Gender and the Law Prof Blog

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

Friday, October 23, 2020

Book Review, Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress

Book Review: Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress 

In Injustice and the Reproduction of History: Structural Inequalities, Gender and RedressAlasia Nuti explores the relationship between history and the provision of justice by focusing on women as a historical-structural group subject to historical injustices that continue to impact the present. This is a very welcome contribution to the literature, writes Ebru Demir, providing both deep and rigorous analyses of its case studies and proposing thought-provoking new terminology. 

 

Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress. Alasia Nuti. Cambridge University Press. 2019.

 

Why should an unjust history matter for egalitarians seeking justice in the present? How and why does history relate to the provision of justice both theoretically and practically? Alasia Nuti’s Injustice and the Reproduction of History: Structural Inequalities, Gender and Redress not only engages with such longstanding questions but also makes an important contribution to the existing literature as it centres on the argument that women as a historical-structural group (HSG) are the subjects of historical injustices.

 

One of the main arguments of the book is that ‘unjust history that should normatively matter in justice-based considerations is present because it has been reproduced over time through different means’ (4). In the first half of the book, Nuti builds this argument on very solid ground by engaging with the relevant literature and by providing examples to validate this very point. ‘De-temporalising injustice’, borrowed from Reinhart Koselleck’s terminology, is significant and necessary in order to capture the relation between past and present injustices (13). The book contributes to the de-temporalising of injustice by suggesting that past and present injustices have possible connections and all backward-looking approaches to injustice consider only past injustices as significant enough to address (15). According to Nuti, past and present cannot be separated if one seeks to provide justice for historical-structural injustices (HSIs) that have been committed. For this very reason, the division between past and present becomes deceptive. The present reproduces the unjust past ‘over time and through changes’ (8). Thus, change also becomes a suspect in perpetuating unjust history.

 

The second half of the book forms a study of women as a group and as the subjects of The second half of the book forms a study of women as a group and as the subjects of historical injustices. Although previously Catherine Lu has argued that women are a group suffering from enduring injustice, by carrying this argument one step further, this book provides a thorough analysis of how such a group is defined. Nuti, being aware of intersectional identities and differences, argues that to be categorised as a woman, one is not obliged to have been through systematic oppression: it is sufficient for one to be more likely to be exposed to unjust constraints and abuses (90). Therefore, possibility and potentiality become the requirements for being categorised as a group undergoing historical injustices.

October 23, 2020 in Books, Legal History, Theory | Permalink | Comments (0)

Revaluating Marital Norms in the Administrative Cases Brought by Deserted Wives Seeking Homesteading Rights in the 19th and early 20th Centuries

Hannah Haksgaard, The Homesteading Rights of Deserted Wives: A History, Nebraska Law Review (Forthcoming)

During the late nineteenth and early twentieth centuries, the federal government of the United States distributed 270 million acres of land to homesteaders. The federal land-grant legislation allowed single women, but not married women, to partake in homesteading. Existing in a “legal netherworld” between single and married, deserted wives did not have clear rights under the federal legislation, much like deserted wives did not have clear rights in American marital law. During the homesteading period, many deserted wives litigated claims in front of the Department of the Interior, arguing they had the right to homestead. This is the first article to collect and analyze the administrative decisions regarding the homesteading rights of deserted wives, offering a unique view of American marriage. After documenting the history of homesteading rights of deserted wives, this Article explores how these unique administrative decisions adopted or rejected the prevailing marital norms in America and how understanding these administrative decisions can aid in our understanding of marriage in American history.

October 23, 2020 in Family, Legal History | Permalink | Comments (0)

Wednesday, October 21, 2020

Recalling the First Comprehensive History of Women's Rights, Eleanor Flexner's 1959, Century of Struggle

NY Times, Overlooked no More: Eleanor Flexner, Pioneering Feminist in an Anti-Feminist Age

In the 1950s, Eleanor Flexner, a left-wing activist and writer, decided to compile a comprehensive history of the women’s rights movement in the United States, exploring a span of more than 300 years. Her timing could not have been less auspicious. Feminism was virtually a dirty word, described in Ferdinand Lundberg and Marynia F. Farnham’s celebrated book “Modern Woman: The Lost Sex” (1947) as “at its core, a deep illness.”

 

Moreover, the House Un-American Activities Committee, or HUAC, was engaged in a ruthless investigation of Communist influence in the United States, attacking left-wing artists and intellectuals. Flexner had been a member of the Communist Party from 1936 through 1956, and although she was not hauled before HUAC, the careers of some of her closest friends and associates had been ruined.

 

Nonetheless, Flexner, with no formal training as a professional historian, began what became a pathbreaking, wide-ranging account of activism for women’s rights in America.

