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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.

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

References

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

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

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56. Ibid., 204.

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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.”

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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.”

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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.

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