Constitutional Celebrations: Women's Rights, Women's Roles, and the View From the Margins
by Deborah L. Rhode
The Bicentennial of the American Constitution has generated unprecedented public attention to our nation's founding document. For the most part, the climate has been celebratory, and understandably so. But at the risk of drizzling slightly on the parade, I am moved to add a cautionary comment. My concerns involve both limitations in the Founders' vision and the style of its contemporary commemoration. In our recent tributes to the Framer's text, we have lost sight of certain less becoming subtexts, and the restricted reach of constitutional mandates. What follows are some less celebratory reflections about the unstated premises and unacknowledged omissions in our Bicentennial agenda. By focusing on such issues, we may gain a better sense of what we should and should not be celebrating.
A threshold observation has to do with the contemporary packaging of our constitutional heritage -- with the commercialization, commodification, and oversimplification that seem inevitable on such occasions. This, to be sure, is an awkward subject. All too often, such criticisms end up appearing persuasive only to the already persuaded. Nonetheless, before the subject passes into the obscurity it so richly deserves, a brief comment seems in order. The stated objective of this Bicentennial is to honor what is most noble in American political traditions, but the orchestration of the event reflects much of what is worst in American cultural values.
It is scarcely surprising that certain of our nation's more entrepreneurial souls would seek to capitalize on our commemorative spirit. What has been less foreseeable, and more unsettling, is the extent to which their efforts have found aid and comfort from the country's leaders. For example, the national Bicentennial Commission has licensed several dozen corporations and consumer groups to market products using an official logo. According to Commission guidelines, these products must evidence some "commemorative" or "educational" purpose and reflect on our Framer's vision in an "honorable" fashion. Judging from the array of items receiving Bicentennial blessing, these guidelines have been liberally construed. Americans can now receive "education" concerning our most fundamental legal ideals via tankards, tie-tacks, t-shirts and saltwater taffy.
State Bicentennial commissions have also sought innovative instructional techniques. A representative example involves Delaware's recent efforts to add local color by having "Ladybugs Join in Bicentennial Event[s]." According to the description in We the People, the Bicentennial Commission's official newsletter:
" children from 60 schools released a million ladybugs -- Delaware's state insect -- through the air to celebrate the Constitution. The children, [the Director of Delaware's Heritage Commission] noted, were more likely to remember the Bicentennial if they participated in a colorful ceremony. 'They'll probably never forget the day they launched the ladybugs.'"(1)
What else the children will remember remains open to question. So does the fate of the ladybugs, who regrettably were not even Delaware residents, but were involuntary emigres from a Pennsylvania nursery.
This is not, of course, to diminish the value of much that has occurred under Bicentennial auspices, but it is to suggest that some strategies have trivialized what we seek to commemorate. Even the more substantive events -- the speeches, essays, pageants, and documentaries -- have too often risked oversimplifying and over-claiming. In our celebration of the Founders' "original intent," we have undervalued traditions that rightfully supersede it.
According to the national Commission on the Bicentennial, 1987 is "dedicated to the memory of the Founders and the document they drafted . . ." We are to "recall [their] achievements . . . and the knowledge and achievements that inspired them." Yet, as Justice Marshall has eloquently reminded us, a celebration on these terms invites a "complacent belief that the vision of those who debated and compromised in Philadelphia yielded 'the more perfect union' which it is said that we now enjoy."(2) The limitations of that vision become apparent with the very first line of our constitutional text. When the Framers spoke of "We the People" in 1787, they "did not have in mind the majority of American citizens."(3) As originally conceived, our founding documents reserved rights of self-governance for a small minority of white male property holders. As Justice Marshall has noted, while "We the People" no longer enslave or disenfranchise the majority of our residents, the "credit does not belong to the framers." It belongs rather to those who refused to acquiesce in the Founders' original intent, and their restrictive notions of liberty, justice, and equality.
What follows, then, are some brief observations on what is missing from contemporary celebrations. It is a view from the margins, from the perspective of those excluded from our nation's constitutional convention, and still under-represented in its governance structure. While the focus is on women, comparable observations hold for other subordinate groups. Our heritage has been skewed by race, class, and ethnicity, as well as sex. The point of emphasizing women is simply to suggest the range of reservations that should accompany our historical tributes.
