No Constitutional Right to Be Ladies Women and the Obligations of Citizenship

by Kerber, Linda K.

• ISBN13: 9780809073849
• ISBN10: 0809073846
• eBook ISBN(s): 9781466817241
• Format: Paperback
• Copyright: 1999-09-01
• Publisher: Hill and Wang
• More Book Details

Summary

This pioneering study redefines women's history in the United States by focusing on civic obligations rather than rights. Looking closely at thirty telling cases from the pages of American legal history, Kerber's analysis reaches from the Revolution, when married women did not have the same obligation as their husbands to be "patriots," up to the present, when men and women, regardless of their marital status, still have different obligations to serve in the Armed Forces. An original and compelling consideration of American law and culture,No Constitutional Right to Be Ladiesemphasizes the dangers of excluding women from other civic responsibilities as well, such as loyalty oaths and jury duty. Exploring the lives of the plaintiffs, the strategies of the lawyers, and the decisions of the courts, Kerber offers readers a convincing argument for equal treatment under the law. Linda K. Kerberis the May Brodbeck Professor of History at the University of Iowa. Among her books areWomen of the RepublicandToward an Intellectual History of Women. She has served as the president of the Organization of American Historians and the American Studies Association and is a Fellow of the American Academy of Arts and Sciences. Winner of the American Historical Association's Joan Kelly Memorial Prize Winner of the Littleton-Griswold Prize This pioneering study redefines women's history in the United States by focusing on civic obligations rather than rights. Looking closely at thirty telling cases from the pages of American legal history, Kerber's analysis reaches from the Revolution, when married women did not have the same obligation as their husbands to be "patriots," up to the present, when men and women, regardless of their marital status, still have different obligations to serve in the Armed Forces. An original and compelling consideration of American law and culture,No Constitutional Right to Be Ladiesemphasizes the dangers of excluding women from other civic responsibilities as well, such as loyalty oaths and jury duty. Exploring the lives of the plaintiffs, the strategies of the lawyers, and the decisions of the courts, Kerber offers readers a convincing argument for equal treatment under the law. "Combining micronarrative with feminist theorizing, impeccable research with passionate engagement, Linda Kerber reshapes the history of American political development . . . A model study."From the Citation for the AHA's 1999 Joan Kelly Memorial Prize "Brillianta major work."Gerda Lerner "An immensely pleasurable read as well as an important contribution to American legal history . . . The author is too good a storyteller, however, to lay this all out without drama . . . Few have made the case so cogently or entertainingly."Sara L. Mandelbaum,New York Law Journal "A thoughtful book of formidable research and clear prose . . . Kerber weaves broad constitutional and legal history around fascinating case studies [and] makes a powerful case that, on balance, liberation is the trajectory of history."Michael Sherry,The New York Times Book Review "An ambitious exploration of the history and meaning of women's civic obligations . . . A carefully crafted work that tells its complex and persuasive story at many levels. By its focus on the law of civic obligation, it makes an innovative contribution to the study of citizenship as both a legal and political institution in the United States. By following the 'antique legal tradition' of coverture out of the treatises and into the arena of public law, this absorbing book also represents a significant expansion of the legal and social history scholarship of that doctrine in America. Its sweeping survey provides a timeline of the status of women as citizen

Author Biography

Linda K. Kerber is the May Brodbeck Professor of History at the University of Iowa. Among her books are Women of the Republic and Toward an Intellectual History of Women. She has served as the president of the Organization of American Historians and the American Studies Association and is a Fellow of the American Academy of Arts and Sciences.

