Linda K. Kerber.
No Constitutional Right To Be Ladies: Women and Obligations of
New York: Hill and Wang, 1998. xxiv + 405 pp. Illustrations, notes and
bibliography, and index. $25.00 (cloth), ISBN 0-8090-7384-6 ISBN
0-8090-7383-8; $14.00 (paper), ISBN .
Ann F. Thomas, New York Law School.
Hello: Uncovering the Citizenship of Women
Can a woman be a citizen of the United States? Since 1787
the answer has been yes, but not on the same terms upon which a man holds
his citizenship. For most of the 211 years since the Constitution was
adopted, the differences between the citizenship of men and of women have
been most visible in the political and personal rights that men held and
women were denied. In regard to civic obligation as well, the experience
of citizenship for women in the United States has differed from that of
men. Here women appear to have had the advantage. Traditionally, American
law has excused women from important but onerous civic duties that men
were compelled to perform, such as the draft and jury service.
Yet the obligation to defend the state by force of arms
against external enemies is by ancient tradition the quid pro quo
for the state's protection of the individual, and arguably this
interdependence constitutes the core of citizenship. The obligation to
serve on a jury gives reality to the right to trial by jury, a civic
institution central to the rule of law in the Anglo-American tradition.
Has it really been advantageous to women to be excused from these duties?
What is the nature of a citizenship that is exempt from these fundamental
responsibilities? In her compelling new book, No Constitutional Right
to Be Ladies, Linda Kerber, the May Brodbeck Professor of History at
the University of Iowa, undertakes to answer these questions in an
ambitious exploration of the history and meaning of women's civic
Kerber's premise is that the defining features of
citizenship are found not only in rights but also in the obligations of
the individual to the state: "In the liberal tradition, rights are
implicitly paired with obligation" (p. xxi). Moreover, obligations also
embody opportunities to participate in the exercise of the power of the
state. Kerber seeks an explanation for the differences between men's and
women's citizenship obligations and the persistence of those differences
in the common-law doctrine of marital unity or coverture.
The doctrine of coverture, which Kerber explains in her
first chapter, held that during marriage a woman's separate legal identity
was generally suspended and she was "covert" or covered by the legal
personality of her husband. The wife's person, property, and labor became
subject to the ownership and control of her husband and, for the duration
of the marriage, she lost the legal capacity to enter into contracts, own
and manage property, sue or be sued in her own name, choose her place of
residence, designate a guardian for her children, and make testamentary
dispositions. She was obligated to obey her husband; indeed, the concern
that she was subject to his physical coercion extended so far that a wife
might not be held responsible for her own criminal acts if they were
performed in the presence of her husband. In exchange for all this,
husbands were required to support and maintain their wives and were
presumed to be their protectors.
Kerber's expansive but provocative thesis is that the law
and norms of coverture "substituted married women's obligations to their
husbands for obligations to the state" and constituted "the central
element in the way that Americans have thought about the relation of all
women, including unmarried women, to state power" (p. 11). While starting
with a common-law doctrine that is centuries old, Kerber gives us a book
that is of necessity a history of contemporary American civic law and
She finds that there never have been any "wages of gender"
(p. 309) for women to collect. In her view, whatever advantages that
gender-based exemption from civic duties appeared to confer upon women
have been illusory. Diminished rights were the more lasting accompaniment
of reduced civic obligations. Kerber concludes that women have paid a
double price for exemption from the full burdens of citizenship. In
addition to second-class rights, exemption from obligation has come at the
cost of excluding women from many of the institutions through which
citizens participate in public life. The obligations of citizenship are
themselves rights--the right to be acknowledged as a necessary part of the
state and the right to participate in the exercise of the power of the
In detailed studies that range from the 1770s to the 1990s,
Kerber examines five different civic duties, testing her thesis about
coverture and civic obligation and tracing the changing understandings in
American law of the identity and obligation of women as citizens. Kerber
starts with a case testing the application to married women of
Revolutionary-era loyalty laws and ends with the story of the lawsuits
that, in 1979 and 1981, challenged the role of gender in draft law and
contemporary military service. In the intervening three chapters, Kerber
looks at the use of coverture and vagrancy laws to regulate the labor of
freedwomen during Reconstruction, the suffrage tax protest movement of the
1870s, and the women's jury service cases of the 1960s and 1970s.