 

Century of Struggle: The Women’s Rights Movement in the United States” (1959) was the first authoritative narrative of one of the great dimensions of American democratic history. The book, based largely on her original research in the Library of Congress, the Sophia Smith Collection of Women’s History at Smith College and elsewhere, covered an immense amount of material, from Anne Hutchinson, the 17th-century rebel against Puritan clerical authority in Massachusetts, to the dramatic final years of the ratification of the 19th Amendment, by which women won the right to vote. It remained the pre-eminent text on the topic for more than half a century, and is still taught in schools and consulted widely by historians today.

October 21, 2020 in Books, Legal History | Permalink | Comments (0)

Monday, October 12, 2020

New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer

A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.

Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer

An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.

That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).

Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).

Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.

“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***

In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.

Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.

Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.

October 12, 2020 in Courts, Gender, Judges, Legal History, SCOTUS, Women lawyers | Permalink | Comments (0)

Friday, October 2, 2020

Catharine MacKinnon's Sexual Harassment Work as Invention of a New Form of Common Law Legal Reasoning

Charles Barzun, Catharine MacKinnon and the Common Law  

Few scholars have influenced an area of law more profoundly than Catharine MacKinnon. In Sexual Harassment of Working Women (1979), MacKinnon virtually invented the law of sexual harassment by arguing that it constitutes a form of discrimination under Title VII of the Civil Rights Act of 1964. Her argument was in some ways quite radical. She argued, in effect, that sexual harassment was not what it appeared to be. Behavior that judges at the time had thought was explained by the particular desires (and lack thereof) of individuals was better understood as a form of social domination of women by men. Judges, she argued, had failed to see that such conduct was a form of oppression because the social and legal categories through which they interpreted it was itself the product of male power.

This argument is not your typical legal argument. It may not even seem like a legal argument at all. But this article explains why on one, but only one, model of legal reasoning, MacKinnon’s argument properly qualifies as a form of legal reasoning. Neither the rationalist nor the empiricist tradition of common-law adjudication can explain the rational force of her argument. But a third, holistic tradition of the common law captures its logic well. It does so because, like MacKinnon’s argument (but unlike the other two traditions), it treats judgments of fact and value as interdependent. This structural compatibility between MacKinnon’s argument about gender oppression, on the one hand, and the holistic tradition of the common law, on the other, has theoretical and practical implications. It not only tells us something about the nature of law; it also suggests that critical theorists (like MacKinnon) may have more resources within the common law tradition to make arguments in court than has been assumed.

October 2, 2020 in Gender, Legal History, Theory, Workplace | Permalink | Comments (0)

Friday, September 25, 2020

CFP Con Law Center Symposium: Examining Black Citizenship from Reconstruction to Black Lives Matter

Call for Papers: Examining Black Citizenship from Reconstruction to Black Lives Matter

The Center for Constitutional Law at Akron
Virtual Symposium (online)
Friday, Feb. 5, 2021, 9am to 5pm

This year celebrates 150 years of the Fifteenth Amendment, 100 years of the Nineteenth Amendment, 55 years of the Voting Rights Act, and just over 55 years of Title VII. Each of these laws brought some systemic change to the participation of Black citizens in the polity. This symposium will explore the ways in which the reconstructed Constitution intended or neglected to establish political and civil citizenship rights regardless of race. Drawing on current social movements like Black Lives Matter, MeToo, SayHerName, and Defund the Police, this academic discussion reflects on the role of law in creating, sustaining, and resolving the identified problems.

Topics for presentation in the broad umbrella of this symposium might include: how social movements transform or engage the law, how academics translate social movements, a reconstructed history of the 15th or 19th Amendment, the Jim Crow and Jane Crow eras and their continuing effects, current battles for voting rights regarding felons, polling restrictions, and other limitations with disparate impact, intersectional dimensions of justice including Black feminism, the causes and consequences of Black Lives Matter, vestiges of slavery, reparations for slavery, policing reform, mass incarceration, judicial remedies for citizenship violations, and/or the gendered differences of black citizenship rights.

The Virtual Symposium is sponsored by the Center for Constitutional Law at Akron. The Center is one of four national centers established by Congress on the bicentennial for the purpose of promoting scholarship and education on matters of constitutional law. The Center includes five affiliated faculty fellows, student fellows, an online journal, ConLawNOW, a JD certificate program in constitutional law, a social justice project, and a Masters of Law in social justice.

Papers presented will be published in a symposium edition of ConLawNOW. ConLawNOW is an online, open-access journal that is also indexed in Westlaw, Lexis, and Hein. It is designed to publish shorter works of 10-20 pages within a short editorial timeframe to get scholarship into the public discourse more quickly. Recent authors published in ConLawNOW include Larry Solum, Paula Monopoli, Ernie Young, Harold Koh, Helen Norton, Judge Jeffrey Sutton, Ruthann Robson, and Julie Suk.