Table of Contents

Acknowledgments	xiii
Preface	xix
``No Political Relation to the State'' Conflicting Obligations in the Revolutionary Era	3	(44)
``I am Just as Free and Just as Good as You Are'' The Obligation not to Be a Vagrant	47	(34)
``Wherever You Find Taxey there Votey Will Be Also'' Representation and Taxes in the Nineteenth Century	81	(43)
``Woman is the Center of Home and Family Life'' Gwendolyn Hoyt and Jury Service in the Twentieth Century	124	(97)
``A Constitutional Right to Be Treated Like American Ladies'' Helen Feeney, Robert Goldberg, and Military Obligation in Contemporary America	221	(82)
Epilogue	303	(8)
Notes	311	(72)
A Note on Sources	383	(6)
Index	389

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Excerpts

Chapter One

"NO POLITICAL RELATION TO THE STATE"

CONFLICTING OBLIGATIONS IN THE

REVOLUTIONARY ERA

* * *

"She must take her fate with him for better for worse"

    In February 1801, James Martin submitted a complaint to the Supreme Judicial Court of Massachusetts, the state's highest court of appeals. He demanded that the state return land and houses confiscated from his mother twenty years before, toward the close of the American Revolution. The case forced leading lawyers and judges to put into words their understanding--normally implicit--of the obligations that married women citizens owe to the state.

    James Martin won his case. The outcome was doubly ironic. One irony was that the decision forced the state to reclaim property it had already sold to loyal citizens and restore it to heirs of Tory supporters of the Revolution's enemies. The other irony is that through the recognition of the claim of Anna Gordon Martin's son, her family saved her property at the price of simultaneously denying that she was an autonomous citizen with her own civic responsibilities. Deep into the twentieth century, long after new legislation had confirmed married women's power to manage real estate and personal property, the citizenship of an American woman who, like Anna Martin, had married a foreign man continued to be problematic. Aspects of married women's citizenship continued to be filtered through their husbands' civic identity.

    James Martin's family had rejected the American Revolution. From the depositions filed with the Loyalist Claims Commission after the Revolution, from a handful of letters gathered by an antiquarian at the beginning of the twentieth century, and from scattered court papers in scattered archives, it is possible to piece together some of the family's history. James's father, William Martin, was born in England. In 1742, as a young man, William joined the Royal Regiment of Artillery, the one regiment in which careers were open to talented men without wealth. Artillery officers tended to have a high sense of themselves because of their technical expertise, but their often humble origins gave the regiment low social status. Sometime during the French and Indian War, William Martin was sent to the American colonies, where he made an upwardly mobile marriage to Anna Gordon, the daughter of James Gordon, a wealthy Boston merchant and landholder who was an active member of the Anglican Church. But the demands of the service pulled Martin away, and in 1752 we find him in Halifax, Nova Scotia, having left his wife and at least one child with her parents in Boston.

    William Martin was torn between the Gordons' desire to keep their family close and his own ambitions for rank and economic success. His correspondence with James Gordon suggests the real difficulties of the ambitious young man in need of patronage in the eighteenth-century British Empire. The only way to maintain his army career was to serve where he was sent. Anna Gordon Martin was evidently of another opinion, and William tried to persuade her through a message to her father: "[Were I to quit the service,] I must thro' away a growing certainty and loose a good prospect, with the advantages I may in time derive from a few chosen friends; so that I would recommend it to Mrs. Martin to think of those things and consider she is married to a man whose bread and interest may very soon lead him out of America (and in case she should have occasion) win herselfe from these childish attachments which ought to be laid asside after marriage."

    A year later there was a new baby, Jamie (who would ultimately bring suit against the state of Massachusetts). Anna apparently left the children with her parents and joined William in Halifax. Her father tried to make the best of it: "As to advising Anne about staying or returning, tho thers none of my children nearer or dearer to me, I darst not determine as she was of age before she married & knows her engagment. As she has now a husband, she must take her fate with him for better for worse, & must be determind by him where his business leads. You must share each others fate. Its Gods holy ordinance." James Gordon and his wife continued to raise Jamie and his sister Betty, sweating through the smallpox epidemic and their inoculation in 1763, worrying about the impossibility of keeping children focused on their studies during the Stamp Act riots, when they kept wanting to join the excitement in the streets--"As for James, wee cannot keep him from amongst the hurly burrly without I would chain him"--conscious always of the expense and work, especially by their grandmother, who was "allwaise minding [sic] & and repairing & making their cloaths, linnens, hose, &c to make them last."