This survey thus examines legal features of women's
citizenship both before and after the married women's separate property
law reforms that began to take hold in the 1840s and before and after the
attainment of woman suffrage in 1920. It builds on the work of Norma Basch,
Marylynn Salmon, and Reva Siegel, who in recent years have considerably
advanced the legal history scholarship on coverture in American domestic
relations law and property law,
on her own work in Women of the Republic (1980) examining the
conscious incorporation of coverture into American law after the American
Revolution. But No Constitutional Right to Be Ladies pushes beyond
the question of coverture's impact on private law to focus attention on
its influence on some of the most basic features of public law. This
redirection of the study of coverture is one of her new book's central
Each of Kerber's five chapters is skillfully constructed
around a case in which a court confronted the question of whether a woman
owed the same duty to the state that a man would have owed in like
circumstances. Kerber places each case in its era's social and political
history, with a wealth of detail drawn from archival sources and
contemporary literature and ample support from modern secondary sources.
Kerber peoples her book with an extensive array of individuals whose brief
biographical sketches enliven her case narratives and add depth to her
descriptions of historical context. One of the most interesting
contributions this book makes is in the identification of numerous lawyers
who from 1801 (James Sullivan of Massachusetts) through the current era
(former Deputy Attorney General for Civil Rights Isabelle Pinzler) have
contributed to the formulation of theories of women's rights and
citizenship in various settings.
The cases that Kerber investigates are not landmark cases
establishing equal rights for women, but rather cases in which courts
articulated legal doctrines that justified treating women and men quite
differently. In the judicial rhetoric and analysis presented in support of
the status quo, Kerber finds textual evidence of the peculiar persistence
and strength of the doctrine and culture of coverture. At one level, the
significance of these cases lies in their presentation of a legal ideology
that served to restrict the political power of women. Yet they are also a
fascinating, if unsystematic, record of developing theories of gender
equality and, taken together, represent an interesting methodological
The first chapter examines the manner in which the duty of
loyalty to the state has been understood to apply to married women. Its
focus is the Martin case, decided in 1805. In Martin the conflict
between coverture and civic obligation was explicit. During the American
Revolution, Massachusetts law made forfeit the property of anyone who fled
to the protection of the British. Martin's mother fled Boston for New York
(and later for England) with her British soldier husband in 1776. But the
Massachusetts court held for her son when he claimed that she had not
forfeited her property and he could therefore inherit it. The court
concluded that Mrs. Martin had not treasonously withdrawn herself and her
loyalty from the rebellion because she had been withdrawn by her husband
whom it was her duty to follow and obey.
The court's decision preserved Mrs. Martin's property and
seemed to confer a benefit on married women in such situations. But Kerber
argues that the understanding of woman's citizenship obligations upon
which it was based--that a married woman owed primary allegiance to her
husband rather than to the state--made married women vulnerable to the
assertion that they lacked the capacity to continue to give their
allegiance to the state of their birth if their husbands chose
differently. Kerber points to subsequent case law and legislation
questioning the nationality of American women (and their children) in
those circumstances and the culmination of this trend in the Expatriation
Act of 1907, by which Congress stripped U.S. women of their citizenship
upon marriage to an alien even if they remained in the United States. Thus
the substitution of loyalty to husband for loyalty to the state and the
concomitant exemption from the personal obligation to refrain from treason
is linked to the married woman's diminished claims to national identity.
her second chapter, Kerber explores the idea that one of the obligations
of citizenship is visible economic productivity. She identifies vagrancy
laws as an earlier legal expression of this obligation and argues that
current welfare laws are a more contemporary version. This
conceptualization of an obligation to work has resonance with the
Papachristou case and Anthony Amsterdam's successful challenge to the
constitutionality of vagrancy laws in the 1960s and early 1970s, and
Kerber discusses his work in this context. But she takes the idea in a
different direction. Her focus is the interaction of vagrancy laws and
coverture in regulating the work of women and the role of race in
producing diametrically-opposed outcomes for white wives and freedwomen.
