Reflections on Law & Rights for Women

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?

Grounding the Readings in Theory

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.

An Exploration of Gender, Society, and Law in America

This fall, I’ll be working with Dr. Sharon Leon to finish my minor field on gender, law, and society in America. In the spirit of open scholarly communication, I thought it prudent to share my initial thoughts on this minor field, what I will be reading, and what I hope to accomplish.

I will be examining the public and private legal experiences of men, women, and children in the United States in the nineteenth and early twentieth centuries. Building on the argument that the family was the center of private life in the nineteenth century, I am approaching this study from the position that the family was also frequently a site of public, and often violent, legal contention. ((See Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America, (University of North Carolina Press, 1985), ix. Grossberg argued that the center of domestic relations in the nineteenth century consisted of a “complex and vital relationship between two primary spheres of experience: the family and the law.”)) I am interested specifically in how men and women interacted with the American legal system in these centuries, not only in regards to domestic law, but also in how social expectations rooted in gender norms and the family defined criminal behavior in general. ((Barbara Melosh argued that the gendered discourse not only regulated the social behavior of men and women in sexuality, family, and work, but also became a way to maintain hierarchies of all kinds. “Gender describes a fundamental understanding of difference that organizes and produces other relationships of difference—of power and inequality.” Thus, I am applying these hierarchies to a spectrum of criminal behavior. Barbara Melosh, Gender and American History Since 1890 (Routledge, 1993), 5.))

In order to understand this complex history, I am making the methodological choice to use intersectionality as the basis of my study, which will allow me to focus on social and legal institutions in America using a gender/race/class lens. Concepts of criminality, deviance, and propriety have been constructed differently for men and women of different races, classes, and ethnicities. Thus, the boundaries of acceptable behavior have changed depending on ideals of proper manhood or womanhood and illuminate deeper anxieties in American society during this time. Crime, especially violent crime committed by women within the family or the domestic sphere, has inspired a range of complex cultural, social, and institutional responses that had a direct impact on power and gender relations in American history.

The responses to violent women, specifically, can tell us much about how all women were perceived with regard to actual and potential criminal behavior. As such, I plan to explore women as both agents and victims of the shifting philosophies of punishment and rehabilitation, including the changing ideologies of prison reformers and the state, and of the professionalization of psychiatry and social work. I also plan to examine approaches to common law and domestic violence as they were rooted in patriarchal control of the family, paying special attention to the prescribed roles of women and children. I’m hoping that by grounding my study in gender theory and the history of the family, I’ve organized my readings to provide a rich foundation upon which I may pursue my dissertation research.

Gender Theory & History

  • Levit & Verchick, Feminist Legal Theory: A Primer (NYU Press, 2006)
  • Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, (Routledge, 2006)
  • Gerda Lerner, “Placing Women in History: Definitions and Challenges,” Feminist Studies, Vol. 3, No. 1/2 (Autumn, 1975), pp. 5-14
  • Gerda Lerner, “Reconceptualizing Differences Among Women,” Journal of Women’s History, Volume 1, Number 3, Winter 1990
  • Joan W. Scott, “Gender: A Useful Category of Historical Analysis,” The American Historical Review, Vol. 91, No. 5 (Dec., 1986), pp. 1053-1075
  • Joan W. Scott, Gender and the Politics of History, (Columbia, 1999)
  • Carroll Smith-Rosenberg, Disorderly Conduct: Visions of Gender in Victorian America, (Oxford, 1985)
  • Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment, (Routledge, 2000)
  • Evelyn Brooks Higginbotham, “African-American Women’s History and the Metalanguage of Race,” Signs, Vol. 17, No. 2 (Winter, 1992), 251-274
  • Barbara Melosh, Gender and American History since 1890 (Routledge, 1993)

