Edward Ayers, Vengeance & Justice: Crime and Punishment in the 19th-Century American South (1984)

Edward Ayers, in Vengeance & Justice, explores the rates and types of crime patterns in the South. Broadly, he is taking a quantitative approach to understand how crime and punishment fit together, how they changed before and after the Civil War, how they differed across sub-regions in the South and how they were resisted by Southerners of both races. While the subject of his book seems to span the entire South (and the North in come cases), the bulk of his research spans only three communities in Georgia, each representing an important Southern subculture: urban, rural black belt, and upcountry. His framework and approach to the research, specifically in these three regions is appealing to me on a variety of levels. The same approach can be used to understand women and crime across Virginia.

Ayers’ community study across the 19th century allows him to chart the changes over time and also compare these communities to each other, a particular strength. Ayers’ approach firmly ties crime and punishment to political, economic and social catalysts, if not so much to the law itself. For example, he argues that prior to the war, trends in crime waves among city dwellers mirrored market ups and downs, whereas the rural areas remained more self sufficient with their crimes independent of market forces. (99) Once Reconstruction pulled the South into the broader markets, crime trends changed to reflect this.

Ayers suggests a continuum of crime that parallels economic development across America broadly with the urban North at one extreme and the rural South at the other. The challenge of course is that while he’s reading out from three communities in Georgia, the “North” and the “South” become monoliths devoid of subtlety and nuance. While his argument is compelling, it’s hard to tell where Georgia ends and the South begins. Furthermore, recent work on Southern history, Reconstruction and slavery have basically rendered a monolithic South unreliable.

Speaking of slavery, Ayers offers some interesting observations about slaves and crime that should prove important for my own work. He argues that prior to the war, blacks had rare encounters with the legal system, mostly because the slave system was the most significant form of control in the South. Most violent crime handled by the state was among whites, with black offenders relegated to the control of their masters, or the discipline of the churches to which they belonged. The changes on society brought by the War and Reconstruction led to the state assuming control over black criminals; more blacks were prosecuted and crime increased among the rural populations. I’m curious to see if Virginia’s crime records show the same patterns before and after the war.

Among all his talk of honor and violence, there is a curious lack of discussion about gender and masculinity.¹ He seems to weave class and race nicely into his study, but it’s unclear if these patterns have anything at all to do with gender. One assumes the bulk of the crimes are committed by males, but there’s no specific discussion of it. Likewise, Ayers is content not to define “crime” at all, despite the fact that he seems to recognize that crime is ultimately defined and prosecuted by the dominant classes. A particular strength is that he acknowledges that crime is mostly political, reflecting and reinforcing existing systems of power, but the powerful systems in his study are racial and classed. While much has been written elsewhere of the influence and import of Southern white womanhood, it makes no appearance here. As such, my own research will fit nicely among the paths Ayers has cleared with this work.

Stuart Banner, The Death Penalty: An American History (2002)

Banner, in The Death Penalty, offers an excellent synthesis on the history of the death penalty in the United States. Banner combines original research with secondary sources to help outline the trajectory of the debates and history of capital punishment. Because of Virginia’s good records, he does provide details about the role capital punishment played in the Commonwealth, especially with regard to slave laws.  He includes a particularly strong chapter on the relationship of capital punishment in the South to Northern penal reformers. In it, he argues that slavery created the difference that kept the death penalty strong in the South, even while it diminished in the North. His notes are strong and should provide a nice trail for me to follow.

Victor Streib, The Fairer Death: Executing Women in Ohio (2006)

Streib, in The Fairer Death, provides a quick snapshot of the death penalty in Ohio, the women who were executed there and those sitting on death row. I had high hopes for this book, thinking it would provide me with a way to approach executions of women in Virginia. While the book offers interesting factual tidbits about the death penalty, it’s remarkably ahistorical and clearly a republish of research from other earlier articles. I would be better served to mine the notes for the original articles and read those.

1. Bertram Wyatt Brown published Southern Honor around the same time and includes discussions of masculinity in ways Ayers does not. It could be argued that Ayers, who knew about Brown’s impending work, adjusted his own so that the two would fit together. [↩]

Benjamin Reiss, Theaters of Madness: Insane Asylums & Nineteenth-Century American Culture (2008)

Benjamin Reiss, in Theaters of Madness, questions the tensions between confinement and liberty in the early republic through an analysis of the cultural products relating to the asylum. He uses the writings of nineteenth-century literary figures and asylum patients to uncover the character of early psychiatric thought as a window to understand how American society viewed and processed the concept of insanity. Reiss argues that insanity-related culture was deployed as a tool to reinforce social norms and standardize behaviors. (4) In this way, the cultural products dealing with insanity worked in ways similar to the institutions, medical professionals, and social workers tackling other failures of antebellum moral thought–juvenile delinquency, deviance, mental retardation, temperance, etc.

