Wednesday, October 13, 2021
Ann Tweedy, Book Review, Uncovering the Little-Known History of Suffragists of Color, JOTWELL, reviewing Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020).
The book rightfully complicates the notion of women’s suffrage, revealing that a singular focus on women’s suffrage both obscures the larger struggles that these women were engaged in to secure the voting rights of all members of their communities and elides the contributions of these women to the suffrage movement. As Cahill explains, “[t]he suffrage histories of women of color bridge 1920, so to see that year as an end point leads us to tell a story that inevitably ignores them and truncates our understanding.” (P. 205.) Another invaluable aspect of this book is that Cahill refuses to shy away from the complexities of the important history she is unveiling. Thus, as readers, we are forced to reckon with the fact Native and Latina activists, for instance, sometimes drew distinctions between themselves and African-Americans to demonstrate the worthiness of their own communities for voting rights. More broadly, we are faced with the shameful history of exclusion within the women’s suffrage movement. White suffrage parade organizers, for instance, tried to relegate Ida B. Wells (then going by Mrs. Wells-Barnett) to the portion of the 1913 Washington D.C. suffrage parade reserved for African-Americans, rather than allowing her to march with the Illinois delegation as planned. As a consequence, she had to jump into the parade after it had already started in order to march with her fellow Illinois citizens. (P. 104.)
It is tempting to the think of the history of voting rights, like other histories, in linear terms, with African-American males getting the vote in 1870 upon the ratification of the Fifteenth Amendment; white, African-American, and Latina women receiving the right to vote in 1919 with the ratification of the Nineteenth Amendment; and Native American men and women securing the right to vote via statute in 1924 (although many Native persons had obtained the right to vote prior to that).
Recasting the Vote shows that this progression was nowhere near so simple. Cahill, for example, reminds us that, post-1920, widespread lynching of African-Americans continued to be utilized to dissuade African-Americans from voting and that, as a consequence, activists like Carrie Williams Clifford organized campaigns for anti-lynching legislation. (P. 226.) Racist whites also prevented Native Americans from voting even after the Indian Citizenship Act was passed, with “States with large Native populations borrow[ing] heavily from . . . southern examples while also using Native people’s unique relationship to the federal government to keep them from voting.” (P. 261.) And although activists like Mabel Ping-Hua Lee fought for women’s suffrage in the United States, under the Chinese Exclusion Act, “the Chinese were the only people in the world whom the United States restricted due to their nationality and made ineligible for naturalized citizenship.” (P. 149.) Thus, until the repeal of the Chinese Exclusion Act in 1943, Chinese-born women could not become naturalized citizens and could not vote irrespective of the Nineteenth Amendment.
Cahill thus renders her history of suffragists of color in all of its undeniable complexity. As such, Recasting the Vote is bound to be an indispensable resource on the subject for decades to come.
Wednesday, October 6, 2021
In a June hearing, Spears said that her conservatorship was “abusive,” and that her father forced her to work and to keep a birth-control device in her body so that she could not become pregnant. The claims shocked the public, including many celebrities, who have increasingly voiced their support for her.
But to historians of eugenics, Spears’s ordeal sounds very familiar. It’s a story of control — control of a woman’s labor, civil rights, parental custody, legal representation and even her reproductive system.***
In the early 20th century, a lot of states were “chasing the white whale” of a eugenics law that would pass constitutional scrutiny, said Elizabeth Catte, a public historian and author of the scorching book “Pure America: Eugenics and the Making of Modern Virginia.” Indiana passed a eugenics-based law allowing forced sterilization in 1907, but it was overturned in court, as was California’s in 1909.
Then Virginia gave it a try with its own law in 1924, and went looking for a test case to legitimize it.
Carrie Buck was born into poverty in Charlottesville in 1906. Her father abandoned the family, and her mother was soon accused of “immorality” and committed to the Virginia State Colony for Epileptics and Feebleminded — essentially a work camp for White people the state didn’t like. Buck was separated from her siblings and sent to live with a wealthy foster family, who forced her to leave school during sixth grade and serve as a housekeeper in their home.
When Buck was 17, she was raped by the nephew of her foster mother and became pregnant. Probably to save face, the family accused her of promiscuity and feeblemindedness, and in 1924, she was committed to the same colony as her mother. Her infant daughter was given to her foster mother.
