CONSTITUTIONAL CONTEXT

Vol. 18 No. 3 (March, 2008) pp.239-243

CONSTITUTIONAL CONTEXT: WOMEN AND RIGHTS DISCOURSE IN NINETEENTH-CENTURY AMERICA, by Kathleen S. Sullivan. Baltimore, MD: The Johns Hopkins University Press, 2007. 200pp. Hardcover. $45.00. ISBN: 9780801885525.

Reviewed by Lauren Bowen, Department of Political Science, John Carroll University. Email: bowen [at] jcu.edu.

In her farewell address as the president of the National Women’s Suffrage Association, Elizabeth Cady Stanton describes individuals as fundamentally solitary beings. “We come into the world alone, unlike all who have gone before us, we leave it alone, under circumstances peculiar to ourselves” She sought to acknowledge “the individuality of each human soul” (as quoted in Sullivan, p.146).

According to Kathleen Sullivan in this provocative, thoughtful and insightful book, this speech captures the aspirations and successes of nineteenth century suffragists. Abstracting the individual from status, rights or obligations was a uniquely feminist way of understanding American liberalism. She credits the leaders of this movement for shifting in fundamental and unalterable ways the nature of liberal discourse in the United States. Moreover, Sullivan is arguing that this shift in separating rights from the common law and removing the individual from the reality of lived experience and situations had its limitations and may have hindered gender equality. The argument is clear, engaging and persuasive while the text itself is somewhat uneven in advancing that argument.

Sullivan begins with a general introduction that places her analysis within the constitutionalism literature. The goal of the study, as she notes, is to look at “the rhetoric and strategies of the public campaign to liberate women from their common law status as married women” (p.4). While Locke and Jefferson among others sought to accommodate the common law within the liberal tradition, Sullivan is suggesting that suffragists pitted natural rights theory against common law and that such a stance was not inevitable or the only possibility. The reliance on codifying the law and moving away from the common law tradition helps usher in positivism in US law. From Sullivan’s perspective, this leads to a “formalistic and even absurd” equality doctrine (p.8) such that rights triumph over status. For many women, such an approach ignores their material conditions. This, of course, has long been the critique of liberal feminism in that it overlooks issues of class, race and other forms of status. What distinguishes Sullivan’s work is her argument that this critique is not of liberalism per se but rather that liberal feminists of the nineteenth century redefined liberal theory in the US context. Further, her argument is grounded in the supposition that the common law was not inherently oppressive. As she notes on p.17, “accepting the limits of liberalism means [*240] recovering the radical potential of the seemingly conservative rules and practices of the common law.”

This view of the common law is explicated in the first chapter, entitled “Codification of the Common Law Considered.” She provides a thoughtful and thorough review of the codification debate taking place in various quarters in the early part of the nineteenth century. Her respect and affection for the common law tradition is apparent. On p.28 she suggests that the transition to positivism would mean replacing “practical reasoning with expert knowledge” and “action with appeal to authority and experts” and “reference to experience with reference to rules.” While those in favor of codification might argue that a written code simplifies the law and makes it more accessible to the public, the progressive capacity of the common law should not be overlooked according to Sullivan. This tension and debate and the discourse it generated is really the legacy of the codification movement. While Chapter 1 seeks to provide a framework for analysis, it is perhaps not sufficiently connected the suffragist theme and overall thesis of the book. Still, read on its own it provides a lucid discussion of the codification debate and the relationship of the common law to that conversation.

The essence of the book’s argument is developed in the second chapter entitled “Abstracting Rights.” She illustrates the premise of the previous chapter – that the codification debate’s contribution to legal development was in changing the parameters of the debate rather than replacing common law with codified law – effectively by detailing the rhetoric of both abolitionists and suffragists. The abstracted nature of rights in the US context has its roots in the abolitionist movement. For example, the commitment to freedom of speech in the context of the slavery debate has to be an abstract one given that the US Constitution acknowledges the institution of slavery. Relying on an abstracted form of free speech meant pitting that right against the constitutional agreement to keep silent on the subject of slavery.