Reiss crafts what is probably one of the clearest introductions in our readings thus far that works to firmly situate his work among his peers. David Rothman, in Discovery of the Asylum, analyzed the world of asylum superintendents as driven by a critique of the chaos of Jacksonian society. He argues that social tensions and anxieties driven by the loss of common traditions and communities influenced the structured response to insanity, in that asylums offered clear hierarchies and a sense of order, routine, and discipline. (8-9) Michel Foucault, in Madness and Civilization,  argues that power in the asylum focused on “procedures of continuous control,” which worked to control both bodies and behaviors inside the asylum. Medical professionals used minute tools of social control–like case notes–that worked to monitor, record, and count behavior. (10-11) Lastly, Erving Goffman, in Asylums, studied life in inside the asylum and argued that under the constant surveillance of the asylum, every act was monitored and folded back into the hierarchical structure of the institution. (12) Reiss uses all of these analyses, but adds subtly to them by reviewing the system of cultural control that worked as part of the clearly-established power dynamics between the insane and their keepers. Narratives thus are tools of power relationships–a very useful argument to my own work.

Reiss, an English professor, offers a literary analysis and uses fewer sources than a historian would ever deploy to support such broad conclusions. Still his work makes no apologies about the fact that he is choosing discrete slices of asylum life to draw these conclusions. He presents a multi-layered conclusion that recognizes the good intentions of reformers and the imposition of social control.

Estelle Freedman, Their Sisters’ Keepers: Women’s Prison Reform in America: 1830-1930 (1984)

Freedman, in Their Sisters’ Keepers, traces the changing history of female prisoner reformers in New York, Indiana, and Massachusetts. In a book representative of the “new social history,” she explores the origins of women’s concerns for female inmates from 1870 to 1920 using records from the institutions and reformers themselves. Freedman’s history of the changing nature of female prisons and the women who were their keepers follows the same general trajectory as the histories of reformatories, mental institutions, child-saving institutions, and juvenile court systems that we’ve studied thus far. (Of note: the trajectory of female prison reform seemed to stress women’s uniquely feminine realm more heavily than other institutional movements.)

Freedman draws upon the two frameworks that dominate the study of the history of women: the changing status of women after the Revolution as the economy turned from agriculture to industry, and the function of the separate female sphere. Freedman argues that the movement to aid female prisoners had roots in the antebellum, domestic, female sphere, yet it facilitated white middle-class women’s entry into public and professional work by the end of the century (2, 63-64).

Freedman argues that prisons were originally built to hold men and that early female criminals were typically policed by their separate female communities–family and church. By the early nineteenth century, 1840s to be exact, Freedman argues, female criminals entered the “criminal class” (12). This trend seems to align with Halttunen’s observation that the nature of crime literature changed from a community problem to social evil in the nineteenth century. Furthermore, Freedman’s distinction between the nature of women’s crime comparative to men is also illuminating for my own purposes–by and large, Freedman, argues, women were imprisoned for behavioral crimes whereas men were imprisoned for crimes against person and property (13-15).

Also of note, she endeavors to address the tensions that were created when women clung to the definition of women’s separate nature,  which limited their own power and often stifled the inmates they sought to help. Nineteenth-century prison reformers used this “separate sphere” argument, while Progressive-era reformers began to question it. While the observation that nineteenth-century prison reformers relied on the “separate sphere” argument is firmly established and well-argued, I’m less comfortable with the discussion of the Progressive-era reformers discomfort with it. She seems to be arguing that the shift from the biological roots of criminology to a focus on environmental and social factors played into this attitude change (I’m not entirely sure if this is her actual argument or if I’m drawing on our other books to fill in holes in her discussion).

L. Mara Dodge, Whores and Thieves of the Worst Kind: A Study of Women, Crime, and Prisons, 1835-2000, (2006)

Mara Dodge, in Whores and Thieves of the Worst Kind, writes an exhaustive history of prison reform in Illinois between 1835 and 2000 (although rich detail is scarce after 1970). While she includes no detailed insight to how she used her sources–her sources appendix is limited to the types and information available, not her methodology–one can make the argument that this is the type of research project that could only be accomplished by significant digital database work. And for that reason alone, it is an impressive read. There is so much rich detail that absorbing all the information covered in the 135-year period is tough.

Dodge traces the creation and changes across the Illinois state prison system from the first woman incarcerated in 1835 to a modern period. In so doing, she traces the social forces that shaped the imprisonment of women during this time. It’s a long book, with fourteen chapters and three different sections, each behaving really like mini-research projects. She alternates between a strict chronological approach and a thematic one.

