Fall 198, Volume 5.2
Essay

JEAN BICKMORE WHITE
Women and the Constitution: After 200 Years

During the steamy days of summer in 1787, a remarkable group of men met in Philadelphia to write the United States Constitution. They were men of above average intelligence, well educated, and experienced in government. They were, however, men who saw nothing extraordinary about the fact that no blacks, no native Americans, and no women were included among their number. The document they wrote made no mention of gender, ignored native Americans, and only recognized blacks as slaves (to be counted as three-fifths of a person for voting and tax purposes). Yet today this document has been amended and interpreted to become a primary tool for the economic and political advancement of women and minorities.

The transformation of a document that was designed to create a stable government primarily for the benefit of a middle class white society into one that serves the "have nots" as well was a slow process. Women, blacks, and other groups have had a long struggle to gain constitutional recognition for their basic rights--and the process of precisely defining those rights is likely to continue through court cases and political action. For a time in the early to mid-nineteenth century, the Abolitionist movement and the women's rights movement made common cause, seeking full political rights for blacks and women.

Black men gained both the legal right to vote and constitutional protection from slavery through the passage of the Thirteenth and Fifteenth Amendments that came in the wake of the tragic and bloody Civil War. (They are, however, still in the process of gaining the political and economic power long denied them.)

The Civil War, however, did not bring any benefits to women. Women who had demanded equal rights at the famous Seneca Falls convention in 1848 were told it was "the black man's turn" to gain constitutional protection for his rights. The Abolitionist movement had succeeded where the women's movement had failed.

Time has changed this picture. Now, 200 years after the writing of the Constitution, women have succeeded in gaining their own constitutional protection, using that venerable document not only to protect their political rights but also to advance their economic and social goals.

The reasons for profound changes in societies are seldom simple. Changes in the status of particular groups in society require changes in thinking, as well as changes in the economic and social conditions that shape that society. The attainment by women of personal rights under the Constitution can be seen as a long fight against the English common law conception of women prevalent in 1787. But it must also be recognized that urbanization, industrialization, and the movement of women into the workplace created the environment for change.1

Personal Rights in a Constitutional System

Personal rights--the right to the fruits of one's own labor, to ownership and disposition of property, to the opportunity for a satisfying career, to a voice in government--are considered essential to a free society. They are vital to the attainment of economic and political power in a society. Yet all of these have been denied to women during much of our history as a nation. Why?

Although a constitution is often considered a revered document, it should be understood realistically as a political statement, a fundamental law allocating valuable rights and privileges in a society. It is the basis for the attainment and use of political and economic power in a society.

In a country with a written constitution, certain basic rights usually are guaranteed, shielded from governmental interference. In a country with a tradition of judicial review, the meaning of those rights is determined by the courts. There is a further complicating factor in countries with federal systems. In the United States, there are fifty-one different constitutions and bodies of statutory law that affect individual rights. However, the U. S. Constitution is superior to state constitutions and laws, and when they conflict with it, the U. S. Constitution prevails under its Supremacy Clause (Article Six). Therefore, it is only natural that individuals and groups would hope to have their rights written into and thus protected by the U. S. Constitution, or to have existing provisions of the Constitution interpreted by the Supreme Court to uphold what they believe are their rights.

However, this is not the only way to bring change, and sometimes it is not the best. Therefore, strategies for improving women's status in the United States have tended to use both political action and lawsuits to gain the desired rights. Again, considering our federal system, actions on both the national and the state levels have been tried at various times. The question is frankly just a pragmatic one: where do you have the best chance of winning--in the courts, in state legislatures, or in the Congress? Do you need new laws or an amendment to the Constitution? Where can you mobilize the resources you need to get the changes you want?

Judicial Action on Women's Rights

Sarah Slavin suggests that there have been three main approaches to women's rights, two of which have been notable in court cases. First is what she calls the patriarchal approach--with the Supreme Court upholding the domination of sexual, racial, and economic underclasses by a class of white, privileged, or propertied males. The second is the civil rights approach, perhaps best exemplified by Reed v. Reed in 1971, where an Idaho law granting preference to males over females in administration of an estate was struck down by the Supreme Court. The Court has followed this important decision with others striking down state laws held to contain gender stereotypes impermissible under the Constitution. The third approach is feminist or radical feminist, seeking a "profound transformation of human relationships" (xii). The Constitution and courts are unlikely to be of much help in the latter approach, except as the elimination of gender stereotypes in the law assists in changing attitudes and perhaps in altering interpersonal relationships. As historian Gerda Lerner has observed, the women's rights movement is a phase of the broader American feminist movement, which embraces "any struggle designed to elevate [women's] status, socially, politically, economically, and in respect of their self-concepts." Historically, the women's rights movement has more narrowly defined its goal as the winning of legal rights--and this approach is much more likely to succeed through the courts (1979, 48).