In an 8-to-1 decision, the Supreme Court agreed, with Justice Oliver Wendell Holmes famously declaring, “Three generations of imbeciles are enough.” (Many words now used as mild insults, such as “moron,” “imbecile,” and “idiot,” have a long history of being used as clinical diagnoses.)
Buck, along with her mother and her sister, was subsequently sterilized by having her fallopian tubes cut and cauterized. Buck’s daughter died when she was 8.
All told, Virginia robbed 8,000 people of their ability to have children.
Spears’s situation has made Catte “think a lot about women that I write about, even though they are incredibly poor women,” and Spears is not.“The choice to deprive them of their reproductive freedom through sterilization was only one half of the state’s control over their lives,” she said. “The second half is control over their labor.”
Wednesday, September 22, 2021
Many of us have seen the iconic photo of interracial sisterhood with Gloria Steinem and Dorothy Pitman Hughes from 1971, now part of the Smithsonian Institution’s National Portrait Gallery in Washington, D.C. While we know a lot about Steinem from popular media, history books, autobiographies and even a Broadway play, most of us know very little about Pitman Hughes. But we should.
The recent publication of Pitman Hughes’s biography—With Her First Raised: Dorothy Pitman Hughes and the Transformative Power of Black Community Activism—by University of Massachusetts historian Laura Lovett shares this forgotten history. According to Lovett, her book offers “a history of the women’s movement with children, race and welfare rights at its core, a history of women’s politics grounded in community organizing and African American economic development.”...
Throughout her life, Pitman Hughes sought to make the lives of ordinary women better by working to empower communities to meet their needs—whether that was child care, recognition of Black women’s inherent beauty or access to economic resources or local healthy food. The book recounts her early experiences of racism, including “routine extralegal violence from the Ku Klux Klan and the White Citizens’ Councils,” her work with the Congress on Racial Equality (CORE), the Black Panthers and Malcolm X, and her friendships with people like Flo Kennedy and Ti-Grace Atkinson, as well as Steinem....
“Dorothy’s style was to call out the racism she saw in the white women’s movement. She frequently took to the stage to articulate the way in which white women’s privilege oppressed Black women but also offered her friendship with Gloria as proof this obstacle could be overcome,” said Lovett.
Pitman Hughes also organized the first shelter for battered women in New York City, co-founded the New York City Agency for Child Development working to expand child care services in the city and was a co-founder of the National Black Feminist Organization.
Monday, September 20, 2021
The Kentucky Court of Appeals published an interesting decision of note on September 3 in Bratcher v. State Farm Fire and Casualty Co., et. al. The plaintiff was injured in a motorcycle accident and filed a claim for benefits under her parents' policy listed as "Bratcher, Don & Tina." The plaintiff lived in her parents' rental property. The plaintiff's mother had separated from her father and moved into the rental property with the plaintiff just before the accident. The insurance coverage would include the plaintiff only if she was a "resident relative" defined as a person who lives "primarily with the first person shown as a named insured on the Declarations Page and who is [related to that "person"]" (emphasis in original). Person is defined as "a human being." State Farm moved for summary judgment arguing that she did not reside primarily with the person on the Declarations Page because that was only her father. The Circuit Court agreed. The plaintiff argued on appeal that the parties were listed together as husband and wife and held equal status as named insureds. The Court of Appeals agreed and held that both mom and dad were first-named insureds on the policy. Because Mom had just moved in with the plaintiff, there was a genuine issue of material fact as to whether the plaintiff was a resident relative, so the case was remanded for proceedings consistent with the decision.
Judge Dixon's Concurring Opinion is particularly interesting in how it draws out the historical points on coverture (emphasis in original).
It is within this context of history I turn to State Farm’s denotation of Don as the first-named insured. While much has changed in the past 50 years, apparently much stays the same.