Part II traces the social construction of crime and criminality and this where I thought her best work lived. Fundamentally, Dodge argues that criminality and the treatment of female inmates in Illinois was socially constructed. In these chapters, she covers important broad topics useful for my own work: social and legal processes through an act or behavior gets cast as criminal; statistics on the crimes that landed women in jail; and a useful collective demographic profile of female prisoners, including how race, ethnicity, nativity, age, and other subjective assessments affected their lived experiences in prison.

I don’t feel I fully absorbed all the information in this book, but I am concerned that such a rich picture of Illinois is read out as exemplary of the experiences of female prisoners across all of America. Since I am also working on a state study, navigating how to position the importance of such a study, and its application beyond state boundaries, are top of my mind.

This week, we’re evaluating two vastly different views on homicide in America–one from the perspective of the cultural work done to explain it and an another from the broad statistics and trends associated with the crime.  These readings offer two approaches to how to balance very broad questions that attempt to identify patterns with the use of case studies as exemplary of those patterns.

Karen Halttunen, Murder Most Foul: The Killer in the American Gothic Imagination (1998)

Halttunen, in Murder Most Foul, studies the transformation of how early American culture explained murderers and their behavior. She explores this cultural transformation through an encyclopedic cataloging of execution sermons, confessions, memoirs, court proceedings, and published trial reports (broadsides, pamphlets, books, news columns, etc.) Halttunen argues that the narrative response to the crime of murder transformed from the colonial/Puritan period, wherein execution narratives focused on the spiritual condition of the murderer and explained behavior as inherent in the human spirit to the more secular, Gothic imagination of the nineteenth century. In this period, she shows, narratives focuses on the crime itself, the nature of violence, and the murderers motives and impulses. In so doing, these narratives focus on the sensational aspects of the crime–the horror and the mystery–which Halttunen argues served as a strategy for coming to terms with murder on a grand cultural scale. Over the course of American cultural experience, then, murder narratives have reconstructed the transgressor from common sinner [Chapter 1]  in the community (which could be any one of us) to moral monster and mental alien [Chapter 7].  It is through this process of “Othering” the murderer, she argues, that both creates and reinforces the constructions of criminal deviance and society’s institutionalization of those who are. “For the criminal’s moral otherness was deemed to require his or her full separation from normal society, within an institution which, though expressly designed for rehabilitating inmates and restoring them to society, in fact constructed impassable barriers between the normal and the abnormal.” (6)

Halttunen traces this change mostly chronologically and offers an almost encyclopedic array of examples for her themes. There are so many, in fact, that the reader can easily become lost in a sea of narratives and cases. For general points of fact about these particular cases, she cites the sensational literature itself as opposed to trial reports or other third-party documents (72). Patricia Cline Cohen showed in Helen Jewett that because murder narratives worked to shape popular opinion, historians must read them with a keen eye to their rhetorical purpose. Halttunen’s reliance on the very sources she is attempting to “read” is troubling. But how do you manage such a large volume of primary sources with the need to use a variety of examples to prove out broad patterns? In this respect, Gordon’s use of a few complete cases to exemplify her broad trends works quite well.

Halttunen deftly shows how tropes about gender both reflect cultural norms and drive narratives at trial. However, she does not extend her study of these narratives to follow their course of influence on the law itself. In comparison, Odem and Knupfer both gracefully articulate the symbiosis between the  narratives of juvenile deviance and the law. In Halttunen’s work, one wonders about the impact of Gothic narratives on jury instructions, their responses to evidence, and the resulting verdicts and sentences–events I consider part of the legal proceedings, but different from the antics of attorneys in the courtroom. If gender tropes drove narratives, did the narratives drive the court proceedings themselves? This is one downside to a broad study; the cases are too complex and varied to follow this many cases to closure. In my research, I’m going to need to draw some boundaries between the law, the theater of trial, sensational coverage, and the institutions that carried out sentences and verdicts.  If I can effectively evaluate how  these different legal proceedings intertwined with popular narratives in Virginia, I believe my work will have particular relevance and fill some broad gaps in the scholarship.

Randolph Roth, American Homicide (2009)

Roth, in American Homicide, attempts to expose broad patterns in the murder rate in the United States and explain why the United States is the most violent nation among affluent Western society. Roth relegates the usual suspects in explaining homicide trends–urban poverty, unemployment, substance abuse, support for law enforcement–to secondary status and instead argues that political reasons affect the murder rate. He argues four elements have a direct impact on the homicide rate:

1. The belief that the government is stable and that its legal and judicial institutions are unbiased and will redress wrongs and protect life and property.
2. The feeling of trust in the government and its officials who run it.
3. Patriotism and empathy arising from racial, religious, or political solidarity.
4. The belief that the social hierarchy is legitimate, that one’s position is or can be satisfactory and that one can command the respect of others without resorting to violence. (18)

Roth looks specifically at homicides resulting from assaults (intentional or unintentional, legally justified or indirect) among unrelated adults, perpetuated predominantly by men, of Anglo-American or European descent, African-Americans, and Native Americans. His analysis predominantly comes from a review of homicide data from specific regions of the United States and a handful of counties within those regions covering varying time spans. Roth marries data that he collected with data from other researchers and other projects. Some of these projects were conducted as early as 1914. With such a wide variety of individual projects and research, the reader cannot assume the methods in each project showed the same parity or discipline in coding.

