Women in Constitutional History

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At first glance, women seem missing from much of the historical landscape of the Constitution, and in the few instances where they do appear, they suffer negative consequences for their legal status. Before the civil war sex did not even figure as a contested constitutional classification, and for a century after the war virtually every effort to eradicate its discriminatory aspects met with defeat at the hands of the Supreme Court. Indeed, until the 1970s, when the Court began to apply closer scrutiny to sex as a discriminatory category, the Constitution seems to have treated women as women with either casual indifference or zealous paternalism. Yet, on closer inspection, the role of gender in the life of the Constitution has been longer, larger, and more subtle than this first impression suggests. The constitutional status of gender, moreover, has been shaped by shifting conceptions of legal equality, the evolving relationship between the states and the federal government, and the changing circumstances in women's day-to-day lives.

federalism goes a long way toward illuminating the constitutional role of gender in the first stage of its development. Given the sharp delineation between the appropriate rights and duties of men and women in both the life and the law of the early Republic, the original text of the Constitution, which employs terms such as "persons," is remarkably gender-neutral. The Framers could afford to be gender-neutral in their language precisely because state laws were gender-specific. The Framers were hardly indifferent, then, to gender as a legal classification; rather, federalism obviated the need to frame it in national constitutional terms.

State statutes and constitutions spelled out the exclusion of women from the political process, while common law assumptions and precedents informed their legal disabilities. The principles of coverture, which placed a married woman under the tutelage of her husband, influenced legal attitudes toward women in general. Of course, single women, unlike their married counterparts, could enter into contracts, sue, and be sued. However, the tendency of the law to define all women as wives and mothers rather than as citizens, property owners, or wage earners, or as dependent and relative rather than as independent and autonomous, was pervasive in constitutional approaches to gender. But reform efforts to define the role of women more broadly were also pervasive. They began officially in the 1840s when women's rights advocates organized to demand both legal and political equality at the state level, and these efforts have animated new conceptions of constitutional equality from the antebellum era to the present day.

After the Civil War, gender entered into formal constitutional discourse largely as a corollary of race. Although the second section of the fourteenth amendment incorporated the word "male" into the Constitution, the due process and equal protection clauses of the first section held the potential to apply to gender as well as to race. The consequences for women were ambiguous. On the one hand, sex discrimination acquired a new legitimacy as a result of constitutional tests of the reconstruction amendments; on the other hand, it became a legal issue that was suffused with constitutional import.

Nonetheless, postbellum efforts to enhance the constitutional status of women via judicial decision failed miserably. In bradwell v. illinois (1873), the Supreme Court denied Myra Bradwell's claim that her right to practice law was among the privileges and immunities of citizenship protected under the Fourteenth Amendment. In minor v. happersett (1875), the Court denied that Missouri's restriction of suffrage to males violated the privileges and immunities of Virginia Minor's citizenship. And despite admitting Belva Lockwood to practice before its bar, the Court in In re Lockwood (1894) held that states could apply the word "person" in the Fourteenth Amendment to men only.

However, legal equality between women and men was not a consistent goal of the women's movement, and by the turn of the century, female reformers were clearly selective in their support of it. They backed special protective labor legislation for women workers not only in the hope that such legislation would be extended to all workers but also in the belief that long hours and hazardous working conditions were particularly injurious to women as potential mothers. If in hindsight their arguments seem oblivious to the constitutional risks of protecting women exclusively and to the disadvantages created for women in the labor market, in their own day they evoked a powerful appeal.

That appeal was perhaps best encapsulated in the voluminous brandeis brief, written for muller v. oregon (1908), a case in which the Court upheld maximum-hour laws for women and thereby exempted them from a laissez-faire commitment to the principle of freedom of contract. The rationale in the brief remained popular among progressive reformers long after Muller. Indeed, by the 1920s the vast majority of women who had worked for women's political equality by supporting the nineteenth amendment were against the proposed equal rights amendment largely because they feared its effects on special health and labor legislation for women. The Supreme Court, however, was now prepared to view women as the complete equals of men, at least with regard to their capacity to contract for wages. In adkins v. children ' shospital (1923), the Court undermined statutory attempts to put a floor under women's wages by invalidating a district of columbia minimum wage law. Underscoring the equality women enjoyed as a result of the Nineteenth Amendment, the Adkins opinion applied the principle of freedom of contract to women workers without overtly overturning Muller, and Adkins itself was not overruled until west coast hotel co. v. parrish (1938).