The law governing family relationships has developed significantly during the latter half of the 20th Century; married women are generally accorded the same rights as unmarried women, and strides toward recognizing the equality of women and men have been made and are continuing. Nevertheless, there remain vestiges of the historical treatment of women generally, and married women in particular, within our law, a treatment which at common law merged the married woman’s identity into that of her husband. 5 WILLISTON ON CONTRACTS § 11:1 (4th ed. 2021). Has Tina’s identity herein been merged with that of her husband? The uncontested proof indicates Appellant’s mother, Tina, purchased these insurance policies and paid the premiums for them. Under normal contractual circumstances, Tina would be considered the owner of the policies. Yet, State Farm representatives unilaterally chose to list the “insured” as “Bratcher, Don & Tina L,” conducting a credit check only on Don. Why not Tina? Is her credit irrelevant and insignificant? In fact, Tina was the only one between the two with actual employment. Does she have no independent identity? Nevertheless, due to the most random of circumstances, State Farm contends that because Tina, not Don, resided with Appellant in a home owned jointly by Tina and Don, their daughter–Appellant–is excluded from coverage solely because Don is the first-named insured. Thus, presumably, if Don were residing with Appellant instead of Tina, she would be covered by the policies in question. Such certainly smacks of the sex discrimination of a bygone era. Why else would State Farm choose a man as first-named insured over his wife who actually purchased the insurance policies herein and who paid all of the premiums for the policies? State Farm should not be allowed to benefit from such action.
Wednesday, September 15, 2021
Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.
It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.
After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.
To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.
h/t Larry Solum
Wednesday, August 25, 2021
New Book: Sexual Justice, How Colleges Can Handle Sexual Misconduct Cases More Fairly, Supporting Victims and Ensuring Due Process
Alexandra Brodsky, SEXUAL JUSTICE: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash
Alexandra Brodsky’s “Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash” seems, at first, as if it is going to be a work of soul-searching about the campus anti-rape movement.
In 2013, Brodsky, then on her way to law school, was a founder of Know Your IX, a student group that fought to use Title IX of the 1972 Civil Rights Law, which prohibits sex discrimination in education, to get schools to do more to protect students from sexual assault. Now a civil rights lawyer, she’s been at the center of the long battle about how campus sexual misconduct allegations should be resolved. And the introduction to her book suggests she’s had some second thoughts.
Some Title IX advocates, she writes in the first pages, “abandoned complexity, dismissing concerns about due process out of hand, or rejected reasonable reforms because they came from ‘the other side.’ Some used low rates of false reporting to excuse mistreatment of the accused, or were cavalier about the stakes for a student facing suspension.” She described spending a year in law school reviewing lawsuits from students who claimed they were wrongly suspended or expelled for sexual assault. She struggled to balance her empathy for them with her wariness of what the philosopher Kate Manne has called “himpathy,” outsize concern for male perpetrators at the expense of victims.
I was eager to read more about this struggle, but most of “Sexual Justice” isn’t a book about gray areas or ambivalence. It’s something less interesting but potentially more useful: a treatise from a committed activist laying down broad guidelines for fair adjudication processes. “My focus is the steps by which people can vet an accusation of sexual harassment, rather than the matter of what constitutes sexual harassment,” she writes.
Thursday, August 19, 2021
Mary Keyes, Women in Private International Law
There has been almost no consideration of the position of women in private international law. There is very little published research applying a feminist analysis to, or even considering the position of women in, private international law. This field gives almost no attention to the particular interests, positions and experiences of women as subjects of the law, or the contribution of women as makers of the law. In the common law, private international law was largely developed in the 19th century, by male judges who were strongly influenced by commentary written exclusively by men. This chapter establishes that the apparently gender-neutral nature of private international law conceals profoundly ingrained assumptions about gender, in which the masculine is represented as a rational and sophisticated businessman, and the feminine is represented as a legally incapable wife. It then considers the gendered dimension of private international law in international family law, referring in particular to the regulation of international child abduction, international family property agreements, and international commercial surrogacy. Each of these examples demonstrates the differential impact of the law on women, indicating the need for greater awareness of and attention to gender. It concludes that while there have been some advances recently, particularly in terms of increased representation of women in making and commenting on private international law, there remains a great need for further research into the position of women as legal subjects and law-makers in this field.
Tuesday, August 10, 2021
By: I. Bennet Capers
Published in: Minnesota Law Review, Vol. 106, 2021
In this moment when the country is undergoing a racial reckoning, when law schools have pledged to look inward and become anti-racist and truly inclusive, it is past time to acknowledge how law schools function as “white spaces.” For starters, there are the numbers. There is a reason why just a few years ago, The Washington Post ran a headline describing law as “the least diverse profession in the nation.” But the argument goes beyond numbers. This Essay argues that law schools—even law schools at HBCUs— function as white spaces. They are white spaces in what they teach, in how they teach, and even in their architecture.
