In this booklet, the use of the long-neglected story of the woman suffrage movement is made to explore an overlooked aspect of this paradoxical situation - namely, the Supreme Court's role in maintaining and reinforcing traditional patterns of dominance in the United States by validating laws designed to keep women from voting.
1. UCLA Women's Law Journal Dominance and Democracy: The Legacy of Woman Suffrage for the Voting Right UCLA Women's Law Journal, 5(1) Lind, JoEllen Publication Date Copyright Information Copyright 1994 by the author(s). All rights reserved unless otherwise indicated. Contact the author(s) for any necessary permissions. Learn more at https://escholarship.org/terms Peer reviewed eScholarship.org Powered by the California Digital Library University of California
2. ARTICLE DOMINANCE AND DEMOCRACY: THE LEGACY OF WOMAN SUFFRAGE FOR THE VOTING RIGHT JoEllen Lind* TABLE OF CONTENTS INTRODUCTION ............................................ 104 I. VOTING AND THE COMPLEX OF DOMINANCE ......... 110 A. The Nineteenth Century Gender System .......... 111 B. The Vote and the Complex of Dominance ........ 113 C. Political Theories About the Vote ................. 116 1. Two Understandings of Political Participation .................................. 120 2. Our Federalism ............................... 123 II. A SUFFRAGE HISTORY PRIMER ...................... 126 A. From Invisibility to Organization: The Women's Movement in Antebellum America ............... 128 1. Early Causes ................................. 128 2. Women and Abolition ........................ 138 3. Seneca Falls - Political Discourse at the M argin ....................................... 145 * Professor of Law, Valparaiso University; A.B. Stanford University, 1972; J.D. University of California at Los Angeles, 1975; Candidate Ph.D. (political the- ory) University of Utah, 1994. I wish to thank Akhil Amar for the careful reading he gave this piece, and in particular for his assistance with Reconstruction history. In addition, my colleagues Ivan Bodensteiner, Laura Gaston Dooley, and Rosalie Levinson provided me with perspicuous editorial advice. Special acknowledgment should also be given to Amy Hague, Curator of the Sophia Smith Collection of Smith College, for all of her help with original resources. Finally, I wish to thank my research assistants Christine Brookbank, Colleen Kritlow, and Jill Norton for their exceptional contribution to this project.
3. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 B. From Participationto Betrayal. The Impact of War and Reconstruction .......................... 149 1. Civil War and the Women's Movement ...... 150 2. The Fight Over the Fourteenth and Fifteenth Amendments ................................. 154 3. Schism ........................................ 167 4. Minor v. Happersett and the New Departure. 169 C. Compromise and Co-optation in the Aftermath of Minor ............................................ 174 III. THE SUPREME COURT, DOMINANCE, AND THE VOTING RIGHT ....................................... 193 A. A Second Look at Federalism and the Voting Right ............................................. 194 B. Pre-Minor Decisions ............................. 196 C. Minor (1874) to Enfranchisement (1920) ......... 198 D. 1920 to the Present............................... 204 CONCLUSION .............................................. 210 "Men have kept women pure and noble by keeping them out of the world and its personal usage; when she enters politics she enters them, not as a woman, but as a voter and as a citizen." - A Lawyer, 1895 (anonymous).' INTRODUCTION The history of the voting right presents a telling irony of American political relations because it reveals that dominant groups used their power to limit access to the ballot, 2 even as the franchise came to symbolize full citizenship to women, African- Americans, and others excluded from participation in the gov- ernance of the nation.3 While the vote acted as an icon, even a fetish, of democracy in the imagination of disenfranchised Amer- icans, it was employed by ruling elites to maintain their superior 1. A LAWYER (ANONYMOUS), THE WOMAN-SUFFRAGE MOVE'MENr IN THE UNITED STATES: A STUDY 116 (1893). 2. See generally CHILTON WILLIAMSON, FROM PROPERTY TO DEMOCRACY (1960) (detailing historic restrictions on the franchise); Elizabeth Mensch & Alan Freeman, A Republican Agenda for a Hobbesian America?, 41 FLA. L. REV. 581 (1989) (discussing the relevance of civic republican conceptions of political partici- pation in the context of raw power relations in American society); Robert J. Stein- feld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335 (1989) (tracing the substitution of standards based on pauperism rather than prop- erty ownership as limits on suffrage rights in the early American republic). 3. This symbolism became most intense in the era after the Civil War. See infra text accompanying notes 223-28.
4. 1994] DOMINANCE AND DEMOCRACY position in the general society. In this Article, I use the long ne- glected story of the woman suffrage movement 4 to explore an overlooked aspect of this paradoxical situation - namely, the Supreme Court's role in maintaining and reinforcing traditional patterns of dominance in the United States by validating laws designed to keep women from voting. In doing so, I hope to re- veal the Court's position as gatekeeper of the franchise under our scheme of federalism and to bring the account of women's struggle for suffrage from the "underside of history" 5 to the center of constitutional theory. Throughout my discussion, I de- '6 pict the gender system as "a social system that divides power," and I relate that depiction to the grueling fight women waged for almost a century to secure political rights. The story of the woman suffrage movement is in part the saga of what the franchise can and cannot do to bring about so- cial change. In a truly inclusive democracy, voting ought to be transformative - electoral politics afford us the theoretic ability to assert our status as full citizens, to participate in political dis- course, to obtain legislation capable of changing the private rela- tions of individuals and groups in the civil society, and to mobilize the public around issues of importance. 7 Moreover, the possible transformative uses of the franchise are integral to es- 4. The movement's originators used the term "woman suffrage" to refer to the enfranchisement of women as a whole. It was meant to make the point that suffrage was a gendered category - that what people thought of as suffrage did not consist in the aggregation of individuals' rights to vote but was really a group privilege re- served to men. Women in the movement wanted a new kind of franchise category to be created in the form of a group right for women qua women, thus "woman" suf- frage. This usage followed the custom of many early feminist writers to refer to "woman," not "women," in their work and is also found throughout the original history of the suffrage crusade, written and compiled by some of the key partici- pants. See 1, 2 HISTORY OF WOMAN SUFFRAGE (Elizabeth Cady Stanton et al. eds., 1881); 3 (Elizabeth Cady Stanton et al. eds., 1886); 4 (Susan B. Anthony & Ida Husted Harper eds., 1902); 5, 6 (Ida Husted Harper ed., 1922) [hereinafter STANTON ET AL]. 5. This phrase is taken from Elise Boulding. See generally ELISE BOULDING, THE UNDERSIDE OF HISTORY, A VInw OF WOMEN THROUGH TIME (1976) (provid- ing a comprehensive history of women from the Bronze Age to the present). Nancy Cott's recently published collection of contemporary historical articles on a variety of topics dealing with women in the United States will also do much to advance knowledge of women's history. See HISTORY OF WOMEN IN THE UNITED STATES (Nancy F. Cott ed., 1992) [hereinafter Cott, HISTORY]. 6. See CATHARINE A. MAcKINNON, TOWARD A FEMINIST THEORY OF STATE 160 (1989). 7. See Mary Fainsod Katzenstein, Feminism and the Meaning of the Vote, 10 SIGNS 4, 5-7 (1984).
5. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 tablishing the legitimacy of democratic governmental regimes.8 As the history of women's fight for the ballot shows, however. the voting right can be withheld, manipulated, or weakened to promote and maintain the position of favored groups. On close examination, it is a disquieting fact that the value of the vote seems more symbolic than substantive and that rhetoric about popular sovereignty and majority rule merely obscures continu- ing massive inequalities in the American polity based on race, sex, and wealth. The gap between our democratic oratory and our anti-demo- cratic practices is widened by the general indifference of scholars to the way poor people, persons of color, and women have been kept from voting at various times throughout American history. While the civil rights movement generated some interest in the past treatment of African-American voting rights, 9 no event bearing on the franchise has been more overlooked or trivialized by academics than the woman suffrage movement, and no aspect of that event has been more neglected than the Supreme Court's treatment of women's legal demands for inclusion in the electo- rate. The effort to secure suffrage for women lasted some one hundred years. 10 It resulted in the enfranchisement of more per- sons than any other law reform in American history." While some historians and political scientists now give serious attention 8. This is the case for two broad reasons. To the extent that a regime justifies its actions by reference to democratic norms of participation and consent, its failure to allow real participation erodes its moral justification. See BENJAMIN R. BARBER, STRONG DEMOCRACY 3-6 (1984) (discussing the conflicts inherent in liberal democ- racy). Even if one confines the notion of political legitimacy to governmental stabil- ity, excluding broad groups from the franchise destabilizes the regime in question. See Seymour M. Lipsett, Social Conflict, Legitimacy and Democracy, in LEGITIMACY AND THE STATE 89 (William Connolly ed., 1984). 9. Brown v. Board of Educ., 347 U.S. 483 (1954), and the 1960s civil rights movement generated interest among legal scholars in the neglected history of Afri- can-American political rights. See, e.g., Alfred Avins, The Civil Rights Act of 1875: Some Reflected Light on the FourteenthAmendment and PublicAccommodations, 66 COLUM. L. REv. 873 (1966); Alexander M. Bickel, The Original Understandingand the Segregation Decision, 69 HARV. L. REv. 1 (1955). 10. See generally ELEANOR FLEXNER, CENTURY OF STRUGGLE: THE WOMAN'S RIGHTS MOVEMENT IN THE UNITED STATES 41, 143 (Harvard Univ. Press 1968) (1959) (dating the beginning of feminist consciousness which led to the suffrage drive from the early Jacksonian period of the 1830s). 11. This is because it enfranchised half of the people in the United States. In 1920, when the Nineteenth Amendment was enacted, there were approximately 51.8 million women in the United States. See U.S. BUREAU OF CENSUS, U.S. DEP'T OF COMMERCE, HISTORICAL STATISTICS OF THE UNITED STATES: COLONIAL TIMES TO 1957, series A34-50, 9 (1961) [hereinafter CENSUS, HISTORICAL STATISTICS].