Those interested in presenting a paper should submit a proposal detailing the intended presentation to Professor Tracy Thomas, Director of the Center for Constitutional Law, at thomast@uakron.edu by December 1.  Draft papers should then be submitted by January 20, 2021 for circulation among the other participants for the symposium. Final papers will be due by March 1, 2021, and expected to publish by early April.

September 25, 2020 in Call for Papers, Conferences, Constitutional, Legal History, Race | Permalink | Comments (0)

Tuesday, September 22, 2020

Symposium 9/25: Two Centuries of the Equal Rights Amendment

Symposium, Fri. Sept. 25, Two Centuries of the Equal Rights Amendment, University of Florida School of Law

Please join scholars, legislators, and practitioners on Friday, September 25 for the Symposium, Two Centuries of the Equal Rights Amendment. This Symposium addresses many questions left unanswered after the recent ratification of the Equal Rights Amendment by Virginia. It has taken 97 years for the ERA to meet the technical requirements of Article V. But will it take its rightful place as the Twenty-Eighth Amendment? And will it be Congress, or the courts, that make it happen?

Please visit the Symposium website for a detailed schedule. This Symposium may be attended on a per panel basis and is free and open to the public. Please register to receive the Zoom link and Outlook invitation. 6.5 Florida CLEs pending.

September 22, 2020 in Conferences, Constitutional, Law schools, Legal History | Permalink | Comments (0)

A More Nuanced Legal History of the Feminist Success of US Criminal Rape Law Reform

Katharine Baker & Michelle Oberman, Consent, Rape and the Criminal Law, The Oxford Handbook of Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds.), Oxford University Press, 2021 (Forthcoming)

The story of US criminal rape law reform tends to be told as one of remarkable feminist success (between 1970–1990, feminist-led coalitions changed state laws so that rape ceased to be a crime requiring force and resistance and became instead a crime that only required sex without consent) followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates and conviction rates for rape increased only slightly. This essay resists that binary account of success and failure by offering a more nuanced assessment. First, it explores the full range of factors hindering the reporting, prosecution and conviction of rape crimes, including the role played by social norms. Second it argues that, by changing rape’s definition to an inquiry focused upon whether the victim consented, the law has facilitated a shift in cultural and institutional norms governing unwanted sex. In short, the law’s message that unwanted sex is wrong matters. It is naïve to think that a change in law would, on its own, end rape culture. But there is ample evidence to support the conclusion that rape law reform has played a central role in reducing society’s tolerance of the rape prerogatives that have held sway for millennia.

September 22, 2020 in Legal History, Violence Against Women | Permalink | Comments (0)

Friday, September 11, 2020

Zoom Webinar The Centenary of the 19th Amendment: New Reflections on the History and Future of Gender, Representation, and Citizenship Rights

Zoom webinar at Boston University School of Law, Friday, September 25, “The Centenary of the 19th Amendment: New Reflections on the History and Future of Gender, Representation, and Citizenship Rights.” The speakers include law professors, political scientists, and political practitioners, and Rachel B. Tiven, a/k/a The Daily Suffragist. Here is the link for the program and registration:

https://www.bu.edu/law/2020/01/29/19th-amendment-program/

Several papers from the conference will appear in a mini-symposium issue of the Boston University Law Review, Volume 100, Issue 5, due out in October 2020:

https://www.bu.edu/bulawreview/forthcoming/

September 11, 2020 in Conferences, Constitutional, Legal History | Permalink | Comments (0)

Wednesday, September 9, 2020

Women's Right to Vote in New Jersey (1776-1807) and its Analogy to the Marginalization of Voters Today

Note, Campbell Curry-Ledbetter, Women's Suffrage in New Jersey 1776-1807: A Political Weapon, 21 Geo. J. Gender & Law 705 (2020)

Women had the right to vote in New Jersey from 1776 – 1807. Traditionally, historians have treated women’s suffrage in New Jersey as an insignificant historical anomaly. More recent works, however, show that women’s voting played an important role in the increasingly contested elections of the era and was a critical part of New Jersey’s efforts to define the “body politic.” This paper examines the ways in which the Federalist and Republican parties weaponized women’s suffrage between 1797 and 1807. It argues that both parties tied women to allegations of voter fraud and depicted them as political pawns to delegitimize the opposing party’s electoral victories. Over time, these attacks diminished support for female suffrage and contributed to women’s disenfranchisement in 1807. It argues further that the treatment of women voters in the late 18th and early 19th century and their disenfranchisement is analogous to the treatment of marginalized voters today and modern efforts to implement strict voter restrictions.

