles and triumphs of both Black and white women in America. “Historically, the white press has not covered the activism of Black women,” she writes. (Her previous book centered on the life of Cady Stanton.) Despite difficult-to-find archival sources, Griffith says, “I’ve named as many women as possible.”

 

A profoundly illuminating tour de force, Griffith’s book begins with Susan B. Anthony and unfolds chronologically, sorted into chapters that track a “pink” timeline of history. “Fifty years ago, when women’s history was struggling for legitimacy in academia,” Griffith explains, “feminists divided American history into ‘blue’ and ‘pink’ timelines. Conference panels debated whether Zachary Taylor’s presidency was more relevant to women’s lives than the invention of the tin can, or whether Jacksonian democracy deserved a chapter when the suffrage campaign did not.”

 

“Formidable” is organized around major fights: voting rights, working conditions, education access, health care, racial violence, reproductive rights, race and gender discrimination, the wage gap, electoral office.

August 25, 2022 in Books, Legal History, Scholarship | Permalink | Comments (0)

Monday, July 18, 2022

The Pre-Civil War History of Fugitive Slave Laws and its Parallel to the Battle Over State Abortion Rights

Kate Masur, What Pre-Civil War History Tells Us About the Coming Abortion Battles, Wash. Post

The Supreme Court’s decision in Dobbs v. Jackson Womens Health Organization, which overturned Roe v. Wade and eliminated the constitutional right to an abortion, is prompting allusions to slavery and the antebellum United States. There’s talk of a new “Underground Railroad” that conjures clandestine networks helping people to flee their home states in search of the freedom to end a pregnancy. And some predict Dobbs will result in conflicts among the states of a magnitude not seen since before the Civil War.

 

Any historical comparison requires considerable care, with attention to differences as well as similarities.***

 
The Dobbs decision, which gives states complete control over abortion laws, has unleashed conflicts that resemble the battles that arose when enslaved people fled slave states for free states, and enslavers, in turn, mobilized state and federal power to get them back.
 

This history doesn’t provide a blueprint for action in our own time, but it does remind us of the corrosive impact of interstate conflict and of the importance of federal protections for freedom and individual rights.***

 

The history of the 19th century reminds us that arguments for states’ rights, or for federal power, have no intrinsic political or moral valence. Northerners adopted personal liberty laws to mitigate oppressive aspects of the Constitution and federal law, while enslavers insisted on extending their jurisdiction beyond state lines and put unprecedented federal power in the service of human bondage.

 

But that doesn’t mean the best option for the country is to leave questions of fundamental rights in the hands of the states. To the contrary, history also shows that the United States has been at its best when, as in the Reconstruction amendments and federal civil rights laws, it offered federal guarantees of freedom, dignity and equality to all people. Federal guarantees not only strengthen democracy, they also tamp down conflicts among the states. Now the Supreme Court has withdrawn the 14th Amendment’s protection of reproductive freedom. No wonder we find ourselves looking for parallels to a period before the amendment existed.

July 18, 2022 in Abortion, Constitutional, Legal History, Pregnancy, Race, Reproductive Rights | Permalink | Comments (0)

Monday, July 11, 2022

Reading the Nineteenth Amendment Differently than the Fifteenth

Paula Monopoli, Gender, Voting Rights, and the Nineteenth Amendment, 20 Georgetown J. Law & Public Policy (2022)

One hundred years after the woman suffrage amendment became part of the United States Constitution, a federal court has held—for the first time—that a plaintiff must establish intentional discrimination to prevail on a direct constitutional claim under the Nineteenth Amendment. In adopting that threshold standard, the court simply reasoned by strict textual analogy to the Fifteenth Amendment and asserted that 'there is no reason to read the Nineteenth Amendment differently from the Fifteenth Amendment'. This paper’s thesis is that, to the contrary, the Nineteenth Amendment is deserving of judicial analysis independent of the Fifteenth Amendment because it has a distinct constitutional history and meaning. The unique historical context preceding and following the Nineteenth’s ratification militates for courts to adopt a holistic interpretative approach when considering a Nineteenth Amendment claim. Such an approach has both expressive and doctrinal implications, providing support for courts to adopt disparate impact, rather than intentional discrimination or discriminatory purpose, as a threshold standard for such claims. Reasoning beyond the text—from legislative intent, purposes, structure, and institutional relationships—could restore the lost constitutional history around the Nineteenth Amendment, making it a more potent tool to address gendered voter suppression today, especially for women of color. This paper provides a framework for judges willing to move away from rigid textual analogy toward a more holistic constitutional interpretation when evaluating a constitutional claim under the amendment.

July 11, 2022 in Constitutional, Gender, Legal History | Permalink | Comments (0)

Wednesday, June 29, 2022

The Theory of Constitutional Memory and its Silencing of Women's Voices and Citizenship

Reva Siegel, The Politics of Constitutional Memory, 20 Georgetown J. Law & Public Policy 19 (2022)

Those who sought votes for women made claims for liberty and equality in the family on which constitutional law might now draw—but there is no trace of their voices or claims in constitutional law. The Supreme Court scarcely mentions the Nineteenth Amendment when interpreting the Constitution. Nor do Supreme Court opinions mention those who led women’s quest for political voice or the constitutional arguments they made in support of women voting, even though these arguments spanned two centuries. There is no method of interpretation that the Justices employ with sufficient consistency to account for this silence in our law.

 

This Article introduces the concept of constitutional memory to explain this silence in our law. Constitutional interpreters produce constitutional memory as they make claims on the past that can guide decisions about the future. It is the role of constitutional memory to legitimate the exercise of authority; but constitutional memory plays a special role in legitimating the exercise of authority when constitutional memory systematically diverges from constitutional history. Systematic divergence between constitutional memory and constitutional history can legitimate authority by generating the appearance of consent to contested status relations and by destroying the vernacular of resistance. Though women contested their lack of political authority in the constitutional order over two centuries, there is no trace of their arguments in constitutional law.

 

To illustrate, the Article examines a long-running tradition of suffrage argument that began before the Reconstruction Amendments and continued in evolving forms after the ratification of the Nineteenth Amendment: that women needed the vote to democratize the family. Two centuries of constitutional arguments are nowhere reflected in the United States Reports. As a consequence, constitutional doctrines about liberty and equality in the family appear to lack historical antecedents.

 

But argument, inside and outside of courts, can counter the politics of memory. Justices across the spectrum regularly make heterodox claims on the past. Constitutional interpreters can invoke the voices of the disfranchised and the concerns that the disfranchised brought to the democratic reconstruction of America. Imagine how we might understand our Constitution in another generation if we did.

June 29, 2022 in Constitutional, Family, Legal History, Theory | Permalink | Comments (0)