'Remember the Ladies'

Constitution Series 1787-1987: The Constitution and the evolution of women's rights

In March of 1776, when sentiment in the colonies was strong for independence, Abigail Adams wrote to her husband, John Adams, asking him to use his influence in any new government to change the legal status of married women. "In the new code of laws which I suppose it will be necessary for you to make," she wrote, "I desire you to remember the ladies, and be more generous to them than your ancestors. Do not put such unlimited power in the hands of husbands. Remember, all men would be tyrants if they could." Today, 200 years after the drafting of the Constitution, the legal rights of women are still ambiguous.

When Abigail Adams wrote, women's legal status was governed by British common law, which treated them as children. Politically, they had no rights at all. Economically, many occupations were forbidden to them. Their main occupation was marriage, but under common law, as the legal authority William Blackstone put it, "the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage."

A married woman had no right to buy, sell, or manage property. She could not legally own property that she inherited or that had been hers before marriage. She did not even have the right to keep any wages she earned; they belonged to her husband. She could not sign contracts, sue or be sued, or testify in court. She had no right to her children in case of legal separation or divorce, and divorce was almost impossible for her to obtain. She was legally obliged to obey her husband, who could keep her prisoner or physically punish her, although not with excessive force.

Up from Slavery
The founding of the United States did not dismantle women's common-law status. That would take a long, painful effort that has not yet been completed—some states still restrict married women's freedom to manage property, change their residence, and start businesses.

Women didn't even organize to protest their status until 1848, when a Declaration of Rights and Sentiments was read aloud by Elizabeth Cady Stanton at a Woman's Rights Convention at Seneca Falls, New York.

The declaration used the format and language of the Declaration of Independence to declare it a self-evident truth that all men and women are created equal. "The history of mankind," it asserted, "is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world."

The audience was heavily composed of abolitionists, for it was in the antislavery movement that women discovered that one political right was open to them—the First Amendment right "to petition the Government for a redress of grievances." Yet they were criticized, not just for holding unpopular opinions but for being unwomanly in trying to promote any opinions, and many women abolitionists became aware for the first time of their subservient position. They, and the male abolitionists who worked with them, began to think and talk of women's rights as well as Negro rights.

The Seneca Falls Convention itself was organized by two women, Lucretia Mott and Elizabeth Cady Stanton, who had met at a London antislavery convention eight years before. There, they had found that they were not only forbidden to speak but were required to observe the proceedings from behind a curtain.

At Seneca Falls, Stanton also called for women's "inalienable right to the elective franchise," a demand that seemed so excessive, even to the others who had helped her draft the declaration, that only the black abolitionist Frederick Douglass would take the floor to support it. Within two years, however, women were to take the idea of suffrage so seriously that they were initiating petition campaigns for it in eight states, as well as continuing to agitate with increasing effect for property rights and marriage reform. But with the outbreak of the Civil War, women postponed such work to assist the war effort.

After Lincoln's Emancipation Proclamation, women collected almost 400,000 signatures petitioning for an amendment to abolish slavery. Once that had been accomplished with the passage and ratification of the 13th Amendment in 1865, the Anti-Slavery Society began agitating for suffrage, and a 14th Amendment was proposed and introduced in Congress. Its original purpose was to give the vote to slaves and to take it away from southerners who had fought against the Union, but for the first time in the history of the Constitution, it was proposed that the word male be used to characterize voters.

Abolitionist feminists were alarmed. Many abolitionists who had championed women's right to vote in the abstract were unwilling to make it a concrete political issue. Wendell Phillips, president of the Anti-Slavery Society, refused to support votes for women, arguing that "this hour belongs to the Negro." Senator Charles Sumner, a former advocate of women's rights, called the women's campaign "most inopportune." Such sentiments prevailed. Women were unsuccessful in gaining the right to vote through either the 14th or 15th amendments.

But had the 14th Amendment inadvertently given women the right to vote? "All persons born or naturalized in the United States," declared the amendment, "are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens." In 1871, two members of the House Judiciary Committee signed a minority report holding that, under the amendment, women had the right to vote. The next year, Susan B. Anthony led 16 women to vote the straight Republican ticket.

On registration day, Anthony read both the 14th Amendment and the state election law to the election inspectors, pointing out that neither one prohibited women from voting. The women were allowed to register, and on election day, to vote. Although Anthony was arrested, tried, and convicted, she did not pay her fine and was never jailed for her defiance, which made it impossible for her to bring the case to the Supreme Court.

