Gender and the Law Blog

New Book, The Bluestockings: A History of the First Women's Movement

NYT, Book Review, Book Review, The Bluestockings, When Women's Wits Ruled London's Salons

*** Both Woolf and Wollstonecraft argued far more stridently for women’s rights than did Macaulay or her peers, a loosely connected group of 18th-century British women writers and thinkers known — sometimes derogatorily, sometimes affectionately — as the Bluestockings. But as Susannah Gibson argues in her fast-paced and intimate study of the group, the Bluestockings’ feminist revolution lay in their determination to think and write and educate themselves, despite the “pitiless machinations” of British society, which kept single women dependent on their fathers, and married women subordinate to their husbands.

CFP Research Handbook on Gender, History and Law

Call for Contributions for Research Handbook on Gender, History, and Law (Edward Elgar)

As part of Edward Elgar's Research Handbooks in Gender and Law Series edited by Robin West and Alexander Maine, this volume on Gender, History, and Law aims to bring together critical and thought-provoking contributions on the most pressing topics, issues and approaches within legal and gender history. The collection aims to set the agenda in the field and serve as the most important and up-to-date point of reference for researchers as well as students, policy-makers, and lawmakers. 

We are aiming for about 30 essays of 8,000-10,000 words by scholars of legal and gender history on any topic that fits within the book's broad themes, including but not limited to gendered history within legal categories such as family, criminal law and international law, on particular historical periods, on specialist topics such as capitalism and labor, sexuality, race, identity, citizenship, the legal profession and courts, and on sources and methodology. 

The Research Handbook will be published in English, but we seek to provide a broad global perspective. To fulfill its aim of providing cross-cutting scholarship in law and history, each contribution should explore perspectives on what it means to do legal history in the chosen area in the context of the author's own approach.

Manuscripts must be original and not published elsewhere, and are due to the editors by July 1, 2025. Publication is anticipated to be in the summer of 2026.

Please submit abstracts by September 30, 2024. For questions and to submit abstracts, please feel free to reach out to any of us.

Rosemary Auchmuty ([email protected])

Caroline Derry ([email protected])

Danaya Wright ([email protected]) 

New Book, The Sentimental State: How Women-Led Reform Built the American Welfare State

Interview with Elizabeth Garner Masarik on her Book, The Sentimental State: How Women-Led Reform Built the American Welfare State (Univ. Georgia Press 2024)

I got the chance to speak with historian Elizabeth Garner Masarik about her new book The Sentimental State: How Women-Led Reform Built the American Welfare State. An assistant professor of history at SUNY Brockport, Elizabeth is a scholar of American women’s history, the Gilded Age and Progressive Era, and the administrative state. Her new project is on American spiritualism, and she was also eager to discuss her findings on women and the history of welfare networks, charity, and maternalist sentiment. Dr. Masarik defines “sentimentalism,” or feelings surrounding motherhood and child-rearing, as one of the chief drivers behind the push for women-led public health and social initiatives in the nineteenth century.

Your new book is a fascinating examination of the intersection of women’s state-building and the politics of domesticity. Can you talk a little bit about the origins of the book? Was it part of your dissertation? What new directions did you go in as you wrote?

Yes, this book came out of my dissertation. I took a women’s history course with sexuality, gender and sports scholar Susan Cahn during the first semester of my MA program and was hooked. I really latched on to the U.S. maternalist movement of the late 19^th and early 20^th centuries and dove headfirst into learning about the early formation of the U.S. welfare state. Additionally, the primary sources I found where women were speaking about, and grieving over, the death of their infants and young children just hit me; after becoming a mother myself, I couldn’t fathom being able to go on with life if one of my children died. And so, in a way, examining child and infant mortality became a kind of masochistic way for me to study history while also feeling this immense empathy for my subjects. I didn’t set out to focus on infant and child death at the beginning, but the connections between emotions and state-building became so glaringly obvious that I couldn’t look away. It was a subject that spoke to me as a mother and as a recipient of welfare. It felt very personal. When I revised the dissertation into book form I focused more heavily on sentimentalism as a cultural phenomenon of the nineteenth century and how I found that bleeding into the twentieth century.