    By 1765, William Martin was the captain of his battalion. Sometime between then and the outbreak of the Revolution, perhaps when James Gordon died in 1770, William and Anna Martin returned to Boston. When the British evacuated the city in 1776, the Martins fled. "William Martin, Esq." was significant enough to be mentioned by name when the Massachusetts legislature passed a statute permanently banishing "persons ... [who] have left this State ... and joined the Enemies thereof ... thereby ... depriving the States of their personal services, at a time when they ought to have afforded their utmost aid in defending the said States, against the invasions of a cruel enemy." They went first to Halifax and then to New York City, where William Martin remained throughout the war on the staff of Brigadier General James Pattison. When Pattison went home on sick leave in 1780, Martin took his place as commander of artillery. In that role, William Martin conducted the formal inquiry into the causes of the great fire that destroyed much of New York City in 1776. By the time the war was over, having benefited from a flurry of wartime promotions, Martin had achieved the rank of brigadier general. When the British evacuated New York in 1783, the Martin family left for England.

    What wealth William Martin had seems to have come largely from his marriage, and his relationship to that wealth was precarious. The letters from James Gordon in the 1750s and 1760s are sprinkled with reminders of the extent to which he was supporting the Martin family. Indeed, when Gordon died in 1770, his son William Gordon, who was also the administrator of James Gordon's estate, actually brought suit against William Martin, claiming that he owed Gordon all the money that had been laid out for the family's support over eighteen years since 1752. The expenses were itemized in excruciating detail, beginning with the costs of a nurse and midwife in March, 1752, £1.18.8, and ranging from substantial sums of cash advanced for William Martin over the years to "Pair of shoes for his son, £0.1.6, Oct. 1754"; "Galoshes, Hatts, Gloves, Ribbens &c for his Daughter, £0.14.11, 1763"; and the funeral of his child Christiana, Sept. 1769, £1.14.5. There were schoolbooks for young James: Ovid, Caesar, Virgil, Terence, Greek grammar, Greek lexicon; expenses for smallpox inoculation; "a parrot Cage and Tub of Butter sent to Halifax"; and monthly provisions for the children, usually amounting to £4 or so.

    After James Gordon's death in 1770, Anna Gordon Martin inherited one-third of his estate, which amounted to at least 844 acres of land, improved and unimproved, in New Hampshire and central Massachusetts, at least one farm in Braintree on the outskirts of Boston, and a house on Boston Harbor, with a wharf and stables for ten or twelve horses. The house was a spacious one, and the Martins were able to rent it to a British general during the war for £30 a year, a substantial sum.

    When William and Anna Martin had fled with the British, all this property was left behind. In 1778 the Boston house was destroyed by the British in order to build a fort on the site. When the patriots were again in control of Boston, the Massachusetts property was seized according to the Massachusetts Confiscation Act of April 30, 1779. It was sold at auction in 1781 to five different purchasers. It was this property for which their son James sued in 1801.

    James seems to have accompanied his parents briefly to New York City. By that time, however, Jamie was no longer a child. He appears to have studied law in England, and returned to Boston in 1773, where he was admitted to practice in the Court of Common Pleas of Suffolk County. By the beginning of 1774 he was practicing law in the British West Indies, and he remained there in safety for the rest of the war. By 1791 he was back in Boston, assuming he could resume his legal practice there.