September 9, 2020 in Constitutional, Legal History | Permalink | Comments (0)

Tuesday, September 8, 2020

The Anti-Rape and Battered Women's Movement of the 1970s and 80s

Leigh Goodmark, The Anti-Rape and Battered Women’s Movements of the 1970s and 80s  
The Oxford Handbook on Feminism and Law in the United States (Deborah L. Brake, Martha Chamallas & Verna Williams, eds., Forthcoming)

The anti-rape and battered women’s movements of the 1970s and 1980s grew out of the women’s liberation movement of the late 1960s and early 1970s. Early grassroots organizing around responding to rape and domestic violence relied heavily on community-based strategies, including the creation of shelters and safe houses and feminist self-defense classes. Using the new vocabulary of the women’s liberation movement, feminist advocates soon began to highlight the ways existing rape and domestic violence law shored up the patriarchy, characterized women as the property of their fathers and husbands, and enabled the state to sidestep responsibility for violence. Reacting to a legal system whose responses to gender-based violence included official policies of non-interference, skepticism about women’s credibility, and what they saw as inappropriate concern for the privacy of the family, some anti-violence advocates moved away from the grassroots community-based strategies of the early anti-rape and battered women’s movements. Instead, they pushed for greater state intervention in rape and domestic violence via the criminal legal system. But the movement was not united in embracing such strategies. Feminist organizing of the 1970s and 80s around changing rape and domestic violence law reflected the tensions between competing visions of the role of the state in addressing gender-based violence, visions shaped by race, class, and professional status. By the end of the 1980s, culminating in the passage of the Violence Against Women Act in 1994, pro-state intervention feminists had successfully implemented their carceral agenda—a policy choice that is being reexamined today.

September 8, 2020 in Legal History, Violence Against Women | Permalink | Comments (0)

Rape Without Women - The Legal History of Public Rape Narratives and the Reinforcement of Masculinity

Sharon Block, Rape Without Women: Print Culture and the Politicization of Rape, 1765-1815, 89 J. American History 849 (2002) [also available on JStor]

The first section of this article shows how Americans made the very personal sexual interaction of rape publicly palatable by removing women from its retelling. Stories of rape, then, could accomplish what the newly popularized stories of seduction could not: by emphasizing men's interactions with one another, rape stories could provide an unequivocal assignment of right and wrong, unencumbered by concern over women's sexual desires and acts. Focusing attention on men's protection of women's virtue allowed authors to minimize the thorny issue of women's role in promoting their own morality. The absence of women allowed narratives of rape to categorize competing visions of masculinity. Through this masculinized transformation, rape could be deployed in political battles.

 

In the second section, I examine the politicization of rape in revolutionary rhetoric. Rather than invoking rape as a symbol of general savagery or as simply the marker dividing honorable from dishonorable masculinities, revolutionary-era narratives increasingly presented rape as an explicitly political trope. By replacing women's experiences of their own bodies with men's experiences of witnessing the victimization of women, rape-related stories opposed upstanding American male citizenry to corrupt British rule. ***

 

In stories such as this, rape reiterated a transhistoric aspect of patriarchy that attached importance to rape as an assault against men. Feminists have often argued that women have been denied subjectivity in many historical discourses. And we might not be surprised by the elision of women in print; after all, women were rarely a common feature in public life, and scholars have begun to trace the specific problematics of women's public speech. By the second quarter of the eighteenth century, women had seen their often vocal roles in public court sessions decrease with the increasing formalization of the legal system. But unlike most topics, rape necessarily involved women, its very existence hinging on what the historian Cornelia Hughes Dayton has rightly called "woman's word"-her ability to put forward a believable accusation.

 

Yet even though women were necessarily present in the act of rape, printed stories eclipsed women's retellings of sexual attacks by suggesting that the ultimate victims were men. Instead of making men the physical victims (which might risk an unacceptable feminization of their bodies), stories of rape made men the emotional, economic, and social victims of the rape of their female dependents. Thus, the offense of rape was more than an attack on a man's property, as it had been conceptualized in early modern prosecutions for forcible marriage or heiress stealing. For eighteenth-and nineteenth-century Americans, the offense of rape was an attack on a man's patriarchal identity as the protector of his dependent women.

