Vol. 9 No. 6 (June 1999) pp. 224-227.
NO CONSTITUTIONAL RIGHT TO BE LADIES by Linda K. Kerber. New York: Hill and Wang, 1998. 405 pp.
Reviewed by Gloria C. Cox, Department of Political Science, University of North Texas.
When the leaders of the American colonies proclaimed and fought for independence in the late eighteenth century, they were rejecting the patriarchal system represented by monarchy and asserting the right to make their own political decisions, including acceptance of the privileges and obligations of citizenship. The new social contract represented by the American embrace of liberalism was, however, limited. It excluded enslaved persons, of course, because they were deemed unsuitable for citizenship and therefore without claim to either its privileges or obligations. It is that other large group that was excluded, women, about whose obligations and privileges historian Linda K. Kerber writes in No Constitutional Right to be Ladies.
Professor Kerber has written an extraordinarily informative and enjoyable book that explores the concept of citizenship in a liberal democracy, as it applies to women. The framework of obligations and privileges that she employs provides an excellent context for discussing the different political experiences of men and women in this nation. At the outset, she notes the irony of American men refusing to live under the patriarchal British system while defending the patriarchy that allowed men to dominate women. In her words, men "refused to revise inherited understandings of the relationship between men and women, husbands and wives, mothers and children" (p. 9).
That relationship was embodied in the system of coverture, the old but popular idea that a woman’s legal existence ended, or was at least suspended, when she married. Under that system, a woman had no obligations to the state. In fact, it was impossible for her to have obligations or privileges when her legal existence was in doubt. She certainly had obligations, but they were to her husband and family rather than the state. As the nineteenth century dawned in this country, men (at least free, white men of a certain age and means), were part of the body politic, with the privileges and obligations of citizenship, while women were part of a system in which their privileges and obligations resulted from the legal institution of marriage. Kerber concludes that the effects of patriarchy have carried to the current moment; as she notes, "From the era of the American Revolution until deep into the present, the substitution of married women’s obligations to their husbands and families for their obligations to the state has been a central element in the way Americans have thought about the relation of all women . . . to state power" (p. 11).
Yet, Kerber notes, women, excluding those enslaved, were deemed citizens under the Constitution, although laws and court rulings made their citizenship much more vulnerable than that of men. It does seem somewhat odd that there was no argument about the citizenship of women, given our national myth that women had no relationship with the state. Women, relieved of any political obligations, were thus free to be ladies, so long as they were not poor, widowed, divorced, a newly-arrived immigrant, or enslaved. In fact, Kerber believes, women did have obligations to the state, although they were often imposed without the privileges that accompanied them for male citizens.
Kerber rejects the idea that women had no civic obligations and suggests instead that obligations always existed in some form, and that they varied in application. We thus have the opportunity to understand the purpose of Kerber’s subtitle, WOMEN AND THE OBLIGATIONS OF CITIZENSHIP. The duties of citizenship that she explores are the following: "the obligations to pay taxes and to avoid vagrancy,...the obligation to serve on juries and the obligation to risk one’s life in military service,...." and "the obligation to refrain from treason" (p. xxii).
THE OBLIGATION NOT TO BE A VAGRANT: Kerber focuses on black women and their difficulties in meeting this requirement, particularly in the years immediately following the Civil War. When black women were found walking the streets of cities (and they often were, since they had no money and no place to go), city officials forced them into heavy labor on public works projects, or jailed them. In that era, there was the very strong expectation that newly-freed persons should be engaged in some sort of observable, physical labor. That expectation was imposed on black women and children as well as men, so it made the rules for black families quite different from those for whites, wherein the goal, achievable or not, was for the wife to be a lady who did not engage in heavy work. In Kerber’s words, that meant that, "As the obligation to work was reconstructed for those who had been enslaved, it was constructed distinctively for black women in ways that differentiated their obligations from those borne by white women" (p. 69). Implicit in the obligation not to be a vagrant was the societal understanding that black women must perform observable work or be construed as vagrants (or prostitutes), while white women experienced no similar obligation.