6. 1994] DOMINANCE AND DEMOCRACY 107 to it, legal scholars have engaged in almost no discussion about what the woman suffrage movement can teach regarding the po- tential and the limitations of electoral politics. 12 This is a serious omission because the Supreme Court's treatment of women's legal claims delayed the conclusion of the suffrage campaign into the Twentieth Century and consigned it to a condition of political isolation that was instrumental to its deradicalization. 13 This de- lay unjustly enriched dominant groups by giving them an addi- tional half-century 14 to further entrench a political process resistant to the demands of women and others for power sharing. Thus the Court's attitude helped to preserve the non-franchise aspects of the gender system into the modem era, diluting the power of the vote decisively to emancipate women on its own. 15 The Court's role alone in creating these effects should make wo- man suffrage intriguing to constitutional scholars, but in addition 12. Very few law review articles deal at all with woman suffrage. See, e.g., Martha Minow & Nell Minow, FranchiseRepublics: The Examples of Shareholder Voting and Women's Suffrage, 41 FLA. L. REV. 639, 651-56 (1989) (including a short discussion of woman suffrage in treatment of shareholder voting); Rogers M. Smith, "One United People": Second-Class Female Citizenship and the American Quest for Community, 1 YALE J.L. & HUMAN. 229 (1989) (using woman suffrage to explain conceptions of political participation founded in contrasting models of community). Recently, mention was made of the history of woman suffrage in a student note arguing that the Nineteenth Amendment should be given an emancipatory reading. Jennifer K. Brown, Note, The Nineteenth Amendment and Women's Equality, 102 YALE L.J. 2175 passim (1993). None of these works gives a detailed account of the history and none highlights the role of the Supreme Court in foreclosing access to the voting right for women. The absence of academic interest in women's legal his- tory has been ameliorated to some extent by Joan Hoff's work. See generally JOAN HOFF, LAW, GENDER, AND INJUSTICE: A LEGAL HISTORY OF UNrrED STATES WO- MEN (1991) (providing a comprehensive account of the legal status of American 13. See infra text accompanying notes 335-53, 459-503. 14. The Court had an opportunity to strike gender restrictions on the franchise as early as 1874; the Nineteenth Amendment was not enacted until 1920. See infra text accompanying notes 335-53, 435-46. 15. Achieving the formal right to the franchise was a necessary, but not a suffi- cient condition of women's emancipation. This is the case because prohibiting wo- men from having a symbolic claim to political power was a key piece of the entire network of male dominance operative in the last century. The longer that restric- tions on voting were retained, the more the nonfranchise aspects of the gender sys- tem were reinforced. Thus, when women gained the vote, they were confronted with a well-established and formidable obstacle in the form of entrenched social institutions which retarded their ability to increase their status through direct voting power. Removing gender restrictions on the voting right could not transform such a complex entity, combining both public and private elements, overnight or by itself - it would take many years and enormous resources for the whole network of gen- der dominance to begin to erode and to afford women an actual chance for complete emancipation. See infra text accompanying notes 503-37.
7. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 the campaign for women's voting rights was a remarkable histori- cal phenomenon that can generally increase our understanding of the gap between electoral realities and democratic appearances in American society. The suffrage demand emanated from a broad crusade that arose in the Jacksonian era but is continuous with modern femi- nism. 16 The movement attacked all the factors that subordinated women. In the beginning, it was not only, or even primarily, about the right to vote.17 As Elizabeth Cady Stanton put it: "The woman question is more than a demand for suffrage .... [It] is a question.., of her work, her wages, her property, her education, her physical training, her social status, her political equalization, her marriage and her divorce."' 18 Especially in its early stages, the movement often made systematic and frequently radical attacks on the whole system of gender.' 9 Soon after the women's rights movement was organized in 1848, however, the vote took on a centrality to its efforts that stuns contemporary sensibilities unaccustomed to associating electoral politics with change. 20 Activists saw that voting was tied to one's status as a 16. Woman suffrage was concerned with issues that are strikingly similar to those absorbing the attention of contemporary feminists. The conflicts and divisions within it foreshadowed current disputes over rights and difference; sexuality, mar- riage, and the family; and the relevance of race and class to women's condition. For a general discussion of the birth of modern feminism out of the later stages of the suffrage movement, see NANCY F. CoTr, THE GROUNDING OF MODERN FEMINISM (1987) [hereinafter CoTr, MODERN FEMINISM]. For a study distinguishing between the women's rights movement, which the author associates with abolition, and femi- nism, see BARBARA J. BERG, THE REMEMBERED GATE: ORIGINs OF AMERICAN FEMINISM (1978). 17. See 1 STANTON ET AL., supra note 4, at 13-24. 18. See REVOLUTION, Jan. 14, 1869 in ELISABETH GRIFFrm, IN HER OWN RIGHT, THE LIFE OF ELIZABETH CADY STANTON 140 (1984). 19. See, e.g., AILEEN S. KRADITOR, THE IDEAS OF THE WOMAN SUFFRAGE MOVEMENT, 1890-1920 passim (1965) [hereinafter KRADITOR, IDEAS]. 20. Michael Parenti describes the historical uses of suffrage in the Nineteenth The arguments of the more liberal-minded groups [for extending suf- frage] prevailed in the United States and Great Britain, and popular suffrage was extended in both countries. But the British and Ameri- can elites were motivated by something other than a gradualist, re- formist vision. They had no desire to move toward a new social order but to consolidate the prevailing one under the same political manage- ment that had extended suffrage. They initiated changes only in re- sponse to serious public turmoil, and these changes - like those before and since - were intended not to be thefirst step in a series of reforms but the last. The reforms were designed to prevent wide- spread agitation while securing the rule of a slightly reconstituted oligarchy.
8. 1994] DOMINANCE AND DEMOCRACY full citizen and that, without the direct influence over legislators provided by the ballot, women had little leverage over those who controlled the institutions that promoted the gender system.2 To suffragists,2 2 the franchise was the cornerstone of all other polit- ical rights,23 and they judged that political rights were needed to end the widespread belief that women should be assigned an in- ferior status. To explain the importance of the voting right to the women who were excluded from it and to cast light on what it could and could not achieve for them, Part I describes gender dominance as a complex of interlocking legal and extra-legal factors and identi- fies limitations on access to suffrage as highly important to the function of that complex. This section draws on the feminist ju- risprudence of Catharine MacKinnon, the work of Gerda Lerner and other feminist historians, and the political theory of Judith Shklar connecting voting with full citizenship. Part II gives a de- tailed historical account of woman suffrage designed to acquaint the reader with the little known facts of last century's female emancipation effort and to connect women's exclusion from the franchise with the Nineteenth Century gender system. This his- tory begins with the social upheaval of the Jacksonian era, spans the Civil War and Reconstruction, re-introduces long-forgotten legal challenges to restrictions on voting brought by women in the Reconstruction Era, and ends with the long campaign to pass MICHAEL PARENTI, POWER AND THE POWERLESS 198 (1978). Many modem polit- ical theorists claim that voting is ineffective to reorder social relations or express the will of an actual majority of Americans. This is in part the result of the inherent problems of democracy on a large scale. See ROBERT A. DAHL, DILEMMAS OF PLU- RALIST DEMOCRACY 11 (1982). These problems are exacerbated by the power of the media to shape public opinion and the power of corporations, in turn, to deter- mine media content. See MICHAEL PARENTI, INVENTING REALITY: THE POLITICS OF THE MASS MEDIA 20-23, 48-53 (1986). See generally C. EDWIN BAKER, ADVER- TISING AND A DEMOCRATIC PRESS (1994) (describing the effect of advertising on the content of news reporting). 21. See infra text accompanying notes 40-41, 121-26, 214-17. 22. Many women involved in the American suffrage movement referred to themselves as "suffragists" and considered the diminutive "suffragette" to be insult- ing. See 1 KARLYN K. CAMPBELL, MAN CANNOT SPEAK FOR HER, A CRITICAL STUDY OF EARLY FEMINIST RHETORIC 3 (1989) [hereinafter 1 CAMPBELL, MAN CANNOT SPEAK]. 23. See Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (describing the franchise as "a fundamental political right, because [sic] preservative of all rights"). An argu- ment can be made that speech rights are essential to all other rights; however, voting itself can be seen as continuous with political discourse outside of official institutions - that is, as a form of speech by proxy that takes place in a uniquely important
9. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 the Nineteenth Amendment, which finally succeeded in 1920 af- ter the First World War. This section shows the process by which the suffrage crusade was politically isolated and highlights the Supreme Court's role in limiting it when activists shifted the center of their focus from legislative institutions to the courts. Part III connects my theoretical and historical contentions with illustrative constitutional decisions on voting and other closely related issues affecting women that emanate from the Recon- struction Era up to the social protest movements of the 1960s. In the period before the Nineteenth Amendment was passed, the Court protected the complex of gender dominance by foreclosing legal challenges to discriminatory voting laws. After the amend- ment was enacted in 1920, the Court's failure to strike other as- pects of the gender system - including discrimination in employment and education - helped to preserve much of wo- men's subordinated status into the modem era. Thus, the pur- pose of Part III is twofold: to illuminate the Supreme Court's central role in maintaining the power of established groups in society through its approach to the franchise, and to show that the voting right standing alone can erode, but not completely re- move, entrenched patterns of gender discrimination. I. VOTING AND THE COMPLEX OF DOMINANCE The fact of dominance 4 and the impulse to democracy have existed side by side in the United States and are reflected in the history of the voting right. In the United States, hierarchies based on wealth and race maintained disparities in economic re- sources and distorted the labor market to the advantage of those 24. By use of the term "dominance" here, I mean the exertion of social control by one person or group over another in order to force those dominated to live in conditions and on terms not of their own choosing. Domination is typically prac- ticed to make those who are its object occupy an inferior position within a hierarchy so that through the restriction of the subordinated group's freedom and autonomy, its members become a resource to be appropriated for the use of others, rather than full citizens entitled to an equal voice in the governance of the political community. Gerda Lerner describes it in conjunction with the institution of slavery: Slavery is the first institutionalized form of hierarchical dominance in human history; it is connected to the establishment of a market econ- omy, hierarchies, and the state .... The 'invention of slavery' con- sisted in the idea that one group of persons can be marked off as an out-group, branded enslaveable, forced into labor and subordination - and that this stigma of enslaveability combined with the reality of their status would make them accept it as a fact. GERDA LERNER, THE CREATION OF PATRIARCHY 76-77 (1986) [hereinafter LER- NER, PATRIARCHY].