Revisiting the Legacy of a Feminist Icon, Ruth Bader Ginsburg

Deborah Brake, Gender and the Law: Revisiting the Legacy of a Feminist Icon, Ch. 1 in THE JURISPRUDENTIAL LEGACY OF JUSTICE RUTH BADER GINSBURG (Ryan Vacca & Ann Bartow, eds., NYU Press 2023)

Justice Ginsburg attained celebrity status in her later years as the voice of feminism from the bench, but her influence on law and gender was not always so venerated. For much of her career, feminist scholarly criticism of her gender jurisprudence was sharp. Critics called the approach “formal equality,” pointing out that it benefited those women most similarly situated to men. The criticism echoed that leveled against her strategy as a litigator representing male plaintiffs. In recent years, Justice Ginsburg’s legacy has been burnished by a fresh interpretation crediting it with a more robust vision of gender equality than previously appreciated. This chapter contends that, while far from radical, the Justice’s gender jurisprudence is a product of a jurist committed to minimizing the role of gender as a site of social and economic oppression.

Although Justice Ginsburg’s impact on gender equality can fill a book on its own, this chapter focuses on identifying and explaining three core themes: an antipathy toward gender stereotypes embedded in the law; a vision of gender equality that transcends formal equality; and a recognition of the centrality of reproductive freedom to women’s equality. Each of these themes has been advanced, albeit imperfectly, by Justice Ginsburg’s career as a litigator and a jurist.

Utah's Majority-Women Supreme Court Upholds Injunction of Strict Abortion Ban and Includes Women's Legal Scholarship of History in its Analysis

The majority-female Utah Supreme Court upheld an injunction preliminarily enjoining an abortion ban by a vote of 4-1. The case is Planned Parenthood of Utah v. State, ___P.3d___, 2024 WL 3612730 (Utah Aug. 1, 2024)

    Wash Post, Utah Abortion Ban Remains on Hold After Ruling by State's High Court

    NYT, Utah Supreme Court Upholds Block on Strict Abortion Ban

In the discussion of the state history of abortion regulation in the late 19th century, the majority includes a discussion of my work: 

In addition, the State's evidence does not necessarily demonstrate that abortion was illegal at statehood because Utahns understood that a woman lacked the legal ability to decide whether to carry a pregnancy to full term. There is evidence suggesting that concern for the life of the mother motivated, at least in part, abortion bans. See, e.g., Tracy A. Thomas, Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle U. L. Rev. 1, 21 (2012). Tracy Thomas writes that “early legislation” (taking place around 1841) “continued to focus on medical malpractice and protection of the life and health of the mother from the consequences of abortion.” Id. ***

 Some scholars also suggest that the push for anti-abortion laws that determined fetal life started from conception was a way to standardize the medical profession. Thomas writes: “The lobbying effort to criminalize abortion was spearheaded by the medical profession.” Thomas, supra ¶ 145, at 21. Doctors “claim[ed] pregnancy as an area solely for medical expertise. ... Quickening, the physicians argued, could not be relied upon as an indicator of fetal life because it did not occur at a standard moment.” Id. at 21–22. Reva Siegel writes that “[d]uring the period of the criminalization campaign, the gynecologists and obstetricians of the AMA [American Medical Association] were seeking to appropriate management of the birthing process from midwives, and to prevent women from entering the medical profession.” Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 300 (1992). The period Thomas and Siegel examine—the 1850s to the 1880s—parallels the founding of the Utah Territory and its development toward statehood. See Thomas, supra ¶ 145, at 21; Siegel, supra at 286 (discussing the AMA's 1859 resolution “condemning abortion as an unwarranted destruction of human life” and the AMA's 1860s campaign to save “the nation from the evils of abortion” (cleaned up)).

Understanding the Original Meaning of Washington v. Glucksberg and its Use in the Dobbs Abortion Decision

Marc Spindelman, Washington v. Glucksberg's Original Meaning

This Article elaborates and defends Washington v. Glucksberg's original meaning both on its own terms and against accounts of Glucksberg that depict it as having announced and followed a strict test of history and tradition as its basic approach to Fourteenth Amendment substantive due process rights.  
 
The nominal occasion for the present return to Glucksberg and its original meaning is the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization. Dobbs famously insists that Glucksberg supplies it with the authoritative grounds in the Court's Fourteenth Amendment substantive due process jurisprudence for its own history-and-tradition-based approach to Roe v. Wade and constitutional abortion rights. As Dobbs figures it, Glucksberg signs the constitutional warrant that Dobbs enforces by overturning Roe.   

