Jury service and women's citizenship before and after the nineteenth amendment

Law and History Review

Volumn 20, Issue 3, 2002, Pages 479-515

  Ritter, Gretchen ^a  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33746258849     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/1556317     Document Type: Article

References (124)

1. The constitutional order of the United States refers to the role of the Constitution, constitutional discourse, and constitutional law in structuring the polity both institutionally and socially. The Constitution begins with the words, "We, the People." It is a phrase that both assumes and creates a national political community. It is for this new community, in its desire to form "a more perfect union," that a national government is erected. In its details, the Constitution is an institutional design for a federal government. But it is also more than that. It is the creation of a national political community and a statement about the relationship between the government and the people. That relationship is most obvious and apparent in the Preface, the Bill of Rights, the Reconstruction Amendments, and the other suffrage amendments. But it is present throughout the Constitution. Citizenship, then, to the extent that it speaks to the reciprocal relationship between the people and the government, is at the heart of this constitutional order. It follows that changes in the structure and character of American citizenship would be central to the development of the constitutional order. Robert Cover, "Nomos and Narrative," in Narrative, Violence and the Law: The Essays of Robert Cover, ed. Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: University of Michigan Press, 1992), 95-172
2. William Forbath, Law and the Shaping of the American Labor Movement (Cambridge: Harvard University Press, 1991)
3. Gretchen Ritter, "Gender and Citizenship after the Nineteenth Amendment," Polity 32 (2000): 301-31
4. Kristi Andersen, After Suffrage: Women in Partisan and Electoral Politics before the New Deal (Chicago: University of Chicago Press, 1996)
5. Walter Dean Burnham, "Theory and Voting Research," Current Crisis in American Politics (New York: Oxford University Press, 1982), 58-89
6. Sara Hunter Graham, Woman Suffrage and the New Democracy (New Haven: Yale University Press, 1996)
7. Anna Harvey, Votes without Leverage: Women in American Electoral Politics, 1920-1970 (New York: Cambridge University Press, 1998)
8. and Judith Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991)
9. Nancy Cott, "Marriage and Women's Citizenship in the United States, 1830-1934," American Historical Review 3 (1998): 1440-73
10. William Chafe, The American Woman: Her Changing Social, Economic and Political Roles, 1920-1970 (New York: Oxford University Press, 1972)
11. J. Stanley Lemons, The Woman Citizen: Social Feminism in the 1920s (Urbana: University of Illinois Press, 1973)
12. William L. O'Neill, Everyone Was Brave (Chicago: Quadrangle Books, 1971)
13. For exceptions, see Jennifer Brown, "The Nineteenth Amendment and Women's Equality," Yale Law Review 102 (1993): 2175
14. Ritter, "Gender and Citizenship"
15. and Reva Siegel, "Collective Memory and the Nineteenth Amendment: Reasoning about the 'Woman Question' in the Discourse of Sex Discrimination," in History, Memory, and the Law, ed. Austin Sarat and Thomas R. Kearns (Ann Arbor: University of Michigan Press, 1999)
16. Siegel, "Collective Memory."
17. The great exception is the decision of Adkins v. Children's Hospital, 261 U.S. 525 (1923)
18. Under that ruling, women were loosely incorporated into the Lochner regime (which refers to Lochner v. New York, 198 U.S. 45 [1905]) of freedom of contract-that is, they were given the same negative liberty granted to men
19. For more on this decision, see Joan Zimmerman, "The Jurisprudence of Equality: The Women's Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children's Hospital, 1905-1923," Journal of American History 78 (1991): 188-226
20. Wendy Brown, States of Injury (Princeton: Princeton University Press, 1995)
21. Powers v. Ohio, 499 US 407 (1991)
22. Sir William Blackstone, Commentaries on the Laws of England (New York: Garland, 1978), 3: 352
23. Blackstone, Commentaries, 3: 362
24. Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joselyn Gage, eds., History of Woman Suffrage, vol. 2 (New York: Arno, 1969)
25. Linda Kerber, "'Ourselves and Our Daughters Forever': Women and the Constitution, 1787-1876," in One Woman, One Vote, ed. Marjorie Spruill Wheeler (Troutdale, Ore.: NewSage Press, 1995), 21-36