Family & Sexuality

  • Sharon Ullman, Sex Seen: The Emergence of Modern Sexuality in America
  • Howard Chudacoff, The Age of the Bachelor: Creating an American Subculture
  • George Chauncy, Gay New York: Gender, Urban Culture and the Making of the Gay Male World, 1890-1940, (Basic, 1994)
  • Madelon Powers, Faces Along the Bar: Lore and Order in the Workingman’s Saloon, 1870-1920
  • Jessica L. Weiss, To Have and to Hold: Marriage, the Baby Boom and Social Change
  • Beth Bailey, Sex in the Heartland

Crime & Punishment in America

  • Lawrence M. Friedman, Crime and Punishment in American History, (Basic Books, 1993)
  • Edward Ayers, Vengeance & Justice: Crime and Punishment in the 19th-Century American South, (Oxford University Press, 1984)
  • Michel Foucault, Discipline & Punish, (Vintage, 1995)
  • Michel Foucault, Madness & Civilization: A History of Insanity in an Age of Reason, (Vintage, 1988)

Women & Their Rights

  • Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women, (NYU Press, 1994)
  • Nina Auerbach, The Woman and the Demon: The Life of a Victorian Myth, (Harvard, 1984)
  • Linda Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship, (Hill & Wang, 1998)
  • Nancy Cott, “Marriage and Women’s Citizenship in the United States, 1830-1934,” American Historical Review 103 (1998): 1440-1474
  • Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920 (Cambridge, 2001)

Crime Literature & Coverage

  • Karen Halttunen, Murder Most Foul: The Killer in the American Gothic Imagination, (Harvard, 1998)
  • Suzanne Lebsock, A Murder in Virginia: Southern Justice on Trial (WW Norton, 2004)
  • Michael Ayers Trotti, The Body in the Reservoir: Murder & Sensationalism in the Old South

Institutions I: Police, Courts, & Prisons

  • L. Mara Dodge, Whores and Thieves of the Worst Kind: A Study of Women, Crime and Prisons, 1835-2000, (Northern Illinois, 2006)
  • Cornelia Hughes Dayton, Women Before the Bar: Gender, Law, and Society in Connecticut, 1639-1789, (University of North Carolina Press, 1995)
  • Eric H. Monkkonen, Police in Urban America, 1860-1920, (Cambridge, 1981)
  • Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago, (Cambridge, 2003)
  • Nicole Hahn Rafter, Partial Justice: Women, Prisons, and Social Control. 2d ed. (New Brunswick, N.J.: Transaction Publishers, 1990)
  • Estelle Freedman, Their Sisters’ Keepers: Women’s Prison Reform in America, 1830-1930, (U Michigan Press, 1984)

Institutions II: Insanity & Asylums

  • Benjamin Reiss, Theaters of Madness: Insane Asylums & Nineteenth Century American Culture, (Chicago, 2008)
  • James W. Trent, Inventing the Feeble Mind: A History of Mental Retardation in the United States (UC Press, 1995)
  • Ian Dowbiggin, Keeping America Sane: Psychiatry and Eugenics in the United States and Canada, 1880-1940 (Cornell UP, 1997)
  • Nicole Hahn Rafter, Creating Born Criminals (U of Illinois Press, 1998)
  • Steven Noll, Feeble-mindedness in Our Midst: Institutions for the Mentally Retarded in the South, 1900-1940 (UNC Press, 1995)
  • Janet A. Tighe, “Francis Wharton and the Nineteenth-Century Insanity Defense: The Origins of a Reform Tradition,” The American Journal of Legal History, Vol. 27, No. 3 (Jul., 1983), pp. 223-253
  • Carole Haber, The Trials of Laura Fair: Sex, Murder, and Insanity in the Victorian West, (UNC Press, 2013)

Identifying a Criminal & Expert Testimony

  • Simon Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification, (Harvard, 2001)
  • James Mohr, Doctors and the Law: Medical Jurisprudence in Nineteenth-Century America, (Johns Hopkins, 1993)
  • Charles E. Rosenberg, Trial of the Assassin Guiteau: Psychiatry and the Law in the Gilded Age (1968)