Additionally, Roth is is drawing very broad conclusions about homicide in the United States through an analysis of not only disparate projects, but also using only random counties and date ranges. For example out of 95 counties and 40 independent cities in Virginia, Roth pulls data from 15. For his analysis of trends across the South, he is using data from some counties in Maryland, Virginia, South Carolina, and Georgia. Recent scholarship on the South has argued, quite convincingly, that the complexity of experiences there have rendered traditional broad narratives of such topics as slavery, Reconstruction, industrialization, and the civil rights movement almost useless in understanding the experiences on the ground. His use of only four states to elucidate trends across the South is problematic.

Roth’s study seems to focus on the broader side of data analysis and by sewing together disparate projects and data, the statistics that fill the book’s 600+ pages (and the murders he describes) become overwhelming.  Thankfully, Roth and his colleagues have made their data available through the Historical Violence Database. This allows for a great deal of transparency not only in understanding the omissions in the project, but will also allow other researchers to build upon what has already been collected.

Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence (1988)

Gordon examines trends in family violence in Boston between 1870 to 1960. She argues that family violence is historically and politically constructed (as evidenced from her choice of subtitle.) Further, she states that the definitions of unacceptable family violence developed through changing political moods over time; and that intra-family conflict was political itself and often stemmed from family members competing with each other over scarce resources and power; lastly, she argues that approaches to family violence changed with the culture and politics of the time. Gordon uses an almost extant collection of case files from three Boston-area child protection service organizations, within which she finds four predominant types of family violence: cruelty to children, child neglect, the sexual abuse of children, and wife beating or marital rape. She finds that there is some evidence of ethnic difference between the details of the cases, but the main influence of violence within the family is poverty.

John Ruston Pagan, Anne Orthwood’s Bastard: Sex and Law in Early Virginia (2003)

By analyzing four separate, but related, lawsuits stemming from the birth of the bastard son of Anne Orthwood, Pagan explores how English custom and law evolved in the Chesapeake. He argues that colonial Virginians adapted English common law to accommodate the realities of life in the tobacco culture of early Virginia. In this way, Pagan, argues, the community worked with the judiciary to forge new policies and precedents, which affected everyone. Through this micro study of one community, he explores four main themes in Virginia law: contracts and the sale of servants, child support and other domestic bastardy laws, criminal fornication and participation of church and state, and the emancipation of servants. He does so by organizing his chapters around key individuals in the community and their role in either the crimes, the suits or the judiciary. Pagan’s work provides plenty of local Virginia color with regard to morality, deviance, and laws affecting the sexuality of servant women, which will be helpful for setting the context of my earlier cases.

Elaine Forman Crane, Witches, Wifebeaters and Whores: Common Law and Common Folk in Early America (2011)

Crane argues that small stories contain the potential to reveal aspects of a larger culture. As such, she offers six different legal stories in her collection of what should be considered separate essays. Each chapter depicts one colonial legal issue. Through these she covers slander, witchcraft, domestic violence, slavery, rape, and debt across a variety of colonies. She offers a theme in lieu of a coherent argument tying these disparate cases together: “the ways in which legal culture and the routine of daily were knotted together in early America.” (4) Like Pagan, Crane finds that colonists did not import English precedent wholesale, but that they adapted it to fit their needs on the ground in the colonies.