Efforts to apply the equal protection clause to sex as a discriminatory classification met with further defeats in the post-world war ii era. In goesaert v. cleary (1948), for example, adjudicated at a time when men were returning to jobs that had been filled temporarily by women, the Court upheld a Michigan statute prohibiting a woman from selling or serving liquor unless she was the wife or daughter of the tavernkeeper. Equal protection, the decision averred, did not require perfect symmetry, and in Hoyt v. Florida (1961) the Court relied on similar reasoning to reject an effort to block sex discrimination in the jury selection process.

Yet as women entered the work force in unprecedented numbers after World War II and as the divorce rate soared, it became even harder to sustain the old legal prototype of protection and dependence. As a result of a burgeoning civil rights movement and a revitalized women's movement, the analogies between sex and race as discriminatory categories came to the forefront of constitutional discourse in the 1960s, and they were applied in turn to a host of new federal civil rights statutes. Significant breakthroughs in the constitutional status of women came in the 1970s not only with the heightened judicial scrutiny of sex discrimination but also with the growing legitimation of reproductive autonomy. No less important symbolically was the 1981 appointment of sandra day o'connor, the first woman to serve as a Justice of the Supreme Court.

The change in constitutional attitudes toward gender was heralded by Reed v. Reed (1971), a decision that invalidated a statutory preference for males in appointing the administrators of intestate estates on the ground of the law's inherent irrationality. Inasmuch as the state's purposes were "as well served by a gender-neutral classification as one that gender-classifies and therefore carries with it the baggage of sexual stereotypes," the Court determined that the state "cannot be permitted to classify on the basis of sex." frontiero v. richardson (1973), the closest the Court came to regarding sex as a suspect classification, struck down a rule that disadvantaged the dependents of servicewomen, relative to the dependents of servicemen, in calculating dependency benefits. A series of subsequent cases equalized Social Security payments, welfare benefits, and workers' compensation. Stanton v. Stanton (1975) ruled that girls were entitled to child support up to the same age as boys; Orr v. Orr (1979) held that a state law could not exempt women of means from paying alimony on the same basis as men; and craig v. boren (1976) invalidated a law that differentiated between the sexes in setting the statutory age for buying 3.2 percent beer.

Clearly the decision that most dramatically altered both the lives and the status of women in this blizzard of judicial reinterpretation was roe v. wade (1973), which followed the rationale the Court had used in griswold v. connecticut (1965) to prohibit a state ban on birth control. The Roe decision, which struck down a Texas statute defining abortion as a criminal offense, did so not on the equality-based theory that it was a violation of women's rights but rather on the ground that it violated an implied constitutional right of privacy. Nonetheless, except for the last trimester of pregnancy, the Roe opinion significantly subordinated the power of the state to that of a woman and her doctor.

However, ambivalence toward scrutinizing sex discrimination strictly was evident in many quarters. Even as the Court moved toward upholding equal rights for women through its reinterpretations of the equal protection clause, it never subjected its scrutiny of sex to the same rigorous standards that it applied to race, and there were some indications in the 1980s of a retreat from the stance it had taken in the 1970s. Because the issues were by no means simple, to cite rules on pregnancy leave as one example, there were radical feminists as well as conservative women who continued to support preferential or differential treatment for women. Furthermore, the right of reproductive autonomy, a hotly contested issue that right-to-life adherents elevated into a political litmus test for candidates at all levels of government, became especially vulnerable to inroads by the end of the 1980s. Finally, the political campaign for women's constitutional rights stalled on a distinct note of defeat. The failure of the equal rights amendment to be ratified by three-quarters of the states after it had passed Congress meant that the Constitution still stood without a discrete provision on which to ground the eradication of the remaining sex inequalities in state law, much less to prevent new ones from emerging.

Norma Basch

(see also: Anthony, Susan Brownell; Feminist Theory; Gender Rights; Labor and the Constitution; Labor Movement; Racial Discrimination; Stanton, Elizabeth Cady; Woman Suffrage; Women Suffrage Movement.)


Baer, Judith 1986 The Chains of Protection: The Judicial Response to Women's Labor Legislation. Westport, Conn.: Greenwood Press.

Berry, Mary Frances 1986 Why Era Failed: Politics, Women's Rights, and the Amending Process of the Constitution. Bloomington: Indiana University Press.

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Women in Constitutional History

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Women in Constitutional History