For over two and a half centuries, understandings about gender have had substantial influence on American legal institutions. Yet only in the last two and one-half decades has discrimination on the basis of gender given rise to significant legal remedies. Until quite recently, American constitutional traditions excluded concerns about women, just as women themselves were largely excluded from the processes of constitutional decision making. Although subject to the Constitution's mandates, women were unacknowledged in its text, uninvited in its formulation, unsolicited for its ratification, and before the last quarter-century, largely uninvolved in its official interpretation.
When the framers of America's founding documents spoke of men -- of men "created equal and endowed with certain inalienable rights" -- they were not using the term generically. Thomas Jefferson, author of that celebrated phrase in the Declaration of Independence, did not believe that women should participate in political governance. In his view, in order to prevent "depravation of morals and ambiguity of issues, [women] should not mix promiscuously in gatherings of men."
Similar sentiments were apparent in The Federalist Papers, which provided the conceptual structure for the nation's constitutional system. The Papers mentioned women only once. The reference, by Alexander Hamilton, was a warning about the perils to the state from the intrigues of courtesans and mistresses.(4) Efforts to secure more favorable attitudes towards women's political role had no apparent success. The most celebrated rebuff involved Abigail Adams' request that her husband and his colleagues "Remember the Ladies," and grant them more favorable treatment in the country's new legal codes. "Depend upon it," John Adams responded, "[w]e know better than to repeal our Masculine systems."(5)
Among those acquainted with women's studies, this is familiar history. Yet among the public generally, this legacy has most often been ignored. Our celebration of the Framers' vision; our reverence for their original intent; our deference to a shared constitutional tradition; all rarely acknowledge in more than footnote fashion what all of this leaves out. Moreover, the limitations imposed by this legacy are not simply of historical interest. They continue to shape our sense of national identity, legal possibilities, and social priorities. By recalling women's efforts to gain constitutional protections, first enfranchisement and then an Equal Rights Amendment, we may gain a clearer sense of the capacities and constraints of our ideological inheritance.
The suffrage campaign, and the broader women's movement of which it was a part, were responses to a regime in which the sexes were more separate than equal. Throughout the 18th and 19th centuries, the dominant ideological assumption was that men should occupy the public and women the private spheres, and that law should reinforce that boundary. The "cult of domesticity" characteristic of the ante-Bellum period was equally apparent in legal ideology for a much longer interval. Early common law and statutory mandates imposed a wide range of disabilities. Married women, for example, generally could not enter contracts, hold or convey property, retain their own wages, stand for public office, serve on juries, or engage in licensed occupations.
There were, to be sure, exceptions to these prohibitions based on special equitable principles or social custom. During the mid-19th century, state legislatures began passing married women's property acts that removed many common law disabilities. Moreover, the extent to which doctrinal restrictions limited women's daily experience remain a matter of historical disagreement and ambiguity. What is beyond dispute is that for almost two centuries following our constitution's enactment, gender-based discrimination remained common in a broad range of practices concerning education, employment, family life, sexual conduct, and related matters. Until the last quarter century, those practices generated few legal challenges and still fewer legal victories. Despite broad language in the post-Civil War Fourteenth Amendment guaranteeing "equal protection" of the laws to all citizens, it was not until 1970 that the Supreme Court found any sex-based constraints in violation of that principle.
Ironically enough, this amendment, which is now the primary source of constitutional protection for women, was the subject of bitter opposition by women at the time of its drafting. Leading suffragists, such as Susan B. Anthony and Elizabeth Cady Stanton, opposed the Fourteenth Amendment, both because it extended no explicit rights to women and because it used the word "male" for the first time in the Constitutional text. Stanton's prediction in 1866 was that "if the word male be inserted [in this Amendment] it will take a century to get it out again." She was just about right, give or take a few years, but it was not for lack of effort.