    James Martin's position was ambiguous. On the one hand, he had not taken an aggressive, public position against the Revolution. The Boston bar supported Martin's wish to rejoin the community; indeed, said the bar, "he has uniformly been from conviction of the justice of his country's cause attach'd to its interests." But Martin's situation was different from that of other colleagues whose practices had been interrupted by the war, for his relationships to émigrés and his own emigration placed him under suspicion. When the Supreme Judicial Court of Massachusetts insisted that he "become naturalized agreeably to law," including taking an oath to support the Constitution of the United States, Martin refused. The court defined James Martin as a person born under the British flag, an alien in the new nation. He understood himself to be a person born on the soil of Massachusetts who had never explicitly been disloyal. The difference was important. If he submitted to the naturalization process, he could easily take up the practice of law. But if he already had in mind the reclaiming of the property that had been confiscated from his mother, then his claim to be a citizen by birthright weighed heavily. Under the common law, only citizens could own or inherit land. Even if Martin had been naturalized, it remained an open question whether the courts would treat his citizenship retroactively, especially taking into account his long absence from the republic and the sale of the confiscated property to other citizens. Judge Francis Dana, who had been a member of the Sons of Liberty and a delegate to the Continental Congress in 1776 and was now a member of the Supreme Judicial Court, refused to let Martin have it both ways. James Martin lost his temper and came close to threatening a duel; Dana refused to answer Martin's angry note.

    Twenty years later, when James Martin's suit appeared before the court, Dana still sat on it. This time Dana would be more sympathetic to Martin's position.

Rights and Obligations

American constitutional theory, like liberal political theory in general, has usually emphasized rights rather than obligations. It has rested on the confidence that individuals can be authentically bound only by rules that they themselves have chosen and that authentic government is shaped by freely chosen agreements among the ruled. Obligation in some way should be an obligation to oneself, "there being," Thomas Hobbes wrote in the seventeenth century, "no obligation on any man, which ariseth not from some act of his own." Much American constitutional talk proceeds as though the Revolution had created a state of nature and as though the Constitution were a social contract; the governed having consented to the political order, all obligations are ones that have been chosen.

    But as historian Edmund S. Morgan has poignantly argued, "government requires make-believe." It requires that an imagined community be called into being, personifed "as though it were a single body ... superior to government, and able to alter or remove a government at will." When the Continental Congress of 1776 issued a decree "on the authority of the people," and--especially--when the Federal Convention of 1787, exceeding its mandate to revise the Articles of Confederation, issued its Constitution in the name of "We the People," they were calling an imagined community into being.

    "We the People" achieves much of its power by its egalitarian spirit. It makes no traditional hierarchical and patriarchal claims. It does not say, "We the Founding Fathers." It does not say, "We the politically active men who have been sent to Philadelphia by our colleagues in the states but who do not represent a majority of the adult male population." It is rather a wonderfully dynamic fiction. Except for naturalized citizens, there is no particular moment when most individuals can be said to assume obligations to the state. Instead we take consent as implied by our failure to refuse (to pay taxes, for example, or to pledge the flag) and by continued acceptance of services the state provides.

    "We the People" provided the mythic space for later entry into the active citizenry of those whose membership had been ignored or explicitly denied by legislators of the founding generation. The classic statement of entry into the civic order and consequent obligation was that of John Winthrop, governor of the Massachusetts Bay Colony in the 1630s: "The woman's own choice makes such a man her husband; yet being so chosen, he is her lord, and she is to be subject to him, yet in a way of liberty, not of bondage; and a true wife accounts her subjection her honor and freedom.... so brethren it shall be between yourselves and your magistrates." In the revolutionary era, American men rejected this formulation for themselves. They entered the liberal republic as individuals. They insisted on periodically choosing and rechoosing obligation; as they voted they would sign the social contract afresh. In our own time we have witnessed fresh installations of the social contract: in the reconstruction of the Soviet Union into fifteen republics, in the reconfiguration of a unified Germany, and, notably, in the first free elections in South Africa.