Proceeding in stages, the Article traces Dobbs' reliance on Glucksberg before pivoting to a detailed account of Glucksberg's original meaning, which engages and surmounts Dobbs' undefended tally of Glucksberg. Having shown Dobbs' reading of Glucksberg cannot be squared with Glucksberg's text and its meaning--as crosschecked against other Supreme Court decisions, as well as new sources found in the Supreme Court archives--the work explains that Dobbs is also deficient in not providing an independent, full-blown justification, beyond Glucksberg's invocation, for its basic, if contoured, constitutional interpretive method of decision. In context, Dobbs' failure to offer this kind of public accounting, consistent with constitutional and rule-of-law demands, means that Dobbs stands exposed as lawless at its foundations. Dobbs is thus primed for challenge on these grounds, the very terms of legality that Dobbs deploys as it eliminates Roe and constitutional abortion rights.

 

Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom

Reva Siegel & Mary Ziegler, Comstockery: How Government Censorship Gave Birth to the Law of Sexual and Reproductive Freedom, and May Again Threaten It, Yale L. J. (forthcoming)

In the aftermath of the overturning of Roe v. Wade, the antiabortion movement has focused on a new strategy: transforming the Comstock Act, a postal obscenity statute enacted in 1873, into a de facto national ban on abortion. Claims on the Comstock Act have been asserted in the medication abortion case now before the Supreme Court and in the campaign for the Presidency. This Article offers the first legal history of the Comstock Act that reaches from its enactment to its post-Dobbs reinvention, offering critical resources for evaluating claims for revived enforcement of Comstock that are now being asserted in courts and in politics. 

The Article's history undermines revivalists' claims about the Comstock statute's meaning and the democratic legitimacy of enforcing the law as they interpret it today. Revivalists read the statute as a plain-meaning, no exceptions nationwide abortion ban when the law Congress enacted in 1873 policed obscenity rather than criminalizing health care. Even the judges who developed the most expansive Victorian understanding of obscenity under the statute protected the doctor-patient relationship. The public's repudiation of this expansive approach to obscenity as "Comstockery"-an illegitimate and overbroad understanding of obscenity that encroached on democracy, liberty, and equality-led to the statute's declining enforcement and to cases in the 1930s affirming that federal obscenity law allowed Americans to protect their health. 

These developments were not only statutory; they were constitutional. From conflicts over Comstock's enforcement emerged popular claims on democracy, liberty, and equality in which we can recognize roots of modern free speech law and the law of sexual and reproductive liberty lost to constitutional memory. Recovering this lost history changes our understanding of the nation's history and traditions of sexual and reproductive freedom.

The Comstock Act's Equal Protection Problem

Danny Li, The Comstock Act's Equal Protection Problem

Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Intense popular backlash to abortion-restrictive legislation, however, has rendered immediate enactment of such a ban out of reach. So many movement actors have turned away from democratic politics and back to courts to revive the 1873 Comstock Act as a federal abortion ban. The budding Comstock debate has so far focused entirely on questions of statutory interpretation about whether Comstock’s text should be broadly construed to ban abortion. But these textual disagreements obscure a more fundamental infirmity: the Comstock Act is unconstitutional. This Essay argues that the Comstock Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of inhibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally suspect motives can purge the Comstock Act of its discriminatory intent. In the alternative, these serious constitutional doubts justify adopting a narrower construction of the law as a matter of constitutional avoidance.

New Sojourner Truth Plaza Honors Abolition and Suffrage Leader in Akron, Ohio

Right here in my hometown, the tribute to Sojourner Truth who famously gave her "Ain't I a Woman" speech here at the Akron Suffrage Meeting. 

Or did she?.... For the full story, see Nell Painter, Sojourner Truth: A Life, A Symbol and Lolita Buckner Inniss, "While the Water is Stirring": Sojourner Truth Proto-agonist in the Fight for Black Women's Rights, 100 B. U. L. Rev. 1637 (2020).

Sojourner Truth Legacy Plaza to Open in Akron

***Truth, a former slave, traveled the country advocating for an end to slavery and the betterment of women’s rights. On May 29, 1851, Truth delivered her “Ain’t I a Woman?” speech at the Old Stone Church that was once on High Street at the Ohio Women’s Convention.