This chapter focuses on the nearly recordless 1866 case of
Harriet Anthony, a pregnant black woman who miscarried while working on
the street repair crew in Houston, Texas, under a sentence for vagrancy.
Through the files of the Freedmen's Bureau, Kerber documents the role of
coverture in efforts to compel newly-freed African-American women to work
in the fields or as domestic servants under family labor contracts entered
into by their husbands without their consent. Coverture came into play
because it enabled husbands to command the labor of their wives, and
vagrancy law provided an enforcement mechanism because runaway wives
risked punishment as vagrants. Some freedwomen objected to this form of
emancipation. Kerber quotes a Freedmen's Bureau agent as reporting that
"many negro women have failed to perform their part of the contracts,
claiming the husband has no power to control her labor. She being free &
responsible as himself" (p. 65).
But, Kerber argues, the legal structure that was used to
compel black women to work in public was also used to restrict white women
to a cloistered domesticity that simulated idleness. For white women, work
outside the home was not respectable; it reflected badly on their
husbands. Kerber connects this history with the "dizzying series of
contradictions" of ideology and laws today concerning work and welfare,
linking the double standards of the past with the confusions of the
present about welfare and work for mothers of color. This brief chapter
makes extensive use of the burgeoning scholarship in the fields of labor
history, slavery, and Reconstruction, citing more than forty works
published since 1990. The subject matter was new to me, and I found this
Paying taxes is one of the most familiar civic obligations.
In her third chapter, Kerber examines taxation and the terms upon which
women have been required to bear this burden. Her primary focus is on the
unsuccessful effort, in the years surrounding the 1876 centennial
celebration of the Declaration of Independence, of woman-suffrage
advocates to link the obligation of women to pay taxes to the right to
vote. The chapter is built around a vivid retelling of the tax resistance
of two spinsters, the redoubtable Smith sisters of Glastonbury,
Connecticut, in the 1870s and 1880s and builds on the earlier work of tax
historian Carolyn Jones.
Despite its rhetorical power and popular appeal, the "no
taxation without representation" battle cry of the American Revolution did
not carry the day for woman suffrage in the 1870s and 1880s. Seeking an
explanation for the failure of the woman-suffrage tax protests to
establish a legal or constitutional reciprocity between the obligation of
women to pay taxes and the right to vote, Kerber turns to the work of
nineteenth-century American tax-law and constitutional-law theorists
Thomas M. Cooley, Judge John Dillon, and E. R. A. Seligman. In their
influential tax treatises (published in 1876, 1872, and 1895,
respectively), she notes theories of taxation that emphasize sovereignty
and finds them to be implicitly hostile to the claims of the woman
Tax is the area of law with which I am most familiar and I
learned a lot from this chapter. But I have two quibbles with it. Kerber
ends this chapter with an overly compressed sketch of the treatment of
women in the federal income tax system. Here Kerber suggests that
amendments enacted in 1969 resolved the gender inequities in the
convoluted Internal Revenue Code (p. 122). Most observers would disagree
and instead trace the current marriage penalties imposed upon dual earner
married couples to those changes.
Also, I cannot agree with Kerber's reading of Judge
Cooley's treatise. I think Kerber is correct in identifying Cooley's 1876
an important source of opposition to the theory that there was a
constitutionally-required reciprocity between taxation and representation
that could be enforced by the courts. But I am not sure that he was quite
the villain that he appears to be in her reading. Cooley also was a source
of support for taxpayer suffrage for women on public-policy grounds and a
reformer in the critical area of corporate tax exemptions. Moreover, I
find his responses to the woman suffrage tax protest in his explicit
discussion of the limitations on the taxing power, rather than implicitly
contained in his definition of taxation (as Kerber suggests).