. . .
Lani Guinier makes a similar observation in Becoming Gentlemen, in which she describes trying to find her voice in a room adorned by “the traditional larger-than-life portraits of white men . . . portraits that seemed to speak louder than I ever could.”She later adds that “the gigantic male portraits had captured and frozen in time the alienation from class, race, and gender privilege we had felt as students . . . reminding us that silence was the price of admission.”
. . .
It has now become common, almost de rigueur, for law schools to commit themselves to being anti-racist and truly inclusive. Indeed, it has become so expected that it may even seem like virtue signaling, “sound and fury, signifying nothing.” I hope not. I hope law schools are sincere. But my larger hope is that law schools will do more than simply proclaim a goal of anti-racism, or commit to admitting a more diverse student body or hiring more diverse faculty, or commit to incorporating race in their curricula. Even with these changes, law schools will still function as white spaces in terms of what is taught and how it is taught and even in terms of their architecture. My hope is that law schools will have the courage and audacity to reimagine themselves as a different kind of white space—a blank page, a tabula rasa—and to untether themselves from so much that weighs them down. That they will reinvent themselves from the bottom up in a way that is cosmopolitan and then some, as a place where intellectual curiosity thrives, where change and challenge are celebrated, where education itself is a practice of freedom, and where there is no need to tout inclusivity, because everyone already belongs.
Friday, July 30, 2021
The US Supreme Court’s 1937 decision in West Coast Hotel v. Parrish, upholding the constitutionality of Washington State’s minimum wage law for women, had monumental consequences for all American workers. It also marked a major shift in the Court’s response to President Franklin D. Roosevelt’s New Deal agenda. In Making Minimum Wage, Helen J. Knowles tells the human story behind this historic case.
West Coast Hotel v. Parrish pitted a Washington State hotel against a chambermaid, Elsie Parrish, who claimed that she was owed the state’s minimum wage. The hotel argued that under the concept of “freedom of contract,” the US Constitution allowed it to pay its female workers whatever low wages they were willing to accept. Knowles unpacks the legal complexities of the case while telling the litigants’ stories. Drawing on archival and private materials, including the unpublished memoir of Elsie’s lawyer, C. B. Conner, Knowles exposes the profound courage and resolve of the former chambermaid. Her book reveals why Elsie—who, in her mid-thirties was already a grandmother—was fired from her job at the Cascadian Hotel in Wenatchee, and why she undertook the outsized risk of suing the hotel for back wages.
Minimum wage laws are “not an academic question or even a legal one,” Elinore Morehouse Herrick, the New York director of the National Labor Relations Board, said in 1936. Rather, they are “a human problem.” A pioneering analysis that illuminates the life stories behind West Coast Hotel v. Parrish as well as the case’s impact on local, state, and national levels, Making Minimum Wage vividly demonstrates the fundamental truth of Morehouse Herrick’s statement.
Tuesday, July 27, 2021
Documentary Preview, ThinkTV, Let Ohio Women Vote
Let Ohio Women Vote tells the story of the long fight for women’s suffrage in our state – a fight which created unpredictable alliances as well as surprising connections to national events. The documentary will premiere in the fall of 2021.
"As Ohio goes, so goes the nation."
Tuesday, July 13, 2021
Julie Suk, The Equal Rights Amendment, Then and Now, The Oxford Handbook of Feminism and Law in the United States (Deborah Brake, Martha Chamallas, & Verna Williams eds. 2021)
One hundred years in the making, the Equal Rights Amendment is the only proposed amendment to the U.S. Constitution that has met the requirements of Article V of the Constitution but has not been added to the Constitution due to a congressionally imposed ratification deadline. The Amendment guarantees that “[e]quality of rights shall not be denied or abridged by the United States or by any state on account of sex,” like gender equality guarantees in most constitutions around the world. This Essay exposes the unique trajectory of the Equal Rights Amendment to shed light on the process of feminist constitutional change and the evolution of substantive feminist legal aspirations. The revival of the ERA ratification process, decades after Congress’s deadlines, has generated transgenerational public meanings for a new body of gender equality law and public policy.