Women's only recourse was to get voters to amend the Constitution. This they succeeded in doing in 1920, after 50 years and what Carrie Chapman Catt, president of the National Woman Suffrage Association at the time, summarized as "56 campaigns of referenda to male voters; 480 campaigns to get legislatures to submit suffrage amendments to voters; 277 campaigns to get state party conventions to include woman's suffrage planks; 30 campaigns to get presidential party conventions to adopt woman's suffrage planks; and 19 campaigns with 19 successive Congresses."

One Step Forward, Two Steps Back
While women were campaigning for the vote, another issue had crept up on them: protective labor legislation. Progressive legislators had enacted a whole network of laws singling out women—laws that women were divided about.

A prime example was protective legislation to limit hours and working conditions. Such laws had been held to be a violation of men's right to contract, but in 1908, in the case of Muller v. Oregon, the Supreme Court decided that an Oregon law limiting the working hours of women was constitutional.

The case was the first in which sociological data persuaded the justices to modify legal principle. The brief that was filed cited reports by state commissions to prove that women are just what the common law assumed they are—frail, and in need of special protection. The rights of men—in this case, to liberty of contract—need not be available to working women, as they had traditionally not been available to married women.

Woman has always been dependent on man, said the decision, and this is natural. "Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights.… Differentiated by these matters from the other sex, she is properly put in a class by herself, and legislation designed for her protection may be sustained, even when like legislation is not necessary for men, and could not be sustained."

The issue divides the women's movement to this day. An organization called the National Woman's Party, founded in 1913 to work for suffrage, became convinced that the view of women exhibited in the Muller decision was a threat to the idea of equal rights they had been working for. So in 1921, the party reorganized to work for the removal of all legal distinctions based on sex. At first they undertook a state-by-state campaign but soon decided to lobby instead for constitutional reform—an equal rights amendment. The amendment was introduced in Congress in 1923, and with two exceptions, substantially the same wording was submitted every year thereafter until 1972, when the ERA was finally passed by Congress and sent to the states for ratification.

From the beginning, the main opposition to the ERA was from supporters of the trade union movement. Clearly, protective labor legislation, whatever else it did, served to curb women's competition for jobs. In 1950 and 1953, the ERA was amended with a rider, urged by Eleanor Roosevelt, that would have left protective legislation intact by providing that the amendment "shall not be construed to impair any rights, benefits, or exemptions now or hereafter conferred by law upon persons of the female sex."

But it was precisely the singling out of women that the National Woman's Party opposed. So although the amended ERA twice passed the Senate, the party helped to defeat it in the House.

When Congress held hearings on the equal rights amendment in 1970 and 1971, six of the eight statements against it were submitted by organized labor, including one from the AFL-CIO. One legal expert suggested a rider to keep protective legislation intact.

During the years in which the ERA was being unsuccessfully proposed, attempts were made—also unsuccessfully—to strike down various discriminatory laws for violating the equal-protection clause of the 14th Amendment. The rationale was well expressed by scholar Bernard Schwartz, in an observation included in the record of the 1970 House hearings on the amendment by ERA foe Senator Sam Ervin: "The case law has consistently ruled that, even though women are 'persons' within the scope of the equal-protection clause, the protection which that provision affords them must be interpreted in the light of the disabilities imposed upon women at common law. Thus, as recently as 1966, a state court ruled that, until the common-law disqualification of sex is removed, women are not eligible to serve on juries—and that regardless of the equal-protection clause. "

In 1971, the Supreme Court finally held that a specific classification based on sex was not "reasonable." In the years since, the Court has considered a number of challenges to statutes that differentiate on the basis of sex. "While the Court has several times struck down such statutes," comments one legal source, "those occasions have been proportionately far fewer than in suits challenging classifications based on race."

Although the Court can reverse a previous ruling, and has done so, it does not do so with abandon and generally tries to support such reversals by appealing to the "plain language" of the Constitution or to the intent of those who framed the section being interpreted. Intent is discovered by examining the debates that took place at the time the wording was adopted—the legislative history. And the legislative history of the 14th Amendment explicitly did not include women, so it would require an extremely "creative" decision to hold that the amendment applies to women.