In the century after passage of the Fourteenth Amendment, a majority of Justices rejected challenges to gender discrimination in a wide range of contexts including protective labor legislation, educational admission policies, jury selection procedures, and eligibility requirements for certain occupations. The reasons varied, but many reflected attitudes apparent in a landmark 1873 decision upholding women's exclusion from legal practice. According to the celebrated concurring opinion in Bradwell v. State, the "Law of the Creator" defined women's "paramount destiny and mission" as "the noble and benign offices of wife and mother." Although the precise method of divine communication was never elaborated, the message was apparent to other 19th and early 20th century judges as well. Unlike the noble offices of husband and father, maternity appeared to be an exclusive vocation. For the next century, federal courts viewed women's role at the "center of home and family life" as justification for a broad range of gender restrictions.
Yet these restrictions, built on the assumption that women's nature was solely to nurture, became increasingly difficult to reconcile with broader social trends. During the late 19th and early 20th centuries, the growing opportunities for female education, the decline in birth rates, the rise in industrialization, urbanization, and the demand for female labor all helped expand the boundaries of women's separate sphere. It was, in part, the inadequacy of legal responses to changing gender roles that fueled feminist desires for greater legislative power. In this context, enfranchisement came to assume increasing importance.
By the close of the 19th century, the constitutional campaign for suffrage dominated the feminist agenda. Among many proponents, the ballot emerged as an all-purpose prescription for social ills. Suffrage, it was variously claimed, would secure woman's "equal place and equal wages in the world of work." It would open to her all the schools, colleges, professions and "advantages of life." It would "purify politics" as well.
In 1920, after a struggle spanning three-quarters of a century, the Nineteenth Amendment granting women's suffrage went into effect. Yet the immediate results of that Amendment were poor compensation for the energies it displaced. In the half-century after women gained the ballot, they neither voted as a bloc on "women's issues," nor obtained substantial protections against discrimination. In part, the lack of progress in the post-suffrage era stemmed from limitations in the suffrage agenda itself. By placing so much emphasis on a single formal right, early feminist organizations failed to address the social and economic forces that structured women's daily lives; forces such as poverty, racism, sexual violence, unemployment, and restrictions on divorce and birth control. In concentrating so single-mindedly on the ballot, the nineteenth and early twentieth century women's rights movement laid the foundations for its own demise. The ballot had been tangible enough to arouse women, and abstract enough to unite them. Once attained, it proved impossible to replace.
The recent struggle for an equal rights amendment, like the struggle for the vote, responded to a growing disparity between legal traditions and social trends. The stereotypical assumptions about women's place that traditionally dominated judicial attitudes were out of phase with contemporary demographic patterns. By the 1960s, birth rates had fallen and female labor force participation had risen to the point where 90 percent of women could expect paid employment at some point in their lives, and the average mother could anticipate spending about two-thirds of her adult life without children under 18. These changing roles fueled women's rights activity on various levels.
The 1970s witnessed more legislative and judicial activity against gender discrimination than in the two preceding centuries combined. During that decade, the Supreme Court began subjecting sex-based classifications to a new, more demanding standard of scrutiny. In essence, the Court reinterpreted the equal protection clause to require that such classifications serve important state interests that could not be more narrowly achieved. Yet the unevenness of judicial holdings, and the costs of challenging discrimination on a piecemeal basis, rekindled demands for a constitutional Equal Rights Amendment. Some version of that Amendment had been introduced in every congressional term between 1923 and 1972. Finally, after a half century's struggle, both the House and Senate endorsed an ERA and submitted its text to the states for ratification. The dispute it sparked consumed much of the energy of the women's rights movement over the next decade.
In 1982, the period for ratification expired without the necessary endorsements by two-thirds of the states. Proponents immediately reintroduced the text in Congress, and the leadership of the National Organization for Women declared the amendment its highest priority. Yet before embarking on a full-blown ERA revived campaign, we should reconsider its limitations. Most fundamental problems now confronting women do not spring from the kind of formal disparities in treatment that the Amendment would redress. Equal rights is of limited value in contexts where the sexes are unequally situated. As statistics from the mid-1980s make evident, women remain disproportionately disadvantaged in a broad array of circumstances.