The 10,000-square-foot plaza is the “first historic site in Akron that directly reflects and honors the Black woman’s experience,” according to a release from United Way of Summit & Medina. ***

A life-size statue of Truth, created by Akron artist Woodrow Nash, sits in the center of a large impala lily, the national flower of Ghana. Truth has ancestors from Ghana, Harris said, and the flower’s strong structure speaks to her character. 

“I wanted to make every aspect mean something,” Harris said. “I wanted to mix human elements and some of the natural elements with historical elements and try to tie everything together.”

The Life and Work of the First Woman Elected Justice of the Peace, Catharine Waugh McCullough

Sandra Ryder, Clearing the Bar: Catharine Waugh McCullough and Illinois Legal Reform

Catharine Waugh McCulloch was one of the first women admitted to practice law in Illinois, and the 18^th woman admitted to practice in front of the U.S. Supreme Court. After graduating from law school and passing the bar, she experienced difficulty finding a legal position in Chicago, so she opened an office in Rockford, Illinois, where she often took on destitute women clients. She initiated the shared writing among women attorneys, which became the Equity Club. She ran for Attorney General in 1888 and was active in many women's groups. After marrying a classmate from law school, the two formed a partnership in law and marriage; they wrote briefs, tried cases and published legal documents together.

 

McCulloch drafted a bill which changed guardianship laws, and another which raised the age of consent for girls from 14 to 16, both of which were passed into law. After an Illinois case gave women the right to vote in school elections, McCulloch recognized the significance of this ruling. Together with the Illinois Equal Suffrage Association, she and other suffragists toured the state by auto, speaking and handing out flyers and pamphlets. She drafted a bill by which Illinois women could vote in municipal and presidential elections, and every year, for 20 years, she and others went to Springfield to testify and lobby for her bill; it passed in 1913, and this Illinois suffrage law was instrumental in the passage of the Nineteenth Amendment. Not satisfied, McCulloch worked with the Chicago charter revision committee to have women's suffrage included; she fought to have the Illinois Constitution revised to include women's suffrage; she was successful in both efforts.

 

Meanwhile, in 1907, McCulloch was the first woman elected to a judicial position, Justice of the Peace, in Evanston, Illinois, and by all men. She was appointed Master in Chancery of the Cook County Superior Court for four, two-year terms. She was selected the first woman elector to the State Democratic Convention in 1916. While practicing with McCulloch & McCulloch, she had one case which used contract law to set public policy regarding wholesomeness of food; this case later was incorporated into one portion of today's Uniform Commercial Code. Since much of their practice dealt with probate and estates, the McCulloch's co-authored A Manual of the Law of Will Contests in Illinois.

 

With the National League of Women Voters, McCulloch fought for years, again using print media, speeches and women's groups, to have women on juries, and to make the laws concerning women uniform throughout the U.S. *3 Always committed to utilizing law to reform the legal status of women and children, McCulloch wrote plays, essays, legislative bills, speeches, pamphlets, and used the power of print media to convince the public; her plays were still being produced in the 1990s.

 

After their many years of legal practice and innovation, in 1940 both McCulloch and her husband were named “Senior Counselors” of the Illinois Bar Association. But her legacy is far more reaching; when any woman votes, retains custody of children or property in a divorce, or serves on a jury, it is because of the vision and relentless legal work of Catharine Waugh McCulloch and her peers.

 

In track and field, clearing the bar indicates that the person has exceeded expectations and is ready to face even more difficult ones. McCulloch did not just pass the bar; because women entering the legal profession was in its infancy, and due to the bulk and import of her legal contributions, McCulloch cleared the bar with room to spare.

Sweeny and Canon on "The Language of Love v. Beshear"

JoAnne Sweeny and Dan Canon have published The Language of Love v. Beshear: Telling a Client's Story While Creating a Civil Rights Case Narrative in volume 17 of the Journal of the Association of Legal Writing Directors. The article was shared on SSRN here. The Introduction is excerpted here: 

We tend to think of a good lawyer as being a vigorous, focused advocate, one who thinks first and foremost of the interests, needs, and desires of their clients. But what if the client’s case will affect an entire group of people; a group who may also seek to have its collective rights vindicated? This is the dilemma of the civil rights attorney—how does an effective advocate balance the specific needs of the client with the broader, long-term needs of the group the client represents? And who should have a say in what story is told on behalf of the client? In civil rights cases, it is not just the client, but activists, organizations, academics, and the media who have a stake in the outcome. How much of a say should they have in the creation of a litigation story that will most directly impact a single client? How are those stories crafted? With careless, blunt-force litigation, or with purposefulness? And does it matter who gets to tell the story?

