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Jury Service and Women's Citizenship before and after the Nineteenth Amendment

Published online by Cambridge University Press:  28 October 2011

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The Nineteenth Amendment to the Constitution had surprisingly little impact on women's citizenship or the American constitutional order. For seventy-two years, from 1848 until the passage of the Nineteenth Amendment in 1920, suffrage was the central demand of the woman rights movement in the United States. Women demanded the right to vote in the nineteenth century because they believed it would make them first class citizens with all the rights and privileges of other first class citizens. Both normatively and instrumentally, the suffragists believed that voting would secure equal citizenship for women by raising their civic status and allowing them to assert their political interests. Yet in many ways women were more politically efficacious in the years just prior to the passage of the Nineteenth Amendment than they were afterward. Further, their ability to claim rights from the courts and legislatures, on the basis of their new status as voting citizens, was limited.

Copyright © the American Society for Legal History, Inc. 2002


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. Cover, Robert, “Nomos and Narrative,” in Narrative, Violence and the Law: The Essays of Robert Cover, ed. Minow, Martha, Ryan, Michael, and Sarat, Austin (Ann Arbor: University of Michigan Press, 1992), 95172Google Scholar; Forbath, William, Law and the Shaping of the American Labor Movement (Cambridge: Harvard University Press, 1991).Google Scholar

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5. For exceptions, see Brown, Jennifer, “The Nineteenth Amendment and Women's Equality,” Yale Law Review 102 (1993): 2175CrossRefGoogle Scholar; Ritter, “Gender and Citizenship”; and Siegel, Reva, “Collective Memory and the Nineteenth Amendment: Reasoning about the ‘Woman Question’ in the Discourse of Sex Discrimination,” in History, Memory, and the Law, ed. Sarat, Austin and Kearns, Thomas R. (Ann Arbor: University of Michigan Press, 1999).Google Scholar For a fuller discussion of Brown, who looks at the post-suffrage jury service campaign as a way of gauging the impact of the Nineteenth Amendment, see Part 3 of this article. Ritter, “Gender and Citizenship,” provides a general overview of the Nineteenth Amendment but addresses itself less to the constitutional questions considered here.

6. Siegel, “Collective Memory.”

7. The concept of equal citizenship may be addressed at three levels. At the broadest level, equal citizenship pertains to civic status. All of those considered as “full” or “first class” citizens may be thought of as holding the same high civic status. The second conception of equal citizenship is more specifically rights focused and holds that any differences in the rights afforded to citizens constitute unequal citizenship. Finally, a third conception of equal citizenship examines not only rights and status but also the duties and obligations of citizens. Ritter, “Gender and Citizenship.”

8. The great exception is the decision of Adkins v. Children's Hospital, 261 U.S. 525 (1923). 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. For more on this decision, see Zimmerman, Joan, “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): 188226.CrossRefGoogle Scholar

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14. Stanton, Anthony, and Gage, History of Woman Suffrage, 2: chap. 25.

15. Ibid., 408.

16. Ibid., 468, 470.

17. Ibid., 634.

18. Ibid., 637.

19. Ibid., 638, emphasis in original.

20. Stanley, Amy Dru, “Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation,” Journal of American History 75 (1988): 471500.CrossRefGoogle Scholar See also the dissenting opinions in the Slaughter-House Cases, 83 U.S. 36 (1873), which provide an alternative basis for applying the privileges and immunities clause of the Fourteenth Amendment. In addition, The History of Woman Suffrage volume that discusses the New Departure also mentions three lower court judges whose opinions were more consistent with the views offered by rights advocates. See Stanton, Anthony, and Gage, History of Woman Suffrage, 2: 507.

21. Bradwell v. Illinois, 83 U.S. 130 (1872); Minor v. Happersett, 88 U.S. 162 (1874): and Strauder v. West Virginia, 100 U.S. 303 (1879).

