NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP. By Linda K. Kerber. New York: Hill and Wang. 1998. Pp. xxiv, 405. $25.
I remember the impotence I felt on the eve of the Gulf War in January 1991. No one could have known at that moment what a brief conflict it would be. We had every reason to believe that the Middle East would be hurled into turmoil. And if protracted war ensued, a draft would surely follow. I watched my college boyfriend sink into despair, with the help of a Bob Mould CD, at the prospect of being called to give his life for his country. I remained uncharacteristically mute. In the face of this battle, our positions were too unequal for my words or touch to console. I had listened to my male friends deliberate the legitimacy of the war-to-be and the potential for service deferment for some days. Though they were liberal-minded, it was clear that my views brought little to bear upon the situation. We were all people with big plans, but the plans of the women were shielded from the looming threat of life-threatening, wartime service. The potential of a male friend being killed, I was reminded, was nothing in the face of that man conceiving his own death.
Experiencing such a dynamic compelled me to accept gradually the different situations of men and women in American society and under American law. Men and women used to be similarly situated to me and I was befuddled by, and unsympathetic to, many women's seeming incapacity to assert themselves and achieve their goals in a purportedly male-defined world. But as I've worked in a professional climate of bravado, developed intimate relationships with men, and provided legal services to hurting women, I have come to recognize that the genders probably are distinct, and that the best we can hope for is harmonization. No Constitutional Right to be Ladies by Linda Kerber(1) has further clarified my resolution of the age-old conundrum of whether women can be equal with, while distinct from, men. Kerber draws women as strong but different, ultimately resolving that the unique characteristics of gender should not be manipulated to undermine social equality. Women, she points out, have sought to contribute equally as citizens regardless of gender differences. Kerber sees the remaining barriers to parity, like women's exception from conscription, as enduring from generation to generation. But by focusing on women's assumption of constitutional obligations, Kerber renders an engaging historical framework for considering women as full partners in citizenship.
The book is a rich weaving of stories -- legal tales and personal accounts -- that Kerber says was born the morning she saw her husband off to service in Vietnam, a duty not required of her (p. xix). Kerber's mission is to collect narratives that demonstrate the obligations and, where appropriate, the corresponding rights women have sought to vindicate in the history of our country. She identifies the obligations that women were "saved" from, and shows how these omissions subsequently denied women their concomitant rights. Adhering strictly to the necessary coexistence of right and obligation, Kerber makes a laundry list of historical exclusions that deprived women of equal citizenship. Some of the obligations she implicates include taxation, jury duty, and military service. The. companion rights include voting, fair trial, and opportunity in employment. Several of these areas are not facially gender-sensitive and so their special legal implications for women were not always acknowledged. Kerber charts the triumphs of women over time, representing eras from post-Revolutionary War to post-Equal Rights Amendment. She pays particular attention to the difference in standing between single women versus married women, and white women versus women of color.
Beyond the eloquence of her creative nonfiction, Kerber's historical analysis of women's position as participating citizens, complete with extensive supporting notes, enriches her accounts. She provides generous context for the time and place of a given woman's struggle. Moreover, Kerber tells her tales from multiple viewpoints, often describing the individual woman oppressed in a given situation along with the attorneys who took her cause to the courts. In this way, Kerber identifies a novel hall of heroes to the feminist cause, including such luminaries as Jane Kenyon and Ruth Bader Ginsburg.
It seems important to Kerber that she be a historian and not a feminist.(2) Her accounts are true to the details of legal clashes and their social contexts, though sometimes developing the story while discarding the technicalities. But Kerber is also engaged in a classically feminist experiential project,(3) giving voice to women who fulfilled civic obligations throughout history. She identifies the seeds of gender stereotype planted throughout our nation's history and suggests how these misconceptions persist today. Most vitally, Kerber's work creates a duty-bound obligation to confront important questions about gender and legal status. To what extent do women want to be viewed as different under the law? And to what extent can they afford to be viewed as different under the law? In claiming equality, women forfeit some of the comforts historically afforded their gender. Some women may have relished the claimed exemption from jury service simply based upon their sex. But feminists fought for cross-sectional representation on juries, and so women, like men, are now obliged to serve. Similarly, many women may find some relief in knowing they cannot be drafted. But is the price of losing voice when national security is threatened too high?
Most of all, Kerber's stories demonstrate how alone the champions of equal rights for women have been in their personal fights. The fact that women continue to have personal anxiety about identifying themselves as feminists evidences an ongoing difficulty with women's capacity to coalesce as a group, if indeed they should. Women have yet to escape from under burdens of gender stereotypes, and they have yet to fulfill all obligations of citizenship equally. As the book's anecdotes admonish, a first step in achieving this end is for male leaders to abandon their vulnerable image of women. As one judge put it, "It does not suffice under the Constitution to treat women kindly because we love them."(4)
PROTECTING WOMEN FROM DUTY
Women's citizenship has been distinguished from men's citizenship throughout our constitutional history. Women's citizenship is defined by their relation to men, while men are stand-alone citizens. In some states, only single women were given the franchise because they continued to possess wills of their own (p. 33). Once women married, their husbands became responsible for their actions, even crimes they committed and contracts into which they entered (often illegally) (p. 14). Kerber tells the story of a young wife who obediently followed her British husband out of America during the Revolutionary War era. Years later she was cleared of treason, for "[a] wife who left the country in the company of her husband did not withdraw herself; but was, if I may so express it, withdrawn by him."(5) Since that time, the federal courts have ruled for dissolution of citizenship when women marry aliens and move away because it is a volitional act.(6) While this change seems to confer respect on women's independent decisionmaking, it ignores the social reality of marriage, which defines the wife by the husband's acts.
The historical denial of equal obligations for women was protective in its best light, paternalistic in its worst. For instance, Kerber observes, "Women were understood to be favored by the culture, and exemption from jury service was understood to be one manifestation of that privilege."(7) As nurturers of the nation, or "republican mothers" as the early patriots called them, women were to be protected from the filth that came before the court.(8) This posture actually defeated some interests in fair judicial proceedings, as when women committed crimes and sought a jury of their peers. The classic case is that of Gwendolyn Hoyt, discussed in Chapter Four of the book (p. 124). Hoyt was found guilty of second degree murder for killing her husband with a baseball bat. She challenged her conviction on appeal, contending that her constitutional rights were denied by the lack of (potentially sympathetic) female representation on the jury.(9) The Supreme Court upheld her conviction, concluding that Florida could permissibly exempt women from jury duty in the interest of the general welfare...