Sharon Block is the author of Colonial Complexions: Race and Bodies in Eighteenth-Century America (University of Pennsylvania Press, 2018) and Rape and Sexual Power in Early America (University of North Carolina Press, 2006). Her latest essay "Erasure, Misrepresentation and Confusion: Investigating JSTOR Topics on Women’s and Race Histories," Digital Humanities Quarterly (2020) exposes racism and sexism in a popular academic scholarly database.

h/t from Kimberly Hamlin's (Miami U) #MeToo Course

September 8, 2020 in Legal History, Masculinities, Media | Permalink | Comments (0)

Wednesday, August 26, 2020

Book Review: Telling the Story of Justice Sandra Day O'Connor

Susan Frelich Appleton, Book Review, Telling the Story of Justice Sandra Day O'Connor, 62 Wash. U. J. Law & Policy 5 (2020)  

[T]his brief review critically examines First: Sandra Day O'Connor, a biography by Evan Thomas. The review follows two themes highlighted by the book, intimacy and gender, and finds the author's treatment of the latter especially problematic. ***

 

I detected elisions and oversimplifications that I suspect other authors, especially those more attuned to gender and feminist jurisprudence, might well have avoided. Two examples help make my point. First, although Justice O’Connor is certainly entitled to reject the label “feminist,” it would have been easy to note how her pragmatic and context-sensitive approach to deciding cases tracks a methodology that feminist legal theorists call “feminist practical reasoning.” Indeed, Thomas comes so close when he writes: “by judging in her one-case-at-a time fashion—by looking closely at the facts and broader social context—she did bring a uniquely female perspective: her own.” He could have enriched this analysis with a brief reference to feminist legal methodologies,
adding force and complexity to O’Connor’s supposed rejection of the idea that women decide cases differently and her clerks’ reported bewilderment “at her lack of self-awareness.”

 

Second, the biography includes only the skimpiest mention of O’Connor’s concurring opinion in J.E.B. v. Alabama,  when—again— situating it in feminist jurisprudence would have provided a deeper view of
the significance of gender to O’Connor. ***

 

By the end, the book left me puzzling over several questions about the author, diverting attention from the Justice herself: How reliable a narrator is Thomas in telling her story? How did Thomas’s own intimate relationship color his “intimate portrait”? How confident can readers feel that Thomas captured and presented a full picture of O’Connor, especially when it comes to how gender, and society’s construction of it, shaped her and her history making life?

 

August 26, 2020 in Books, Legal History, Women lawyers | Permalink | Comments (0)

Recommended Reading on the 19th Amendment

My own work

Tracy Thomas, More Than the Vote: The Nineteenth Amendment as Proxy for Gender Equality, 15 Stanford J. Civ. Rgts. & Civ. Liberties 349 (2020)

Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen:  Challenging the Myth that Women Judges Judge Differently, William & Mary J. Race, Gender & Social Justice (forthcoming) (on Ohio women’s suffrage story)

Tracy Thomas, From the 19th Amendment to ERA: Constitutional Amendments for Women's Equality, ABA Insights (Nov. 2019)

Tracy Thomas, Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016) (on vote as part of greater demand for gender equality in the family)

19th Amendment Symposium, University of Akron School of Law, in ConLawNOW and Akron Law Review

 

Reading List:

Paula Monopoli, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford 2020)

Reva Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family 115 Harvard L. Rev. 945 (2002)

Ellen Carol DuBois, Suffrage: Women's Long Struggle for the Vote (Norton 2020)

Ellen Carol DuBois, Feminism & Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (Cornell 1999)

Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920

Martha Jones, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All

Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900

Kimberly Hamlin, Free Thinker Free Thinker: Sex, Suffrage, and the Extraordinary Life of Helen Hamilton Gardner (Norton 2020)

Doris Stevens, Jailed for Freedom: A First Person Account of the Militant Fight for Women’s Rights

Elaine Weiss, The Woman's Hour: The Great Fight to Win the Vote (2019)

Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)

Neil Siegel, Why the Nineteenth Amendment Maters Today: A Citizen's Guide for the Constitution, 27 Duke J. Gender Law & Policy 235 (2020)

Ann Gordon, ed., African American Women and the Vote, 1837-1965 (U Mass Press 1997)

Lauren Free, Suffrage Reconstructed: Gender, Race and Voting Rights in the Civil War Era (2015)

Holly McCammon & Lee Ann Banaszek, eds., 100 Years of the 19th Amendment: An Appraisal of Women's Political Activism (Oxford Press 2018)

Lisa Tetrault, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898 (2014)

Adam Winkler, A Revolution Too Soon: Women Suffragists and the Living Constitution, 76 NYU L Rev.  1456 (2001

August 26, 2020 in Books, Constitutional, Legal History, Race | Permalink | Comments (0)

Say Her Name: Black Women Activists in the Women's Suffrage Movement

Angela Dodson, Why Women's Suffrage Matters for Black People

While our collective memory of the suffrage movement is often a vision of a small band of white women — fighting the establishment alone, marching and picketing in their flowy white dresses — the story of the women’s movement was more complicated and nuanced than that. It involved many women, but also men, of different races who had to find their voice, identify allies and build coalitions.