The patriarchal approach grows out of the Blackstonian concept of women and the English common law, as well as assumptions about the divinely ordained role of women common throughout the eighteenth and most of the nineteenth centuries in the United States. Sir William Blackstone's Commentaries on the Laws of England, published in four volumes between 1765 and 1769, were widely read in the American colonies. His view that "by marriage, the husband and wife are one person in the law"2 was embedded in the common law of most of the states and probably was shared by most of the framers of the U. S. Constitution.

When the Declaration of Independence was written in 1776, it was clear that it meant just what it said: All men are created equal. Black and native American men were not really thought of as men, and women of any color were not in the picture.

When the U. S. Constitution was written in 1787, it was devoid of any mention of either God or women. The same was true of the Bill of Rights that was ratified in 1791. Not until the Fourteenth Amendment was adopted in 1868 did the word "male" creep in--ironically in the same amendment that has been the basis for the civil rights approach to women's legal rights.

The original Constitution left to the states the discretion to determine who should vote, with the proviso in Article One, Section 2 that members of the U. S. House of Representatives were to be elected by "the Electors in each State [with] the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." But it also meant that no one had a national right to vote; each state could determine who could vote for the lower house of its legislature and thus determine who could vote for members of the U. S. House of Representatives.

Though property qualifications for white males gradually disappeared during the Jacksonian period and the electorate was thus broadened, few women were able to exercise the right to vote. There are instances in colonial times where unmarried women property owners voted, but by the time the United States Constitution was written, only in New Jersey did women have this right, if they met residency and property requirements. Although it appears that at first few women voted, they had that right until 1807, when it was taken away by an all-male, all-white legislature on the grounds that it "produced a massive amount of voting fraud" (Goldstein 53). However, in 1838 the Kentucky legislature gave certain women the right to vote for school trustees--widows with school-age children in sparsely populated districts.3

Despite the efforts following the Civil War to usher in constitutionally protected voting rights for women, along with similar rights for blacks, women were told to wait longer for their right to participate in the political process. Black males were given the right to vote by the Fifteenth Amendment, although exercising it proved to be another problem.

The Civil War had, however, also brought in the Fourteenth Amendment to protect the rights of the newly freed blacks. And though it first introduced the word male into the Constitution, it seemed to provide a way to extend rights to others. The first section reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Note all persons, not all males. Note the neutral word citizens. Note especially the application to states. If, as some thought at the time, citizenship in the United States brought a national right to vote, it could not be denied by any state.

Men, in fact, gained this right in Section 2, which forbade states to deny the vote to "male inhabitants . . . being twenty-one years of age and citizens of the United States" except for participation in rebellion or other crime.

Two Supreme Court cases illustrate the efforts women made to use this amendment--to obtain the political right to vote, and to gain the economic right to engage in a profession. Armed with the assumption that the Fourteenth Amendment had fundamentally changed the legal status of women, Susan B. Anthony and hundreds of other women tried to vote in the 1872 election on the grounds that they were U. S. citizens and thus had this right under the Fourteenth Amendment. Anthony and thirteen others were allowed to cast their ballots on 5 November, but on Thanksgiving Day, all fourteen were arrested under an 1870 Civil Rights Act designed to protect blacks. Briefly imprisoned, Anthony was unable to take her case to the Supreme Court at that time because her lawyer posted bail. Tried later in the U. S. District Court for the Northern District of New York, she was fined for "knowingly, wrongly and unlawfully voting." However, the judge refused to enforce his own judgment, thereby preventing her from appealing her case and having the issue decided by the Supreme Court (Sachs and Hoff-Wilson 68). In the same year, Virginia Minor sought to register and vote in St. Louis County, Missouri. Anthony and Minor were actually only two of hundreds of women who attempted to vote that year as a consequence of the passage of the Fourteenth Amendment, but Minor's name was the one that made it into the Supreme Court and the record books.

In her case, Minor v. Happersett (1875), Chief Justice Waite and the Supreme Court denied that the right of suffrage was one of the privileges and immunities of citizenship that the state could not abridge. He acknowledged that women were "citizens," and found that certainly they were "persons." But they were "citizens" before the passage of the Fourteenth Amendment, Justice Waite argued; this amendment added nothing to their legal status. He went on to conclude that all citizens were not necessarily voters. States could still determine which of their citizens were to be voters, since voting was not one of the privileges conferred by national citizenship.