10. 1994] DOMINANCE AND DEMOCRACY who controlled property and industry.25 Social stratification based on gender worked in an intricate fashion to make women sexually available to men and to facilitate their appropriation as resources for reproduction and unpaid labor within the confines of the family.26 No aspect of the voting right more clearly re- flects the social hierarchy of American culture than the historical limitations on access to it that were selectively applied to various groups. These limitations played a critical role in creating the social systems by which the poor, persons of color, and women were subjected to an inferior status. Moreover, the way gender subordination has operated in the context of the franchise is par- ticularly complicated. This is the case because, as MacKinnon has described it, "[M]en's forms of dominance over women have been accomplished socially as well as economically, prior to the operation of law, without express state acts, often in intimate contexts, as everyday life." 27 Thus dominance has involved forces of breadth, depth, and sophistication by which the political power of half the population has been blocked, blunted, and manipulated in a system allegedly committed to majority rule. A. The Nineteenth Century Gender System The gender system that functioned in the last century was constructed of private acts of physical and associational intimida- tion, discrimination, and sexist propaganda backed up by state" supported forms of legal prejudice with which they were continu- ous. 28 It rested on the interaction between legal and extra-legal means of imposing subservience on select groups that itself was 25. See PARENrT, POWER AND mE POWERLESS, supra note 20, at 5-14, 65, 97. 26. See MAcKINNON, supra note 6, passim and especially chs. 2 & 3. Once again as Lerner portrays it: [T]he confluence of a number of factors leads to sexual asymmetry and to a division of labor which fell with unequal weight upon men and women. Out of it, kinship structured social relations in such a way that women were exchanged in marriage and men had certain rights in wo- men, which women did not have in men. Women's sexuality and re- productive potential became a commodity to be exchanged or acquired for the service of families .... LERNER, PATRIARCHY, supra note 24, at 77. It is Lerner's thesis that the successful subordination of women made the cognitive model of slavery possible. Id. In this way, the forced inferior position and commodification of women by men provides the foundational instance of dominance for political theory. 27. See MAcKiNNON, supra note 6, at 161. 28. See, e.g., MAcKrNNON, supra note 6, at 157-70. This is the reason why femi- nists treat the public/private distinction, so central to classic liberal theory, as spe- cious when applied to the condition of women. See Carole Pateman, Feminist
11. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 made possible by material and ideological aspects of the general society. 29 At the material level, women's expressive freedom was circumscribed by the threat of violence against those daring to venture into the public domain without male protection or ap- proval,30 while at the same time women's economic indepen- dence was largely foreclosed through an ideology that kept them confined in the private sphere of the family, almost completely excluded from paid work. 31 The close connection between the material and ideological aspects of the social construct known as "woman's sphere" 32 was assisted by the dogma that females were Critiques of the Public/Private Dichotomy, in FEMINISM AND EQUALITY 103-09 (Anne Phillips ed., 1987). 29. See James U. Blacksher & Larry T. Menefee, From Reynolds v. Sims to City of Mobile v. Bolden: Have the White Suburbs Commandeered the Fifteenth Amend- ment?, 34 HASTINGS LJ.1 (1982). 30. The law of rape in the Nineteenth Century gave men a privilege to force sex on unprotected women in all but the most egregious circumstances. See, e.g., Mills v. United States, 164 U.S. 644,648 (1897) (Peckham, J.) (reversing a criminal convic- tion for rape on grounds that an instruction finding "simply non-consent... and no real resistance whatever" was erroneous). Unaccompanied women were frequently treated as prostitutes. See infra text accompanying note 144. Fathers and husbands were given rights to use physical force to subdue and control wives and daughters without fear of legal reprisal. See Henry B. Blackwell, Legal Redress for Assaulted Wives, 10 WOMAN'S J., Jan. 18, 1879. When women first began speaking in public in front of mixed audiences, they were physically assaulted and intimidated. See infra text accompanying notes 143-46. Even today the constant threat of violence is a theme in women's lives. See MARGARET T. GORDON & STEPHANIE RIGER, THE FEMALE FEAR (1989); MURRAY A. STRAUS ET AL., BEHIND CLOSED DOORS: VIO. LENCE IN THE AMERICAN FAMILY (1980). The feminist critique of pornography characterizes it as purveying a political ideology promoting force and violence against women that interacts with other aspects of dominance to prevent women from achieving equality in social relations by silencing them. See ANDREA DWOR. KIN, PORNOGRAPHY: MEN POSSESSING WOMEN (1981); see also PORNOGRAPHY AND SEXUAL AGGRESSION (Niel M. Malamuth & Edward Donnerstein eds., 1984) (inves- tigating the connection between pornography and violence against women). 31. See infra text accompanying notes 134-41. 32. The phrases "woman's sphere," "domestic sphere," "separate sphere," and "private sphere" all refer to the idea that gained acceptance in the mid-Nineteenth Century that men and women should have different zones, or spheres, of existence and activity. Men were to be masters of and active in the public world of trade, commerce, and politics, while women were to be secluded in the home away from the corrupt influences of the public domain, where they could realize their true na- ture and value as mistresses of the household, wives, and mothers. The net result of this ideological innovation was to decrease women's freedom, mobility, and power. Thus the politics of domesticity have been closely associated with female subordina- tion. See Barbara L. Epstein, THE POLITICS OF DOMESTICITY, WOMEN, EVANGEL- IsM, AND TEMPERANCE IN NINETEENTH CENTURY AMERICA 73-87 (1981). Notwithstanding these negative characteristics of "woman's sphere," many suffrag- ists tried to mount arguments for women's emancipation by exploiting its message and redirecting it. See infra text accompanying notes 329-33, 365-69, 380-84.
12. 1994] DOMINANCE AND DEMOCRACY an almost separate species, different and apart from men, with a limited cognitive capacity, unlimited emotional capacity, and a natural fitness for reproduction and mothering.3 3 To insure that women would not be exposed to ideas and conditions challenging these notions, they were excluded from access to education 34 and prevented from having any real control over their sexuality and reproduction.3 5 B. The Vote and the Complex of Dominance The Nineteenth Century gender system was threatened by women's demands for suffrage rights. If women were entitled to 36 vote, their vulnerability to being "marked off as an out-group" and treated almost as a separate species 37 would be limited. As Judith Shklar has shown, throughout American history voting has been associated with one's status as a citizen, and citizenship, in turn, with conceptions of personhood.38 By claiming the right to vote, last century's feminists hoped to acquire a symbol that could erode the notion that females were somehow not as human as males. In addition, because voting is imbued with public pur- pose, giving women the franchise was tantamount to giving them a claim to a seat in the public forum where they could affect the ongoing discourse and promote the conditions for equality of re- 33. See infra text accompanying notes 153-55. 34. The parallel between the techniques used to control African-Americans before the Civil War and the forms of control exerted over women in antebellum America is instructive. At the same time that women were denied access to educa- tion and suffered significantly higher rates of illiteracy than did men, Southern states were passing laws making it a crime to teach a slave to read and Black children in Northern states were not being given access to the public education offered to white children. See E. FRANKLIN FRAZIER, THE NEGRO IN THE UNITED STATES 419 (1969). See generally JoEllen Lind, Symbols, Leaders, Practitioners:The First Wo- men Professionals, 28 VAL. U. L. REv. 1327 (1994) (discussing how women created educational opportunity for themselves and eventually gained access to higher edu- cation and professional training). 35. See infra text accompanying notes 140-41, 147-51. 36. See LERNER, PATRIARCHY, supra note 24, at 76-77. 37. This phenomenon is central to Simone de Beauvoir's classic work in femi- nism and her discussion of the "Other." SIMONE DE BEAUVOIR, THE SECOND SEX at xxix-xxxvi (Vintage ed., 1989) (1952). 38. This is the point of her treatment of the voting right and American citizen- ship. Shklar is careful to point out that voting alone does not guarantee that one achieves the status of a full citizen; access to paid work is also necessary. See JUDrrH SHKLAR, AMERICAN CITIZENSHIP 3 (1991). The connection between gradations of personhood - pseudo-speciation, if you will - and degrees of involvement in the polity's governance can be traced back to Aristotle. See ARIsTOTLE, THE POLITICS Book 3 (Carnes Lord trans., 1984).