 

As the centennial of the 19th Amendment’s certification on Aug. 26, 1920, approaches, many African Americans have questioned whether the suffrage movement is relevant to them, because most Black people in the South were disenfranchised anyway. For many African Americans, the movement’s reputation for discriminating against or dismissing Black suffragists and the long history of discord between white and Black feminists do not inspire enthusiasm for the anniversary celebration.

 

As we approach the centennial and the first presidential election with a Black/Asian woman in the race, the first woman of color on a major political party’s ticket, we should examine how we got the vote and at what cost.

 

To dismiss the suffrage movement as irrelevant dishonors the many Black women and men who participated — lobbying, debating, lecturing, petitioning, editorializing, parading and picketing alongside white suffragists.

 

As women are gaining greater leverage in the political system, now is the time to study and credit the contributions of all suffragists and expand our knowledge of the entire movement.

African American Women Leaders in the Suffrage Movement

Including Soujourner Truth, Angelina Weld Grimke, Sarah Redmond, Mary Ann Shadd Cary, Frances Harper, Josephine Ruffin, Mary Church Terrell, Ida B. Wells-Barnett, and many more.

 

Taken from Rosalyn Terborg-Penn, African American Women in the Struggle for the Vote, 1850-1920

Martha Jones, Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All

Martha Jones, All Bound Up Together: The Woman Question in African American Public Culture, 1830-1900

 

 

August 26, 2020 in Books, Constitutional, Legal History, Race | Permalink | Comments (0)

Monday, August 17, 2020

NY Times Special Issue on Women's Suffrage and the 19th Amendment Challenges Myths and Offers More Inclusive Version of the Legal History

The NY Times features this special section on women's suffrage on the 100th Anniversary of Women's Suffrage:

 

Tom Jolly (@TomJolly) | Twitter

 

The 19th Amendment: An Important Milestone in an Unfinished Journey

Historians who specialize in voting rights and African-American women’s history have played a welcome and unusually public role in combating the myths that have long surrounded the women’s suffrage movement and the 19th Amendment, which celebrates its 100th anniversary on Tuesday.

In the lead-up to this centennial, these same campaigning historians have warned against celebrations and proposed monuments to the suffrage movement that seemed destined to render invisible the contributions of African-American women like Frances Ellen Watkins Harper, Mary Church Terrell, Sojourner Truth and Ida B. Wells — all of whom played heroic roles in the late 19th- and early 20th-century struggles for women’s rights and universal human rights. In addition to speaking up for Black women of the past, these scholars have performed a vital public service by debunking the most pernicious falsehood about the 19th Amendment: that it concluded a century-long battle for equality by guaranteeing women the right to vote.

Americans who imbibed this fiction in civics classes are caught off guard when they hear the more complicated truth — that millions of women had won voting rights before the 19th Amendment was ratified, and millions more remained shut out of the polls after ratification. Indeed, as middle-class white women celebrated ratification by parading through the streets, African-American women in the Jim Crow South who had worked diligently for women’s rights found themselves shut out of the ballot box for another half century — and abandoned by white suffragists who declared their mission accomplished the moment middle-class white women achieved the franchise.

As the distinguished historian Nancy Hewitt has shown, a lengthy campaign and a range of subsequent laws was required to fully open ballot access to others, including Black women, Mexican-Americans, Native Americans, Chinese-Americans and Korean-Americans. Among those necessary laws were the repeal of the Chinese Exclusion Act in 1943 and the adoption of the Immigration and Nationality Act of 1952, the 24th Amendment in 1964 and the Voting Rights Act in 1965, along with its amendments of 1970 and 1975. In other words, the 19th Amendment was one step in a long, racially fraught battle for voting rights that seemed secure a few decades ago but face a grave threat today.

Spotlight: Suffrage at 100

Including:

Maya Salam, How Queer Women Powered the Suffrage Movement

Martha Jones, Tackling a Century-Old Mystery: Did my Grandmother Vote?

Sarah Elizabeth Lewis, For Black Suffragists, the Lens Was a Mighty Sword

Meet the Brave, but Overlooked Women of Color Who Fought for the Vote

Cathleen Cahill & Sarah Deer, In 1920, Native Women Sought the Vote: Here's What was Next

August 17, 2020 in Conferences, Legal History, LGBT, Race | Permalink | Comments (0)

Monday, July 27, 2020

Thin and Thick Interpretations of the Nineteenth Amendment -- A More Robust Understanding of Women's Constitutional Rights

Richard Hasen & Leah Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress's Power to Enforce It, 108 Georgetown L.J. 27 (2020)

This Article, prepared for a Georgetown Law Journal symposium on the Nineteenth Amendment’s one-hundred-year anniversary, explores and defends a “thick” conception of the Nineteenth Amendment right to vote and Congress’s power to enforce it. A “thin” conception of the Nineteenth Amendment maintains that the Amendment merely prohibits states from enacting laws that prohibit women from voting once the state decides to hold an election. And a “thin” conception of Congress’s power to enforce the Nineteenth Amendment maintains that Congress may only supply remedies for official acts that violate the Amendment’s substantive guarantees.