THE OBLIGATION TO PAY TAXES: Many of us assert that the focus of the first women’s movement was winning the vote, but Kerber makes a very good case that the obligation of women to pay taxes when they had no representation caused at least as much protest as the lack of voting rights per se. Women were often assessed taxes on property they held, which led them to argue that they were being taxed without representation. Decades earlier, colonial Americans had argued against taxation without representation, only to be assured by the British that they were enjoying the benefits of virtual representation. Assurances of virtual representation failed to assuage the anger of nineteenth century women just as it had the colonials. It adds greatly to the interest of this chapter that the author includes statements from various politicians and publications. One of the best is from Harper’s Weekly, which asked, "Does taxation without representation cease to be tyranny , and become justice, when the taxed property owner is a woman?" (p. 108).
THE OBLIGATION OF JURY SERVICE: Kerber explores the importance of juries in the American tradition, including the fact that a woman could be tried before a jury but could not sit as a member of one. The lack of a right to serve on juries was due, according to Gladstone, to some "defect of sex" although the nature of the defect was unexplained (p. 130). The fact that jury service was not required of women was often framed as one of the privileges of being a woman, since men were expected to serve. The author does a good job of summarizing the means by which women won the right to serve on juries, noting that it was an easy process in some places and a much more difficult one in others. The element of humor is present in the discussion as Kerber mentions the most frequently offered reasons for keeping women out of jury service: women would neglect their homes and families, be upset by disgusting details of crimes, and be too worried about their children to concentrate on the case; moreover, lawyers like to talk "man-to-man" to the jury and are uncomfortable having women present; besides all that, if women were on juries, restrooms for women would have to be added to courthouses.
As late as 1961, the Supreme Court refused to rule that the lack of women on juries constituted a denial of equal protection. In the Court’s opinion, "woman is still regarded as the center of home and family life" (p. 181). Kerber does an excellent job of chronicling the difficulties and frustrations of the attorneys who worked on changing the law in this area. Her writing style is engaging, partly because she develops the factual story around the actions of particular leaders in the fight, most notably attorney Pauli Murray, who saw the constraints of race and sex as very similar obstacles. This long but well-written section of the book brings the reader up-to-date with contemporary rulings on sex discrimination and the equal protection clause.
THE OBLIGATION TO MILITARY SERVICE: Kerber’s discussion of this issue is one of the most provocative in the book, since it deals with a largely unresolved question. She tackles the issue of military service first from the perspective of veterans preference policies and their effects on women job candidates, then raises the more fundamental question of whether military service should be required at all and, if so, of whom. She mentions the hostility of Vietnam veterans who came home without fanfare and looked for work, only to find women asserting their own right to equal employment opportunities. Vietnam era veterans felt "aggrieved, of having been obligated to risk their lives and not receiving their proper entitlements" (p. 234), which fueled their support for Ronald Reagan in the 1980s and lessened the focus on women’s issues.
Citizenship and military service are closely related concepts and the rule has long been that men are called to fight and women are not. Kerber makes the point that women have been more involved with military life than is commonly supposed. It certainly came as a surprise to me that Martha Washington spent the terrible winter at Valley Forge with the general, and that many thousands of wives and children were camp followers until the modern army discouraged the practice. When women have wanted to join the military, they have found the rules different for them, whether the issue was the enlistment age, qualifications, or duty assignments. Nonetheless, some 350,000 American women served in World War II (p. 264).
The draft remains a difficult issue. Kathleen Teague, in her role as spokesperson for the Eagle Forum and its opposition to the registration of women, asked why women should be willing to give up their "constitutional right to be treated like American ladies" (pp. 286-7). When the Supreme Court upheld males-only registration, Thurgood Marshall wrote the dissent, proclaiming that "upholding differential registration 'categorically excludes women from a fundamental civil obligation'" (p. 299). The question of whether this obligation applies to women as it does to men remains unanswered.
Although Kerber’s book deals with more than two centuries of our history, the framework of obligations and privileges that she employs works well. She leaves in a great deal of legal history, making it interesting and engaging by including many stories of actual people affected by the issues she is discussing. In the process of reading this well-researched and well-written book, I learned a great deal and found new ways of thinking about familiar issues. It is a
wonderful addition to the library of anyone interested in constitutional law, women’s issues, or the general
legal history of the United States.