While business interests were discovering the marvelous uses of the due process clause to escape state regulation, women were finding that the privileges and immunities clause did them little good. It certainly did not force the states to let them vote.

The decision should have been no surprise in the light of an important decision handed down in 1873, the famous Slaughterhouse Cases. In those cases some New Orleans butchers challenged a local law that deprived them of the opportunity to compete fairly; the Supreme Court held that the privileges and immunities clause applied only to privileges and immunities of national citizenship. It did not protect them from arbitrary action by their own state to deprive them of an important economic right.

The case of Myra Bradwell, a married woman who wanted to practice law in Illinois, was argued at the same time as the Slaughterhouse Cases , and was based on the same idea--that the Constitution protected basic rights from abridgment by the state. In 1873 in Bradwell v. Illinois, the Supreme Court rejected the argument that the state had no right to exclude an entire class of citizens from the bar. Her attorney pointed out that Mrs. Bradwell met all requirements for admission and argued that Illinois's action would violate the "privileges and immunities" clause. It was a losing argument.

In his opinion for the Court, Justice Miller essentially repeated the rationale of the Slaughterhouse Cases. It is the concurring opinion of Justice Bradley that sums up neatly the real reason for denying Myra Bradwell her chance to practice law. He observed that unless altered by the state legislature, the rules of the common law would be observed in the matter of admission to the bar, and it the common law had never contemplated the acceptance of women. "On the contrary," he wrote, "the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life."

He went on to point out that many states still held that a woman had no legal existence separate from that of her husband; a woman lawyer would not be able to make contracts to be binding on her or him without his consent and "would be incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor" (141).

Clearly the Blackstonian concept of the role of woman was stronger than the Fourteenth Amendment in defining women's rights. And so, the women's movement of the nineteenth century turned to political action. The goal: gaining the vote, one way or another.4

The Struggle for the Ballot

Except for the passage of married women's property rights acts, which most writers attribute to the desire of men to safeguard property inherited by women from men (Sachs and Hoff-Wilson 77), the legislative route to rights for women produced little during the mid-nineteenth century. Women worked for the abolition of slavery but formed no independent national women's rights organization until the late 1860s. Elizabeth Cady Stanton and Susan B. Anthony established the National Woman Suffrage Association to press for full equality for women in all spheres of life. Later, the American Woman Suffrage Association was formed with the more limited aim of getting the vote for women by persuading the states, one by one, to change their laws. Stanton and Anthony probably were considered too radical for their time; their emphasis on fundamental changes in the status of women seemed threatening in the Victorian era. Finally deciding to work together, the two organizations merged in 1890 and formed the National American Woman Suffrage Association. They began to work, along with such other groups as the Women's Christian Temperance Union, for the right for women to vote (Kraditor 1-13).

The movement proceeded along two lines. The major efforts were within individual states to pass laws and to obtain state constitutional amendments guaranteeing the right to vote and hold office. There was also a national movement to get an amendment to the U. S. Constitution; this would bring the right to all women by overriding any state laws denying it. Women's clubs were beginning to provide upper and middle class women with the leadership training needed, and the conservative General Federation of Women's Clubs joined the fight.5 By 1915, several states, mostly in the West, had given women the vote. Utah and Wyoming women had had the vote during territorial days and had written it into their first state constitutions in the 1890s.

The story of the final push to victory is too long to tell here. Suffice it to point out that the shrewd strategies of Carrie Chapman Catt finally resulted in victory with the passage of the Nineteenth Amendment and its ratification in 1920. The right of women to vote and participate in the political process was now part of the Constitution.

The period that followed--from 1920 to the 1960s--has been aptly described by Barbara Sinclair Deckard as "forty years in the desert" (283). The struggle for ratification of the constitutional amendment, opposed by liquor interests, big city bosses, the Catholic church, southern white males, some business interests, and no doubt some men sincerely concerned about the effect the women's vote might have on family life, may have worn out the women in the movement. Their newly found power did not propel women into a frenzy of reform, as their backers had promised and their opponents had feared. Not until World War II brought large numbers of women into the labor force--where many of them stayed after the war--and the civil rights movement again raised public consciousness of inequalities within American society did the second women's movement arise.

There had been some progressive legislation on the state and national levels promoting children's rights and some protective labor laws, which were regarded by many at the time as progressive. Also, the Women's Party had the Equal Rights Amendment introduced in Congress every year from 1923 until it was passed in 1972, only to fail to be ratified by three-fourths of the states.

