Monday, December 17, 2007


Mark Graber

Constitutional Context: Women and Rights Discourse in Nineteenth-Century America provides some important insights into the place of women’s rights in American constitutional development, although the general framework is likely to be controversial. Professor Kathleen Sullivan–the distinguished political scientist who teaches at Ohio University, not the lesser known law professor on the West Coast somewhere–makes several scholarly contributions that are worth the price of admission (increasingly steep for university press hardbacks!). Most notably, Sullivan does a nice job making connections between antebellum debates over codification and antebellum debates over the rights of women. Less convincingly, Sullivan claims that proponents of women’s rights increasingly relied on liberal abstractions as opposed to the more progressive elements of the common law. Regardless, there is much in this clearly written work that will be of value to persons interested in law, political science, history and women’s studies.

Professor Sullivan convincingly details how prominent proponents of women’s rights relied on the same rhetorical strategies as those Jacksonian reformers who were seeking to replace judge-made common law with legislatively adopted codes. Both described the overly faithful adherence to the past as “barbarism” (a common trope of the time), both insist on legislation as the best means for human progress, and both tended to speak of the rights of human beings as such rather than the rights of persons with particular statuses derived from the common law. As such, the work nice a nice job integrating movements for women’s rights into the broader Jacksonian polity. Most scholars note the influence of abolitionism and stop there. Both abolition and the early movement for women’s rights were Jacksonian movements and, as such, had to speak to Jacksonian audiences. Constitutional Context provides a nice illustration of some Jacksonian tropes that proponents of women’s rights used when seeking to persuade the audience’s of their time.

Constitutional Context also convincingly demolishes the suffragettes’ view of the antebellum polity as divided between friendly legislators, who sought to abolish coverture, and courts who refused to see such abolition as marking a fundamental change in the status of women. Proponents of women’s rights in the 1870s may have had rhetorical reasons for making this distinction, but their claims have been taken as gospel by some scholars who ought to have known better (or at least done a little research). Professor Sullivan does a nice job pointing out that legislation granting property rights to women was often done for reasons having little to do with gender equality. With the abolition of fee tail, affluent fathers needed some means for protecting their daughters’ inheritance from wastrel husbands, so granting the daughter property rights was actually a means of empowering the father. Even when notions of equality influenced legislative decisions, the legislative record always indicated that crucial sponsors of the legislation had not been converted by Elizabeth Cady Stanton, that the abolition, typically very partial, of coverture, was not part of a more general program to change familial relations or relations between the sexes writ large. I would not describe elected officials and judges as cooperating, as Sullivan sometimes does, but they were battling within a far more narrow policy domain than some scholars have thought, and no one branch appears that much more liberal than the other.

Finally, the book is quite insightful on the reformulation of domestic law during the late nineteenth century. Professor Sullivan notes that at the time of the American Revolution, domestic law governed a household that consisted of husband, wife, children, and all those employed by the husband. Gradually, the business employees of the husband were no longer legally considered part of the household. Soon after, distinctions began to be made between household servants and what we would today call the family. The result was a need to reconsider the entire legal basis of the family, once the household was reconceptualized as consisting only of people related by personal rather than by economic ties. Domestic law became family law, with labor law an entirely separately legal field. Domestic law remained the law of subordinates, while labor law become the law of nominal equals (this may be more my reading Sullivan, though I think the text supports this conclusion), each with some rather baneful consequences. Moreover, Professor Sullivan points out, with the narrowing of domestic law came a narrowing of the potentials of the common law. Joseph Story and others in the early nineteenth century celebrated the capacity of common law to foster progress. Conservatives who celebrated the common law at the end of the nineteenth century praised the capacity of the law to restrain progress, particularly if progress mean “unnatural” relationships between the sexes. I suspect this may be a bit overstated, but there does seem to be a significant influence of gender on common law conceptualization that is worth taking quite seriously and exploring in more depth.

Professor Sullivan purports to attack an abstract liberal commitment to equality that she finds in feminist opposition to the common law of the antebellum period. In her view, proponents of women’s rights might have better relied on a common law rooted in people’s experience than more abstract Benthamite codes. My own belief is that, like too many scholars who complain about the liberal tendency to abstract rights from context, Professor Sullivan has abstracted liberalism from its contexts. Given that the Declaration of Independence declares “we hold these truths are self-evidence,” proponents of women’s rights and others who appeal to self-evident claims are simultaneously making universal claims and claims with a particular resonance in their society. One might also note that many Jacksonian proponents of codification were attempting to remove power from more conservative courts to allegedly more progressive legislatures, in part because legislatures were deemed closer to the experiences of the ordinary individuals whose experiences Professor Sullivan believes ought to be central to legal development. Regardless of these quibbles, Professor Sullivan has written an important work, one will clearly provide much grist for persons on her side of the debates over liberalism and that contains much material persons on the other side of the fence will find fascinating.


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