No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship

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Macmillan, 1999 - History - 405 pages
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This pioneering study redefines women's history in the United States by focusing on civic obligations rather than rights. Looking closely at thirty telling cases from the pages of American legal history, Kerber's analysis reaches from the Revolution, when married women did not have the same obligation as their husbands to be "patriots," up to the present, when men and women, regardless of their marital status, still have different obligations to serve in the Armed Forces.

An original and compelling consideration of American law and culture, No Constitutional Right to Be Ladies emphasizes the dangers of excluding women from other civic responsibilities as well, such as loyalty oaths and jury duty. Exploring the lives of the plaintiffs, the strategies of the lawyers, and the decisions of the courts, Kerber offers readers a convincing argument for equal treatment under the law.

 

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Kerber is the May Brodbeck Professor of History at the University of Iowa. In this book, she discusses how the history of the struggle for women's rights has been just as much a history of the ... Read full review

No constitutional right to be ladies: women and the obligations of citizenship

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This is a groundbreaking legal and intellectual history of Americans' changing understanding of the obligations of women as citizens from Revolutionary times to the present. In five lengthy chapters ... Read full review

Contents

NO POLITICAL RELATION TO THE STATE
3
Her dower shall be set off to her
16
Was she criminal because she did not rebel against
29
What Counts As Work?
50
I am just as free and just as good as you are
60
We have to work for little or nothing
67
WHEREVER YOU FIND TAXEY
81
A permanent malcontent
92
Gender is an unconstitutional proxy for competence
199
A CONSTITUTIONAL RIGHT
221
You are not a veteran but you could be disabled
228
May all our Citizens be Soldiers and all our Soldiers Citizens
236
If two things are inextricably tied together and you can think
252
Women of the army
261
It does not suffice to treat women kindly because we love them
267
A constitutional right to be treated like American ladies
278

The inexpressible meanness of the thing
100
Wherever you find Taxey there Votey will be also
107
WOMAN IS THE CENTER OF HOME AND FAMILY LIFE
124
Something very like a second suffrage campaign
136
We still had ten ladies names left in the box
151
The only bulwark between chaos and an organized
165
A live lawyer was far more a danger than a dead sharecropper
183
AllMale Sign Up Blocked
288
Abandoning Antigone
299
NOTES
311
A NOTE ON SOURCES
383
INDEX
389
Copyright

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No Constitutional Right to Be Ladies
1 "NO POLITICAL RELATION TO THE STATE" CONFLICTING OBLIGATIONS IN THE REVOLUTIONARY ERA