Women’s rights activists use this as the theoretical basis for their own rights discourse. Sullivan details the perspective of Angelina and Sarah Grimke suggesting their arguments about human dignity and agency are those on which much of today’s civil libertarian doctrine depends. This argument suggests that an “individual is a bearer of rights who existed prior to his or her socially determined status” (p.59). By contrast, Lydia Maria Child objects to decontextualizing women. Instead, she argued that one should “explore one’s status and find freedom within its constraints and manipulations rather than seeking to liberate oneself from it” (p.64). Sullivan is arguing that the logic and basis of the argument loses some of its power (theoretical and practical) in the shift from abolition of slavery to rights for women.

The women’s rights movement “drew upon the legacies of the legal codification movement and the political abolitionist movement to assail the common law, one of the primary sources of women’s civil and political status” (p.67). In Chapter 3, entitled “The Married Women’s Property Acts: Death Blow to Coverture?” Sullivan offers the [*241] fully developed argument suggesting that women’s rights activists of the nineteenth century constructed a new version of liberalism. They wrested from the common law relations that had always been part of liberal theory and American liberalism arguing that common law rules of the marital relationship was the source of women’s subjugation. Suffragists seized upon the opportunity presented by the married women’s property acts to dismantle the rules of common law. In sum, she is suggesting that the impetus for the passage of the acts was economic and class-based rather than about the liberation of women. Yet she acknowledges that it was a “compelling and timely narrative” (p.70) and that the emergence of the women’s movement coincided with coverture being in flux.

The narrative of women’s rights activists as articulated in this discussion redefines liberal thought because the concept of an individual is abstracted from all social status. And of course, liberalism prior to this depends on the reproduction of a society within the private sphere. There is an important institutional role that familial relationships play in the maintenance of a liberal society. Breaking down the legal notion of unity and then of coverture such that men were not necessarily the heads of households could threaten the foundation of Locke’s liberal society. So instead, women’s rights activists connect unity, coverture and thus the common law to a feudal and barbaric past, arguing that liberalism by definition abstracts rights from status. In so doing, they begin to delegitimize the derivation of rights within social circumstances which becomes a self-fulfilling narrative. This chapter is easily the most powerful and compelling of the book, challenging readers to reexamine the role of women’s rights activists in constructing liberal discourse. I think this chapter could stand alone as an excerpt given to students.

However, Sullivan’s argument is more subtle than suggesting that liberal feminists abstracted rights from experience leading to the demise of the common law tradition. Instead, she suggests that there are lapses in the argument and that coupled with the tenacity of the common law in domestic relations tells a more complete story. Chapter 4 is titled “The Married Women’s Property Acts: Collaborating for Coverture.” While the married women’s property acts gave women the right to own property (which is central to liberal theory), the civic capacity recognized in property rights did not extend to other aspects of women’s status and perceived civil disabilities (e.g. choosing a domicile). Sullivan documents this limited success of positivist legal change to emancipate women by reviewing laws and judicial decisions in Massachusetts, Indiana and Kentucky. She demonstrates the persistence of common law by detailing various decisions from the bench that define the status of women. Ultimately, she is suggesting that the intermediary status of married after the reform statutes is consistent with the modernization of status law where status regimes are reformed but not entirely abolished. While the suffragists thought that liberal principles only had to strike prejudices to realize the promise of liberal equality, instead coverture was being updated and modernized. Coverture survived, not only because statutes were never designed to abolish it, but also because [*242] different institutions collaborated to retain social orderings of domestic relations. Sullivan’s analysis is intriguing and insightful as she is suggesting that tapping into the progressive capacity of common law and working to effect change within that structure would have accomplished more than rewriting liberal narrative. From her perspective, the married women’s property acts were not a liberal alternative to the common law so much as they were a “working out of liberalism’s relation with the domestic relations of the common law” (p.110). The liberal feminist narrative of suffragists ignores the measures to balance rights with status and obscures sources of women’s oppression.