For several decades, the Equal Rights Amendment became the focus for constitutional change--and the focus of opposing points of view on what is best for women. A debate on the topic in 1931 brought out arguments by the Women's Party that the ERA was needed to combat discrimination against women in wages, employment, education, and other areas. It pointed to the fact that laws in eleven states still gave control over a wife's wages to her husband, laws in sixteen states still forbade a wife to make a contract, and many states still barred women from jury duty. They contended that only a constitutional amendment could clean up this act. Their opponents argued that protective legislation was still needed, in view of biological differences between men and women (Deckard 288). And indeed the U. S. Supreme Court had put its stamp of constitutional approval on state protective legislation for women in Muller v. Oregon in 1908 by upholding a state law specifying maximum working hours. Later, incidentally, the protective wage and hour legislation pioneered by women was extended to men.

In the 1960s, sentiment among women's rights advocates settled on the Equal Rights Amendment to the Constitution as the best way to assure women's rights on a national basis. Two major legislative victories had been won--the Equal Pay Act of 1963, and Title VII of the Civil Rights Act of 1964. And in 1971 the Supreme Court had held gender discrimination unconstitutional in Reed v. Reed. The Court did not, however, decide that state laws discriminating on the basis of sex deserved "heightened scrutiny." That is, they did not consider laws discriminating on the basis of sex to require a compelling state purpose and they did not look on sex-based classifications as immediately suspect, as they do laws involving race discrimination. To this day, the Supreme Court holds to the idea that sex-based discrimination under the equal protection clause requires less justification than does race-based discrimination. The fact that the Supreme Court has yet to elevate challenges to sex-based discrimination to the "highest level of scrutiny" (this level would require states to carry a heavy burden of justification for laws discriminating against women) remains one of the major arguments for a national ERA. Yet it is evident that there are strong currents running against a revival of the ERA, particularly since the Supreme Court's Roe v. Wade (410 U. S. 113) decision in 1973 and the many cases since then that have sustained essentially the constitutional right to abortion.6

Lacking the political muscle to push through a national ERA, the women's rights advocates today are concentrating on both the courts and the ballot box to gain and keep what they feel should be their constitutional rights. The equal protection clause of the Fourteenth Amendment is the main vehicle for court challenges to discriminatory laws, and there have been impressive victories in sustaining challenges to gender-based pension laws, employment discrimination, and exclusionary membership requirements for certain traditionally all-male organizations.7

Are There New Constitutional Challenges Ahead?

It is clear that there have been at least two ways of dealing with the idea of women's rights under law in the United States. The first is based on a paternalistic, Blackstonian framework prevalent during the period when our Constitution was written and for more than a century afterward. During much of our history, women's rights to personal autonomy and to participation in government were smothered by the notion that women as individuals--particularly married women--were outside the conception of natural rights that influenced both the Declaration of Independence and the Bill of Rights. Later, the paternalistic idea was expressed differently in a line of cases upholding legislation protecting women from the harshness of working life. Special legislation protecting women in the world of work has a lot in common with the Myra Bradwell and Virginia Minor cases. Both represent the idea that men and women are fundamentally different and require different treatment under the law.

On the other hand, there is the civil rights line of cases and legislation, where the essential philosophy is that there should be full equality between the sexes, modified somewhat by affirmative action to remedy past discrimination. Perhaps Schlesinger v. Ballard in which the Supreme Court in 1975 upheld a regulation permitting women naval officers a longer period of time to attain promotion than men, is typical of the affirmative action genre. In these cases, a history of past discrimination is shown to justify unequal, compensatory treatment. The equal protection clause of the Fourteenth Amendment is the vehicle for the equal civil rights approach, and it has produced an impressive body of constitutional law. However, it must be remembered that there has been considerable resistance on the part of the Supreme Court to place laws discriminating on the basis of sex in the "suspect" category, which would place a heavier burden of justification on lawmakers who create them. Some members of the Supreme Court, notably Chief Justice William Rehnquist, seem inclined to stop further development through the civil rights approach.

Women's Rights in the Future

Today we appear to be approaching a new phase in the struggle for women's rights. Having gone through a paternalistic deprivation of individual rights, a period of special protection, and a fight for legal equality with men, many women's groups are questioning where the next effort should be. The defeat of the ERA has forced a re-examination of what the Constitution should mean to women of the twenty-first century. Historian Joan Hoff-Wilson explains this dilemma in Rights of Passage: The Past and Future of the ERA:

In the 1980s, some contemporary feminist historians, lawyers, and psychologists are beginning, more than ever before, to question whether U. S. women's long-sought-after goal of obtaining equality based primarily on individual, male rights stemming from the eighteenth century, should be pursued to its logical conclusion. Such women are looking back on two decades of dramatic improvement in their legal status and suggesting ways to recognize the limits of, and ways to go beyond, what has been called "liberal legalism" as they enter a fifth period of their constitutional development. (xix)

Complete individual rights and equality with men may no longer be the most important goal of many women. It may be time to recognize some real differences between men and women and their needs in society as we find it. Do we need to make special provision for women as mothers, or for women and men as parents, if we want to protect and nurture children adequately in our society? This problem was highlighted in 1986 when women's groups were sharply divided over California Federal Savings and Loan Association v. Guerra, the case in which the Supreme Court upheld a California law providing for maternity leave.