Monday, July 12, 2021
Nearly half a century after the landmark decision in Roe v. Wade, recent events have given supporters of the pro-choice position good reason to fear that the Supreme Court is likely to soon abandon its support for abortion rights. Although the Court recently struck down an anti-abortion statute in June Medical Services v. Russo, the balance of power in that case was held by Chief Justice John Roberts, whose opinion indicated that, in the future, he was likely to allow states to impose a wide variety of restrictions on access to abortions. Moreover, the pro-choice forces recently lost one of their staunchest allies when Justice Ruth Bader Ginsburg died and was replaced by Justice Amy Coney Barrett, whose nomination was roundly cheered by those who argue that Roe should be overruled. Thus, many observers believe that the Court is likely to use Dobbs v. Jackson’s Women’s Health Organization as a vehicle to eliminate or significantly undermine constitutional constraints on the ability of state governments to limit access to abortions.
However, we have been here before. In the decade between 1981 and 1991, Republican presidents who were openly critical of the decision in Roe had the opportunity to nominate five of the nine members of the Supreme Court. Moreover, during this period, the issue of abortion played an increasingly important role in the selection of those justices. Thus, by the early 1990s, most commentators believed that the anti-abortion forces were on the verge of claiming near-total victory in their campaign against Roe and its progeny. But despite the expectations of most commentators, in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, a majority of the justices reaffirmed their support for the view that the Constitution protects the right of a woman to terminate her pregnancy without undue interference from the government, and thereby created a regime that has endured for almost three decades. This article will describe the sequence of events that led to the decision in Casey and culminated in the failure of the assault on abortion rights.
Friday, June 4, 2021
On the eve of the Nineteenth Amendment’s ratification in 1920, Carrie Chapman Catt—the leader of the National American Woman Suffrage Association (NAWSA)—envisioned the establishment of a nonpartisan body dedicated to female voters’ political education that would help newly enfranchised women develop a voice in public affairs. To this end, Catt guided the conversion of NAWSA into a post-suffrage association called the National League of Women Voters (LWV). While Catt’s goal of training women for full citizenship was abstract, many state and local Leagues took a more practical approach, learning from the experience of tackling specific social problems. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California in reforming three aspects of the criminal justice system that affected women: courts, police, and prisons. It draws from the archival papers of the San Francisco Center of the LWV, as well as other primary sources, to reveal the contradictions and shortcomings, as well as the achievements, of newly enfranchised California women who sought to carry on the suffragists’ legacy.
During the four decades between 1911 and the middle of the twentieth century, the San Francisco Center advocated gender-specific approaches to crime with varying degrees of success or failure. Initially prompted to investigate the ills of lower-level criminal courts (known as “police courts”) by a local judge’s mishandling of rape cases, San Francisco clubwomen launched a full-fledged effort to establish a Women’s Court. Part I of this Article discusses the origins, goals, and limitations of the Women’s Court and the San Francisco Center’s subsequent campaign for the appointment of a female prosecutor and municipal judge. Although influenced by Progressive ideas about the use of specialized courts and trained experts, League members mostly confined their efforts to morals offenses that recalled the Victorian social purity movement, rather than seeking remedies for domestic violence and other aspects of crime that affected women.
Part II explores another project supported by the San Francisco Center that exemplified how Progressive tools might perpetuate essentially Victorian values. During the first half of the twentieth century, San Francisco clubwomen urged the SFPD, with little success, to hire a substantial number of female police officers. The San Francisco Center emphasized prostitution and other vices of “fallen” women as areas of law enforcement for which female officers supposedly possessed special skills. Limited both by the SFPD’s reluctance to hire women and female reformers’ myopic interest in preventing prostitution, the San Francisco Center doggedly pursued an agenda that entrenched gender segregation on the police force without bringing real remedies to systemic sexism or the victimization of women.
Part III describes the most revolutionary criminal justice reform project that members of the California LWV spearheaded in the first half of the twentieth century: the creation of a “prison without walls” for female offenders. Based on the notion that women who committed crimes, even felonies, might be taught law-abiding ways through education, hard work, and humane treatment, the Tehachapi prison experiment demonstrated that newly enfranchised female voters had gained traction in public life. However, while the creation and operation of the women’s prison gave substance to a rehabilitative ideal more forward-looking than many LWV proposals for moral enforcement, the male-dominated legal system created substantial impediments to the success of the Tehachapi facility.