• Pagan points to the economic value of servant women in Virginia as key to understanding at least the initial lawsuit over the fraudulent sale of a pregnant Anne Orthwood, an indentured servant. Orthwood’s pregnancy occurred twenty years after the initial tithe was levied on African women, which Kathleen Brown argues made it impossible for African women to marry, purchase their freedom, and establish families and independent households. (See Brown, Good Wives, Nasty Wenches, p 108) Brown states that English women, servant and free, were too weak to produce as much as prime male hands and were categorized as dependents in terms of their taxability (Brown, 119.) How then does the type of labor affect their economic value? And how do these economic questions about the value of women in Virginia affect their status when they show up in a court of law?
• Additionally, Gordon argues we should redefine patriarchy to incorporate male domination of the family AND the family’s position as a unit of social and economic power. Intra-family power struggles are key to Gordon’s argument. As such, individuals within families clashed over economic questions (wages, care and feeding of children, other resources) and wives stayed in abusive relationships due to their total economic dependence. The importance of economics to violence and crime should not be understated.
• Gordon argues that the abused employed the “powers of the weak” to exploit all available resources to escape violence within their family. Odem also argues that families used the juvenile courts to rein control over delinquent daughters. Together, they argue that the groups most typically studied as objects of social control wrest that control–albeit bits at a time–to use for themselves. In my project, as women navigate the judiciary system, questions of agency will surface.
• Crane finds that even though common social values operated under a legal umbrella, people resisted the established order by offering counternarratives  and behaving in deviant ways; fewer outright rejected the dominant value system. In so doing, she seems to be offering a continuum on which behavior can fall. One challenge I had in my essay was that murder seemed far from illicit sexual behavior. However Crane’s framework here may prove useful as I connect deviant behavior and criminal behavior with the counter-narratives told at trial to justify them.
• Crane’s book offers a nice example of how to make a scholarly work about colonial law readable, though I’m not entirely sold on the coherence of the themes contained therein.

Mary Odem, Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920 (1995)

Odem analyzes reform and control over young women’s sexuality between 1885 and 1920 through an in-depth study of age-of-consent law reform and the institutions put into place to enforce these new laws at the local level. Through her study of court records of two counties in California, personal and organizational papers, and other printed material, Odem argues three main points: moral campaigns to control teen sex were fueled by gender, class and racial tensions; sexual regulation by the state had consequences the reformers could not predict or control (namely the double standard of male sexual privilege); and the social and sexual autonomy of daughters was a major source of conflict in working class families, and as such, families often used the juvenile court system to reign control over misbehaving daughters. She divides her study into two main chronological periods. From the mid 1880s to 1900, white middle-class purity reformers campaigned to make sex with teenage girls a crime by raising the age of consent. Sexually active teen girls were seen as victims of male lust and exploitation. Beginning in 1900, the narrative and focus shifted; teenage victims of male lust became delinquents as reformers acknowledged the potential of sexual agency in teenage girls. Family and social environments explained delinquent behavior, which became increasingly regulated through institutions designed for this purpose.

Anne Meis Knupfer, Reform and Resistance: Gender, Delinquency and America’s First Juvenile Court (2001)

Knupfer, a professor of education, analyzes the creation of the Cook County Juvenile Court (America’s first juvenile court, opened in 1899) and its complex relationship to the professionalization of sociology and social work (as represented by the Chicago School of sociology and the various famous local female reform organizations such as the Chicago Women’s Club and Hull House, respectively.) Using discourse theory and a Foucauldian analysis of sexuality, she reads the narratives created by reformers, institutions, medical professionals, families, and adolescents themselves and argues that the juvenile court was a product of “maternalist state building” and professionalization from many different angles–sociology, social work, medicine, psychiatry, legal professions, etc. In her study, the  juvenile court mixed both coercive and progressive features by forcing middle-class ideals about female behavior on working-class girls, but at the same time it provided them with much-needed maternity care, treatment for venereal disease, and other related domestic and health education. In this way, the court itself is more complex than just an institution of social control.

• By arguing that families themselves used these institutions for their own purposes, Odem complicates the power/control narrative that dominates scholarship on Progressive reform. She argues we need a reassessment of the view of the courts as just institutions of social control. (5) This is an important step to understanding working class families, not just as objects of the reform movement, but as active players in how reform may have effected their lived experiences.
• Even though she recycles many arguments from other authors on the subject of juvenile justice and delinquency, Knupfer does offer a nice analysis of the various narratives created by the various court stake holders and how these altered how delinquent girls were viewed and treated in Chicago. She argues that that each field crafted narratives to fit their professionalization goals and offers a lucid analysis of their path to creating those narratives.
• She carefully delineates the differences between the narratives used by sociology, social work and reform with those of the medical profession. However, how these different narratives combined or competed in the juvenile court itself is less clear. She gets at it by evaluating the female probation officers, and simply argues that these women adopted all the narratives–female medicine (head vs womb debates), sexuality, and morality. (See chapter 3) This may be true, but it seems too simplistic.
• Despite the title of the book, Knupfer is actually reading the institutions around the court to get at the court itself. One chapter (19 pages) discuss the court specifically and does so through the records of female reformers who created the court and Mary Bartelme, the first female probation officer. Sadly, she was denied access to the case files of the court and thus has to read the negative space around the court to understand it.  As such, the voices of the girls themselves–how they used and abused popular tropes to help them navigate–are all but missing. (She states this in her introduction as a key contribution to and differentiator from Odem). We’re left with a story about institutions told by the people who built and justified them, not by the people who experienced it.