The Slow Death of the ERA
Thus, the stage is set for the sad tale of the Equal Rights Amendment. Its legislative history seemed clear at the time it passed Congress. Both its supporters and its opponents agreed that it would apply only to the actions of governments; that it would not address private discrimination which could only be reached by legislation that invoked Congress's power to regulate commerce; and that it would invalidate protective labor legislation that makes women less competitive in the marketplace.

In the congressional hearings, no one, not even Sam Ervin, who voiced of the qualms that the conservative campaign against the ERA in the '70s was to pick up, thought that the amendment would expand the power of government. It would invalidate laws, not create them. In fact, Ervin feared the ERA would bring "legal chaos" because it would "merely abolish all laws making any distinction between men and women. It would not bring into existence any new laws giving us a discrimination-free society."

And feminists agreed. "ERA will not prevent discriminations by persons or by private industry," wrote Ann Scott in the pages of the popular feminist magazine Ms. "It will not, directly at least, change social relations. What it will do, over the long run and on a most basic level, is to prevent the government from determining the rights of women and men on the basis of sex. And that's a hell of a lot."

Then came the conservative campaign against the amendment. Not only would the ERA change social relations by driving women out of the home and into the work force and by legalizing homosexual marriage, but it was also alleged to be "a big power grab by the Federal Government." The amendment "will eliminate all-girls' and all-boys' schools and colleges," said conservative literature. It "may compel the states to set up taxpayer-financed childcare centers for all children" and "may give the Federal Government the power to force the admission of women to seminaries equally with men, and possibly force the churches to ordain women."

In response to these attacks, feminists gradually expanded their accounts of what the ERA might do. They didn't exactly say that the amendment would be applied to make people economically equal, but they started wearing buttons calling attention to the statistic that women earned 59 cents to a man's dollar (a misleading figure—see Jennifer Roback's "The 59-Cent Fallacy," REASON, Sept. 1984).

The ERA was supported by a broad coalition that now included many of the union forces that still wanted to expand social legislation. They thought that they could have it all—that women could be legally equal and legally different and special, all at the same time. After all, those who made blacks their constituency had pulled off that trick by changing the interpretation of the Civil Rights Act to mean present-day affirmative action with its goals and benign quotas.

So feminists started agreeing with the conservatives that the new amendment would have broad effects. Where the conservatives called it a federal power grab, Eleanor Smeal, president of the National Organization for Women (NOW), called it "a Constitutional prohibition against sex discrimination." In a letter to supporters, she said, "Unless we fight harder and in a more organized fashion than we ever have before, women will continue to be doomed to a second rate economic status of lower pay, unequal credit and inadequate job security. After all, that's what the ERA fight is really all about—making the lot of women really equal to the lot of men, especially when it comes to money. That's the critical litmus test of equality."

The amendment had five years to achieve ratification, and it failed to do so. The deadline was extended until 1982, and it failed again, this time permanently. Prospects for passage of a new ERA are unlikely.

The ERA was a remnant of the classical liberalism of the early abolitionist feminists, who sought equal responsibility and laws that had neither special privileges nor special restrictions for women. It could have been used as a vehicle to enunciate that philosophy to a wide audience today, but it was not. Instead, its supporters, who began by describing it correctly, came to agree with their opponents that it would engender sweeping changes in private action. And that agreement would become a self-fulfilling prophecy should the ERA pass Congress again in the near future; it has created a climate of opinion that would provide a different and malignant legislative history, one that could make all the worst nightmares of federal power grabs come true.

So the ERA is dead, but Muller v. Oregon, the cornerstone of protective legislation, has never been overruled. And the status of women is basically what state legislatures (and majority opinion) say it is. While the ERA was wending its way through the state legislatures, it became fashionable to grant women equal treatment; several states passed state equal-rights amendments to their constitutions. But the trouble with not having the Constitution view women as fully equal and independent beings is that, if the fashion changes, there is nothing to stop the laws from changing back.

Indeed, a number of feminists are now campaigning for a new kind of protective legislation, this time aimed at helping women in the workplace with laws that mandate maternity leave and provide child-care assistance. Such legislation is a pendulum that can swing either way. In Women and Work in America, Robert Smuts says, "The most obvious effect of the depression of the 1930s was to throw many women out of work and intensify the feeling that working women took jobs away from male breadwinners. Many state and local governments revived old bans on the employment of married women in teaching and other public jobs, and several state legislatures considered bills to prohibit the employment of wives in public industry." It could happen again.

Joan Kennedy Taylor is working on a book about feminism and individualism.