The Conclusion assesses the contributions of the LWV and its state and local branches in California. Like their sisters in the national organization, members of the San Francisco Center worked tirelessly on social welfare issues and civil service reform, opening unprecedented paths to jobs and community involvement for women. In contrast, their criminal justice reform efforts were hampered, not only by the differing interests and continued power of male jurists, police chiefs, and prison officials, but also by the clubwomen’s obsession with prostitution. The affluent white activists of the San Francisco Center and the state-level LWV failed to advocate structural changes that might have liberated women, especially poorer and racial-minority women, from gendered violence. Yet despite the San Francisco Center’s limited success in obtaining justice for victims of sexual exploitation, integrating the San Francisco Police Department, and rehabilitating female offenders, its activities helped put women into public office and provide concrete opportunities for political engagement in the first few decades after suffrage was achieved.
Thursday, May 6, 2021
Jamie Abrams & Nickole Durbin, Citizen Soldiers and the Foundational Fusion of Masculinity, Citizenship, and Military Service, 11 ConLaw NOW 73 (2020)
Sarah Livingston Jay famously toasted revelers in 1783: “May all our citizens be soldiers, and all our soldiers citizens.” This toast conveyed “a foundational fusion” within our republican government tradition―coupling military service, citizenship, and masculinities. The Akron Law School’s conference on the 100th anniversary of the passage of the Nineteenth Amendment offered the chance to fight the eulogization of the Nineteenth Amendment and explore its modern relevance. This paper concludes that the Nineteenth Amendment cannot be understood without connecting it to broader conceptions of citizenship, masculinities, and military service, thus revealing its ongoing relevance to military inclusion and integration. In Professor Abrams’ prior article published in the West Virginia Law Review, the foundational fusion of military service, citizenship, and masculinities was presented and explored. We highlight the framework ofthat argument in the next section and invite readers to explore the full prior article.
Tuesday, April 27, 2021
As I was preparing for a talk on the history of women's suffrage, I revisited some of the scholarship on women voting in early New Jersey. This history jumped out at me in new ways this time for several key points asserted by the scholars studying it:
1. Women's suffrage was a deliberate, intentional political act in the 1776 New Jersey Constitution
- The Constitution includes "all inhabitants."
- A 1790 Election Reform Act defined electors as "he or she."
- The parties - Patriots, Federalists, and Republicans -- were divided in New Jersey and battled for power, seeking women to increase their support. More generally, these American parties sought to attract support for the American Revolution generally by including women, opposing the Tories loyal to England who could not vote.
See Judith Apter Klingoffer & Lois Elkis, "The Petticoat Electors": Women's Suffrage in New Jersey, 1776-1807, 12 J. Early Republic 159 (1992)
Campbell Curry-Ledbetter, https://www.law.georgetown.edu/gender-journal/wp-content/uploads/sites/20Womens Suffrage in New-Jersey,1776-1807: A Political Weapon, XXI Georgetown J. Gender & Law 705 (2020)
New Jersey Let (Some) Women Vote from 1776 to 1807, JSTOR Daily (Mar. 2, 2020)
2. There is new evidence of women voting in significant numbers, between 7-14% of the voters
See On the Trail of America's First Women to Vote, NY Times (Feb. 24, 2020)
There were property qualifications for voting - 50 pounds and land. This excluded married women, who under coverture could not own property. So the eligible female voters were femme soles (unmarried women) and widows. As one lawmaker wrote in a newspaper in 1800: “Our constitution gives this right to maids and widows, white and black."
3. Women were disenfranchise because they were portrayed as the source of voter fraud, because women were pliable, easily manipulated, not independent political actors and thus were mere political pawns. This rationalized their official legislative disenfranchisement. Lucy Stone later condemned this "scapegoating" of women, and its legacy suggesting women were illegitimate as voters. The fraud claims certain offer some interesting parallels to voter disenfranchisement today. See Klinghoffer & Elkis, supra; Curry-Ledbetter, supra.
Friday, April 23, 2021
My latest article on the history and meaning of the 19th Amendment.