22. Strauder, 308.

23. Ibid.

24. Jury service is also implicitly treated by the court as a political right. At one point in the opinion the court asks what would happen if whites were excluded from jury service by a majority black population—“thus denying to them the privilege of participating equally with the the blacks in the administration of justice” (Strauder, 308). Here, jury service is framed as a right of participation.

25. Strauder, 306.

26. Ibid., 308.

27. See Justice Field's dissent in the Slaughter-House Cases, 48.

28. Rosencrantz v. Territory, 5 PAC 305 (1884).

29. Harland v. Territory, 13 PAC 453 (1887).

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31. Harland, 456

32. 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 Kerber, Linda, “No Constitutional Right to Be Ladies”: Women and the Obligations of Citizenship (New York: Hill and Wang, 1998).Google Scholar

33. Hoff, Joan, Law, Gender and Injustice (New York: New York University Press, 1991)Google Scholar, chap. 5; Stanley, “Conjugal Bonds”; Stanton, Anthony, and Gage, History of Woman Suffrage, 2: chaps. 22–25; DuBois, “Outgrowing the Compact”; Kerber, “Ourselves and Our Daughters'”; Holland, Catherine, The Body Politic (New York: Routledge, 2001).Google Scholar

34. The Fifteenth Amendment was especially pertinent in this regard. See Amar, Vikram David, “Jury Service as Political Participation Akin to Voting,” Cornell Law Review 80 (1995): 203.Google Scholar

35. Constable, Marianne, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge. (Chicago: University of Chicago Press, 1994).Google Scholar

36. Constable, The Law of the Other, 2.

37. Ibid., chap. 2.

38. Ibid., 41.

39. Foucault, Michel, The History of Sexuality, vol. 1 (New York: Vintage Books, 1990).Google Scholar

40. Constable, The Law of the Other, chap. 3.

41. Blackstone, Commentaries, 4: 394–95

42. Constable, The Law of the Other, 2.

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45. Weisbrod “Images of the Woman Juror,” 60, n. 2.

46. Stanton, Elizabeth Cady, Anthony, Susan B., and Gage, Matilda Joslyn, History of Woman Suffrage, vol. 1 (New York: Fowler and Wells, 1881), 594.Google Scholar

47. Ibid., 594–95.

48. Stanton, Elizabeth Cady, Anthony, Susan B., and Gage, Matilda Joslyn, History of Woman Suffrage, vol. 3 (Rochester, N.Y.: Susan B. Anthony, 1887), 735Google Scholar; see also Rodriguez, Cristina M., “Clearing the Smoke-Filled Room: Women Jurors and the Disruption of an Old Boys' Network in Nineteenth-Century AmericaYale Law Journal 108 (1999): 180544.CrossRefGoogle Scholar

49. Stanton, Anthony, and Gage, History of Woman Suffrage, 1: 597.

50. Ibid., 597–98.

51. Stanton, Anthony, and Gage, History of Woman Suffrage, 3: 738.

52. Rodriguez, “Clearing the Smoke-Filled Room.”

53. Amar, “Jury Service as Political Participation.”

54. Hamilton, Alexander, Madison, James, and Jay, John, The Federalist Papers (New York: Times-Mirror, 1961), 424.CrossRefGoogle Scholar

55. Quoted in Amar, “Jury Service as Political Participation,” 221.

56. Ibid., 204.

57. Marshall, T. H., “Citizenship and Social Class,” Class, Citizenship and Social Development (Garden City, N.Y.: Doubleday), 71134.Google Scholar