James Trent, Inventing the Feeble Mind: A History of Mental Retardation in the United States, 1994

Trent provides an excellent synthesis and analysis of the history of mental retardation in the United States between the Revolution and 1970. He argues that depending on the time period, the construction of mental deficiency has evolved from a family problem to one requiring social and state care. In so doing, he describes three main themes: state schools became places where care became an integral part of control over the feeble minded; power and control were shaped by elites who constructed and reconstructed mental retardation around technical, psycho-medical terms; and the economic vulnerabilities of the families and patients have shaped the kinds of treatments available to them. Trent explores the evolution of the construction of mental deficiency through the lens of the various gazes surrounding it, including pity, fear, knowledge, control, science, social science, education, etc. and how these changed over time.

Lisa Duggan, Sapphic Slashers: Sex, Violence, and American Modernity, 2000.

Using the 1892 trials of Alice Mitchell in Memphis as a lens, Duggan studies the cultural narrative of gender, class, race, and sexuality between the 1880s and the 1930s. She argues that “lesbian love murder,” as the phenomenon was called, portrayed love between women as dangerous, insane and violent. This construction of abnormal female sexuality as it played out in the pages of the newspapers (and in the courtroom) ultimately worked to depoliticize, trivialize and marginalize the aspirations for women on political equality, economic autonomy and alternate domesticities on a larger national scale. She explores these topics in parallel with a discussion of the rise of lynchings in the same year in Tennessee and argues that both were a response to the threats on American masculinity and the sanctity of the “white home.”  Key to her analysis is the concept of a love triangle featuring a violent third party as the apex to the “normal” white, middle-class couple, which were constructed as the ideal using real and imagined threats posed by white lesbians and black men. *It’s important to note that Alice was never tried for the murder of Freda Ward. Instead, she endured several trials to determine whether she was r insane or fit to stand trial. A key part of  Duggan’s argument is that the assumption of  her insanity based on her sexual behavior and desires is of fundamental importance to how these narratives were constructed and used during her ordeal.

A. Cheree Carlson, Crimes of Womanhood: Defining Femininity in a Court of Law, 2009.

Carlson focuses on the rhetoric and narratives used in the course of six sensational trials of women. She argues that because the legal field was inherently exclusive of women, the stories told in a trial situation had to rely on popular narratives of womanhood for effective rhetorical power.  By understanding where and when these narratives of womanhood were used, one can learn a great deal about the gendered anxieties of that particular historical context. Through the course of these six sensational trials, Carlson covers such topics as womanly virtues and insanity, loss of innocence and homicide, frail femininity, abortion and reproduction, and fraud and passing. She sets each in their own context to argue that the use of feminine stereotypes could cut women both ways.

There is a great deal to discuss from these readings. Here are some thoughts at the top of my mind:

• Through each of these, experts and professionals–whether legal or medical–are framing these narratives and constructing meaning. Carlson seems to argue that they are just reflecting popular tropes from society,whereas Trent and Duggan seem to give their experts more power in how deviance is constructed and ultimately how it influences society. How much does this tension between reflecting society or influencing society matter?
• Carlson is fundamentally interested in how males construct narratives about women and how the males listening to those narratives in a trial situation respond to render a verdict. Duggan’s analysis as to who is constructing and who is listening/using those constructions are more inclusive of women. How much do questions of women’s participation in these constructions matter?
• On the surface, it would appear that Carlson and Duggan are more concerned with behavior as the women in their books are shown as walking a very narrow path of propriety. Whereas, Trent seems more interested in how deviant behavior springs from mental capacity. However, the feminization of insanity puts them all on a level playing field with regard to the importance of the underlying mental state. This thought is not fully baked yet, but I do think there is something to the stratification of behavior and mental state that is worth discussing.
• I am of two minds about the inclusion of lynching in Duggan’s book. On the one hand, her triangle metaphor to explain the complexities of the anxieties surrounding white masculinity is elegant and requires lynching and fear of the black beast to work. On the other, the two are so different, one has to wonder if she’s trying to shoehorn race into a study of sexuality and gender.
• The importance of sources becomes very clear in this week’s readings. Trent is relying solely on the documents produced by the experts, whereas Duggan relies solely on media accounts (due to the destruction of the original court documents.) Carlson’s work is less documented in footnotes, but her bibliography shows more varied source material. Specifically with Trent, how much does a reliance on the experts’ source material skew his study? I ask because I know a good chunk of my cases will be void of court documents due to a flood. How I fill in the gaps in information will become important as I look at cases over time. (Additionally,  we should discuss how to deal with Bellesiles and his collection of mostly excellent essays in the wake of his evidence scandal.)

Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women, (1991)

Hoff offers a comprehensive history of women in the United States and their struggle for the full rights and protection under the law. She traces this history by using the theme that women are second-class citizens under the law. She argues that women have obtained rights on a “too little, too late” basis or what she coins the “broken barometer” of US legal history. Fundamentally, legal gains by women took too long to achieve. By the time these gains were realized or codified into law, they were addressing issues that had long since become moot.

Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship, (1998)

Kerber’s main organizing principle is that citizenship is defined not just by rights but also by the obligations expected of the individual in exchange for those rights. (xxi) As such, she looks beyond the question of the rights of citizenship and instead focuses on the obligations of citizenship as they were applied (or not) to women and uses this lens to explore women’s relationship to the state. As such, women appear to have had an advantage as American law has excused women from important but onerous civic duties that men were compelled to perform. Ultimately, she concludes, whatever advantages this gender-based exemption from civic duties appeared to have bestowed upon women have come with a price.  Kerber uses five important expectations of citizenship to explore this trade off–taxes, avoiding vagrancy, serving on juries, forced military service (the draft), and refraining from treason or loyalty to the state. She argues that the allegation that coverture shielded women from certain public burdens was likely to camouflage other practices that made them more vulnerable to other forms of public and private power. Diminished rights were the more lasting accompaniment of reduced civic obligations. Kerber concludes that the obligations of citizenship are themselves rights–the right to be acknowledged as a necessary part of the state and the right to participate in the exercise of the power of the state.

Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920 (2001)

Welke’s central focus is on the legal transformation of individual liberty. In so doing, Welke explores suits against the railroads and street car companies involving physical injury, nervous shock, and segregated rail cars as crucial to the transformation of attitudes toward liberty and freedom. Fundamentally, she is exploring the extent to which gendered assumptions shaped legal doctrine. She argues that the rapid proliferation of railroads and streetcars led to a rising toll of passenger injuries and deaths. The increased presence of female riders and the increasing volume of injuries inflicted by railroad travel resulted in women bringing a greater proportion (as compared to injured males) of the personal injury suits against the railroads. The dominant assumptions about the helplessness and passivity of women led judges and juries to show female claimants greater preference in injury settlements. The American preference for uniform laws and precedence meant that these gendered rulings thus affected all claimants.

For discussion:

– The main theme across these readings concerns how the  role of women’s protected status has played out in the legal system. Hoff clearly falls into the cultural feminist camp and believes that women should actually strive for more protection based on a shared experience of womanhood. Kerber’s book complicates this view tremendously by showing that the protections achieved for women (mostly under coverture) have done more harm to women than good. Welke argues that, in fact, it was this protected status (though not under coverture per se) that allowed women to actually influence the precedents on which our personal injury laws are based. Welke is clearly responding to the argument that women have had no role in shaping law in the United States. This central question of the value of special protection will undoubtedly shape the questions I have to ask of my project. Kerber’s complicated picture of the results of this and Welke’s effective application of race and class to illustrate gendered influence should prove valuable.

– Kerber’s organizational structure–she reserves a chapter for the full story of each of her five obligations–allows her to cover an immense amount of chronology and historical ground. I see this approach as a possible model of how to effectively combine synthesis with original research. However, in her vast narratives do we lose the grander sense of change or continuity over time across these themes? Also, I don’t have a good sense of which cases are missing from her study. Are there other cases that touch on these same issues, but don’t fit her mold?

– All these readings, to some extent, illustrate how external ideas shape the events and verdicts inside the courtroom. Kerber and Welke clearly show that preconceived notions about women did shape verdicts and outcomes. Hoff notes that while feminists may desire to remove damaging binaries from the study of history, doing so also removes an important contextual lens through which we can understand the legal culture and environment of the past. Thus, if these binaries did help to shape the court proceedings in chambers and behind closed doors, how does one use them without abusing them?

– I’m not sure I fully understand Kerber’s application of the ‘wages of gender.’ Is she arguing that women have played a double price for protection? Or only that they have not fully benefited from the protection given to them because that protection comes with a price? I may be over-complicating her meaning here. Or I’m asking the same question with different words.

– Welke’s focus on passengers precludes her from analyzing the injuries sustained by railroad employees, who would’ve been almost entirely male. Should we then assume that injury cases involving workers created a separate tract of precedence in the case law? What can we make of this split between consumers and workers?

– Lastly, the influence of federal law vs state law is a bit blurry in these books.  How does one manage the split between state and federal law in studies such as these?

To begin my readings on gender, society, and law in America, we’re going to use the first week to ground the rest of the list using works of feminist theory.

Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (2nd ed),

Through her specific focus on Black feminist thought, Collins actually provides a nice framework through which we can view power relations in general and how they function in society. By shifting the paradigm of oppression, she fundamentally changes how we think about oppressive forces such as race, class, and gender. She rejects the additive approach and instead she argues that race, gender, and class form a system of interlocking oppression and together with sexuality, ethnicity, nation, and religion form an overarching structure of domination—what she calls the “matrix of domination.” (20-21) She moves the discussion away from descriptions of these individual types of oppression and focuses attention instead on how they interoperate to produce injustice.