To take only the most obvious examples, women are still dramatically over-represented at the lower end of the socioeconomic spectrum and dramatically under-represented at the upper. When paid and unpaid labor are combined, female employees work significantly longer hours for significantly less financial security than males. Despite two decades of equal pay and equal opportunity legislation, the workforce remains highly gender segregated and gender stratified. The average full-time female worker in the mid-eighties still earns less than 70 percent of the salary of the average male worker. Half of all current marriages will end in divorce, and despite statutory guarantees of equal or equitable division of marital property, most wives end up with neither equality nor equity. Rather, most are left with far greater parental responsibilities and far fewer resources for performing them. Ninety percent of all single parents are women, and over a third of the households they head are below the poverty line. Two out of every three poor adults are female. Women also constitute the vast majority of victims of sexual violence and are often victimized twice, once by the experience of injury and once by the process of proving it. In these contexts, mandates of equal treatment between the sexes are not sufficient to secure treatment as equals.
It has been, in part, these concerns about the value of formal equality in circumstances of social inequality that fueled conservative women's opposition to the ERA. To these opponents, like their anti-suffragist predecessors, equality threatened sexual roles that appeared biologically destined and culturally appropriate. Phyllis Schlafly, the architect of the contemporary campaign against equal rights, invoked the same "separate spheres" arguments that had inspired anti-feminists a century earlier. The basic position, as she once summarized it, was that "women have babies so men should support them." To conservatives in both generations, a constitutional amendment came to symbolize an assault against traditional understandings of masculinity and femininity, and the invitation to an unpalatable "unisex" society. The perceived significance of this assault was apparent in the titles of groups that organized against the ERA: "Feminine Anti-Feminists," "Winsome Wives and Homemakers," and "Women Who Want to Be Women." For women who had organized their lives in accordance with traditional values, particularly full-time homemakers and occupants of low-status jobs, the women's rights movement -- with its perceived emphasis on political and professional advancement -- appeared to devalue other choices.
The responses to these concerns by ERA supporters left something to be desired. One approach, more inspired in theory than in practice, was to meet opponents on their own terrain and show that homemakers, as well as professional women, supported equal rights. So, for example, when ERA opponents began distributing home-baked gifts to state legislators, ERA advocates responded in kind and began matching their enemies, muffin for muffin. Yet these gestures, particularly as caricatured by the press, often trivialized the issues. According to standard journalistic accounts of "Rights Battle Boom[ing] From Kitchens," the campaign became a contest between rival homemakers. Moreover, proponents' tendency to become mired in mindless debates over legal technicalities, or issues such as the fate of single-sex restrooms under egalitarian mandates, deflected attention from critical social problems.
This is not to overstate the significance of feminists' political miscalculations, nor to undervalue the importance of their political achievements. As was true in the struggle for suffrage, equal rights advocates became increasingly adept at legislative lobbying and mass organization as the campaign wore on. In the long run, those political skills are likely to prove as critical as the constitutional results they were designed to secure. Yet the political as well as theoretical difficulties in feminist strategies over the last decade raise questions about the appropriate priorities for the next one.
At this juncture, it makes sense to place primary emphasis on issues that can unite rather than divide women, and pause in the struggle for constitutional entitlements. Without a fundamental reordering of American institutions and values, we cannot hope to secure significant progress toward gender equality. Such a reconstruction will require sustained political commitments and a substantive agenda that extends beyond equal rights. That agenda will, at a minimum, entail initiatives that respond to women's unequal circumstances, such as strategies concerning pay equity, affirmative action, adequate child care, welfare reform, reproductive freedom, and sexual violence. Constitutional mandates are more likely to be a catalyst, than a source of such change.
At various points in American history, prolonged constitutional conflict has provided an opportunity to clarify issues and to lay the foundations for broader social change. The conflict over New Deal social welfare legislation during the early part of this century was one example. The campaign for an Equal Rights Amendment could prove to be another. It may well be that the political truths distilled from this latest ratification struggle will be more enduring than the fruits of an early symbolic victory. If there is a further optimistic lesson from the ERA campaign, it is that the vast majority of women on both sides of the issue want equality in some sense -- equality in social status, economic security, and vocational opportunities. The challenge remaining is to draw from these common aspirations the basis for a common struggle and an expanded constitutional vision. What, then, our Bicentennial can provide is an occasion, not for simplistic sentimentality about sacred texts, but for a deeper understanding of legal traditions. What demands our allegiance is a process, not a document. The Framer's vision, however flawed in original form, laid the ground work for its own reformulation. In that process, we can all participate -- as well as celebrate.