In Chapter 5, “The Domesticity of the Domestic Relations,” this argument is further explicated. Removal of prejudice is an overly simplistic approach to fostering equality. Sullivan documents the ways in which state supreme courts acted in collaboration with legislatures to retain status of common law and the legal construction of household when interpreting married women’s property acts. While this is a reasonable conclusion and interesting argument, this is probably the weakest chapter of the book as it lacks a clear focus and narrative thread. The fundamental point that change in domestic relations demonstrates that the women suffragist narrative is of limited use in explaining the acts and their interpretation because it overstates the prejudices against women and underestimates the extent to which domestic relations persisted (p.127) is well taken, but the thorough discussion of master-servant law was a distraction. Still, the suggestion that to accept the suffragist narrative and its expectations is to miss developments resulting in modernization of status regime is one well worth considering. With new justifications produced and new arrangements constituting a new, modern home – coverture was able to survive. The clear implication then is that equality was not the most effective means of emancipation for married women and other subordinates in domestic relations.

“Common Law Lost” is the title of the sixth chapter and nicely captures the summation of the book’s arguments. Sullivan suggests here that modern society could not complete the transition from status to contract while coverture proved so tenacious. She devotes considerable energy to a discussion of BRADWELL v. ILLINOIS (1872), noting that the majority opinion holds that the practice of law is not a privilege protected by the privileges and immunities clause reinforcing the limited scope of that provision in the wake of THE SLAUGHTERHOUSE CASES (1873). Yet the sexism of Justice Bradley’s concurrence is what is usually reproduced in case books and used to analyze the case which provides further credence to her argument that the suffragist narrative overstated prejudice and understates the institutional basis for women’s civil and political disabilities. In other words, because suffragists were successful in reconstructing the liberal narrative, subsequent audiences focus on the stereotypes of Bradley’s opinion to reinforce that narrative. It is an intriguing and ultimately convincing proposition. Ending the chapter with a synopsis of Elizabeth Cady Stanton’s “Solitude of Self” speech is poetic and appropriate in light of this argument. In between, Sullivan also acknowledges the [*243] reemergence of the codification debate in the 1870s and 1880s. Women’s rights become the dividing wedge of that iteration of the codification debate. When rights are abstracted from hierarchy, they also grow distant from experience and may fail to address adequately protections that those situated selves require. By the 1880s, however, common law was associated with allegiance to tradition and was no longer seen as adaptable, reformist or modern (p.144). While there has been some return of context to contemporary analysis of that era and an increased appreciation that common law tended to the material and physical needs of its citizens, it has not been sufficient to counter the now dominant liberal narrative constructed by feminists that emphasizes individual prejudice.

“While the activism of women suffragists encouraged a theory of equality that has benefited women in giving them recognition and opportunities, the loss of context in rights discourse brought a loss of the situated self in that discourse” (p.149). In the conclusion, Sullivan provides a lucid and concise review of her fundamental argument. Because the liberal lens was not trained in the progressive possibility of common law, institutions for family arrangements were cast as inherently illiberal. Yet it is possible to recognize that men and women have obligations within the home and that those obligations can be distributed fairly without unduly burdening anyone’s political or civil rights. Ultimately, though, the suffragist narrative dominates, in large part because of the New Deal and the broader recognition of status and situation by the federal government (thus reducing the differences among feminists as to the best strategy to effect government change). By the time of the second wave of feminism, formal equality had prevailed. Formal equality prevails in part because of institutional response and capacity. However, Sullivan’s contribution to the literature is her persuasive argument that political choices about rhetoric and strategy made by suffragists shifted the parameters of the debate in ways that still matter. Reform is too often based on fictionalized subjects rather than actual status and obligations. Yet she is suggesting that common law constitutionalism still has the potential to be recovered and that the uncertainty (as contrasted with determinism) of common law allows for fluid and presumably productive contextualized conversation about meaningful equality. It is an interesting perspective and one well worth discussing with students. I have found this work to be enormously instructive while teaching a gender politics course this semester. I think it would have similar power in a civil rights and liberties class. All but the most sophisticated undergraduates would struggle a bit reading this text as part of a course, but the discussions and analyses that consideration of this text would likely engender makes it well worth the struggle.

CASE REFERENCES:

BRADWELL v. ILLINOIS, 83 U.S. 130 (1872).

THE SLAUGHTERHOUSE CASES, 83 U.S. 36 (1873).

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