26. Ellen Carol DuBois, "Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage and the Constitution," Journal of American History 74 (1987): 836-62
27. and "Taking the Law into Our Own Hands: Bradwell, Minor, and Suffrage Militance in the 1870s," in One Woman, One Vote, 81-98
28. Stanton, Anthony, and Gage, History of Woman Suffrage, 2: chap. 25
29. Amy Dru Stanley, "Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation," Journal of American History 75 (1988): 471-500. S
30. See Stanton, Anthony, and Gage, History of Woman Suffrage, 2: 507
31. Bradwell v. Illinois, 83 U.S. 130 (1872)
32. Minor v. Happersett, 88 U.S. 162 (1874)
33. and Strauder v. West Virginia, 100 U.S. 303 (1879)
34. Strauder, 308
35. Strauder, 306
36. See Justice Field's dissent in the Slaughter-House Cases, 48
37. Rosencrantz v. Territory, 5 PAC 305 (1884)
38. Harland v. Territory, 13 PAC 453 (1887)
39. Katharine T. Bartlett, Gender and Law: Theory, Doctrine, Commentary (Boston: Little, Brown, 1993), 58-60
40. Harland, 456
41. Indeed, it may be the case that the duties of citizenship matter more for raising one's political status then the rights of citizenship in the United States. For instance, consider the treatment of veterans as a privileged political status, or the distinction often made in political campaigns and legislative debates between taxpaying and nontaxpaying citizens as indicators of the importance of duties to political status. Such a distinction might help us to understand the current "gays-in-the-military" debate as a claim to duties that would raise a citizen's political status, and the movement toward welfare reform as an effort to lower the political status of nontaxpaying citizens. For a further discussion of the relationship between the duties and rights of citizenship, see Linda Kerber, "No Constitutional Right to Be Ladies": Women and the Obligations of Citizenship (New York: Hill and Wang, 1998)
42. Joan Hoff, Law, Gender and Injustice (New York: New York University Press, 1991), chap. 5
43. Stanley, "Conjugal Bonds"
44. DuBois, "Outgrowing the Compact"
45. Kerber, "Ourselves and Our Daughters'"
46. Catherine Holland, The Body Politic (New York: Routledge, 2001)
47. The Fifteenth Amendment was especially pertinent in this regard. See Vikram David Amar, "Jury Service as Political Participation Akin to Voting," Cornell Law Review 80 (1995): 203
48. Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge. (Chicago: University of Chicago Press, 1994)
49. Constable, The Law of the Other, 2
50. Michel Foucault, The History of Sexuality, vol. 1 (New York: Vintage Books, 1990)
51. Blackstone, Commentaries, 4: 394-95
52. Carol Weisbrod, "Images of the Woman Juror," Harvard Women's Law Journal 9 (1986): 60, n. 3
53. Grace Elizabeth Woodall Taylor, "Jury Service for Women," University of Florida Law Review 12 (1959): 225
54. Weisbrod "Images of the Woman Juror," 60, n. 2
55. Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, History of Woman Suffrage, vol. 1 (New York: Fowler and Wells, 1881), 594
56. Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, History of Woman Suffrage, vol. 3 (Rochester, N.Y.: Susan B. Anthony, 1887), 735
57. see also Cristina M. Rodriguez, "Clearing the Smoke-Filled Room: Women Jurors and the Disruption of an Old Boys' Network in Nineteenth-Century America" Yale Law Journal 108 (1999): 1805-44
58. Stanton, Anthony, and Gage, History of Woman Suffrage, 1: 597
59. Stanton, Anthony, and Gage, History of Woman Suffrage, 3: 738
60. Rodriguez, "Clearing the Smoke-Filled Room."
61. Amar, "Jury Service as Political Participation."
62. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: Times-Mirror, 1961), 424
63. T. H. Marshall, "Citizenship and Social Class," Class, Citizenship and Social Development (Garden City, N.Y.: Doubleday), 71-134
64. Neal v. Delaware, 103 U.S. 370 (1880)
65. Holland, The Body Politic
66. Florence Elizabeth Kennard, "Maryland Women Demand Jury Service," Equal Rights (March 7, 1931)
67. J. Brown, "The Nineteenth Amendment."
68. Examples of reversals include the early national period when women were more thoroughly excluded from the public realm and stripped of political rights (Kerber, "Ourselves and Our Daughters'")
69. the late nineteenth century when women were denied citizenship status when they married foreign nationals (a status they previously retained) (Paula Baker, "The Domestication of Politics: Women and American Political Society, 1780-1920," American Historical Review 89 (1984): 620-47)