Cooley defined taxation as an incident of sovereignty
justified by the exchange of support for the protection of the state
(quoted at pp. 114-15). Although this definition is related to the
reciprocity issue, it seems to be targeted more directly at two other
problems in nineteenth-century tax theory in which Cooley was deeply
interested: 1) reasserting the taxing power of the states over private
corporations to which legislatures had imprudently or corruptly given tax
exemptions and 2) delineating local taxing jurisdictions.
Cooley was well-known for his explicit views on the
question of the reciprocity of taxation and representation. Elsewhere in
his 1876 treatise he developed a twofold answer that became the
authoritative view on the question. It was adopted even by those who, like
the Christian socialist Richard T. Ely, firmly rejected Cooley's exchange
theory of taxation. The first part of his argument is a generalized
historical refutation. He maintained that "the maxim that taxation and
representation go together is true only in a territorial sense."
Hence he found
that the "rallying cry in the contest for independence ... really meant
... that the local legislature must make the local laws."
that this maxim meant that "no person could be taxed unless in the
body which voted the tax he was represented by someone in whose selection
he had a voice," Cooley treated as an argument that proves too much.
He noted that
there are always persons owning property within a state to whom the vote
could not be given but who still receive benefits from government. In this
category he listed infants and aliens. His conclusion, quoted extensively
in the subsequent tax literature, was that "so long as all persons cannot
participate in government, the limits of the exclusion and admission must
always be determined on considerations of general public policy."
as now, Judge Cooley has been regarded as the leading constitutional
scholar of his time. His interpretation of the reciprocity question
effectively severed the "no taxation without representation" argument from
constitutional theory and placed it beyond the reach of the courts into
the realm of political theory. Whether he sought to contain the use of the
reciprocity argument by business corporations, which were at that time
claiming other rights of citizenship, is an interesting question. In any
event, he acknowledged that under these theories the property of women who
did not have the right to vote was nonetheless subject to taxation, citing
Wheeler v. Wall, the 1863 case in which the Massachusetts Supreme
Judicial Court responded to Sarah Wall's suffrage tax resistance in just
Cooley also offered support on public policy grounds for taxpayer suffrage
for women. He advised that "all those who pay the taxes should be allowed
a voice in raising them." Although he limited this argument with the
caveat "so far as can be prudently and safely permitted," it is unlikely
that he was suggesting that prudence would dictate the exclusion of women.
In his own state
of Michigan, partial suffrage had been extended to women property owners
in school meetings as early as 1867 and was still in place even after the
disastrous defeat of its first woman suffrage referendum in 1874.
Cooley offered in his text the rationale that "those [taxes that] they
vote they will more willingly and cheerfully pay," his supporting footnote
gave an impassioned defense of what he called the principles of
"self-taxation," citing Burke and quoting Locke.
Four, Kerber leaps into the mid-twentieth century, to the history of
women's jury service. This is the longest chapter in the book (ninety
pages) and the principal support for Kerber's central arguments. It is
also a wonderful piece of contemporary legal and social history
scholarship. The "second suffrage campaign," as it was called by earlier
generations of advocates (p. 136), has yet to find a modern historian, and
here Kerber stakes a strong claim to that title.
The right to trial by jury for women seems to have been of
long standing in the Anglo-American tradition. But the right of American
women to sit as jurors and share in the exercise of the power of the jury
is a late twentieth-century attainment. For decades after women were fully
enfranchised, the states still were permitted to bar women from jury
service if they saw fit. Kerber dates the end of this era to the White
v. Crook case, decided by the United States Supreme Court in 1970. The
practice of de facto exclusion of women from juries, which was the
result of making women's jury service voluntary, continued to be permitted
until the Court's decision in Taylor v. Louisiana (1975). But,
Kerber maintains, equality in jury service was not fully imposed until
1994, when in J.E.B. v. Alabama the Supreme Court announced that
"gender, like race, is not a constitutional proxy for juror competence and
impartiality" (p. 217).
From 1920 onward, woman's-rights advocates labored to open
jury service to women, recognizing it as both a right and an obligation
and focusing their efforts on courts as well as legislatures. Kerber
effectively presents instances of advocacy and resistance through
narratives and contemporary cartoons. But her main interest is the
litigation campaign. The chapter unfolds around the story of Hoyt v.