 

* * *

Focusing on the Kentucky case, Love v. Beshear, this article shows how civil rights attorneys may be constrained by their dual roles—advisors to their clients and advocates for civil rights—and how they decide what story to tell to remain true to their clients’ needs while keeping engaged with the larger civil rights issues inherent in these impact litigation cases. Moreover, once the litigation has begun, the other players—organizations, media, even the judges themselves—can change the story, highlighting what they see fit. The ultimate story of who a lawyer’s clients are ultimately may not be up to the lawyer or the client.  

 

It concludes: 

 

Obergefell built a bridge to same-sex marriage, creating solid ground for the next group of civil rights lawyers
to again expand our understanding of what relationships and “equal dignity” really mean. As the country’s understanding of same-sex couples has evolved, so has the array of stories that lawyers can tell about groups that may be insular or unfamiliar to the broader public. For example, now that transgender, bisexual, nonbinary, and polyamorous people’s stories are becoming more mainstream, their stories can be used to champion a broader understanding (and legal recognition) of fundamental rights. This continuous opening of new chapters to familiar stories is the essence of civil rights advocacy.

The Fair Representation Act Reintroduced in Congress to Increase Women's and Racial Minorities' Political Representation

Ms., Weekend Reading on Women's Representation

*** The FRA has the potential to create a more diverse government through the implementation of ranked-choice voting and the creation of multi-member U.S. House districts drawn by independent redistricting commissions.

This voting system also combats gerrymandering and amplifies voter power. 

Our friend at FairVote, the amazing Deb Otis, discussed the reintroduction of the FRA on a podcast on NPR this week. Alaska and Maine have already seen major results from implementing RCV and Otis explains why more states are considering the new system and reinforces why the FRA is a true model for a more representative democracy.

The Fulcrum featured a terrific piece from Drew Penrose and Dave Daley about the impact of this proportional voting system and how it holds the potential to transform the way we elect our public officials:

The most meaningful change would put an end to winner-take-all, single-member districts and create a proportional House with larger, multimember districts and proportional voting. This might sound like a big lift, but it’s fully constitutional, deeply aligned with our founding vision, and only requires Congress to pass a statute. For example, the Fair Representation Act, a bill to be reintroduced in Congress this week by Reps. Don Beyer (D-Va.) and Jamie Raskin (D-Md.), would do just that by requiring every state to replace its winner-take-all elections with proportional ranked-choice voting.

Proportional representation methods like rank-choice voting, along with other types of multiple-candidate voting from a group, were advocated by Progressive reformers from 1913 to 1932 to make political officials more representative of ordinary people and minorities, rather than concentrating power in corrupt party bosses and corporate interests. See Kathleen L. Barber, A Right to Representation: Proportional Election Systems for the Twenty-First Century (Ohio State U. Press. 2000).

Book Feminized Justice: The Story of the Toronto Women's Courts 1913-1934

I came across this book as part of my research on the history of Women's Courts, and thought it was worth a share. 

Amanda Glasbeek, Feminized Justice: The Toronto Women's Court, 1913-1914 

In 1913, Toronto launched Canada’s first woman’s police court. The court was run by and for women, but was it a great achievement? This multifaceted portrait of the cases, defendants, and officials that graced its halls reveals a fundamental contradiction at the experiment’s core: the Toronto Women’s Police Court was both a site for feminist adaptations of justice and a court empowered to punish women. Reconstructed from case files and newspaper accounts, this engrossing portrait of the trials and tribulations that accompanied an early experiment in feminized justice sheds new light on maternal feminist politics, women and crime, and the role of resistance, agency, and experience in the criminal justice system.