70. and the late 1940s, when citizenship rights became more attached to predominantly male veteran's status (Gretchen Ritter, "Of War and Virtue: Gender, Citizenship and Veterans' Benefits After WW II," Contemporary Social Research 20 [2002]: 201-26)
71. See also Uday Mehta, "Liberal Strategies of Exclusion," Politics & Society 18 (1990): 428
72. Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988)
73. Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997)
74. Kerber, "No Constitutional Right;"
75. and Hoff, Law, Gender and Injustice
76. Burnita Shelton Matthews, "The Woman Juror," Equal Rights (Jan. 19, 1929)
77. Louise M. Young, In the Public Interest: The League of Women Voters, 1920-1970 (Westport, Conn.: Greenwood Press, 1989), 56
78. Lemons, The Woman Citizen, 68-73
79. Adkins v. Children's Hospital, 261 U.S. 525 (1923)
80. Nancy Cott, Public Vows: A History of Marriage and the Nation (Cambridge, Mass.: Harvard University Press, 2001)
81. Reva Siegel, "The Modernization of Marital Status Law: Adjudicating Wives's Rights to Earnings, 1860-1930," Georgetown Law Journal 82 (1994): 2127-2211
82. Zimmerman, "The Jurisprudence of Equality."
83. Catherine Waugh McCulloch, "Trial by Jury," The Woman Citizen (Oct. 2, 1920), 488-91, 493, 495
84. McCulloch, "Trial by Jury," 488
85. Mrs. Stephen Pell, Equal Rights (Nov. 14, 1931)
86. Kennard, "Maryland Women Demand Jury Service."
87. Burnita Shelton Matthews, "The Status of Women as Jurors," Equal Rights (May 24, 1930), 124
88. Elizabeth Sheridan, "Women and Jury Service," American Bar Association Journal 11 (1925): 795
89. Matthews, "The Woman Juror."
90. John E. Walsh, "Justice Served by Women Jurors," Equal Rights (Feb. 5, 1927)
91. Commonwealth v. Welosky, 177 NE 656 (1931)
92. State v. James, 16 ALR 1141 (1921), at 1144
93. In re Grilli, 179 N.Y.S. 795 (1920) at 797
94. see also Harper v. State, 234 SW 909 (1921)
95. See also In re Opinion of the Justices, 130 NER 685 (1921)
96. Idaho (State v. Kelley, 229 P. 659 [1924])
97. Illinois (People ex rel. Fyfe v. Barnett, 150 N.E. 290 [1925])
98. and Massachusetts (Commonwealth v. Welosky, 177 N.E. 656 [1931])
99. In re Opinion of the Justices, 685
100. In re Opinion of the Justices; Parus v. District Court, 174 PAC 706 (Nevada 1918)
101. People v. Barltz, 180 NW 423 (Michigan 1920)
102. State v. Walker, 185 NW 619 (Iowa 1921)
103. and Palmer v. State, 150 NE 917 (Indiana 1926)
104. Barltz, 425. It appears that the reference to male in the constitution refers to section 2 of the Fourteenth Amendment
105. Parus, 708
106. Sheridan, "Women and Jury Service."
107. Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Harvard University Press, 1992)
108. Robyn Muncy, Creating a Female Dominion in American Reform, 1890-1935 (New York: Oxford University Press, 1991)
109. Gwendolyn Mink, The Wages of Motherhood: Inequality in the Welfare State, 1917-1942 (Ithaca: Cornell University Press, 1995)
110. Oregon General Laws 1921, Chapter 273, Section 1520
111. State v. Chase, 106 Ore. 263 (1922)
112. Hoyt v. Florida, 368 U.S. 57 (1961)
113. Alice Echols, Daring to Be Bad: Radical Feminism in America, 1967-1975 (Minneapolis: University of Minnesota Press, 1989)
114. Gisela Bock and Susan James, eds., Beyond Equality and Difference (New York: Routledge, 1992)
115. Judith Butler and Joan Scott, eds., Feminists Theorize the Political (New York: Routledge, 1992)
116. Nancy Fraser and Sandra Lee Bartky, Revaluing French Feminism (Bloomington: Indiana University Press, 1992)
117. Leslie Friedman Goldstein, Feminist Jursiprudence: The Difference Debate (Lanham, Md.: Row-man and Littlefield, 1992)
118. Sneja Gunew and Anna Yeatman, eds., Feminism and the Politics of Difference (Boulder: Westview Press, 1993)
119. Nancy Hirschmann and Christine Di Stefano, eds., Revisioning the Political (Boulder: Westview Press, 1996)
120. Kathleen B. Jones, Compassionate Authority (New York: Routledge, 1993)
121. Anne Phillips, Democracy and Difference (University Park: Pennsylvania State University Press, 1993)
122. Lyndon Shanley and Carole Pateman, eds., Feminist Interpretations and Political Theory (University Park: Pennsylvania State University Press, 1991)
123. and D. Kelly Weisborg, Feminist Legal Theory (Philadelphia: Temple University Press, 1993)
124. and Gretchen Ritter, "Modernity, Subjectivity and Law: Reflections on Marianne Constable's The Law of the Other," Law and Social Inquiry 27 (1997): 809-28