Domestic Law & Violence

  • Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth Century America, (U North Carolina Press, 1985)
  • Hendrik Hartog, “Lawyering, Husbands’ Rights, and ‘The Unwritten Law,’ in Nineteenth-Century America,” Journal of American History (1997)
  • Linda Gordon, Heroes of Their Own Lives: The Politics and History of Family Violence, (Univ of Illinois Press, 1988)
  • Elaine Forman Crane, Witches, Wifebeaters, & Whores: Common Law and Common Folk in Early America, (Cornell University Press, 2011)
  • John Ruston Pagan, Anne Orthwood’s Bastard: Sex and Law in Early Virginia, (Oxford University Press, 2002)

Criminal Behavior & Construction of Deviance

  • Leslie Reagan, When Abortion was a Crime: Women, Medicine, and the Law, 1867-1973, (Berkeley, 1997)
  • Elaine Abelson, When Ladies Go A-Thieving: Middle Class Shoplifters in the Victorian Department Store, (Oxford, 1989)
  • Cheree Carlson, The Crimes of Womanhood: Defining Femininity in a Court of Law, (University of Illinois Press, 2008)
  • Kali N. Gross, Colored Amazons: Crime, Violence, and Black Women in the City of Brotherly Love, 1880-1910 (2006)
  • Philip Schwartz, Twice Condemned: Slaves and the Criminal Laws of Virginia, 1705-1865, (LSU Press, 1988)
  • Timothy J. Gilfoyle, A Pickpocket’s Tale: The Underworld of Nineteenth-Century New York, (WW Norton, 2006)

Homicide

  • Randolph Roth, American Homicide, (Harvard, 2009)
  • Lisa Duggan, Sapphic Slashers: Sex, Violence, and American Modernity, (Duke, 2001)
  • Jeffrey Adler, “’I Loved Joe, But I Had to Shoot Him’: Homicide by Women in Turn-of-the-Century Chicago,” Journal of Criminal Law and Criminology, 2003
  • Michelle Oberman, “Understanding Infanticide in Context: Mothers Who Kill 1870-1930 and Today,” Journal of Criminal Law and Criminology, 2003
  • Wilma King, “’Mad’ Enough to Kill: Enslaved Women, Murder, and Southern Courts,” The Journal of African American History, Vol. 92, No. 1, Women, Slavery, and Historical Research (Winter, 2007), pp. 37-56
  • Robert M. Ireland, “The Libertine Must Die: Sexual Dishonor and the Unwritten Law in the Nineteenth-Century United States,” Journal of Social History, Vol. 23, No. 1 (Autumn, 1989), pp. 27-44

Juvenile Delinquency

  • Patricia Cline Cohen, “Unregulated Youth: Masculinity and Murder in the 1830s City,” Radical History Review 52 (1992): 33-52
  • Mary Odem, Delinquent Daughters: Protecting and Policing Adolescent Female Sexuality in the United States, 1885-1920, (Univ North Carolina Press, 1995)
  • Joseph Hawes, Children in Urban Society: Juvenile Delinquency in Nineteenth-Century America, (Oxford, 1971)
  • Anne Knupfer, Reform and Resistance: Gender, Delinquency, and America’s First Juvenile Court (Routledge, 2001)

Capital Punishment

  • Stuart Banner, The Death Penalty: An American History, (Harvard, 2003)
  • Victor Streib, The Fairer Death: Executing Women in Ohio, (Ohio U Press, 2006)
  • Victor Streib, Death Penalty for Juveniles, (Indiana U Press, 1987)
  • Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776-1865, (Oxford University Press, 1991)
  • John D. Bessler, Death in the Dark: Midnight Executions in America, (Northeastern, 1998)
  • Annulla Linders, “The Execution Spectacle and State Legitimacy: The Changing Nature of the American Execution Audience, 1833-1937,” Law & Society Review, Vol. 36, No. 3 (2002), pp. 607-656