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Published online by Cambridge University Press: 12 May 2020
Since the drafting of the federal Constitution in 1787, the legal status of women in the United States has passed through four distinct phases and is on the brink of entering a fifth one. In this two-hundred-year period, there has been more change in the last twenty years than in the previous onehundred- and-eighty. Yet, a decade and a half ago scholarly classes about women and the Constitution could not be taught because too little primary research had been conducted in either the new social history with its subfield of women or the latest version of the new legal history with its subfield of sex discrimination.
Both subfields reflect the increased interest of historians and lawyers in interdisciplinary research techniques developed in this country and abroad since the 1960s.
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8 Shklar, Judith, Legalism (Cambridge: Harvard University Press, 1964 and 1981 editions), 10Google Scholar.
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11 For a more detailed discussion of the significance of the doctrine of separate spheres see: Williams, , “The Equality Crisis,” pp. 177–179Google Scholar and Pleck, , “Women's History,” pp. 59–60Google Scholar. A more detailed discussion of definitions of feminism and progress for women over time can be found in Offen, “Toward a Historical Definition of Feminism,” and Hoff-Wilson, Joan, Balancing the Scales: Changing Legal Status of American Women from the Colonial Period to the Present (Bloomington, Indiana: Indiana University Press,Google Scholar forthcoming), chapter one.
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18 For a general discussion of the historiographical and methodological problems facing those who try to write interdisciplinary legal history see the unpublished work in progress by Sandra F. Van Burkleo, “An Independence Beggarly and Barren: Kentucky Land Politics, Depression, and the Case of Green v. Biddle, ,” especially draft pages 10–28Google Scholar. Recent quantitative studies of note include: Greenberg, Douglas, Crime and Law Enforcement in the Colony of New York, 1691- 1776 (Ithaca, N.Y.: Cornell University Press, 1976Google Scholar); Hindus, Michael Stephen, “Black Justice under White Law: Persecutions of Blacks in Antebellum South Carolina,” Journal of American History 63 (1976): 575-99CrossRefGoogle Scholar; Lebsock, Suzanne, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860 (New York: W.W. Norton & Company, 1984Google Scholar); Koehler, Lyle, A Search for Power: The “Weaker Sex” in Seventeenth-Century New England (Urbana, III., University of Illinois Press, 1980Google Scholar). For a general review of the latest literature on American women up to 1815, see: Mary Beth, Norton, “The Evolution of White Women's Experience in Early America,” American Historical Review 89 (June 1984): 593–619Google Scholar.
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24 Horowitz, , Transformation of American Law, 4; Peggy A. Rabkin, Fathers to Daughters: The Legal Foundations of Female Emancipation (Westport, Connecticut: Greenwood Press, 1980), 69Google Scholar. Following discussion in this section is based on Albie Sachs and Hoff-Wilson, Joan, Sexism and the Law: A Study in Male Beliefs and Legal Bias in Britain and the United States (New York: The Free Press, 1979), 75–80Google Scholar; and Chused, Richard H., “Married Women's Property Law: 1800- 1850,” The Georgetown Law Journal 71 (1983): 1359–1425Google Scholar.
25 For details about such voting and law practice cases as United States v. Anthony, 24 F Cas. 892 (C.C.N.D.N.Y. 1873); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873); and Minor v. Happersett 88 U.S. 162 (1875), see Sachs, and Wilson, , Sexism and the Law, pp. 85–106CrossRefGoogle Scholar.
26 The following discussion of Muller is from Nancy S. Erickson, “Historical Background of ‘Protective’ Labor Legislation: Muller v. Oregon,“in Weisberg, D. Kelly, Women and the Law: A Social Historical Perspective (Cambridge: Schenkman Publishing Company, Inc., 1982), 2: 155– 186Google Scholar; Friesen, Jennifer and Collins, Ronald K. L., “Looking Back on Muller v. Oregon,” American Bar Association Journal 69 (March and April 1983): 294-98, 472-77Google Scholar; and Sachs, and Wilson, , Sexism and the Law, pp. 113–116Google Scholar.
27 Muller's brief, p. 24. Erickson notes that this analogy was very similar to one used by Mathew Carpenter in defending Bradwell's, Myra right to practice law in Bradwell v. Illinois 83 U.S. 130, 134(1873Google Scholar).
