The Constitution: a Limited Resource for Women
| Jurisdiction | United States,Federal |
| Citation | Vol. 09 No. 1987 Pg. 1573 |
| Pages | 1573 |
| Publication year | 1987 |
1987, September, Pg. 1573. The Constitution: A Limited Resource for Women
Twelve years before the Constitutional Convention, Abigail Adams wrote these famous lines to her husband:
In the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion and will not hold ourselves bound by any law in which we have no voice or representation.(fn1) (Emphasis added.)
John Adams' response reportedly was this: "I cannot but laugh." Obviously, the words of Abigail Adams were ignored. As U.S. Supreme Court Justice Thurgood Marshall recently noted, the framers of the Constitution left out a majority of Americans by excluding women and blacks from the phrase, "We the People." Marshall added that the original document was "defective" and required "two turbulent centuries" to correct.(fn2)
This article explores the historical impact of the United States and Colorado Constitutions on women, including women attorneys. It notes that progress toward full equality of women under the Constitution has been very recent, relying on judicial interpretations of the Fourteenth Amendment and the "penumbra" of the Bill of Rights. The article concludes that protection and development of the constitutional rights of women require continued flexible, expansive constitutional interpretation, particularly in the absence of an Equal Rights Amendment.
Despite the brilliance of the original four-page parchment document known as the Constitution and the unprecedented attention paid to democratic government, the fifty-five white men who drafted it simply omitted any legal rights for their wives, sisters, daughters and mothers. These glaring omissions are especially troublesome today as conservative Department of Justice attorneys now claim that the U.S. Supreme Court should adhere to the "original intent" of the founding fathers. Chief Judge Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit has responded to the "originalists" as follows:
As judges, should we be frozen through eternity into a mold of constitutional analysis that prevailed in 1789, an age that gave no thought whatsoever to women as equal participants in community and national life?(fn3)
The "originalist" view is one which does not recognize the independent status of women. From the beginning, this prevented the recognition and growth of rights for women until very recent times.
For example, at common law, a married woman's identity merged with her husband's and they became one. Since the "one" was he, she could not sign contracts or retain title to her property, even if inherited in her name, nor could she have custody of children upon separation or divorce without obtaining her husband's consent.(fn4)
Also, women were presumed to be delicate and in need of protection and supervision. The "rule of thumb" sanctioned in many states permitted husbands to beat their wives freely so long as the stick that they used was no thicker than a man's thumb.(fn5)
Women seeking admission to the Bar fared no better in this "original" atmosphere. The U.S. Constitution provided no assistance. In Bradwell v. The State,(fn6) an Illinois woman was refused a license to practice law by the Illinois Supreme Court which reasoned that Myra Bradwell, a married woman, could not be bound by contracts with her clients. The U.S. Supreme Court held that neither the privileges and immunities clause nor the Fourteenth Amendment required Illinois to admit her. Justice Bradley's concurring opinion explains:
The paramount destiny and mission of women are to fulfill the noble
In this commonwealth, women of sufficient age, married or single, may make contracts, form partnerships, inherit, acquire, and dispose of property, in all respects substantially the same as men. The policy of our legislative and judicial action has tended constantly towards conferring upon them the same property rights and business status as are enjoyed by men.(fn9)
Some forty-five years later, speaking on the common law disability of women, the Colorado Supreme Court stated in Rains v. Rains:
Whatever may be the law elsewhere, if the common law fiction of unity ever existed in this state, it does not exist here now.(fn10)
The passage of the Fourteenth Amendment in 1868(fn11) was a turning point in women's rights history for the nation. Although it was intended to prevent discrimination against emancipated blacks, it developed into the first constitutional tool arguably available for women. Nevertheless, paternalistic interpretations abounded.
In Lochner v. New York,(fn12) the Supreme Court ruled unconstitutional a law preventing bakery employees from working more than ten hours per day and sixty hours per week. The Court found that this was an infringement on an individual's right to contract, which was part of the liberty protected by the Fourteenth Amendment. However, only three years later, in Muller v. Oregon, the same Court upheld a statute limiting the workday to ten hours for women in factories and launderies. Justice Brewer explained the incongruity in this way:
That women's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious.
Still again, history discloses the fact that woman has always been dependent upon man.
To continue reading
Request your trial