One hundred years ago, in An Economic Interpretation of the Constitution of the United States, Charles Beard asked of the Framers:
Did they represent distinct groups whose economic interests they understood and felt in concrete, definite form through their own personal experience with identical property rights, or were they working merely under the guidance of abstract principles of political science? (1) Beard examined the Framers' investments in, among other things, public securities, western lands, shipping and manufactures, (2) but he did not consider in any detail the possible influence of their personal experience as members of the distinct group of males who had an economic interest, through the laws of coverture, in the labor and property of the women in their families. (3) Yet the Framers of both the original Constitution and the post-Civil War Amendments were quite conscious of their interests in preserving their male prerogatives in law. Repeatedly and explicitly asked, as John Adams was by his wife Abigail, to "[r]emember the ladies ... in the new Code of Laws which I suppose it will be necessary for you to make, ... and be more generous and favourable to them than your ancestors," (4) the Framers deliberately rejected the demand that they "not put such unlimited power into the hands of the Husbands." (5) Asked to "[r]emember, all Men would be tyrants if they could," (6) they did not simply forget about the ladies; they specifically and intentionally determined to exclude them and to confirm men's tyrannical power. (7) But, far from acknowledging this as a naked power grab, they could claim to justify women's exclusion "under the guidance of abstract principles of political science." In particular, they could rely on a notion, common in the eighteenth century, that it would upset the balance of power to give women, who already were in a position to exert powerful indirect influence on and through their men from within the household, a more direct voice in public affairs. As Abigail Adams described this view, "It would be bad policy to grant us greater power say they since under all the disadvantages we Labour we have the as[c]endancy over their Hearts [a]nd ... by submitting sway." (8) Thus, the disenfranchisement of women could be characterized as a principled decision about the allocation of power and the locus at which power is exercised in the same way as might, for example, the construction of the Senate, federalism, or the separation of powers, each of which also could be seen to serve sectarian interests.
My article will consider the offered justifications in their historical context and some possible responses to them. Like Beard's history itself, "[t]he following pages are frankly fragmentary. They are designed to suggest new lines of ... research rather than to treat the subject in an exhaustive fashion." (9) But my motive for wanting to take up this project at this time has less to do with Beard and the past than with my concerns about the constitutional future of sex discrimination (10) at a time when voices as seemingly disparate as Justice Antonin Scalia (11) and Roberta Kaplan, attorney for DOMA plaintiff Edith Windsor, (12) disparage the need for heightened scrutiny for sex discrimination without taking any account of women's specifically intended historical exclusion and its lingering after-effects. The article will therefore conclude with an examination of the limits of originalism, not only for women and their rights, but for constitutional adjudication more generally.
THE TYRANNY OF MEN VS. THE DESPOTISM OF THE PETTICOAT
When Beard does discuss women, he lumps them together with slaves, indentured servants, and propertyless men among "the disfranchised" who were "not represented in the Convention that drafted the Constitution except under the theory that representation has no relation to voting." (13) Yet the evidence he presents as to the sources of the Framers' wealth suggests that a considerable number of them had married heiresses or stemmed from families whose wealth was traceable chiefly from the maternal line. (14) This alone would give these Framers a direct personal incentive to "insist upon retaining an absolute power over Wives" (15) and their property, despite Abigail Adams's desires to the contrary. (16) Abigail observed of John's unwillingness to "[establish ... some Laws in [women's] favour upon just and Liberal principals" what Beard documented with respect to the Framers more generally: "I have ... been making trial of the Disintresstedness of his Virtue, and when weighd in the balance have found it wanting." (17)
Like Beard, John Adams, in his response to Abigail, lumps women with the rest of the disenfranchised:
As to your extraordinary Code of Laws, I cannot but laugh. We have been told that our Struggle has loosened the bonds of Government every where. That Children and Apprentices were disobedient--that schools and Colleges were grown turbulent--that Indians slighted their Guardians and Negroes grew insolent to their Masters. But your Letter was the first Intimation that another Tribe more numerous and powerfull than all the rest, were grown discontented.--This is rather too coarse a Compliment, but you are so saucy, I wont blot it out. Depend upon it, We know better than to repeal our Masculine systems. Altho they are in full Force, you know they are little more than Theory. We dare not exert our Power in its full Latitude. We are obliged to go fair, and softly, and in Practice you know We are the subjects. We have only the Name of Masters, and rather than give up this, which would compleatly subject Us to the Despotism of the Peticoat, I hoge General Washington, and all our brave Heroes would fight. (18) For John Adams to equate discontented women with insolent Negroes might suggest to a modern audience that the decision not "to repeal our masculine systems" is no more than a naked power grab by what Abigail Adams called a "sex naturally tyrannical." (19) But, in the late eighteenth century, his expressed concern about a possible "Despotism of the Peticoat" would have resonated instead with concerns about the separation of and balance of powers between men and women and between their respective spheres. (20) As Mary Beth Norton describes it, the term "Petticoat Government," used as the title of a 1702 pamphlet by John Dunton, editor of the Athenian Mercury, on the accession of Queen Anne to the British throne, originates in a time of transition from mid-seventeenth century Anglo-America, when "high social status rather than gender identified the appropriate wielders of power in both household and state," (21) to the pre-revolutionary eighteenth century, which increasingly defined all women out of public life into a private sphere. "Dunton began by praising women in general, denying any sexual difference in minds or souls," (22) but went on to endorse rigidly separate spheres, with a man's province being the "out of doors" or public sphere and that of a woman who was not a hereditary monarch being "the Discreet and Housewifely Ruling of a House" where "her very Husband lives under Petticoat-Government." (23)
It was the French rather than the American revolutionaries who were most alive to the risk of the "despotism of the petticoat." The sentiment that politically powerful women did more harm than good was well-nigh universal in a country with a vivid memory of inept female regents (from the two Medieis to Anne of Austria), interfering royal mistresses (from Maintenon and Pompadour to DuBarry, who was guillotined for her crimes), ambitious court intriguantes (from the frondieres to the Comtesse de Polignac) and a network of intellectuals, artists and officials entirely dependent on the whims of fashionable women. (24) Women's extravagance could be blamed for the bankruptcy of France, their scheming for ruinous foreign policy, their patronage for the appointment of the inept and corrupt, their control over cultural life for the effeminacy of the French nation. (25) The embodiment of all these evils was Marie Antoinette. There was a widespread view that upper-class women, whose exercise of secret power was associated with some of the worst excesses of the Old Regime, had to be purged from the system if it was to have a hope of avoiding corruption. As for the mobs of lower class women, they could be excluded from political rights on much the same theory as were the "children, the insane, and the infamous" with whom they were so often lumped (26)--the theory that a rational political system demands rational, informed, responsible participants. (27) As a result, French women, who had been voters from the time of Philip the Fair in the 14th century and who had participated in voting for the Estates General of 1789 on terms nearly equal to those of men, (28) were denied all voting rights in the Revolution and did not regain them until 1946.
While anti-feminist French legislators took from their history the desirability of women's permanent exclusion from political life and power, French feminists like Marie Olympe de Gouges instead argued that women's corrupt misrule would end only when they are better educated, are given job opportunities that do not involve the sale of their sexual favors, and have direct rather than devious access to power. De Gouges saw the best hope for improvement in the passage of laws providing for women to be educated and "to join in all the activities of men. If man insists on finding this means impracticable, let him share his fortune with woman, not according to his whim, but according to the wisdom of the law." (29)
Just as Olympe de Gouges's demand for a legally mandated sharing of power and property between the sexes resonates with that of Abigail Adams, the French revolutionary notion that women already had so much power in the home and in society that they couldn't be afforded any power in the state, that it...