Our Constitution is a very flexible document. Women--left out when it was written--have had to fight their way in, through amendment, political action, and constitutional law cases. Today there are new challenges, and women sometimes are divided among themselves in defining goals for the future. The ghost of Blackstone may be hovering over American law today, not to deprive women of basic personal rights to develop as individuals and participate in self-government, but to recognize that men and women are, in fact, different. The challenge is to find ways to respect the rights of each under our Constitution, recognizing that each new era brings new relationships in our society and new problems to solve.

NOTES

1 Gerda Lerner and other historians of the women's movement emphasize the importance of a class of educated women with leisure to pursue such goals as the vote. Lerner has also noted that some societies where maternal health care is poor and infant mortality high require a high birth rate for survival. "In such societies," she notes, "women are not 'free' to engage in the same work as men do, nor are they able to conceptualize the possibility of doing so." The Majority Finds Its Past 50.

2 Blackstone's impact on American law in the seventeenth and eighteenth centuries is discussed in Albie Sachs and Joan Hoff-Wilson 79.

3 For more detailed accounts of women voting in certain local elections see The Female Experience 323-29, 357-61.

4 For an excellent history of the women's movement in the nineteenth and early twentieth centuries, see Eleanor Flexner, Century of Struggle: The Woman's Rights Movement in the United States (New York: Atheneum, 1968). Also, for a multi-volume account by the participants see Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, History of Woman Suffrage, 6 volumes (New York: Fowler and Wells, 1881-1922; rpt. ed. New York: Arno, 1969).

5 The role of women's groups other than the suffrage organizations is emphasized in Nancy E. McGlen and Karen O'Connor, Women's Rights: The Struggle for Equality in the 19th and 20th Centuries (New York: Praeger Publishers, 1983): 19-23.

6 For example see Akron v. Akron Center for Reproductive Health (462 U. S. 416), and Planned Parenthood v. Ashcroft (462 U. S. 476), both handed down in 1983. Both struck down state laws tending to restrict the right to an abortion.

7 For example, in a 1984 case, Hishon v. King and Spalding (467 U. S. 69), the Supreme Court ruled for a woman lawyer who challenged a firm that denied her a partnership. In Roberts v. United States Jaycees (104 S. Ct. 32440) the same year, a state law prohibiting discrimination against women in the United States Jaycees, a traditionally male service club, was upheld. In 1987 this was extended to the prestigious Rotary clubs in Board of Directors of Rotary International v. Rotary Club of Duarte (95 L. Ed. 2d 474 [1987]).

LIST OF WORKS CITED

Deckard, Barbara Sinclair. The Women's Movement: Political, Socioeconomic, and Psychological Issues. 3rd ed. New York: Harper and Row, 1983.

Goldstein, Leslie Friedman. The Constitutional Rights of Women. New York: Longman, 1979.

Hoff-Wilson, Joan, ed. Rights of Passage: The Past and Future of the ERA. Bloomington: Indiana University Press, 1986.

Kraditor, Aileen S. The Ideas of the Woman Suffrage Movement: 1890-1920 . New York: W. W. Norton, 1965.

Lerner, Gerda. The Female Experience: An American Documentary . Indianapolis: Bobbs-Merrill, 1977.

--------. The Majority Finds Its Past: Placing Women in History. Oxford: Oxford University Press, 1979.

Sachs, Albie, and Joan Hoff-Wilson. Sexism and the Law. New York: Free Press, 1978.

Slavin, Sarah. Women and the Politics of Constitutional Principles. Washington DC: American Political Science Association, 1985.

U. S. SUPREME COURT CASES CITED

Bradwell v. Illinois 83 U. S. 130 (1873)

California Federal Savings and Loan Association v. Guerra 93 L. Ed. 2d 613 (1987)

Minor v. Happersett 88 U. S. 162 (1875)

Muller v. Oregon 208 U. S. 412 (1908)

Reed v. Reed 404 U. S. 71 (1971)

Roe v. Wade 410 U. S. 113 (1973)

Schlesinger v. Ballard 419 U. S.498 (1975)

The Slaughterhouse Cases 83 U. S. 36 (1873)(1