"She must take her fate with him for better for worse" In February 1801, James Martin submitted a complaint to the Supreme Judicial Court of Massachusetts, the state''s highest court of appeals. He demanded that the state return land and houses confiscated from his mother twenty years before, toward the close of the American Revolution. The case forced leading lawyers and judges to put into words their understanding--normally implicit--of the obligations that married women citizens owe to the state.1 James Martin won his case. The outcome was doubly ironic. One irony was that the decision forced the state to reclaim property it had already sold to loyal citizens and restore it to heirs of Tory supporters of the Revolution''s enemies. The other irony is that through the recognition of the claim of Anna Gordon Martin''s son, her family saved her property at the price of simultaneously denying that she was an autonomous citizen with her own civic responsibilities. Deep into the twentieth century, long after new legislation had confirmed married women''s power to manage real estate and personal property,the citizenship of an American woman who, like Anna Martin, had married a foreign man continued to be problematic. Aspects of married women''s citizenship continued to be filtered through their husbands'' civic identity. James Martin''s family had rejected the American Revolution. From the depositions filed with the Loyalist Claims Commission after the Revolution, from a handful of letters gathered by an antiquarian at the beginning of the twentieth century, and from scattered court papers in scattered archives, it is possible to piece together some of the family''s history. James''s father, William Martin, was born in England. In 1742, as a young man, William joined the Royal Regiment of Artillery, the one regiment in which careers were open to talented men without wealth. Artillery officers tended to have a high sense of themselves because of their technical expertise, but their often humble origins gave the regiment low social status. Sometime during the French and Indian War, William Martin was sent to the American colonies, where he made an upwardly mobile marriage to Anna Gordon, the daughter of James Gordon, a wealthy Boston merchant and landholder who was an active member of the Anglican Church. But the demands of the service pulled Martin away, and in 1752 we find him in Halifax, Nova Scotia, having left his wife and at least one child with her parents in Boston.2 William Martin was torn between the Gordons'' desire to keep their family close and his own ambitions for rank and economic success. His correspondence with James Gordon suggests the real difficulties of the ambitious young man in need of patronage in the eighteenth-century British Empire. The only way to maintain his army career was to serve where he was sent. Anna Gordon Martin was evidently of another opinion, and William tried to persuade her through a message to her father: "[Were I to quit the service,] I must thro'' away a growing certainty and loose a good prospect, with the advantages I may in time derive from a few chosen friends; so that I would recommend it to Mrs. Martin to think of those things and consider she is married to a man whose bread and interest may very soon lead him out of America (and in case she should have occasion) win herselfe from these childish attachments which ought to be laid asside after marriage."3 A year later there was a new baby, Jamie (who would ultimatelybring suit against the state of Massachusetts). Anna apparently left the children with her parents and joined William in Halifax. Her father tried to make the best of it: "As to advising Anne about staying or returning, tho thers none of my children nearer or dearer to me, I darst not determine as she was of age before she married & knows her engagment. As she has now a husband, she must take her fate with him for better for worse, & must be determind by him where his business leads. You must share each others fate. Its Gods holy ordinance."4 James Gordon and his wife continued to raise Jamie and his sister Betty, sweating through the smallpox epidemic and their inoculation in 1763, worrying about the impossibility of keeping children focused on their studies during the Stamp Act riots, when they kept wanting to join the excitement in the streets--"As for James, wee cannot keep him from amongst the hurly burrly without I would chain him"--conscious always of the expense and work, especially by their grandmother, who was "allwaise minding [sic] & and repairing & making their cloaths, linnens, hose, &c to make them last."5 By 1765, William Martin was the captain of his battalion. Sometime between then and the outbreak of the Revolution, perhaps when James Gordon died in 1770, William and Anna Martin returned to Boston. When the British evacuated the city in 1776, the Martins fled. "William Martin, Esq." was significant enough to be mentioned by name when the Massachusetts legislature passed a statute permanently banishing "persons ... [who] have left this State ... and joined the Enemies thereof ... thereby ... depriving the States of their personal services, at a time when they ought to have afforded their utmost aid in defending the said States, against the invasions of a cruel enemy."6 They went first to Halifax and then to New York City, where William Martin remained throughout the war on the staff of Brigadier General James Pattison. When Pattison went home on sick leave in 1780, Martin took his place as commander of artillery. In that role, William Martin conducted the formal inquiry into the causes of the great fire that destroyed much of New York City in 1776. By the time the war was over, having benefited from a flurry of wartime promotions, Martin had achieved the rank of brigadier general. When the British evacuated New York in 1783, the Martin family left for England.7 What wealth William Martin had seems to have come largely fromhis marriage, and his relationship to that wealth was precarious. The letters from James Gordon in the 1750s and 1760s are sprinkled with reminders of the extent to which he was supporting the Martin family. Indeed, when Gordon died in 1770, his son William Gordon, who was also the administrator of James Gordon''s estate, actually brought suit against William Martin, claiming that he owed Gordon all the money that had been laid out for the family''s support over eighteen years since 1752. The expenses were itemized in excruciating detail, beginning with the costs of a nurse and midwife in March, 1752, £1.18.8, and ranging from substantial sums of cash advanced for William Martin over the years to "Pair of shoes for his son, £0.1.6, Oct. 1754";"Galoshes, Hatts, Gloves, Ribbens &c for his Daughter, £0.14.11, 1763"; and the funeral of his child Christiana, Sept. 1769, £1.14.5. There were schoolbooks for young James: Ovid, Caesar, Virgil, Terence, Greek grammar, Greek lexicon; expenses for smallpox inoculation; "a parrot Cage and Tub of Butter sent to Halifax"; and monthly provisions for the children, usually amounting to £4 or so.8 After James Gordon''s death in 1770, Anna Gordon Martin inherited one-third of his estate, which amounted to at least 844 acres of land, improved and unimproved, in New Hampshire and central Massachusetts, at least one farm in Braintree on the outskirts of Boston, and a house on Boston Harbor, with a wharf and stables for ten or twelve horses. The house was a spacious one, and the Martins were able to rent it to a British general during the war for £30 a year, a substantial sum.9 When William and Anna Martin had fled with the British, all this property was left behind. In 1778 the Boston house was destroyed by the British in order to build a fort on the site. When the patriots were again in control of Boston, the Massachusetts property was seized according to the Massachusetts Confiscation Act of April 30, 1779. It was sold at auction in 1781 to five different purchasers. It was this property for which their son James sued in 1801.10 James seems to have accompanied his parents briefly to New York City.11 By that time, however, Jamie was no longer a child. He appears to have studied law in England, and returned to Boston in 1773, where he was admitted to practice in the Court of Common Pleas of Suffolk County. By the beginning of 1774 he was practicing law in the British West Indies, and he remained there in safety for the restof the war. By 1791 he was back in Boston, assuming he could resume his legal practice there. James Martin''s position was ambiguous. On the one hand, he had not taken an aggressive, public position against the Revolution. The Boston bar supported Martin''s wish to rejoin the community; indeed, said the bar, "he has uniformly been from conviction of the justice of his country''s cause attach''d to its interests."12 But Martin''s situation was different from that of other colleagues whose practices had been interrupted by the war, for his relationships to émigrés and his own emigration placed him under suspicion. When the Supreme Judicial Court of Massachusetts insisted that he "become naturalized agreeably to law," including taking an oath to support the Constitution of the United States, Martin refused. The court defined James Martin as a person born under the British flag, an alien in the new nation. He understood himself to be a person born on the soil of Massachusetts who had never explicitly been disloyal. The difference was important. If he submitted to the naturalization process, he could

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