58. Neal v. Delaware, 103 U.S. 370 (1880).

59. Ibid., 370.

60. Ibid., 389.

61. Holland, The Body Politic.

62. DuBois, “Outgrowing the Compact.”

63. Kennard, Florence Elizabeth, “Maryland Women Demand Jury Service,” Equal Rights (March 7, 1931).Google Scholar

64. J. Brown, “The Nineteenth Amendment.”

65. 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'”); the late nineteenth century when women were denied citizenship status when they married foreign nationals (a status they previously retained) (Baker, Paula, “The Domestication of Politics: Women and American Political Society, 1780–1920,” American Historical Review 89 (1984): 620–47)CrossRefGoogle Scholar; and the late 1940s, when citizenship rights became more attached to predominantly male veteran's status (Ritter, Gretchen, “Of War and Virtue: Gender, Citizenship and Veterans' Benefits After WWII,” Contemporary Social Research 20 [2002]: 201–26).CrossRefGoogle Scholar See also Mehta, Uday, “Liberal Strategies of Exclusion,” Politics & Society 18 (1990): 428CrossRefGoogle Scholar; Pateman, Carole, The Sexual Contract (Stanford: Stanford University Press, 1988)Google Scholar; and Ritter, “Gender and Citizenship.”

66. J. Brown, “The Nineteenth Amendment,” 2204.

67. Smith, Rogers M., Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997)Google Scholar; Holland, The Body Politic; Kerber, “No Constitutional Right;” and Hoff, Law, Gender and Injustice.

68. Matthews, Burnita Shelton, “The Woman Juror,” Equal Rights (Jan. 19, 1929).Google Scholar

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70. Adkins v. Children's Hospital, 261 U.S. 525 (1923).

71. Ibid., 552–53.

72. Ibid.

73. Ritter, “Gender and Citizenship.”

74. Cott, Nancy, Public Vows: A History of Marriage and the Nation (Cambridge, Mass.: Harvard University Press, 2001).Google Scholar

75. Siegel, Reva, “The Modernization of Marital Status Law: Adjudicating Wives's Rights to Earnings, 1860–1930,” Georgetown Law Journal 82 (1994): 21272211.Google Scholar

76. Zimmerman, “The Jurisprudence of Equality.”

77. McCulloch, Catherine Waugh, “Trial by Jury,” The Woman Citizen (Oct. 2, 1920), 488–91, 493, 495.Google Scholar

78. McCulloch, “Trial by Jury,” 488.

79. Mrs. Stephen Pell, Equal Rights (Nov. 14, 1931).

80. Kennard, “Maryland Women Demand Jury Service.”

81. Matthews, Burnita Shelton, “The Status of Women as Jurors,” Equal Rights (May 24. 1930), 124.Google Scholar

82. Kennard, “Maryland Women Demand Jury Service.”

83. Sheridan, Elizabeth, “Women and Jury Service,” American Bar Association Journal 11 (1925): 795.Google Scholar

84. Matthews, “The Woman Juror.”

85. Walsh, John E., “Justice Served by Women Jurors,” Equal Rights (Feb. 5, 1927).Google Scholar

86. Matthews, “The Woman Juror.”

87. Commonwealth v. Welosky, 177 NE 656 (1931).

88. State v. James, 16 ALR 1141 (1921), at 1144.

89. in re Grilli, 179 N.Y.S. 795 (1920) at 797; see also Harper v. State, 234 SW 909 (1921).

90. See also In re Opinion of the Justices, 130 NER 685 (1921).

91. Idaho (State v. Kelley, 229 P. 659 [1924]), Illinois (People ex rel. Fyfe v. Barnett, 150 N.E. 290 [1925]), and Massachusetts (Commonwealth v. Welosky, ill N.E. 656 [1931]).

92. In re Opinion of the Justices, 685.

93. In re Opinion of the Justices; Parus v. District Court, 174 PAC 706 (Nevada 1918); People v. Barltz, 180 NW 423 (Michigan 1920); State v. Walker, 185 NW 619 (Iowa 1921); and Palmer v. State, 150 NE 917 (Indiana 1926).

94. Barltz, 425. It appears that the reference to male in the constitution refers to section 2 of the Fourteenth Amendment.

95. Parus, 708.

96. Sheridan, “Women and Jury Service.”

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99. State v. Chase, 106 Ore. 263 (1922).

100. Ibid., 267.

101. Hoyt v. Florida, 368 U.S. 57 (1961).

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