Women’s History
From Woman Lawyer: The Trials of Clara Foltz -- Online Notes For The Book
Legal Status of Women in Nineteenth Century
As WOMAN LAWYER went to press, Christine Stansell published THE FEMINIST PROMISE 1792 TO THE PRESENT (2010) which has a sweeping, engaging and authoritative overview of the historical condition of women, especially in the United States, and of the individuals and movements that sought to change it. Women’s quest for full citizenship—to be voters, serve on juries, enter the professions—has been of increasing interest to scholars in recent years. Feminists have challenged the use of legal discourses to maintain gendered social hierarchies and discrimination in all areas of life. See, e.g., SANDRA VAN BURKLEO, BELONGING TO THE WORLD: WOMEN'S RIGHTS AND AMERICAN CONSTITUTIONAL CULTURE (2001) (a comprehensive treatment of women’s changing legal status and legal feminist movements from the colonial period to the modern day); DEBORAH RHODE, JUSTICE AND GENDER: SEX DISCRIMINATION AND THE LAW (1989) (discussing the historical background to modern sex discrimination); JOAN HOFF, LAW, GENDER AND INJUSTICE: A LEGAL HISTORY OF U.S. WOMEN (1991) (covering over two hundred years of women’s legal history through the lens of radical feminism). Historian Linda Kerber examines the meaning of citizenship in light of women’s exclusion from obligations of citizenship, such as jury duty and military service. LINDA KERBER, NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP (1998). In their respective writings, political scientists Judith Shklar and Gretchen Ritter focus on questions of citizenship, arguing that feminists’ struggle for legal rights has always been part of a broader quest for civic inclusion. JUDITH SHKLAR, IN AMERICAN CITIZENSHIP: THE QUEST FOR INCLUSION (1991); GRETCHEN RITTER, THE CONSTITUTION AS SOCIAL DESIGN: GENDER AND CIVIC MEMBERSHIP IN THE AMERICAN CONSTITUTIONAL ORDER (2006). Legal relations and gendered discourses of citizenship across U.S. history are discussed in Rogers Smith, One United People: Second-Class Female Citizenship and the American Quest for Community, 1 YALE J.L. & HUMAN. 229 (1989); Nancy Cott, Marriage and Women’s Citizenship in the United States, 1830-1934, 103 AM. HIST. REV. 1440 (1998); Linda Kerber, The Paradox of Women’s Citizenship in the Early Republic: The Case of Martin v. Massachusetts, 97 AM. HIST. REV. 349 (1992); Linda Kerber, The Meanings of Citizenship, 84 J. AM. HIST. 833 (1997). For scholarly writings focusing on women’s contested claims to citizenship in the charged political climate of the post-Civil War era, see LAURA EDWARDS, GENDERED STRIFE AND CONFUSION: THE POLITICAL CULTURE OF RECONSTRUCTION (1997) and Norma Basch, Reconstructing Female Citizenship, in THE CONSTITUTION, LAW, AND AMERICAN LIFE (Donald Nieman ed., 1994). The study of women and the law in the nineteenth century has focused extensively on the evolving rights of married women. Norma Basch discusses the tensions between republican ideology and the notion of marital unity embodied in the doctrine of coverture, and the influence of feminist movements in the gradual erosion of coverture through married women’s property laws in the mid-nineteenth century. NORMA BASCH, IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN NINETEENTH-CENTURY NEW YORK (1982). Basch has also studied the changing law of divorce and its impact on women. NORMA BASCH, FRAMING AMERICAN DIVORCE: FROM THE REVOLUTIONARY GENERATION TO THE VICTORIANS (2001); Norma Basch, Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America, 5 FEMINIST STUD. 346 (1979); Norma Basch, Relief in the Premises: Divorce as a Woman's Remedy in New York and Indiana, 1815-1870, 8 LAW & HIST. REV. 1 (1990); Norma Basch, The Emerging Legal History of Women in the United States: Property, Divorce, and the Constitution, 12 SIGNS 97 (1986). For summaries of nineteenth-century women’s legal status within marriage and the family, see MICHAEL GROSSBERG, GOVERNING THE HEARTH: LAW AND FAMILY IN NINETEENTH CENTURY AMERICA (1985); ELIZABETH BOWLES WARBASSE, THE CHANGING LEGAL RIGHTS OF MARRIED WOMEN, 1800-1861 (1987); PEGGY RABKIN, FATHERS TO DAUGHTERS: THE LEGAL FOUNDATIONS OF FEMALE EMANCIPATION (1980); Reva Siegel, Home As Work: The First Woman’s Rights Claims Concerning Wives’ Household Labor, 1850-1880, 103 YALE L.J. 1073 (1994); Reva Siegel, The Modernization of Marital Status Law: Adjudicating Wives' Rights to Earnings, 1860-1930, 82 GEO. L.J. 2127 (1995); Carole Shammas, Reassessing the Married Women’s Property Acts, 6 J. WOMEN’S HIST. 9 (1994). Ariela Dubler explores the historical impact of the normative framework of marriage on single women. Ariela Dubler, In the Shadow of Marriage: Single Women and the Legal Construction of the Family and the State, 112 YALE L.J. 1641 (2003).