 

 

The Critical Role of History After Dobbs

Serena Mayeri, The Critical Role of History After Dobbs, 2 Journal of American Constitutional History 171 (Winter 2024)

The Dobbs majority’s reliance on a flawed and impoverished account of “history and tradition” to deny fundamental freedoms today may tempt us to despair of appealing to the past as a source of constitutional rights or principles. But the problem with Dobbs is not its discussion of history per se; rather, it is how and for what purposes the Court looks to the past. History need not preserve archaic values; it can counsel against past errors and justify affirmative approaches to protecting rights and combating inequality.

This essay explores critical roles for history in legal, constitutional, and political arguments about reproductive freedom and democracy after Dobbs. These critical approaches define differently the historical voices and sources that matter; the constitutional principles and lessons to be drawn from the past; and the roles that history and tradition should play in shaping our present and future. Critical histories read the Reconstruction Amendments as a mandate for emancipation and for the eradication of all forms of bodily and reproductive coercion. They elevate the voices of those who long were excluded from political participation and place abortion restrictions in a longer history of reproductive control and anti-democratic political traditions. Critical histories can and do inform the interpretation of state as well as federal constitutional provisions in and outside of court. From courtrooms, legislatures, and campuses to workplaces, street protests, and dinner tables, these histories play a more crucial role than ever in informing legal and political discourse about reproductive justice and the future of democracy.

Paula Monopoli to Speak on Women as Constitution Makers: Revisiting the 19th Amendment After Dobbs

TO REGISTER: Download 2024 Spring Lecture Con Law Center Monopoli QR

Challenging the Misuse of Women’s Legal History to Support Anti-Abortion Regulation

It looks like it is time again to reup this article I wrote over a decade ago disputing the use of women’s legal history to claim that nineteenth-century feminist pioneers like Elizabeth Cady Stanton advocated against abortion. Tracy Thomas, Misappropriating Women's History in the Law & Politics of Abortion, 36 Seattle L. Rev. 1 (2012). I also discuss the issue further in my book, Tracy Thomas, Elizabeth Cady Stanton & the Feminist Foundations of Family Law (NYU Press 2016). Post-Dobbs, anti-choice writers have once again resurrected the erroneous claim that Stanton, and other historical feminists like Victoria Woodhull, actively opposed abortion. Erika Bachiochi & Rachel Morrison, Dobbs, Equality and the Contested Meaning of Women's Rights (Texas Review of Law & Politics, forthcoming).

My conclusion as to Stanton was to the contrary. I found that a close look at the historical record shows that Stanton supported—not opposed—women’s right to engage in voluntary, enlightened motherhood by choice. And she opposed state regulation of women’s private decisions and autonomy. Stanton actually said very little about abortion at all, a handful of comments over fifty years, in contrast to her thousands of speeches, writings, and interviews advocating many other demands for women’s rights for social, political, family, and economic citizenship. Instead, Stanton merely used the public debate swirling around abortion triggered by the new criminalization of abortion in the late 1860s as an avenue to voice her other demands for women’s equality, enfranchisement, autonomy, and opportunity.

Interpreting the Undemocratic Constitution that Excludes Women and Racial Minorities

Joy Milligan & Bertrall Ross, We (Who Are Not) the People: Interpreting the Undemocratic Constitution, Texas L. Rev. (forthcoming)  

How should we interpret a Constitution that was not written for us? For most of American history, “We the people” excluded women and racial minorities. The Constitution and all but a few amendments were adopted amidst profoundly undemocratic conditions in which majorities of the population did not participate or see their interests represented. The United States did not approach even minimally egalitarian democracy until 1965, when the Voting Rights Act finally assured the right to vote to people of color, implementing the Fifteenth and Nineteenth Amendments’ guarantees.

In this Article, we argue that the undemocratic nature of the Constitution must be addressed in interpreting the document. Interpreters can exacerbate or ameliorate the Constitution’s democratic flaws; the methods they select may entrench old forms of political exclusion or help equalize rights and status across the citizenry.

To illustrate, we offer a case study of the perils and possibilities of interpretation, focusing on unenumerated rights. Such rights may have been unwritten because they were liberties commonly exercised by white men as full citizens, and hence could be assumed. Or they may have been unwritten because they mattered primarily for politically excluded populations and therefore could be ignored. We show that the Supreme Court’s recent adoption of an approach to unenumerated rights resting on “history and tradition” unjustifiably reinforces prior undemocratic conditions. As a corrective, we advocate a set of interpretive steps designed to ameliorate the Constitution’s democratic flaws and advance equal citizenship. Such methods may move us closer to egalitarian democracy, a prerequisite if we are ever to reshape our constitutional framework under truly inclusive conditions.

