No Constitutional Right to Be Ladies

From: Linda Purrington (
Date: Wed Jun 09 1999 - 15:50:01 EDT

Forwarded with permission, by Linda Purrington, Title IX Advocates,

Category: Constitutional History/Women's Rights

Reviewed by Gloria C. Cox, Department of Political Science,
University of North Texas.

ISSN 1062-7421
Vol. 9 No. 6 (June 1999) pp. 224-227.

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Reviewed by Gloria C. Cox, Department of Political Science,
University of North Texas. Email: University of North Texas. Email:

 When the leaders of the American colonies proclaimed and
fought for independence in the late eighteenth century, they were
rejecting the patriarchal system represented by monarchy and
asserting the right to make their own political decisions,
including acceptance of the privileges and obligations of
citizenship. The new social contract represented by the American
embrace of liberalism was, however, limited. It excluded
enslaved persons, of course, because they were deemed unsuitable
for citizenship and therefore without claim to either its
privileges or obligations. It is that other large group that was
excluded, women, about whose obligations and privileges historian

 Professor Kerber has written an extraordinarily informative
and enjoyable book that explores the concept of citizenship in a
liberal democracy, as it applies to women. The framework of
obligations and privileges that she employs provides an excellent
context for discussing the different political experiences of men
and women in this nation. At the outset, she notes the irony of
American men refusing to live under the patriarchal British
system while defending the patriarchy that allowed men to
dominate women. In her words, men "refused to revise inherited
understandings of the relationship between men and women,
husbands and wives, mothers and children" (p. 9).

 That relationship was embodied in the system of coverture, the
old but popular idea that a woman's legal existence ended, or was
at least suspended, when she married. Under that system, a woman
had no obligations to the state. In fact, it was impossible for
her to have obligations or privileges when her legal existence
was in doubt. She certainly had obligations, but they were to her
husband and family rather than the state. As the nineteenth
century dawned in this country, men (at least free, white men of
a certain age and means), were part of the body politic, with the
privileges and obligations of citizenship, while women were part
of a system in which their privileges and obligations resulted
from the legal institution of marriage. Kerber concludes that the
effects of patriarchy have carried to the current moment; as she
notes, "From the era of the American Revolution until deep into
the present, the substitution of married women's obligations to
their husbands and families for their obligations to the state
has been a central element in the way Americans have thought
about the relation of all women . . . to state power" (p. 11).

 Yet, Kerber notes, women, excluding those enslaved, were
deemed citizens under the Constitution, although laws and court
rulings made their citizenship much more vulnerable than that of
men. It does seem somewhat odd that there was no argument about
the citizenship of women, given our national myth that women had
no relationship with the state. Women, relieved of any

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 political obligations, were thus free to be ladies, so long as
they were not poor, widowed, divorced, a newly-arrived immigrant,
or enslaved. In fact, Kerber believes, women did have obligations
to the state, although they were often imposed without the
privileges that accompanied them for male citizens.

 Kerber rejects the idea that women had no civic obligations
and suggests instead that obligations always existed in some
form, and that they varied in application. We thus have the
opportunity to understand the purpose of Kerber's subtitle, WOMEN
that she explores are the following: "the obligations to pay
taxes and to avoid vagrancy,...the obligation to serve on juries
and the obligation to risk one's life in military service,...."
and "the obligation to refrain from treason" (p. xxii).

 THE OBLIGATION NOT TO BE A VAGRANT: Kerber focuses on black
women and their difficulties in meeting this requirement,
particularly in the years immediately following the Civil War.
When black women were found walking the streets of cities (and
they often were, since they had no money and no place to go),
city officials forced them into heavy labor on public works
projects, or jailed them. In that era, there was the very strong
expectation that newly-freed persons should be engaged in some
sort of observable, physical labor. That expectation was imposed
on black women and children as well as men, so it made the rules
for black families quite different from those for whites, wherein
the goal, achievable or not, was for the wife to be a lady who
did not engage in heavy work. In Kerber's words, that meant
that, "As the obligation to work was reconstructed for those who
had been enslaved, it was constructed distinctively for black
women in ways that differentiated their obligations from those
borne by white women" (p. 69). Implicit in the obligation not to
be a vagrant was the societal understanding that black women must
perform observable work or be construed as vagrants (or
prostitutes), while white women experienced no similar