 

This Article argues the Nineteenth Amendment does more. A “thick” understanding of the Nineteenth Amendment’s substantive right is consistent with the Amendment’s text and history, as well as with a synthetic interpretation of the Constitution and its expanding guarantees of voting rights. The thick understanding of the Nineteenth Amendment would allow voting-rights plaintiffs to attack restrictive voting laws burdening women—especially those laws burdening young women of color, who are also guaranteed nondiscrimination in voting on the basis of age and race. A thick understanding of Congress’s power to enforce the Nineteenth Amendment would give Congress the ability to pass laws protecting women from voter discrimination and promoting their political equality. The thick understanding offers a way to redeem the Amendment from some of its racist origins and entanglement with the sexism that limited the Amendment’s reach. It also reinforces the democratic legitimacy of the Constitution. Nonetheless, the current Court is unlikely to embrace a thick understanding of the Nineteenth Amendment.

Paula Monpoli similarly argues for a thick or more robust interpretation of the Nineteenth Amendment, tracing the historical development of the thin conception of the amendment post-ratification in her new book, Constitutional Orphan: Gender Equality and the Nineteenth Amendment (Oxford Aug. 2020).  See Paula Monopoli, The Constitutional Development of the Nineteenth Amendment in the Decade Following Ratification, 11 ConLawNOW 61 (2019)

Reva Siegel argues for a more robust interpretation of the Nineteenth Amendment for gender equality more generally by a better understanding of the pre-ratification history, and a symbiotic reading of the Nineteenth with the Fourteenth Amendment Equal Protection Clause.  Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J. Forum 450 (2020)

 

July 27, 2020 in Constitutional, Gender, Legal History, Theory | Permalink | Comments (0)

Thursday, July 23, 2020

What Took so Long for the ERA To Gain Traction?

I'm quoted in this article on the ERA.

Hannah Hayes, 100 Years On, the ERA Rises from the Ashes, ABA Perspectives Magazine (March 2020)

n March 2017, Nevada became the 36th state to ratify the Equal Rights Amendment (ERA). The move came just two months after the Women’s March on Washington drew hundreds of thousands to Washington, D.C., to protest President Donald Trump’s inauguration, as millions of women joined in simultaneous marches worldwide.

 

The vote also came 45 years after Congress passed the constitutional amendment, a move requiring ratification by three-fourths (38) of states before it became law. That year, 22 states immediately jumped on board; eight states ratified the ERA in 1973, followed by three states in 1974, with only two more states in 1975 and 1977.

 

After the decades-long gap, Nevada was followed by Illinois in 2018, and in January of this year, Virginia became the 38th state, technically making the amendment a reality. However, approval has been stalled because the amendment was introduced with a proposed two-year deadline for state ratification, and five states rescinded approval in the 45 years following their approval. Many credit the #MeToo movement and the election of President Trump with re-invigorating the women’s movement. “[Former President Barack] Obama claimed we were post-racial, but 2016 woke people up,” says Senator Pat Spearman, the democratic Nevada senator who introduced the resolution and who has since championed ratification across the country.

 

Others say, however, a persistent ground game that involved flipping seats and working state by state kept the amendment alive when many thought it had died a quiet death in the late 1970s. “I think the Women’s March helped inject vigor and also turned average people into activists,” says Kate Kelly, a human rights lawyer in the New York office of Equality Now, an international women’s rights organization, and a member of the national ERA Coalition. “Most people said it came out of nowhere, but people had been working on the ground in many states for many years. It just wasn’t getting any attention.”


What Took So Long?

 

While the Nineteenth Amendment, which was ratified in 1920, recognized women’s right to vote, it did not make women equal under the law. Further, it was only one strand of a series of demands made by Elizabeth Cady Stanton and abolitionist Lucretia Mott at the historic Seneca Falls Constitutional Convention in 1848 that included a broad list of social and civil rights, such as no-fault divorce and equal marital property rights. The Equal Rights Amendment was authored by Quaker abolitionist Alice Paul in 1923 and revised in 1943.

 

“Paul had a group of women lawyers from every state who analyzed the statutes in each state, and they came up with 350 statutes in 30 different areas of law where there was inequality,” says Tracy Thomas, director of the Center for Constitutional Law at the University of Akron (Ohio) School of Law.

 

According to Thomas, the ERA was met with opposition from the beginning. ERA advocates clashed with the labor movement, which was fighting for minimum wage and workplace safety. “The way they had been successful was by saying that women needed protection because legislators could understand that, so there was the fear that if you said the women were equal to men, nobody would get workplace protection,” Thomas explains.