Part of the symposium with many great scholars in law, history, and gender including Jessica Clarke, Jill Hasday, Martha Jones, Serena Mayeri, Kyle Velte, Barbara Welke, and Joan Williams.
Tracy Thomas, Reclaiming the Long History of the "Irrelevant" Nineteenth Amendment, 105 Minnesota L.Rev. 101 (2021)
The Nineteenth Amendment has been called an “irrelevant” amendment. The women’s suffrage amendment has been deemed insignificant as a constitutional authority, reduced to a historical footnote. In the Supreme Court canon, it has been diminished as a text that “merely gives the vote to women.” With the accomplishment of that simple task, the amendment has been assumed to offer little guidance to modern constitutional analysis or gender equality. The Nineteenth Amendment has become a “constitutional orphan,” disconnected from its historical origins and precedential place in constitutional jurisprudence.
This constricting view of the Nineteenth Amendment ignores the structural implications and significant history of this gendered amendment and women’s seventy-two-year fight for equal citizenship. Historical and legal narratives fail to capture a full understanding of the factual, legal, and normative steps and effects of the amendment. This article seeks to correct that conventional narrative by offering a more inclusive, yet concise, overview of the Nineteenth Amendment. The history demonstrates women’s longstanding demands for equal rights, the complexity of those demands, and the depths and racial tones of the opposition. The article then argues that this constitutional history is relevant to interpreting constitutional guarantees of gender equality today. Using historical justifications, it joins other legal scholars in arguing for a more robust reading and constitutional meaning of the Nineteenth Amendment.
Monday, April 12, 2021
Between 1900 and 1956, women increased from a small proportion of public company stockholders in the U.S. to the majority. In fact, by the 1929 stock market crash, women stockholders outnumbered men at some of America’s largest and most influential public companies, including AT&T, General Electric, and the Pennsylvania Railroad. This Article makes an original contribution to corporate law, business history, women’s history, socio-economics, and the study of capitalism by synthesizing information from a range of historical sources to reveal a forgotten and overlooked narrative of history, the feminization of capital—the transformation of American public company stockholders from majority-male to majority-female in the first half of the twentieth century, before the rise of institutional investing obscured the gender politics of corporate control.
Corporate law scholarship has never before acknowledged that the early decades of the twentieth century, a transformational era in corporate law and theory, coincided with a major change in the gender of the stockholder class. Scholars have not considered the possibility that the sex of common stockholders, which was being tracked internally at companies, disclosed in annual reports, and publicly reported in the financial press, might have influenced business leaders’ views about corporate organization and governance. This Article considers the implications of this history for some of the most important ideas in corporate law theory, including the “separation of ownership and control,” shareholder “passivity,” stakeholderism, and board representation. It argues that early-twentieth-century gender politics helped shape foundational ideas of corporate governance theory, especially ideas concerning the role of shareholders. Outlining a research agenda where history intersects with corporate law’s most vital present-day problems, the Article lays out the evidence and invites the corporate law discipline to begin a conversation about gender, power, and the evolution of corporate law.
Thursday, April 1, 2021
Kyle Velte, The Nineteenth Amendment as a Generative Tool for Defeating LGBT Religious Exemptions, Minnesota L. Rev. (forthcoming)
In the summer of 1920, women gained the right to be free from discrimination in voting when the Nineteenth Amendment was ratified. One hundred years later, in the summer of 2020, LGBT people gained the right to be free from discrimination in the workplace when the U.S. Supreme Court ruled in Bostock v. Clayton County that sexual orientation and gender identity (“SOGI”) discrimination is sex discrimination under Title VII. Yet, LGBT people continue to face discrimination in many contexts, a prominent example of which is the national campaign by Christian business owners to obtain religious exemptions from state public accommodation laws. What does women’s suffrage have to do with today’s religious exemption debates? This Article contends that there is a through-line from a radical, antisubordination strand of the history of the Nineteenth Amendment to today’s fight over religious exemptions from SOGI antidiscrimination laws.