 THE OBLIGATION TO PAY TAXES: Many of us assert that the focus
of the first women's movement was winning the vote, but Kerber
makes a very good case that the obligation of women to pay taxes
when they had no representation caused at least as much protest
as the lack of voting rights per se. Women were often assessed
taxes on property they held, which led them to argue that they
were being taxed without representation. Decades earlier,
colonial Americans had argued against taxation without
representation, only to be assured by the British that they were
enjoying the benefits of virtual representation. Assurances of
virtual representation failed to assuage the anger of nineteenth
century women just as it had the colonials. It adds greatly to
the interest of this chapter that the author includes statements
from various politicians and publications. One of the best is
from HARPER'S WEEKLY, which asked, "Does taxation without
representation cease to be tyranny , and become justice, when the
taxed property owner is a woman?" (p. 108).

importance of juries in the American tradition, including the
fact that a woman could be tried before a jury but could not sit
as a member of one. The lack of a right to serve on juries was
due, according to Gladstone, to some "defect of sex" although the
nature of the defect was unexplained (p. 130). The fact that
jury service was not required of women was often framed as one of
the privileges of being a woman, since men were expected to
serve. The author does a good job of summarizing the means by
which women won the right to serve on juries, noting

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that it was
an easy process in some places and a much more difficult one in
others. The element of humor is present in the discussion as
Kerber mentions the most frequently offered reasons for keeping
women out of jury service: women would neglect their homes and
families, be upset by disgusting details of crimes, and be too
worried about their children to concentrate on the case;
moreover, lawyers like to talk "man-to-man" to the jury and are
uncomfortable having women present; besides all that, if women
were on juries, restrooms for women would have to be added to

 As late as 1961, the Supreme Court refused to rule that the
lack of women on juries constituted a denial of equal protection.
In the Court's opinion, "woman is still regarded as the center of
home and family life" (p. 181). Kerber does an excellent job of
chronicling the difficulties and frustrations of the attorneys
who worked on changing the law in this area. Her writing style is
engaging, partly because she develops the factual story around
the actions of particular leaders in the fight, most notably
attorney Pauli Murray, who saw the constraints of race and sex as
very similar obstacles. This long but well-written section of
the book brings the reader up-to-date with contemporary rulings
on sex discrimination and the equal protection clause.

this issue is one of the most provocative in the book, since it
deals with a largely unresolved question. She tackles the issue
of military service first from the perspective of veterans
preference policies and their effects on women job candidates,
then raises the more fundamental question of whether military
service should be required at all and, if so, of whom. She
mentions the hostility of Vietnam veterans who came home without
fanfare and looked for work, only to find women asserting their
own right to equal employment opportunities. Vietnam era veterans
felt "aggrieved, of having been obligated to risk their lives and
not receiving their proper entitlements" (p. 234), which fueled
their support for Ronald Reagan in the 1980s and lessened the
focus on women's issues.

 Citizenship and military service are closely related concepts
and the rule has long been that men are called to fight and women
are not. Kerber makes the point that women have been more
involved with military life than is commonly supposed. It
certainly came as a surprise to me that Martha Washington spent
the terrible winter at Valley Forge with the general, and that
many thousands of wives and children were camp followers until
the modern army discouraged the practice. When women have wanted
to join the military, they have found the rules different for
them, whether the issue was the enlistment age, qualifications,
or duty assignments. Nonetheless, some 350,000 American women
served in World War II (p. 264).

 The draft remains a difficult issue. Kathleen Teague, in her
role as spokesperson for the Eagle Forum and its opposition to
the registration of women, asked why women should be willing to
give up their "constitutional right to be treated like American
ladies" (pp. 286-7). When the Supreme Court upheld males-only
registration, Thurgood Marshall wrote the dissent, proclaiming
that "upholding differential registration 'categorically excludes
women from a fundamental civil obligation'" (p. 299). The
question of whether this obligation applies to women as it does
to men remains unanswered.

 Although Kerber's book deals with more than two centuries of
our history, the framework of obligations and privileges that she
employs works well. She weaves in a great deal of legal history,
making it interesting and engaging by including many stories of
actual people affected by the issues

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she is discussing. In the process of reading this well-
researched and well-written book, I learned a great deal and
found new ways of thinking about familiar issues. It is a
wonderful addition to the library of anyone interested in
constitutional law, women's issues, or the general legal history
of the United States.
Copyright 1999 by the author.
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