Florida, 368 U.S. 61 (1961), and the Court's holding in that case that
it was constitutionally permissible for states to make jury service
voluntary for women even if it meant that female criminal defendants like
Mrs. Hoyt would be tried by all-male juries.
Kerber insightfully brings the historian's questions to
this subject, focusing as much on the stories of the lawyers and the
litigants as on legal theory. Sketches of Ruth Bader Ginsburg and her work
in her years with the ACLU's Women's Rights Project are well-drawn and of
compelling interest. Kerber also discusses at length the role of Pauli
Murray, a theorist and advocate whose work in the 1960s linked the civil
rights movement and the women's rights movement, as well as the
contributions of New York lawyer Dorothy Kenyon.
The history of women's jury service supports Kerber's
conclusion that reduced obligations produce diminished rights, but does it
sustain her thesis about the centrality of coverture in defining the civic
obligations of women? Some readers will be skeptical about Kerber's claim
that a long-discredited common-law doctrine is at work in the decisions of
the United States Supreme Court in the latter part of the twentieth
century. But Kerber finds a surprisingly strong level of textual support
for her thesis.
Whether in 1961--when he wrote the opinion for a unanimous
Court in Hoyt--Justice John Marshall Harlan really believed that
the common-law doctrine of coverture continued to impose domestic
obligations on wives, or whether he merely thought it provided a
convenient justification for the Court's willingness to tolerate the
preference of the Florida legislature to maintain a male monopoly on the
power of the jury, is not clear. Even in earlier phases of the life of
this remarkably pervasive doctrine, it is sometimes hard to see it as
anything other than window dressing for gender politics. But Harlan's
reasoning strongly suggests the influence of the culture of coverture, if
not its legal doctrine as well.
In his opinion, Harlan referred to "the enlightened
emancipation of women from the restrictions and protections of bygone
years" but concluded that nonetheless "woman is still regarded as the
center of home and family," implying that "woman" could therefore
reasonably be excused from a vital civic obligation to enable her to
fulfill this domestic role (p. 181). One of the residues of the doctrine
of coverture commonly found in domestic-relations law in that period was
the requirement that wives maintain the home and care for the children and
that husbands provide support and maintenance. Kerber does not discuss
this point, but it gives added meaning to Justice Harlan's further
reference to the "special responsibilities" of women. Reading his words in
context, it is hard to think that Justice Harlan is referring to nothing
more than social mores.
Kerber's fifth chapter explores a number of questions about
military service, gender, and citizenship. Her primary focus is the period
surrounding President Carter's unsuccessful 1980 attempt to institute
universal draft registration. Although this chapter is full of interesting
ideas and historical vignettes and is nearly as long as the jury service
chapter, its argument is diffused and it does not achieve the clarity of
the earlier chapters. Kerber builds her discussion of gender and the
obligation to defend the state around two cases: Rostker v. Goldberg
(1979) and Feeney v. Commonwealth of Massachusetts (1981).
Helen Feeney's case posed an unsuccessful challenge to
veterans' preferences, and it serves as a reminder that the obligation of
military service can carry with it significant economic benefits and
opportunities. Goldberg challenged the draft law and briefly
stopped the newly authorized draft registration in 1981 when the U.S.
District Court for the Eastern District of Pennsylvania held that a draft
that excluded women denied young men the equal protection of the law. (The
Supreme Court quickly reversed.) Kerber also records the intense debate
over the Carter proposal, which pitted feminists reluctantly supporting it
on egalitarian grounds against social conservatives fighting a pitched
battle to preserve traditional gender roles, the "constitutional right to
be treated like American ladies" of the book's provocative title (pp. xxiv
The contributions of No Constitutional Right to Be
Ladies are numerous and considerable. Foremost among them is its
enrichment of the legal history of American women. In an influential
article that appeared in the Law and History Review more than a
decade ago, medieval historian Janet Loengard pointed to the need to
augment institutional legal history of the status and rights of women with
histories of the experiences of women with law.
manages to provide a good deal of both in this new book. Although the book
is by no means a systematic doctrinal history, its inquiry into the uses
of the doctrine of coverture in the judicial interpretation of the civic
obligations of women adds considerably to our understanding of the scope
and impact of that doctrine. At the same time, Kerber's narratives
document the experiences of women with coverture in a broad range of
settings; in the process a much clearer picture of the impact of doctrine
on the lives of women emerges.