    But male members of the American founding generation generally refused to address freshly the question of the extent to which women were members of the social compact, bound by their own free choice. Historian Gerda Lerner has recently reminded us that compact or covenant is one of the oldest ideas in the Judeo-Christian tradition --and that the sign of the covenant God made with Abraham (circumcision) is impossible for women. But one need not go so far back. The revolutionary generation of men who so radically transgressed inherited understandings of the relationship between kings and men, fathers and sons, nevertheless refused to revise inherited understandings of the relationship between men and women, husbands and wives, mothers and children. They continued to assert patriarchal privilege as heads of households and as civic actors. They explicitly denied married women entry into the new political regime.

    It is not anachronistic to raise this point. It was possible in the mid-eighteenth century to conceive of alternatives. "If ... all were reduced to a state of nature," asked James Otis, one of the most important lawyers in colonial Massachusetts, in 1764, "had not apple women and orange girls as good a right to give their respectable suffrages for a new King as the philosopher, courtier ... and politician? Were these and ten millions of others such ... consulted?" Women merchants had long established themselves in town commercial life. They owned stores and traded goods; a few ran newspapers. Writing as "Sally Tickle" in 1773; a pseudonymous columnist for the New York Journal and General Advertiser urged women to value and to exert themselves: "Consider yourselves as intitled to a Suffrage, and possessed of Influence, in the Administration of the great Family of the Publick--Take a Part in the momentous Affairs of the Community, which Providence by the liberal Endowments he has granted you in Mind and Person, manifestly intended for you." Were women--even Otis' apple women and orange girls--part of the new social compact? Or did they remain in a patriarchal social order in which their only freely chosen obligation was to their husbands?

    Toward the end of the American Revolution, Abigail Adams tactfully observed that Otis' question remained unanswered. "Even in the freest countrys our property is subject to the controul and disposal of our partners, to whom the Laws have given a sovereign Authority. Deprived of a voice in Legislation, obliged to submit to those Laws which are imposed upon us, is it not sufficient to make us indifferent to the publick Welfare?" Women were "excluded from honours and from offices"; their patriotism must then be "the most disinterested of all virtues." One of the few issues on which patriot and loyalist men agreed was their belief that the only service to the state of which women were capable was a financial one, and therefore women owed few obligations--notably the obligation of single women to pay taxes.

    Men took pride in qualities that distinguished them from women. "Luxury, effeminacy and corruption" was as much a revolutionary-era refrain as "life, liberty and the pursuit of happiness." Republican ideology was antipatriarchal in the sense that it voiced, as Tom Paine had accurately sensed, the claim of adult men to be freed from the control of male governors who had defined themselves as rulers and political "fathers" in an antique monarchical system. "Is it in the interest of a man to be a boy all his life?" Paine asked in Common Sense.

    But republican ideology did not eliminate the political father immediately and completely. It was simultaneously patriarchal and antipatriarchal, holding a liberal ideology of individualism in ambivalent tension with the old ideology of patriarchy. Thus George Washington quickly became the "father of his country"; at the Governor's Palace in Williamsburg, Virginia, the life-size portrait of George III was quickly replaced by a life-size portrait of Washington in the same pose. The men who remodeled the American polity after the war remodeled it in their own image. Their anxieties for the stability of their construction led them, in emphasizing its reasonableness, its solidity, its link to classical models, also to emphasize its manliness and to equate unreliability, unpredictability, and lust with effeminacy. Women's weakness became a rhetorical foil for republican manliness.

    When the Eagle Forum's Kathleen Teague claimed that American women have "the right to be ... ladies" she was--more precisely than she was perhaps aware--squarely in the middle of an antique legal tradition that substituted married women's obligations to their husbands for obligations to the state. This tradition had largely eroded when she spoke, but her ability to articulate it meant it was not yet dead. From the era of the American Revolution until deep into the present, the substitution of married women's obligations to their husbands and families for their obligations to the state has been a central element in the way Americans have thought about the relation of all women, including unmarried women, to state power. One by one, most of these substitutions have come to seem inappropriate and have been abandoned, but in each case only after a long and complicated struggle.

(Continues...)

Copyright © 1998 Linda K. Kerber. All rights reserved.

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