New Books "Young and Restless," A Legal History of Young Women's Role as Forces of Change

Book Review: "Young and Restless" by Mattie Kahn

Girls to the Front!  In “Young and Restless,” Mattie Kahn returns young women and girls to their rightful role in the history books: as forces for change.

And although it is not the aim of a historical survey to be prescriptive, heartening inspiration can be found in “Young and Restless,” Mattie Kahn’s thoroughgoing examination of the role of young women and girls in America’s uprisings.

Her subjects have agitated on behalf of labor and voting rights, racial dignity and equality, sexual and reproductive freedom, freedom of speech and against climate change. The solutions she illustrates include objecting, resisting — and, yes, acting up, rather than sinking into sadness and accepting the unacceptable. By taking direct action in the service of shared values, in alliance with beloved communities for a better future, girls throughout American history have discovered a sense of personal agency, often during eras when their opportunities were sharply circumscribed. Sometimes they even changed history.

Kahn, whose stated aim is to write girls back into the historical record, also considers her subjects’ lives before and after their time in the trenches. Many of the young women who took on activist roles — especially those who lived before the mid-20th century — faced intense blowback, even as they inspired others to their causes. The book also examines the place of childhood itself as a battleground on which America’s culture wars have historically been fought.

The author maintains an admirable ability to complicate her own assertions — girls have been a force for progressive change, for instance, but also a force in reactionary movements

Reconciling Domestic Violence Protections and the Second Amendment

Natalie Nanasi, Reconciling Domestic Violence Protections and the Second Amendment, Wake Forest L. Rev. (forthcoming)  

In March of 2023, the Fifth Circuit Court of Appeals held that individuals subject to domestic violence protective orders could not be required to give up their guns. The decision was the first of a federal court to overturn a firearm regulation pursuant to New York State Rifle & Pistol Association v. Bruen, a 2022 Supreme Court opinion that created a new standard for determining the constitutionality of gun restrictions. After Bruen, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” pass constitutional muster.

The Fifth’s Circuit decision in U.S. v. Rahimi, which the Supreme Court will review in the 2023-24 term, highlights the unworkability of the Bruen test. Women’s rights were virtually nonexistent when the Second Amendment was ratified. Domestic violence was tolerated, and it was not until nearly 200 years later that protective order statutes were enacted across the United States. Looking to the past to justify modern-day gun safety laws gravely threatens women’s rights and safety.

But Bruen does not require such a narrow reading. Significant historical and legal precedent exists for disarming dangerous persons, and those who have had protective orders entered against them undoubtedly fall into that category. This article’s feminist critique of Bruen demonstrates why its holding is deeply problematic, but it also shows that it is possible to both hew to Second Amendment jurisprudence and protect survivors of intimate partner violence.

New Book Equality Unfulfilled: How Title IX's Policy Design Undermines Change to College Sports

New Book by Elizabeth Sharrow About Title IX "Equality Unfulfilled" is Published

Elizabeth Sharrow, associate professor of public policy and history, has published a new book, “Equality Unfulfilled: How Title IX’s Policy Design Undermines Change to College Sport” (Cambridge University Press, July 2023), examining the half-century legacy of the law’s passage.

As Sharrow and co-author James Druckman of Northwestern University explain in the book, the year 1972 is often hailed as an inflection point in the evolution of women’s rights. Congress passed Title IX of the Education Amendments of 1972, a law that outlawed sex-based discrimination in education. Many Americans celebrate Title IX for having ushered in an era of expanded opportunity for women’s athletics, yet 50 years after its passage sex-based inequalities in college athletics remain the reality. “Equality Unfulfilled” explains why, identifying institutional roadblocks – including sex-based segregation, androcentric organizational cultures and overbearing market incentives – that undermine efforts to achieve systemic change.

Drawing on surveys with student-athletes, athletic administrators, college coaches, members of the public and fans of college sports, it highlights how institutions shape attitudes toward gender equity policy. It offers novel lessons not only for those interested in college sports but for everyone seeking to understand the barriers that any marginalized group faces in their quest for equality.