“Feminism” and Women’s Rights: Nomenclature
Early in the twentieth century, Charlotte Perkins Gilman wrote that “Feminism is a term applied to what was previously known as ‘The Woman’s Movement,’ and still earlier as ‘Women’s Rights.’” CHARLOTTE PERKINS GILMAN, A NON-FICTION READER 183 (Larry Ceplair ed., 1991). For more on Gilman, see On-Line Bibliographic Note: Bellamy Nationalism. Present day scholars have disputed whether the word “feminist” can be used to describe women’s rights movements before the twentieth century. See generally Karen Offen, Defining Feminism: A Comparative Historical Approach, 14 SIGNS: J. OF WOMEN IN CULTURE AND SOC’Y 119 (1988). Nancy Cott has called on historians to coin “additional new terms in women’s political and intellectual history” to refer to early women’s rights movements prior to the twentieth century and preserve the distinctiveness and historical complexity of the word “feminism.” Nancy F. Cott, Comment on Karen Offen’s “Defining Feminism: A Comparative Historical Approach,” 15 SIGNS 203 (1989); see also Ellen Carol DuBois, 15 SIGNS 203 (1989) (also commenting on Offen). On the popularization of the word “feminism” in the US, see NANCY F. COTT, THE GROUNDING OF MODERN FEMINISM 11-50 (1987).
In the context of women’s legal history, Mary Jane Mossman raises the question of whether early women lawyers can accurately be described as feminists. MARY JANE MOSSMAN, THE FIRST WOMEN LAWYERS: A COMPARATIVE STUDY OF GENDER, LAW AND THE LEGAL PROFESSIONS 287-89 (2006). Clara Foltz was very much a practicing feminist — putting woman’s concerns at the center of her work and thought— but I have not found examples of her using the word. So I have largely avoided “feminism” in describing her thought as she was expressing it in the nineteenth century. Using the terms “women’s rights” before 1900, “feminism” afterwards is the practice noted by Christine Stansell in THE FEMINIST PROMISE, 1792 TO THE PRESENT (2010), at p. xiv.
While she may not have used the word “feminist” Foltz did refer repeatedly to woman’s “sphere” and its limitations in her speeches and writing. See NANCY COTT, THE BONDS OF WOMANHOOD: “WOMAN'S SPHERE” IN NEW ENGLAND, 1780-1835, at 197-206 (2d ed. 1977) (describing how separate spheres ideology could be used by women to serve their own purposes); DUBOIS, FEMINISM AND SUFFRAGE: THE EMERGENCE OF AN INDEPENDENT WOMAN’S MOVEMENT IN AMERICA, 1848-1869, at 1-40 (1978) (describing separate spheres ideology as a historical phenomenon that shaped women's rights activism and the cultural conditions from which it grew); Linda K. Kerber, Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History, in TOWARD AN INTELLECTUAL HISTORY OF WOMEN 159, 171 (1997) (explaining that separate spheres constituted at once a culture imposed on and created by women and defending its intellectual usefulness). Rosalind Rosenberg tells how early women academics opposed the idea that women’s difference from men should limit their opportunities. ROSALIND ROSENBERG, BEYOND SEPARATE SPHERES: INTELLECTUAL ROOTS OF MODERN FEMINISM (1982).
Another kind of nomenclature issue has to do with the use of possessives and plurals (e.g. woman’s movement, women’s movement, woman movement, women’s rights movement, etc.). The same type of issue arises with the Woman Lawyer’s Bill and the word used to precede “suffrage.” Foltz seems most often to have used the singular and the possessive for both, so I will largely follow her example.