28 Smith-Rosenberg, Carroll, Disorderly Conduct: Visions of Gender in Victorian America (New York: A.A. Knopf, 1985), 252–305, 358 (ftnt 127Google Scholar).
29 Goesaert et. v. Cleary et al, Members of the Liquor Controll Commission of Michigan, 335 U.S. 464 (1948). Goesaert was not overruled until Sail'er Inn, Inc. v. Kirby, 5 Cal. 3d 1. 20 585 P. 2d 329 (1971). Hoyt v. Florida, 368 U.S. 57 91961). Hoyt was not overruled until Taylor v. Lousiana 419 U.S. 522 (1975).
30 West Coast Hotel v. Parrish, 300 U.S. 379 (1937); Sachs and Wilson, Sexism and the Law, pp. 114-116; Scharf, Lois, “ER and Feminism,” in Hoff-Wilson, Joan and Lightman, Marjorie, eds., Without Precedent: The Life and Career of Eleanor Roosevelt (Bloomington, Indiana: Indiana University Press, 1984), 234–236Google Scholar; idem. Female Employment Feminism and the Great Depression (Westport, Connecticut: Greenwood Press, 1980), 86-138.
31 For example, see: Frontiero v. Richardson, 411 U.S. 677 (1973); Califano v. Goldfarb, 430 U.S. 199 (1977); Califano v. Westcott, 433 U.S. 76 (1979); Wengler v. Druggists Mutual Insurance Co., 446 U.S. 142 (1980). 446 U.S. 142 (1980).
32 Michael M. v. Superior Court, 450 U.S. 464 (1981); Rostker v. Goldberg, 453 U.S. 57 (1981).
33 The most famous of the “reverse discrimination” cases remains. Regents of University of California v. Bakke, 438 U.S. 265 (1978), even though this decision did not decide the issue because the Justices chose to argue on narrow statutory grounds that UC Davis had to admit Bakke to medical school because it had violated Title VI of the 1964 Civil Rights Acts, while also maintaining that race “may” be a factor in affirmative action programs at educational institutions. Most “reverse discrimination” cases have involved union seniority questions or voluntary affirmative action programs undertaken by cities or industries.
34 For example, see: Kahn v. Shevin, 416 351 (1974); Schlesinger v. Ballard, 419 U.S. 498 (1975); and Califano v. Webster. 97 S. Ct. 1192.
35 Personnel Administration of Massachusetts v. Feeney, 442 U.S. 256 (1979).
36 See Scales, , “Feminist Jurisprudence,” pp. 375–444Google Scholar for a detailed discussion of Supreme Court cases on pregnancy; and Williams, “The Equality Crisis,” for ways in the Pregnancy Discrimination Act (PDA) has been used not to treat women equally, but to give them special treatment.
37 ln 1984, for example, the Supreme Court ordered the U.S. Jaycees to admit women and said that law firms may not discriminate on the basis of sex which lawyers to promote as partners. See: Roberts, et al. v. United States Jaycees, 82 L. Ed. 2nd 462 (1984), and Hishon v. King and Spaulding, 81 L. Ed. 2nd 59 (1984). At the same time in Grove City College v. Bell, 79 L, Ed. 2nd 516 (1984). It gutted Title IX by deciding that individual units of educational institutions could discriminate and not endanger the federal aid received by other units, saying receipt of Basic Educational Opportunity Grants by some students did not require institution wide coverage under Title IX. Attempts last year to override this decision with provisions in a Civil Rights Restoration Act failed in Congress.
38 Tribe, Laurence H., American Constitutional Law (Mineola, New York: The Foundation Press, Inc., 1978), 602–608Google Scholar; Blakely, Mary Kay, “Is One Woman's Sexuality Another Woman's Pornography?“, Ms. (April 1985): 37–47Google Scholar, 120-121; Sworkin, Andrea, Pornography: Men Possessing Women (New York: Perigee, 1984Google Scholar); MacKinnon, Catharine, “Not a Moral Issue,” Yale Law and Policy Review 2 (Spring, 1984): 321–345Google Scholar.
39 Offen, , “Toward a Definition of Feminism,” p. 10Google Scholar; Williams, , “The Equality Crisis,” p. 200Google Scholar.