The antisubordination strand of Nineteenth Amendment history envisioned women’s suffrage as about more than just the right to cast a ballot. This capacious view of the Nineteenth Amendment—as a means of dismantling sex-based hierarchies and ensuring full citizenship rights regardless of sex—would allow women to engage in all aspects of life, both political and civic. Between the ratification of the Nineteenth Amendment and today’s battles over SOGI religious exemptions stands 100 years of sex discrimination law. That era saw state legislatures enact public accommodation laws prohibiting sex discrimination in the public square; these laws extended to women the right of civic engagement and thus full citizenship. This body of sex discrimination law included the Court’s 1984 decision in Roberts v. United States Jaycees, which involved a challenge to one such law. The Jaycees Court upheld a public accommodation law against a claim that enforcement of the law—which would compel the Jaycees organization to admit women as full members—would violate the Jaycees’ First Amendment free speech rights. The Court reasoned that states have a compelling interest in eradicating sex discrimination in public. Jaycees expands the reach of the equality-enhancing aspect of the suffrage movement. It embodies the antisubordination strand of the women’s suffrage movement and stiches it into the fabric of the legal doctrine governing sex discrimination.
In today’s religious exemption cases, the Christian business owners argue that although the state has a compelling interest in eradicating race discrimination in the public square, it does not have a compelling interest in eradicating SOGI discrimination. This distinction, they argue, dictates that an exemption be granted vis-à-vis SOGI discrimination, even though such an exemption would be rejected vis-à-vis race discrimination. Bostock is the contemporary bridge that connects Jaycees to the SOGI religious exemption cases. Jaycees, in turn is the bridge back to the radical strand of the Nineteenth Amendment’s history: The Nineteenth Amendment was generative not simply of the right to vote, but of a commitment to full citizenship rights regardless of sex. That equality was formalized in state public accommodation laws, which Jaycees teaches serve a compelling state interest. Bostock, when coupled with Jaycees, directs the same conclusion for public accommodation laws that prohibit SOGI discrimination, namely that such laws serve a compelling state interest that defeats claims for religious exemptions.
Friday, March 19, 2021
Honored to receive the 2021 Beyer Award for Best Faculty Publication for my article, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, XV Stanford J. Civil Rights & Civil Liberties 349 (2020).
The original idea behind the Nineteenth Amendment was never just about the vote. Instead, the first women's rights movement 175 years ago, like the modern movement for the Equal Rights Amendment, sought comprehensive equality for women in all avenues of life. The constitutional text for women’s full equality and emancipation has changed over the centuries; first embodied in the grant of the vote as a proxy for structural change, and now incorporated into the demand for “equal rights.” Yet women have been consistent over time in understanding the radical idea that systems of governance, family, industry, and church need dismantling and reconstructing in order to support women’s equality and emancipation.
This paper first details the origins of women’s political demand for the vote as part of a comprehensive social reform. It then discusses the four strands of the comprehensive early women’s rights agenda for gender equality focused on the political state, domestic family, economic industry, and religious church. Finally, it connects the suffrage activism with demands for an equal rights amendment to realize the full civil rights of equality envisioned by and for women.
This long view of women’s rights shows that the movement was not solely about suffrage, but that the vote stood as a shorthand for a complete revolution of the interlocking systems supporting women’s oppression and denying women equal rights. The legal history illustrates that “women’s rights” has always been a multiple issue, multiple systems platform, even as certain issues like suffrage or abortion have been isolated in the dominant public discourse, often driven there by opponents of gender equality. Appreciating the context and constitutional history of the Nineteenth Amendment supports a more robust understanding of constitutional guarantees of gender equality today, supporting interpretations of “equal protection” under the Fourteenth Amendment to encompass the full array of public and private rights.
Lisa Levenstein, They Didn't See Us Coming: The Hidden History of Feminism in the Nineties (2020)
From the declaration of the "Year of the Woman" to the televising of Anita Hill's testimony, from Bitch magazine to SisterSong's demands for reproductive justice: the 90s saw the birth of some of the most lasting aspects of contemporary feminism. Historian Lisa Levenstein tracks this time of intense and international coalition building, one that centered on the growing influence of lesbians, women of color, and activists from the global South. Their work laid the foundation for the feminist energy seen in today's movements, including the 2017 Women's March and #MeToo campaigns.
A revisionist history of the origins of contemporary feminism, They Didn't See Us Coming shows how women on the margins built a movement at the dawn of the Digital Age.
Hat tip Lisa Tetrault