No Constitutional Right to Be Ladies: Women and the
Obligations of Citizenship
is a carefully crafted work that tells its complex and persuasive story at
many levels. By its focus on the law of civic obligation, it makes an
innovative contribution to the study of citizenship as both a legal and a
political institution in the United States. By following the "antique
legal tradition" of coverture (p. 11) out of the treatises and into the
arena of public law, this absorbing book also represents a significant
expansion of the legal and social history scholarship of that doctrine in
America. Its sweeping survey provides a timeline of the status of women as
citizens that is a provocative reminder of how much in the past we still
live. Informative and accessible, this study will be useful to legal
historians and feminist theorists as well as to more general students of
American history. Although some parts of this ambitious work are not as
fully realized as others, this takes little away from the value of the
book as a whole. Kerber's book is so full of interesting ideas and
thought-provoking questions that it will inspire the research agendas of
scholars for years to come.
Basch, In the Eyes of the Law, Women, Marriage, and Property in
Nineteenth Century New York (Ithaca, N.Y.: Cornell University Press,
1982); Marylynn Salmon, Women and the Law of Property in Early America
(Chapel Hill: University of North Carolina Press, 1984); Reva B. Siegel,
"The Modernization of Marital Status Law: Adjudicating Wives' Rights to
Earnings, 1860-1930," Georgetown Law Review 82 (1994): 2127.
seems to be some disagreement about whether the Martin case (1805)
or Shanks v. Dupont, 3 Pet. 242 (U.S., 1830) (which Kerber also
discusses) represents the dominant view in early nineteenth-century
jurisprudence of the capacity of married women to form and change
political allegiance. Nancy Cott argues that the view that married women
retained this capacity, as expressed by Justice Story in the later
Shanks case, is the norm. Nancy F. Cott, "Marriage and Women's
Citizenship in the United States, 1830-1934," American Historical
Review 103 (1998): 1440, 1456n44. Rogers M. Smith, in Civic Ideals:
Conflicting Visions of Citizenship in U.S. History (New Haven: Yale
University Press, 1997) 543n48, describes Martin as "widely
followed." But all agree that in 1907 Congress resolved the divided
authority of case law on the question of the U.S. nationality of American
women married to aliens against the women at a time when men were able to
confer their U.S. citizenship on alien wives and children (providing the
alien wife was white).
M. Cooley, The Treatise on the Law of Taxation (Chicago: Callagan,
45 (emphasis in the original).
Ann Paganelli Caruso, "A History of Woman Suffrage in Michigan" (unpub.
Ph.D. diss., Michigan State University, 1986), 55, 67-68.
Senderowitz Loengard, "Legal History and the Medieval Englishwoman: A
Fragmented View," Law and History Review 4 (1986): 161.
Library of Congress
Call Number: HQ1236.5.U6K47 1998
* Women and democracy -- United States -- History.
* Women -- Legal status, laws, etc. -- United States -- History.
* Citizenship -- United States.
* Political obligation.
Citation: Ann F. Thomas . "Review of Linda K. Kerber, No
Constitutional Right To Be Ladies: Women and Obligations of Citizenship,"
H-Law, H-Net Reviews, June, 1999. URL:
“Kerber uncovers the full
complexity of women’s position…[Her] argument is full of rich historical
material and fascinating insights. The main points are sometimes almost
buried in details about individuals…but her discussion, and the questions
it raises, are vital for a full understanding of American political
Carole Pateman, review of
No Constitutional Right To Be Ladies: Women and Obligations of
Citizenship, by Linda K. Kerber, The American Historical Review
104 (June 1999): 934-935.