13. 114 UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 spect between the sexes. 39 Soon after organizing their movement for female emancipation, activists were quick to apprehend this and to see the vote as a means for women symbolically to escape the confines of the domestic sphere. Finally, if women obtained the vote they might develop a group interest identity and ally with other marginalized persons to pass laws reordering private 40 relations and redistributing political power in the civil society. In this capacity, suffrage could function in their hands as an enti- tlement right with a group dimension to be used to change the actual interactions of men and women.41 As the history shows, women who agitated for the reform of divorce and property laws found that without possessing suffrage rights on their own, it was extremely difficult to get legislation sponsored and passed that addressed their interests. 42 They wanted the right to vote to in- sure that women's views and needs would be represented. In all these ways - through its symbolic effect, its impact on public 39. It is a central theme of political theories focused on the unique attributes of communicative discourse that good faith political deliberation can promote condi- tions fostering equality of respect between persons. See Margaret J. Radin, The Pragmatistand the Feminist,63 S. CAL. L. REv. 1699, 1723-26 (1990) (discussing the importance of women's inclusion in the public dialogue). But see TIMOTHY V. KAUFMAN-OSBORN, POLITIcS SENSE EXPERIENCE: A PRAGMATIC INQUIRY INTO THE PROMISE OF DEMOCRACY 158-216 (1991), for a critical discussion of what he calls the "politics of talk." See generally THOMAS McCARTHY, THE CRITICAL THE- ORY OF JURGEN HABERMAS (1978) (providing a general description of Habermas's basic theory). 40. One of the most important aspects of suffrage is that it can function as a group right. See Lani Guinier, No Two Seats: The Elusive Questfor PoliticalEqual- ity, 77 VA. L. REv. 1413, 1418 (1991). 41. The political right of the franchise does not stand for an official promise of noninterference in one's private activities or associations; it is an affirmative grant from government to the citizen, entitling her to seek the passage of laws and the promotion of policies that are sensitive to her situation, practices, and norms. For a discussion of the difference between "positive" or entitlement rights, and negative, noninterference rights, see ISAIAH BERLIN, FOUR ESSAYS ON LIBERTY (1969). 42. To get some idea of the difficulty women faced in influencing legislation, see Report of the Select Committee in Assembly, 1854, in 1 STANTON ET AL., supra note 4, at 616-18. This was a report issued in response to a petition presented on behalf of almost 6000 women's rights activists asking the New York legislature to change certain laws relating to women's rights. The requests of the petition were denied, with some limited exceptions. A relevant section of the report reads: A higher power than that from which emanates legislative enactments has given forth the mandate that man and woman shall not be equal; that there shall be inequities by which each in their own appropriate sphere shall have precedence to the other .... Both alike are the subjects of Government, equally entitled to its protection; and civil power must, in its enactments, recognize this inequality. We cannot obliterate it if we would, and legal inequalities must follow. Id. at 616.
14. 1994] DOMINANCE AND DEMOCRACY discourse, and its potential as a tool for changing the behavior of persons in the civil society - women's access to suffrage threatened the ideological aspects of patriarchal dominance, while it also suggested the possibility of transforming the mate- rial conditions necessary to its operation. After the emergence of an organized women's movement in the middle of the Nineteenth Century, activists came to under- stand the potential impact of the voting right on the gender sys- tem and to see suffrage as the pivotal piece of their entire program for emancipation. 43 Adversaries shared their assess- ment and worked to preclude them from any access to political participation. 44 However, although women eventually obtained the vote in 1920 through the enactment of the Nineteenth Amendment, no immediate transformation of their condition oc- curred - women were still discriminated against in employment, in education, and in other opportunities, and the assumptions of separate sphere ideology dominated American popular culture into the modem era. 45 As a result of the ineffectiveness of the ballot to transfigure relations between the sexes on its own, many theorists have difficulty understanding the obsession of suffrag- ists with voting and the resistance of the American power struc- ture to their achieving it. In particular, modem feminists often characterize the suffrage movement as reformist rather than radi- cal due to its preference for achieving political rights over chal- lenging basic institutions associated with patriarchy, such as the famnily.46 Their attitude is supported by additional sources of cynicism about modem elections - political scientists and others are quite familiar with barriers to effective use of the ballot that operate in the contemporary era to blunt the real power of out- 43. See infra text accompanying notes 207-28. 44. See infra text accompanying notes 298-301, 354-60, 387-94. 45. See Corr, MODERN FEMINISM, supra note 16, at ch. 5. 46. See Ellen DuBois, The Radicalism of the Woman Suffrage Movement: Notes Toward the Reconstruction of Nineteenth-Century Feminism, 3 FEMINIST STUDiES 63 (1975-76) [hereinafter DuBois, Radicalism]. DuBois argues that focusing on the vote rather than directly attacking the institution of the patriarchal family actually gave suffragists a strategic advantage that was significant: [T]he significance of the woman suffrage movement rested precisely on the fact that it bypassed women's oppression within the family, or private sphere, and demanded instead her admission to citizenship, and through it admission to the public arena.... For women, the emergence of a public sphere held out the revolutionary possibility of a new way to relate to society not defined by their subordinate posi- tion within the family. Id. at 63-64.
15. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 groups without directly limiting their access to the franchise. 4 7 Skepticism about the franchise makes it easy to overlook the importance of voting to women's early attempts to gain recogni- tion of their personhood, to enter into the official political dis- course, and to work to create group political power. Thus, the paradox of the ballot plays itself out in the history of woman suf- frage in a way that obscures the role of formal political rights in the long process of women's emancipation. However, if women still were prevented from voting today, it is likely that their status as citizens, their entree to the public forum, and their ability to influence political institutions would be severely limited. This demonstrates that although being invested with the voting right bears significantly on a group's social situation, voting alone does not insure democratic inclusion. What is it about suffrage in the United States that makes it a necessary condition of political emancipation, but not a sufficient one? C. Political Theories About the Vote Theories that identify electoral politics as a form of social control, not a means to locate majority will or to empower under- represented groups, capture the utility of suffrage as a tool for manipulating the electorate. 48 According to these theories, elec- tions present no real possibility for significant change but hold out the semblance of participation to legitimize the governmental regime and give the average voter a sense of belonging. 49 Simi- larly, demands by marginalized groups for power sharing can be blunted and delegitimized by techniques that discourage them from voting or afford them limited choices when they do vote; the absence of meaningful choice between parties (or candidates) is one key to this strategy and is reflected in America by political associations that are extremely limited in number, viewpoint, and inclusiveness. 50 Classic devices diluting the power of the ballot also include restrictions on eligibility that are passed off as voter 47. See ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 265-79 (1989) (describing and criticizing theorists from Marx to Gramsci). 48. See PARENTI, POWER AND THE POWERLES, supra note 20, at 197-213. 49. Id at 201-04. 50. See IRA KATZNELSON & MARK KESSELMAN, THE POLITICS OF POWER: A CRITICAL INTRODUCTION TO AMERICAN GOVERNMENT 279 (1975); American Party v. White, 415 U.S. 767 (1974); Storer v. Brown, 415 U.S. 724 (1974); Williams v. Rhodes, 393 U.S. 23 (1968) (demonstrating how signature requirements encourage the dominance of the two major political parties).
16. 1994] DOMINANCE AND DEMOCRACY 117 competency standards, 5' cumbersome procedures for registering to vote that impose residency restrictions, 52 burdensome condi- tions that must be satisfied before a candidate may qualify to run for office, 53 private financing of campaigns, 54 malapportionment, 55 and gerrymandering. 51. These typically involve the payment of a poll tax and/or demonstration of literacy, often in the English language. In upholding the constitutionality of North Carolina's literacy test in Lassiter v. Northampton County Bd. of Elections, Justice Douglas wrote: The ability to read and write . . . has some relation to standards designed to promote intelligent use of the ballot.... [I]n our society where newspapers, periodicals, books, and other printed matter can- vass and debate campaign issues, a State might conclude that only those who are literate should exercise the franchise. 360 U.S. 45, 51-52 (1959). In order to preclude the kind of reasoning used in Lassiter, Congress passed the historic Voting Rights Act of 1965, 42 U.S.C.A. § 1973b-1973g (West 1993). 52. These issues are raised currently by the debate over the National Voter Re- gistration Act of 1993,42 U.S.C.A. § 1973g (West 1993), the so-called "motor-voter" bill. Compare Carrington v. Rash, 380 U.S. 89 (1965) (invalidating residency re- quirements preventing members of the military from voting in Texas elections) with Holt Civic Club v. City of Thscaloosa, 439 U.S. 60 (1978) (rejecting the equal protec- tion claims of persons living in an unincorporated area adjacent to the city of Tsca- loosa's municipal boundaries who were unable to vote, but subject to its legal authority). Confusion over the appropriate standard of review in cases involving residency requirements also causes difficulty in this area. In Gallagher v. Indiana State Election Bd., 598 N.E. 2d 510 (Ind. 1992), cert. denied. 113 S. Ct. 1051 (1993), the Indiana Court of Appeal struck down a law disenfranchising those who move into the state within thirty days of an election, using a strict scrutiny standard. The Indiana Supreme Court reversed and validated the law, imposing a rational relation test. See Gallagher,598 N.E. 2d at 515-16. 53. Compare Clements v. Fashing, 457 U.S. 957 (1982) (refusing to hold candi- dacy a fundamental right) with Turner v. Fouche, 396 U.S. 346 (1970) (invalidating a Georgia constitutional provision requiring candidates for school board to own real property in the state). The Supreme Court's affirmation of the right of states to restrict write-in candidates can be seen as a recent example of this phenomenon. See Burdick v. Takushi, 112 S. Ct. 2059 (1992). Filing fees and the requirement that candidates either be affiliated with a major political party or get a threshold number of signatures to qualify for the ballot are yet other examples. See Jenness v. Fortson 403 U.S. 431 (1971) (validating affiliation and signature requirements). But see Illi- nois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173 (1979) (striking down an Illinois law that would have required political parties attempting to qualify for a Chicago election to secure 25,000 signatures before being eligible to appear on the ballot); Norman v. Reed, 502 U.S. 279 (1992) (invalidating an Illinois law requir- ing more signatures for multi-district, political subdivision (county) elections than for state elections). 54. Buckley v. Valeo, 424 U.S. 1 (1976) (determining the constitutionality of the Federal Election Campaign Act dealing with the amount of money that individuals and groups may directly contribute to a campaign). 55. This was the evil sought to be remedied in Reynolds v. Sims, 377 U.S. 533 (1964), and Baker v. Carr, 369 U.S. 186 (1962).
17. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 The antidemocratic effect of these devices is magnified by American political institutions disproportionately influenced by money and established patterns of power.5 6 This phenomenon is further exacerbated by an approach to rights in constitutional theory that generally prohibits any intervention by government in the private sphere to redress the very imbalances in money and power between the sexes, the races, or the classes that pro- duced those institutions.5 7 Although it is important not to be na- ive about the utility of the voting right for disadvantaged groups, it is also necessary to understand why and how the franchise has been weakened to assess the possibilities for a genuinely par- ticipatory governmental regime today in America. The history of woman suffrage is significant to this assessment in three major ways: It shows (1) that past discrimination in access to the ballot contributes to a group's relative powerlessness even after the right to vote is secured; (2) that the franchise cannot be com- pletely insulated from the controlling influence of dominant groups; and (3) that ambiguity in American culture over what counts as representative government complicates the task of any group seeking to use the vote to improve its condition. As MacKinnon has pointed out, de jure forms of discrimina- tion operate to stabilize de facto patterns of dominance in the private sphere.58 When a group is subjected to laws that overtly consign it to a second-class status, the strategy of successfully resorting to litigation in order to disrupt the system effectuating that status is practically foreclosed. However, the interaction of the public and private factors of the complex is not simply one of stabilization; unchecked private domination results in effects - like poverty, lack of education, and lack of social authority - that make it difficult for a group to wield effective political power, even when formal political rights are finally ceded. Thus, de facto relations in turn affect the actual de jure policies pur- sued by governmental entities even when formal franchise rights have been acquired.5 9 These effects function in this way because 56. See Stephan L. Darwall, Equal Representation, in LIBERAL DEMOCRACY 56-59 (J. Roland Pennock & John W. Chapman eds., 1983). 57. For a discussion of the historical underpinnings of the American penchant for limited, rather than expansive democracy, see Mensch & Freeman, supra note 2, at 590-600. 58. See MAcKiNNON, supra note 6, at 167. 59. The contrast between de jure and de facto discrimination refers to the dif- ference between discrimination occurring overtly through formal laws, such as the laws requiring segregation in the South before the Supreme Court's decision in
18. 1994] DOMINANCE AND DEMOCRACY they create conditions that make it very difficult for an inferior group to obtain substantive legislation that deviates from the sta- tus quo. 6° The history of the woman suffrage movement also under- scores the fact that the franchise cannot be separated from pat- terns of dominance and discrimination that exist in the general society. Exclusion from political rights is both a symptom of and a key contributing factor to the phenomenon of social subordina- tion that is constructed of numerous components - some eco- nomic, some ideological, some public, and some private. Seen in this light, attempts to legitimize the American political system by focusing on formal access to suffrage and seeking a "fair" and "neutral" process in which all citizens may now participate 6 ' suf- fer from ahistoricism, ignore the reality that formal access im- pacts on just one element within the syndrome of domination, and do nothing to require that the benefits of past discrimination be disgorged. 62 This is the chief defect of process theories which try to solve problems arising from disparities in raw political Brown v. Board of Educ., 347 U.S. 483 (1954), and discrimination perpetrated by informal private acts of individuals in the civil society, such as an individual's deci- sion not to move into a neighborhood populated by members of a different race. In addition, the term "de facto discrimination" is sometimes meant to refer to govern- mental policies or programs that have disparate, but indirect and allegedly uninten- tional, discriminatory effects on ascertainable groups. Under current constitutional jurisprudence, de facto discrimination is not treated as a violation of principles of equal protection. See Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977). In addition, the state action doctrine makes private acts of discrimination difficult to reach because it requires some form of state action before the equal protection clause of the Four- teenth Amendment can be implicated. It is MacKinnon's point that overt, legally enforced discrimination stabilizes and reinforces patterns of "private" de facto dis- crimination existing in the nongovernmental civil society. See MACKINNON, supra note 6, at 167-68. 60. See generally ANGELA Y. DAVis, WOMEN, RACE AND CLASS (1981) (analyz- ing barriers women and minorities encounter in achieving political power). The denigration of women's interests is most clearly seen in the federal tax laws, which function to create disincentives for women to work outside the home. See Edward J. McCaffery, Slouching Towards Equality: Gender Discrimination,Market Efficiency, and Social Change, 103 YALE L.J. 595, 617-19, 664-66 (1993). 61. See Mark V. Tushnet, Following the Rules Laid Down: A Critique of Inter- pretivism and Neutral Principles, 96 HARv. L. REv. 781, 782-91 (1983). 62. Robert Ely has developed a form of process theory that is sensitive to the problem of discrete and insular political minorities, but that still suffers from a theo- retic inability to reach power distributions in the civil society. See generally JOHN HART ELY, DEMOCRACY AND Dis-rusT 75-104, 172-75 (1980) (developing a repre- sentation reinforcing theory of individual rights). As MacKinnon's work demon- strates, under liberal process theory "gender as a status category was simply assumed out of legal existence, suppressed into a presumptively pre-constitutional
19. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 power with solutions limited by the norm of formal equality. To make the voting right more meaningful and effective in the hands of women, all aspects of gender subordination - the public and the private, the de jure and the de facto - ought to be subjects of concern and addressed explicitly in constitutional theory. Fi- nally, the woman suffrage movement reveals the way conflicting ideas of political participation that lie at the core of the Ameri- can conception of democracy hampered the efforts of disadvan- taged groups to gain a toehold in governmental institutions. These are the intertwined but contrasting norms of civic republi- canism 63 and liberal individualism 64 that have made up the uniquely American understanding of democracy since the Revo- lutionary period. 1. Two Understandings of Political Participation Under civic republican notions of political participation and governmental legitimacy, representative government can be achieved without the inclusion of all adults in the franchise be- cause those members of the community invested under its norms with the role of "citizen" are entitled directly to engage in polit- ical discourse and deliberation on behalf of others to affect the realization of the communal good.65 This view expresses a form of republican solidarism. As the public good redounds to the in- dividual good of all the community's persons, their virtual repre- sentation by "citizens" ethically legitimizes the authority of the social order through a constitutional structure designed not to reach it." See MACK- INNON, supra note 6, at 163. 63. Frank Michelman argues that a republican solidaristic conception of partici- pation is an element of the American attitude toward voting, which treats suffrage and the political dialogue it engenders as the means by which citizens constitute themselves, their community, and the community's notion of the good. Moreover, the community represents an independent public interest that is different from and more than the sum of the individual interests of the persons who compose it. See Frank I. Michelman, Conceptions of Democracy in American ConstitutionalArgu- ment: Voting Rights, 41 FLA. L. REv. 443, 445, 452 (1989) [hereinafter Michelman, Conceptions of Democracy]. 64. Under this view it is quixotic to believe that communal goods can be deter- mined without division and controversy between the members of the polity. Hence, personal freedom is not to be sacrificed to unjustifiable notions of the common good and the only legitimate government is one formed with the "consent of the gov- erned." For the most significant modern treatment of social contract theory, and one that treats the social contract as hypothetical, not actual, see JOHN RAWLS, A THEORY OF JUSTICE (1971). 65. This rests on the notion that the community can access or construct a com- munal good. See Michelman, Conceptions of Democracy, supra note 63, at 445-46.
20. 1994] DOMINANCE AND DEMOCRACY community. 66 In this way, persons or groups thought to lack the capacity to deliberate meaningfully or whose participation is be- lieved to be divisive of the community's homogeneity can be jus- tifiably deprived of the vote.67 "Democracy" takes on a substantive, not procedural, meaning under such a regime as the wise pursue the common good on behalf of the many. Contrasting with these ideas are principles of self-govern- ment and interest representation stemming from classic liber- alism that are also significant, perhaps even governing, in the American understanding.68 According to this vision, individuals are invested with pre-social, natural rights of self-determination69 and autonomy that cannot be justly overborne by others. Hence a legitimate government is one that functions pursuant to the consent of the governed. 70 In cases of conflict, consent is de- termined by consulting the majority's wishes, and instances in which individuals are forced to observe state policy against their will are reduced to a minimum by severely limiting the scope of 66. See Frank I. Michelman, The Supreme Court 1985 Term, Forward- Traces of Self-Government, 100 HARV. L. REv. 4, 50-51 (1986) (discussing notions of virtual representation affecting the American constitutional understanding). 67. For a discussion of the opposing liberal and communitarian views of restric- tions on the franchise stemming from communal needs for homogeneity, see San- ford Levinson, Suffrage and Community: Who Should Vote? 41 FLA. L. REv. 545 68. An intense debate among legal scholars and historians has been ongoing over the political norms that most characterize the Constitution. See, e.g., Cass R. Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); Symposium, Roads Not Taken: Undercurrentsof Republican Thinking in Modern Constitutional Theory, 84 Nw. U. L. REv. 1 (1989). Much of this controversy was ignited by the work of Gordon Wood and Bernard Bailyn on the ideological orientations of Amer- icans in the Revolutionary Era. See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION (1967); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 (1969). This contention relates broadly to the communitarian critique of liberalism that is current in political theory. See generally MICHAEL J. SANDEL, LMERALISM AND THE LIMITS OF JUSTICE (1982) (criticizing what he takes to be the metaphysical commitments central to liberalism); Stephen A. Gardbaum, Law, Politics,and the Claims of Community, 90 MICH. L REv. 685 (1992) (cataloging and analyzing the various forms and levels of communitarianism). 69. See generally ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974) (Nozick's work constitutes the most influential modern statement of these claims). 70. Consent or social contract theories of governmental authority are typically traced to the political philosophy of John Locke. See generally JOHN LOCKE, Two TREAnSES OF GOVERNMENT (Peter Laslett ed., student ed. 1988) (3d ed. 1698). There are difficult problems with social contract theories, the most significant of which is the fact that most persons cannot in any sense be said to have consented to the governmental regime to which they are subject. Hence, consent theories are often treated as aspirational or hypothetical. See WILL KYMLICKA, CONTEMPORARY POLITICAL THEORY 58-70 (1990).
21. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 governmental powers.71 Finally, individual rights trump official interference in areas thought to be essential to personal liberty, regardless of the majority's desires. 72 Under this view, voting is the decision procedure for ascertaining the public will on issues representing conflict among the segments of a pluralistic society, and all rational adult persons are to be imbued with the Both the communitarian and the liberal models of political participation have proven problematic as sources for women's empowerment. As positive as the communitarian norms behind republican solidarism may be, republican solidarism itself has been used to legitimize hierarchies of wealth, race, and gender. Within the American polity, this ideology functioned to exclude women from politics and relegated them to the status of a com- munal resource 73 by creating a continuum of relative personhood that expressed itself in a hierarchy of ascending statuses carrying with them entitlement to more and more rights. Americans of the Nineteenth Century made distinctions between degrees of personhood and citizenship, based on the civic republican con- ception. Full citizens were entitled to full political rights - in- cluding the right to vote, to sit on a jury, and to participate in the citizen militia.74 Civil rights, on the other hand, were those privi- leges that one enjoyed as a consequence of the recognition of one's personhood, and consisted of the right to own property, to sue and be sued, to speak freely, and to petition one's govern- ment for redress. 75 Individuals whose very personhood was in doubt, such as women, children, and slaves, possessed neither civil nor political rights. In a parallel fashion, as promising as ideas of political participation founded in natural rights and indi- vidualism might have been for proponents of suffrage, Nine- teenth Century liberalism proved almost as incapable of 71. This is the libertarian twist on consent theory that in its most extreme form leads to the conclusion that the sole justified state is a minimal one, invested with the authority only to provide for the national defense and protection against criminals. See NOZICK, supra note 69, at 26, 320-23. 72. Id. 73. See infra text accompanying notes 452-58. 74. See Mark Tushnet, Civil Rights and Social Rights: The Future of the Recon- struction Amendments, 25 Loy. L.A. L. REv. 1207, 1208 (1992). 75. Id. For a discussion of the historical basis of rights as naturally or socially defined, see MICHAEL FREEDEN, RIGHTs 12-23 (1991). Today we make little dis- tinction between civil and political rights, but these theoretical differences were criti- cal in the drafting of the Fourteenth Amendment. See infra text accompanying notes 253-89..
22. 1994] DOMINANCE AND DEMOCRACY accommodating the realities of women's claims to political au- tonomy as did civic republicanism. Liberalism's emphasis on ra- tionality, taken together with the widespread belief that women were irrational, created an exception to the requirement that all adults exercise the franchise. More importantly, as MacKinnon has pointed out, liberalism's penchant for privacy and its prefer- ence for formal over actual equality fostered an approach to poli- tics that ignored patterns of dominance in the nongovernmental civil society - especially the family - and was ill-suited to jus- tify state intervention in private relations to redress imbalances 76 between men and women. 2. Our Federalism From the founding of our nation to the present, neither civic republican nor liberal principles have wholly dominated the American understanding; both have existed in an uneasy and complex relation.77 Most importantly for my purposes, their push-pull effect on American politics contributed to the creation of the two-tiered system of "our federalism"7 in which a collec- tion of quasi-sovereign states was united under an overarching federal government. 7 9 This structure had profound implications for the strategy and direction of the woman suffrage movement. The system of federalism was a product of the struggle over the new Constitution between framers who wished to form a strong central government capable of overriding regional differences and facilitating the nation's economic development and those who feared a dominating national authority and wanted to retain the states as safeguards of local political community.8 0 Their 76. See MAcKINNON, supra note 6, at 157-70. 77. See IsAAc K AmNICK, REPUBLICANISM ANDBOURGEOIS RADICALISM, POLITICAL IDEOLOGY IN LATE EIGHTEENTH CENTURY ENGLAND AND AMERICA 35-40 (1990); see also Daniel Walker Howe, Anti-Federalist/FederalistDialogueand its Implications for ConstitutionalUnderstanding, 84 Nw. U. L. REv. 1 (1989). 78. This phrase is associated with Chief Justice Marshall. See First Agric. Nat'l Bank v. State Tax Comm'n, 392 U.S. 339, 349 (1968). 79. For an example of the way federalism served to limit federal intervention in a California state criminal prosecution of members of the Progressive Party, see the celebrated case of Younger v. Harris, 401 U.S. 37, 44 (1971). 80. These were the Federalists and the Anti-Federalists. While the ideologies of competing Federalist and Anti-Federalist factions do not fall into neatly opposed categories, they reflect in some sense civic republican and liberal principles of gov- ernmental legitimacy and political participation. See JoEllen Lind, Liberty, Commu- nity, and the Ninth Amendment, 54 Omo ST. L.J. 1259, 1290-93 (1994) [hereinafter Ninth Amendment]; see also Akhil R. Amar, The Bill of Rights as a Constitution, 100 YALE LJ.1131 (1991); Carol M. Rose, The Ancient Constitution vs. The Federalist
23. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 contrasting approaches resulted in a scheme for power sharing that limited the reach of the new national government and re- tained the plenary authority of states over persons within their borders.8 ' This strategy included giving the states the right to determine voter qualifications, not just for the state franchise but for federal elections as well. 82 Thus, Article I, section 2 of the Constitution, governing the election of the House of Representa- tives and the electoral college, and related provisions were inter- preted to delegate to the states the authority to determine standards and qualifications for a person's eligibility to vote in all political contests - federal as well as state.8 3 Under this pattern, states were free to exclude persons within their boundaries from eligibility to vote without fear of federal intervention, until the passage of the Fourteenth Amendment after Reconstruction cre- ated the possibility of a Copernican Revolution in governmental relations. 84 Until the enactment of that amendment, there was significant confusion over whether an individual possessed an in- dependent citizenship relationship with the new national govern- ment, or whether citizenship was only obtained at the state level.8 5 As a result of this constitutional blueprint for state-fed- Empire:Anti-FederalismFrom the Attack on "Monarchism" to Modern Localism, 84 Nw. U. L. REv. 74, 96-97 (1989). 81. See Ninth Amendment, supra note 80, at 1288-96. 82. U.S. CONsT. art. I, § 2, cl. 1; see also U.S. CONST. art. I, § 4, cl. 1 (governing state authority over the time, place, and manner of elections); U.S. CONST. art. I, § 2, cl. 3 (dealing with the basis of representation). 83. See Pope v. Williams, 193 U.S. 621, 632 (1904), overruled by, Dunn v. Blum- stein, 405 U.S. 330 (1972); Darby v. Daniel, 168 F. Supp. 170, 176 (D. Miss. 1958). 84. There was no constitutional provision authorizing federal intervention to protect the voting right before the ratification of the Fourteenth and Fifteenth Amendments, in large part because of the limited interpretation given the Privileges and Immunities Clause in Article IV as originally drafted. U.S. CONST. art IV, § 2, cl. 1. With the exception of Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823) (No. 3230), which used a natural rights theory to validate the right to travel in dic- tum, the Privileges and Immunities provision of Article IV was not used to vindicate fundamental rights, including voting rights. See Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873); see also Downham v. Alexandria Council, 77 U.S. (10 Wall.) 173 (1869); Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1868), overruled in part by, United States v. South-Eastern Underwriters Ass'n, 322 U.S. 533 (1944). 85. As Justice Miller said in The Slaughter-House Cases: The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship - not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executive depart- ments, and in the public journals. It had been said by eminent judges
24. 1994] DOMINANCE AND DEMOCRACY eral power sharing, when women began to test the conditions of their subordination in the Jacksonian era, they were confronted not only with varying ideologies of democratic participation, but also with concrete and established political institutions linked to- gether in intricate and baffling ways through the franchise. This state of affairs complicated women's ability to secure the vote on their own terms in various respects. At the level of ideology, the uneasy marriage forged be- tween civic republican and liberal norms obscured the disparity in power that lay at the heart of the struggle in the United States over the ballot and lent an aura of legitimacy to women's exclu- sion from politics. 86 At the same time, these twin poles of repub- lican solidarity and liberal individualism engendered doctrinal dispute within the suffrage movement itself over which ideal should govern the fight. They also provided opponents with an imposing and shifting array of arguments against the women's vote. 7 In addition, the complex apparatus that reflected the amalgamation of republican and liberal principles and created the state-federal power sharing arrangement presented suffrag- ists with difficult and divisive tactical choices over whether a strategy focused on local or national governments would best in- sure success. 88 Moreover, that structure gave foes a powerful, gender-neutral position against woman suffrage premised on states' rights.89 Finally, the conception of political participation that was reflected in the two-tiered governmental system en- shrined in the Constitution combined with the Reconstruction Amendments after the Civil War to make the Supreme Court the gatekeeper of the franchise for the American polity.90 With the that no man was a citizen of the United States, except as he was a citizen of one of the States composing the Union. 83 (16 Wall.) 36, at 72; see also ROBERT FRiDLINGTON, THE RECONSTRUCTION COURT, 1864-88, at 90 (1987). In The Slaughter-House Cases, the Court sharply distinguished between national and state citizenship and used that distinction to limit severely the use of the Privileges or Immunities Clause of the Fourteenth Amendment as a source of new substantive federal rights. 83 U.S. (16 Wall.) at 86. See infra text accompanying notes 457-58. 87. Id. 88. This issue generated one of the major points of division between the "Na- tional" and the "American" suffrage organizations. See infra text accompanying notes 354-56, 371-74. 89. This was one of the most effective arguments used against the Fourteenth Amendment and women's inclusion within its protections. See Is Suffrage a Na- tional Issue? SUmFRGxsT, Mar. 20, 1915, at 6. 90. See infra text accompanying notes 452-58.
25. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 passage of these amendments, state prerogatives on access to the vote became vulnerable to constitutional scrutiny by the Supreme Court for the first time. Part II details the origin and evolution of last century's struggle for women's rights that came to center on suffrage. There I show the process by which activists identified suffrage as an essential first step on their road to emancipation and by which they embarked on a long political fight to secure it. Along the way, they came to appeal to the federal legal system for the vin- dication of their claims. Through these events, the Supreme Court had the opportunity to assist women's political liberation as early as 1874. I argue that the Court's refusal to take up that opportunity delayed the conclusion of the suffrage campaign into the Twentieth Century and consigned the movement to a condi- tion of political isolation that had profound effects on its nature and achievements. II. A SUFFRAGE HISTORY PRIMER As the new American nation faced the beginning of the Nineteenth Century, it presented the irony of a political regime committed to the norm of representative government under which most adults were not allowed to vote. After the Revolu- tion, states enacted constitutions that imposed a variety of re- strictions on eligibility for the suffrage right. Property and religious qualifications were imposed, women were excluded from the franchise regardless of their wealth or other characteris- tics, slaves had no civil or political rights, and Native Americans were not considered a part of the citizenry. 91 With the beginning of the new century however, demands by disenfranchised white males for participation in government arose. These men argued that their exclusion from the electorate violated principles of au- tonomy and self-rule upon which the American polity had been founded. 92 Their agitation together with evolving conceptions of personal independence and changing social conditions combined to bring about the almost complete enfranchisement of white 91. For a discussion of the restrictions on voting premised in requirements that persons own a certain amount of property that later evolved into the requirement that they not be paupers, see Steinfeld, supra note 2, at 337-42. For a catalogue of state constitutional provisions in the early days of the nation, see DEMOCRACY, Lm- ERTY, AND PROPERTY: THE STATE CONSTITUTIONAL CONVENTIONS OF THE 1820s (Merill D. Peterson ed., 1966). 92. See Steinfeld, supra note 2, at 351-53.
26. 1994] DOMINANCE AND DEMOCRACY men by the middle of the 1800s. 93 In this way, these new voters attained an official relationship with their government - that of citizen 94 - which was reinforced with each trip to the ballot box. In contrast, the condition of women was conceived of so dif- ferently from that of men that it was unclear whether they were citizens in their own right or had any political relationship with the state.95 Females were expected to marry, and under princi- ples of coverture they were subjected to the physical and mental authority of their husbands and confined to the private sphere of home and family.96 These notions were reflected in the idea that a woman experienced a civil death on marriage 97 and so ceased to have a legal existence separate and apart from her spouse. 98 Thus, the domination of women by men through the operation of law and custom was quite explicit in the last century, and women were largely invisible in the political realms of the American so- ciety. The founders of the women's rights movement sought to change this reality. They needed a symbol of autonomy and in- dependence to use as a tool to escape their dominated status. That symbol was the voting right. 93. Id. at 350-53. 94. This relationship was produced through the connection between the voter and his state. Full blown notions of federal citizenship were not established until the ratification of the Fourteenth Amendment. See infra text accompanying notes 95. In the early case of Martin v. Commonwealth, an argument was made against the confiscation of a Loyalist married woman's land that was premised on the notion that her dependent status precluded any culpability. The attorney for the son of the woman seeking to regain the property said: Upon the strict principles of law, a feme couvert is not a member [of the citizenry]; has no political relation to the state any more than an alien; upon the most rigid and illiberal construction of the words, she cannot be a member within the meaning of the statute. Martin v. Commonwealth, 1 Mass 347, 362 (1805), overruled in part by, Common- wealth v. Barnes, 369 Mass. 462 (1976). The Court agreed that feme couvert pro- vided a good defense, on a different, but related ground. Id. at 390-99. In an 1809 case also involving the property rights of a woman married to a Loyalist, the wife's lawyer argued that women could not even be inhabitants of a state - only their husbands were inhabitants. Kempe's Lessee v. Kennedy, 9 U.S. (5 Cranch) 173, 178 (1809). Hoff points out that the response of early American courts to the tension between coverture and citizenship established a pattern of denigration of women's citizenship in favor of their dependent status. See HoiF, supra note 12, at 90-94. 96. For a more detailed discussion of the notion of feme couvert, see infra text accompanying notes 127-32. 97. Id. 98. Ellen DuBois argues that this established the principle that the basic unit of political organization was the family and that representation of families was to come from giving voting rights to their male heads. See DuBois, Radicalism, supra note 46, at 64-65.
27. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 A. From Invisibility to Organization:The Woman's Movement in Antebellum America In the first phase of the woman suffrage movement, activists sought to establish their status as persons, to move from the pri- vate into the public sphere, and to make their open involvement in the large political questions of the day acceptable. These were the initial steps of a larger project aimed at general emancipa- tion. Early activists came to fix on the franchise as both a symbol of and a means to political participation because it was a key emblem of full citizenship. In addition, through their attempts to achieve changes in the laws on divorce, married women's prop- erty, and other issues, these early activists discovered that with- out the vote they were largely without political influence. However, an organized and discernible social movement for wo- men's rights had to emerge before the importance of voting be- came apparent. 1. Early Causes It is common to date the stirring of American interest in wo- men's situation to 1792, when Mary Wollstonecraft's Vindication of the Rights of Women made its way to the United States and was widely read and discussed, 99 but there had been signs of dis- satisfaction even in the colonial era. 1°° In 1796, Charles Brockden Brown wrote Alcuin: A Dialogue of the Rights of Wo- men;101 in 1776 Abigail Adams made her plea to John to "re- member the ladies" in his political dealings; 0 2 and many years before, Anne Hutchinson had been expelled from the Massachu- setts Colony for presuming to preach. 10 3 These were individual expressions of embryonic feminist conduct and concerns that pre-dated any organized social protest movement for women's 99. See GERDA LERNER, THE WOMAN IN AMERICAN HISTORY 85 (1971) [here- inafter LERNER, AMERICAN HISTORY]; ROBERT E. RIEGEL, AMERICAN FEMINISTS 9 100. See generally LINDA K. KERBER, WOMEN OF THE REPUBLIC: INTELLECT AND IDEOLOGY IN REVOLUTIONARY AMERICA (1980) (discussing the political atti- tudes, experiences, and embryonic feminism of the women of revolutionary 101. See RIEGEL, supra note 99, at 7. 102. See Letter from Abigail Adams to John Adams, Braintree, (Mar. 31, 1776), in THE FEMINIST PAPERS 10-11 (Alice S. Rossi ed., 1973). The extent to which this admonition was meant as a general feminist statement is complicated by the private nature of the correspondence. See KERBER, supra note 100, at 84-85. 103. BILL SEVERN, FREE BUT NOT EQUAL: How WOMEN WON THE RIGHT TO VOTE 18-20 (1967).
28. 1994] DOMINANCE AND DEMOCRACY rights. That phenomenon was not to emerge until the middle of the Nineteenth Century and the appearance of an organized drive for female emancipation at the Seneca Falls Convention in Years later, when Matilda Joslyn Gage described the begin- nings of the women's rights movement, 10 4 she attributed it to three "immediate" causes: (1) public discussion of whether the property laws relating to married women ought to be reformed; (2) the impact on women's thinking caused by the lecture tours of Frances Wright in the 1820s and Ernestine Rose in 1836; and (3) women's participation in the abolition movement. 05 These factors undoubtedly helped to precipitate the first women's rights convention, but the broad social/historical forces that made wo- man suffrage possible at all remain a source of controversy today. Historians grapple with questions of how many women already had an understanding of their subordinate status at the dawning of the Jacksonian Period, how many were stirred by the ideas of the times to a new comprehension of their situation, and how many were motivated to alter their condition as a result of mate- rial changes in the American society associated with urbanization 10 6 and industrialization. Many historians treat the social and economic upheaval of the Jacksonian era as the catalyst for organized efforts aimed at 104. Gage did so in a history of woman suffrage written and compiled by some of its main activists - Elizabeth Cady Stanton, Susan B. Anthony, and herself. The work on the history began in 1876 and reflected their belief in the need for a memo- rialization that did not depend on the will of male historians. It eventually stretched to six volumes and was finished by Ida Husted Harper, Susan B. Anthony's biogra- pher. The history contains a wealth of original materials - reports of conventions and meetings, letters, and other documents - but these were never compiled in a scholarly fashion. Moreover, it slights the American Woman Suffrage Association's contribution to the movement, which was the competing faction led by Lucy Stone. See infra text accompanying notes 327-33. Nonetheless, the history is still one of the premier sources for suffrage historiography. For a general description of the history and its impact on the historiography of woman suffrage, see THE CONCISE HISTORY OF WOMAN SUFFRAGE xviii-xxi (Mari Jo Buhle & Paul Buhle eds., 1978); see also ELIZABETH CADY STANTON, EIGHTrY YEARS AMD MORE 323-36 (Schocken Books 1971) (1898) [hereinafter STANTON, EIGHTY YEARS]. 105. See 1 STANTON ET AL., supra note 4, at 14-19, 35-36, 39-40, 95-100. See generally WOMAN SUFFRAGE: HISTORY, ARGUMENTS AND RESULTS 6-8 (Frances M. Bjorkman & Annie B. Porrit eds., 1917) (canvassing the arguments relating to the woman suffrage movement, and describing its progress). 106. These factors became even more significant as a result of the Civil War. See infra text accompanying notes 234-41, 354-56, 395-403.
29. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 improving women's condition. 10 7 It is a truism that the Jackso- nian age was one of economic growth, dislocation, and unrest that reflected the erosion of old feudal forms of society in the face of an emerging middle class that had a taste for industrialism and an ethic of individualism. 10 8 As Robert V. Remini described it: "The American of the early Nineteenth Century was a hustler, a man on the make, invariably alert to any opportunity which might improve his station in life.... It was a materialistic society Americans were building, one dedicated to business, trade, and the acquisition of wealth."' 0 9 As a result, there were greater de- mands for democratization, while at the same time people yearned to make society more moral and altruistic in the face of its increasing mercantilism. 1 0 It was in this period that reform movements associated with the Nineteenth Century had their birth - abolition, temperance, religious revivalism, and early or- ganized labor."' One of the assessments of these phenomena is that as women were drawn up in the reform fervor of the age, especially abolition, they came to see the limitations of their own existence, to apply emerging doctrines of individual rights to their own situation, and to embark on self-conscious reformism in their own interest."l 2 Such a view assumes that women's emergent concern with improving their status resulted from the contagion of ideas that were spawned by the economic and so- cial/historical liberalization of American society in the Jackso- nian era. Undoubtedly, the presence of an emerging human rights philosophy did benefit many women seeking to make sense of their own situation, but women's access to the education necessary to make their exposure to these ideas meaningful was just as important as the ideas themselves. The Jacksonian era saw the birth of a female education movement that was critical to the later women's rights crusade. A general push for wider access to education took place at the beginning of the Nineteenth Century. Public schools began to be 107. GRIFFITH, supra note 18, at 15; PEGGY A. RABKIN, FATHERS TO DAUGH- TaRS: THE LEGAL FOUNDATIONS OF FEMALE EMANCIPATION 3 (1980). 108. See GRITIrH, supra note 18, at 14-15. 109. ROBERT V. REMINI, THE JACKSONIAN ERA 70-71 (1989). 110. See generally EDWARD PESSEN, JACKSONIAN AMERICA: SOCIETY, PERSON. ALrFY, AND POLITICS (rev. ed. 1978) (proffling American society in the Jacksonian 111. See Buhle & Buhle, supra note 104, at 1. 112. See, e.g., FLEXNER, supra note 10, at 71 (treating the ideas of the Jacksonian Era as a significant factor in creating the suffrage cause).
30. 1994] DOMINANCE AND DEMOCRACY widely established, the idea of land grant colleges started to take hold, and literacy levels among men increased. 113 Unfortunately, women were often excluded from this democratization of educa- tional opportunity on the theory that, being primarily suited for home and family life, they did not need the skills a good educa- tion could provide. 114 Although women made inroads in receiv- ing rudimentary schooling in this period, they had little5 opportunity to obtain a more sophisticated, higher education." Nonetheless, in the early decades of the Nineteenth Century, the female seminary movement gained ground and a number of insti- tutions devoted to giving women training to improve their do- mestic skills were created. 116 These institutions also included courses of study in topics previously thought to be outside the purview of woman's sphere, such as mathematics and history. As a result, in the first half of the century some significant educa- tional opportunities opened up for middle- and upper-class- women, many of whom later became activists in the woman 7 suffrage movement." Another group of scholars questions the power of ideas alone to generate a social phenomena like the suffrage move- ment - even in the context of women's greater educational opportunity. They argue that woman's history does not demon- strate the steady linear progression commonly associated with economic expansion and the changes in ideas that it engen- ders.118 They assert that women were in many ways better off during the feudal era than they were in the heyday of the Nine- teenth Century bourgeoisie and that the liberalization of eco- nomic conditions in American society did not directly translate 113. See REMiNi, supra note 109, at 78-80. 114. See 1 THOMAS WOODY, A HISTORY OF WOMEN'S EDUCATION IN THE UNITED STATES 451-52 (Octagon Books 1980) (1929). 115. See 2 THOMAS WOODY, A HISTORY OF WOMEN'S EDUCATION IN THE UNITED STATES 137-38 (Octagon Books 1980) (1929). 116. The most famous of these was Emma Willard's Troy Female Seminary es- tablished in 1821. It offered a curriculum competitive with those found in men's schools, but its general philosophy did not challenge the notion of a domestic sphere. Nonetheless, the women it educated came to constitute a reservoir of females desir- ous of more and more advanced educational opportunity, and their existence cre- ated pressure for the development of women's colleges. See GERDA LERNER, THE CREATION OF FEMINIST CONScIousNEss: FROM THE MIDDLE AGEs TO 1870, at 42-43 (1993). 117. See FLExNER, supra note 10, at 28-36. 118. See LERNER, PATRIARCHY, supra note 24, at 8.
31. UCLA WOMEN'S LAW JOURNAL [Vol. 5:103 into a change in attitude toward women's nature and role. 119 For them, the possibility that reforms in the laws governing the prop- erty rights of married women accidently functioned both as a foundation for and an impetus to the eventual formation of an organized woman's rights movement in 1848 deserves more at- tention. 120 During the Jacksonian era, property laws relating to women indeed began to change, but it is unclear how important these changes were as a causal factor in the emerging crusade. Revisions in the property laws relating to married women that began to be made in the late 1830s were a by-product of the Field Code movement. 12' This was a movement to limit the pri- macy of the common law by enacting statutes to reflect settled legal rules, thus limiting judicial discretion to establish or "make" law through case decisions. 22 This effort reflected distrust of the judiciary, more than an emerging consciousness of women's situ- ation.' 23 The main reform occurred in 1848 when the New York legislature enacted provisions to codify trust principles stemming from equity that had allowed limited protection of women's property interests. 124 However, husbands still "owned" the earn- ings of their wives; hence, the reform was not a feminist innova- tion, but an effort initiated by wealthy men to protect their own 119. See WILLIAM L. O'NEILL, EVERYONE WAS BRAVE: THE RISE AND FALL OF FEMINISM IN AMERICA 3-5 (1969). 120. See MARY R. BEARD, WOMAN As FORCE INHISTORY: A STUDY IN TRADI- TION AND REALITIES passim (1946); KEIrrH E. MELDER, BEGINNINGS OF SISTER- HOOD: THE AMERICAN WOMAN'S RIGHTS MoVEMENT 1800-1850, at 143 (1977); RABEiN, supra note 107, passim. For an in-depth study of the property rights of married women in the colonial period, see Richard H. Chused, Married Women's Property Law: 1800-1850, 71 GEO. L.J. 1359 passim (1983); Marylynn Salmon, The Property Rights of Married Women in Early America (1980) (unpublished Ph.D. dissertation, Bryn Mawr College). For a discussion that touches on the property rights of Southern women, see Suzanne D. Lebsock, Radical Reconstruction and the Property Rights of Southern Women, 43 J.S. Hs. 195 (1977). 121. See ELIZABETH B. WARBASSE, THE CHANGING LEGAL RIGHTS OF MAR- RIED WOMEN 1800-1861, at 57 (1987). 122. See generally Stephen N. Subrin, David Dudley Field and the Field Code: A HistoricalAnalysis of an EarlierProceduralVision, 6 LAW & HST. REv. 311 (1988) (noting that the Field Code movement became an expression of the interests of the upper classes). 123. See RABKIN, supra note 107, at 40-49; see also WARBASSE, supra note 121, at 57-60. Some men argued for the changes on the basis of women's entitlement to basic human rights. See ELISHA P. HURLBUT, ESSAYS ON HUMAN RIGH=s AND THEIR POLITICAL GUARANTEES 144-72 (New York, Greeley & McElrath 1845). 124. For an in-depth discussion of the New York reforms of 1848 and the attempt to backtrack from them in 1860, see NORMA BASCH, IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN NINETEENTH CENTURY NEW YORK (1982); 1 STANTON ET AL., supra note 4, at 14, 63-64; WARBASSE, supra note 121, at 224-27.
32. 1994] DOMINANCE AND DEMOCRACY property from the reaches of often dissolute sons-in-law. 125 Moreover, significant modifications in the property rights of wo- men were not effectuated by a majority of states until the 1870s.126 Although there can be no doubt that increased eco- nomic independence made it possible for many women to agitate for reform, this factor acted in conjunction with a number of other conditions such as increased women's education, urbaniza- tion, and other demographic changes that existed in parallel and created the cognitive and material conditions of their revolt. More importantly, the property laws were part of a larger web of controls - the complex of dominance - that kept women largely confined to the private sphere, so that they were impeded from effectively organizing until the 1840s. Women's eventual claim to the voting right became a provocative symbol of their desire for emancipation - both to activists for women's rights and their opponents - because it stood as a challenge to many of the essential features of the intricate and interlocking web that was the gender system in the Nineteenth Century. The reality of women's situation in Jacksonian America was grim. In later years, Elizabeth Cady Stanton compared it to slav- ery. 127 The married women's property laws were part of Black- stone's doctrine of feme couvert, which had been introduced to American law by his Commentaries'28 and became entrenched 125. As Peggy Rabkin stated: "The 1848 [New York] act in reality protected the property of the married woman's father rather than that which a married woman herself acquired." RABKIN, supra note 107, at 85. A majority in support of the bill could not be mustered until key conservatives in the legislature were convinced that their own interests would be served by the reform. See WARBASSE, supra note 121, at 226-29. 126. See KAY ELLEN THURMAN, Tim MARRIED WOMEN'S PROPERTY ACrS 2-5 (1973). For a breakdown of property reforms made by states according to type and chronology, see HOFF, supra note 12, at 127-31. 127. See 1 STANTON ET AL., supra note 4, at 18. In a speech made before the American Anti-Slavery Society in 1860 Stanton said: [W]oman [is] more fully identified with the slave than man can possi- bly be, for she can take the subjective view. She early learns the mis- fortune of being born an heir to the crown of thorns, to martyrdom, to womanhood. For while the man is born to do whatever he can, for the woman and the negro there is no such privilege .... To you, white man, the world throws wide her gates.., but the black man and the woman are born to shame. The badge of degradation is the skin and sex .... ELIZABETH CADY STANTON, SUSAN B. ANTHONY: CORRESPONDENCE, WRITINGS, SPEECHES 83 (Ellen DuBois & Gerda Lerner eds., 1981) [hereinafter DuBois, 128. Blackstone said:
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