She explores the intersections of oppression for Black women in the United States by exploring four powerful, controlling images of black women—the mammy figure, the matriarch, the welfare queen, and the Jezebel. Through these images, Black women are objectified as an Other, which provides an ideological justification for their oppression. In this way the Black Other, in whatever form, as she exists on the margins, actually clarifies the boundaries of society by defining the center. The Other stands in binary opposition to the “Norm.” Her discussion of the power dynamic inherent in heterosexuality as it intersects with race and gender is powerful and provides a nice illustration as to how the “matrix” capitalizes on binary thinking to function in society.

She delineates two interdependent dimensions of heterosexism—the symbolic and the structural. The symbolic refers to the sexual meanings used to represent and evaluate Black women’s sexuality (ie, the Jezebel or  hypersexual Black “freak” in opposition to the pure White woman). The structural dimension encompasses how social institutions are organized to reproduce the hegemonic “Norm” of heterosexism, particularly through law and social custom. Much as the Black Other stands in opposition to the White subject, heterosexuality as an ideology is embedded in binary thinking that casts all other sexualities as deviant. In this way, deviance is socially and legally constructed as existing outside whatever norm is useful. In discussing the specific objectification of sexuality, she adds Madonna/whore, real woman/dyke, real man/fag, stud/sissy to the typical binaries of white/black, man/woman, masculine/feminine. She argues these sexual binaries in turn receive justification via medial theories (normal/sick), religious beliefs (saved/sinner), and state regulation (legal/illegal) (140)

Nancy Levit and Robert R.M. Verchick, Feminist Legal Theory: A Primer.

Levit & Verchick address the ways in which anti-female norms and images are expressed in the law by focusing on how feminist theorists and activists have worked to change them. They outline the major camps of feminist legal theory—Equal Treatment, Cultural Feminism, Dominance Theory, Critical Race, Lesbian Feminism, Ecofeminism, Pragmatic Feminism, and Postmodern Feminism—and the tools with which these activists fight oppression inside legal doctrine. They argue that despite their differences, all feminist theorists view the world as shaped by white men who control larger shares of power and privilege. Because men originally wrote all the laws, those who did not fit their norm were silenced. Additionally all feminist legal theorists agree that men and women should have political, social, and economic equality; they disagree on the meaning of equality and how to achieve it. (15)

Feminists, they argue, regardless of their position, attempt to battle discrimination using three major tools: unmasking patriarchy, wherein they expose the often-subtle gender-based consequences of the laws; contextual reasoning, wherein they seek to understand the full context of the situation; and consciousness raising, wherein they alert others to these subtleties and form cohesive groups to oppose them. They provide an excellent chapter-by-chapter overview of the hot-button items within feminist legal theory such as workplace discrimination, schooling and organized sports, laws affecting the female body, marriage and family, sex and violence, and global issues such as sex trafficking and genital mutilation.

By reading Levit & Verchick with Collins, the intersecting forces of oppression and unintended consequences of the law become more obvious. For example, Levit & Verchick’s discussion of Title VII of the Civil Rights Act of 1964 exposes how actually bringing suit under Title VII requires a woman to identify her “primary” discrimination as sex-based or race-based. By forcing one over the other, intersecting modes of discrimination are ignored in anti-discrimination cases, resulting in fewer women of color bringing suits. Similarly, in domestic violence situations, a battered lesbian woman conceivably might not escape her attacker, as neither women’s shelters nor the law recognize that women might need to be protected from other women. Fundamentally, Levit & Verchick attempt to expose the power dynamics inherent in our legal system, the consequences for women, and how activists have attempted to “correct” the unintended effects on women.

Joan Scott argued in “Gender: A Useful Category of Historical Analysis,” that any system of power must work to sustain itself through binary symbols because its very power is not unified, coherent or centralized and thus must constantly remake itself through objectifying the subordinate. She understands power by way of Foucault who sees it “as dispersed constellations of unequal relationships, discursively constituted in social ‘fields of force.'” (1067) Scott’s analysis focuses on the culturally available symbols that evoke complex and often contradictory representations of women—Eve/Mary, Madonna/whore, innocents/deviants.

For Scott, and I’d argue that for Collins as well, the important questions scholars can ask about how symbols work within a matrix of domination are those that seek to understand which symbolic representations are invoked, how and when they’re used. These symbols are interpreted through a set of normative behaviors and appear in  legal, medical, and political doctrines (among others) that have serious ramifications for women who must enter the legal/courts system. As such, I’m looking forward to exploring how (if) scholars address these symbols in our upcoming readings.