 


Eventually, those issues faded following the passage of the Fair Labor Standards Act in 1938 and the rise
of the civil rights movement.

July 23, 2020 in Constitutional, Legal History, Legislation | Permalink | Comments (0)

The Law's Historic Unwillingness to Shield Black Girls from Acts of Sexual Violence

Mikah Thompson, Just Another Fast Girl: Exploring Slavery’s Continued Impact on the Loss of Black Girlhood,  
Harvard Journal of Law and Gender, Forthcoming

A troubling legacy of American chattel slavery is the justice system’s continued failure to provide adequate protection to African-American crime victims. This piece focuses on the law’s historic unwillingness to shield Black girls from acts of sexual violence. During slavery, lawmakers refused to criminalize rape committed against Black girls and women based not only on the fact that they were considered property but also on stereotypes about their sexuality. Even though the law now criminalizes the rape of Black girls, African-American rape survivors encounter more skepticism and hostility when they come forward with their stories compared to their White counterparts. Survivors experience negative reactions not just from White society but also from their own African-American community. Stereotypes about Black girls also influence the players in the justice system, including police officers, prosecutors, defense attorneys, and jurors. In light of the recent shift in societal attitudes ushered in by the #MeToo and #TimesUp movements, it is important to consider whether our culture can now move away from the stereotypes that have left Black girls unprotected for centuries.

July 23, 2020 in Legal History, Race, Violence Against Women | Permalink | Comments (0)

Monday, July 20, 2020

Where are the Statutes of Women? Sidelining Women in American Iconography

Melissa Weresh, Gauzy Allegory and the Construction of Gender, 25 Wm. & Mary J. Women & L. 7 (2018)

In August 2017, violence erupted in Charlottesville, Virginia when white nationalists arrived to protest the removal of a statue memorializing Confederacy General Robert E. Lee. Commenting on the controversy associated with the removal of Confederate monuments, the American Historical Association noted that the removal of a monument was intended "not to erase history, but rather to alter or call attention to a previous interpretation of history." In another effort to call attention to a silenced past, in April 20 18, The Legacy Museum: From Enslavement to Mass Incarceration opened in Montgomery, Alabama. Recognizing that "[t]he United States has done very little to acknowledge the legacy of slavery, lynching, and racial segregation," the Legacy Museum was a countermemorial effort designed to operate as "an engine for education about the legacy of racial inequality and for the truth and reconciliation that leads to real solutions to contemporary problems." More recently, the New York Times explored the issue of under· representation of women in American iconography in two articles titled, "Honor, at Last, for Ida B. Wells, 'a Sword Among Lions,' " and "These Women Deserve Statues in New York."

 

These changes to the landscape of American iconography underscore the powerful connection between history, commemoration, and public memory. This is true because "[a] monument is not history itself; a monument commemorates an aspect of history, representing a moment in the past when a public or private decision defined who would be honored in a community's public spaces."

 

Notwithstanding this recent attention, women remain underrepresented in all forms of American iconography, resulting in a deficiency in commemorative memory. When they are represented, they tend to be featured allegorically rather than historically, exacerbating the quantitative under-representation in a qualitative manner. Explanations for and implications of this quantitative and qualitative under-representation are largely unexplored in legal scholarship. This Article is therefore about the twofold erasure of women from the iconography that makes up our national memory: first, women are rarely represented at all, and second, when they are, they are represented as symbols, rather than as actual human beings. This is a troubling form of gender marginalization, or sidelining.

 

This Article begins with an empirical examination of the manner in which women have been commemorated in American iconography. It then turns to a framework of gender that incorporates features of gendered relationships and gendered significations of power, using that framework as a lens for evaluating the lack of female commemoration in American iconography. This lens also provides useful categories for evaluating the impact of allegorical as opposed to historical commemoration.

 

Against this backdrop, the Article explores potential explanations for both the lack of historical representation as well as the tendency to feature women allegorically in iconography, seeking interdisciplinary answers in fields such as classical history, art history, theology, linguistics, and commemoration studies. Noting possible explanations for both the quantitative and qualitative under-representation, the Article explores the implications of allegorical representation, emphasizing that it is important to consider not only the lack of historical representation, both quantitatively and, by virtue of allegorical representation, qualitatively, but also how that absence created and maintained hierarchies and contributed to the sidelining of women in commemorative spaces. Disconcerting consequences of allegorical representation include the objectification of the female form, and the irony of featuring idealized, allegorical images of women in areas of society and culture from which they have been historically excluded. Upon initiating this important conversation, it then turns to potential cultural, societal, and legal strategies to address this inequity.

h/t Ederlina Co

July 20, 2020 in Gender, Legal History, Pop Culture | Permalink | Comments (0)