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

Abstract

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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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), 95172; Forbath William, Law and the Shaping of the American Labor Movement (Cambridge: Harvard University Press, 1991).

2. Ritter Gretchen, “Gender and Citizenship after the Nineteenth Amendment,” Polity 32 (2000): 301–31.

3. Andersen Kristi, After Suffrage: Women in Partisan and Electoral Politics before the New Deal (Chicago: University of Chicago Press, 1996); Burnham Walter Dean, “Theory and Voting Research,” Current Crisis in American Politics (New York: Oxford University Press, 1982), 5889; Graham Sara Hunter, Woman Suffrage and the New Democracy (New Haven: Yale University Press, 1996); Harvey Anna, Votes without Leverage: Women in American Electoral Politics, 1920–1970 (New York: Cambridge University Press, 1998); and Shklar Judith, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991).

4. Cott Nancy, “Marriage and Women's Citizenship in the United States, 1830–1934,” American Historical Review 3 (1998): 1440–73; Chafe William, The American Woman: Her Changing Social, Economic and Political Roles, 1920–1970 (New York: Oxford University Press, 1972); Stanley Lemons J., The Woman Citizen: Social Feminism in the 1920s (Urbana: University of Illinois Press, 1973); O'Neill William L., Everyone Was Brave (Chicago: Quadrangle Books, 1971).

5. For exceptions, see Brown Jennifer, “The Nineteenth Amendment and Women's Equality,” Yale Law Review 102 (1993): 2175; 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). 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.

9. Brown Wendy, States of Injury (Princeton: Princeton University Press, 1995).

10. Powers v. Ohio, 499 US 407 (199)).

11. SirBlackstone William, Commentaries on the Laws of England (New York: Garland, 1978), 3: 352.

12. Blackstone, Commentaries, 3: 362.

13. Stanton Elizabeth Cady, Anthony Susan B., and Gage Matilda Joselyn, eds., History of Woman Suffrage, vol. 2 (New York: Arno, 1969); Kerber Linda, “Ourselves and Our Daughters Forever': Women and the Constitution, 1787–1876,” in One Woman, One Vote, ed. Wheeler Marjorie Spruill (Troutdale, Ore.: New Sage Press, 1995), 2136; DuBois Ellen Carol, “Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage and the Constitution,” Journal of American History 74 (1987): 836–62, and “Taking the Law into Our Own Hands: Bradwell, Minor, and Suffrage Militance in the 1870s,” in One Woman, One Vote, 81–98.

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. 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).

30. Bartlett Katharine T., Gender and Law: Theory, Doctrine, Commentary (Boston: Little, Brown, 1993), 5860.

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).

33. Hoff Joan, Law, Gender and Injustice (New York: New York University Press, 1991), 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).

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.

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).

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).

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

41. Blackstone, Commentaries, 4: 394–95

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

43. Weisbrod Carol, “Images of the Woman Juror,” Harvard Women's Law Journal 9 (1986): 60, n. 3.

44. Taylor Grace Elizabeth Woodall, “Jury Service for Women,” University of Florida Law Review 12 (1959): 225

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.

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), 735; 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.

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.

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.

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).

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); 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). See also Mehta Uday, “Liberal Strategies of Exclusion,” Politics & Society 18 (1990): 428; Pateman Carole, The Sexual Contract (Stanford: Stanford University Press, 1988); 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); 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).

69. Young Louise M., In the Public Interest: The League of Women Voters, 1920–1970 (Westport, Conn.: Greenwood Press, 1989), 56; Lemons, The Woman Citizen, 68–73.

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).

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

76. Zimmerman, “The Jurisprudence of Equality.”

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

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.

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

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

84. Matthews, “The Woman Juror.”

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

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.”

97. Skocpol Theda, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Harvard University Press, 1992); Muncy Robyn, Creating a Female Dominion in American Reform, 1890–1935 (New York: Oxford University Press, 1991); Mink Gwendolyn, The Wages of Motherhood: Inequality in the Welfare State, 1917–1942 (Ithaca: Cornell University Press, 1995).

98. Oregon General Laws 1921, Chapter 273, Section 1520.

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

100. Ibid., 267.

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

102. Echols Alice, Daring to Be Bad: Radical Feminism in America, 1967–1975 (Minneapolis: University of Minnesota Press, 1989).

103. Bock Gisela and James Susan, eds., Beyond Equality and Difference (New York: Routledge, 1992); Butler Judith and Scott Joan, eds., Feminists Theorize the Political (New York: Routledge, 1992); Fraser Nancy and Bartky Sandra Lee, Revaluing French Feminism (Bloomington: Indiana University Press, 1992); Goldstein Leslie Friedman, Feminist Jursiprudence: The Difference Debate (Lanham, Md.: Rowman and Littlefield, 1992); Gunew Sneja and Yeatman Anna, eds., Feminism and the Politics of Difference (Boulder: Westview Press, 1993); Hirschmann Nancy and Stefano Christine Di, eds., Revisioning the Political (Boulder: Westview Press, 1996); Jones Kathleen B., Compassionate Authority (New York: Routledge, 1993); Phillips Anne, Democracy and Difference (University Park: Pennsylvania State University Press, 1993); Shanley Lyndon and Pateman Carole, eds., Feminist Interpretations and Political Theory (University Park: Pennsylvania State University Press, 1991); and Kelly Weisborg D., Feminist Legal Theory (Philadelphia: Temple University Press, 1993).

104. Constable, The Law of the Other, 147–52; and Ritter Gretchen, “Modernity, Subjectivity and Law: Reflections on Marianne Constable's The Law of the Other,” Law and Social Inquiry 27 (1997): 809–28.

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