Putting Women Back Where They Belong: In Federalism and the U.S. History Survey

To say that women do not figure prominently in the historiography of federalism is an understatement, to say the least. What could debates about the relationship between states and the federal government possibly have to do with women, particularly before the Civil War, when they lacked the rights necessary to access these levels of government? Everything, as I argue in “The Legal World of Elizabeth Bagby’s Commonplace Book: Federalism, Women, and Governance,” which appeared in the December 2019 special issue of The Journal of the Civil War Era. More than that, attention to federalism makes it possible to integrate women into parts of U.S. history survey courses where they are usually relegated to sidebars.

Why is federalism about women? Conventional approaches define federalism in terms of those areas of law and governance—states and the federal government—that lay beyond the reach of most women before the Civil War. But new scholarship has extended federalism to include all of the governing order’s layers, including those to which women of all races and ethnicities had some access: those linked to the state, such as county, municipal courts, and other local governing venues, as well as those that were not linked to the state, such as churches, voluntary organizations, and families. In fact, new work suggests that states and the federal government were more accessible to women and men without the full range of rights than previously thought. Of course, access did not translate into leverage. Race, ethnicity, and class shaped women’s influence within these venues. Still, this new vision of federalism moves all women from the margins to the center, showing them to be more involved in the business of governance than previously assumed.[1]

How does this vision of federalism work in the context of the U.S. history survey? The new republic’s founding provides a good example. Surveys generally include some treatment of Revolutionary-era state constitutions, the Articles of Confederation, and the U.S. Constitution. But the discussion usually ends there, as if states and the federal government constituted the entirety of the governing order and, moreover, that it excluded women. That was hardly the case. Petitioning, as recent work shows, allowed access even to these arenas. Local courts and other bodies at the county and municipal level, moreover, continued to operate much as they had in the colonial era. Not only did these local jurisdictions still serve as the primary governing arena for most people, but they also exercised considerable discretion over the issues that directly affected the lives of most people, including most women. It was not just the location of these venues, although that helped; it was also the body of law in operation there that made them accessible to women. Local areas had wide latitude in the area of public law, a specific, open-ended body of law, which oversaw matters relating to the general welfare–everything from interpersonal violence and property disputes to poor relief and pretty much anything else that touched on the public order.[2]

Why does public law in local jurisdictions make women more visible? It shifts the narrative from exclusion to inclusion. In one sense, the founding fathers did not remember the ladies, as Abigail Adams suggested they do: women did not acquire the rights necessary for full participation in the new institutions of government set up at the state and federal levels. But that is only part of the story. Public law as practiced in local jurisdictions remained accessible not just to all women, but also to men whose race, ethnicity, or class left them without the rights necessary for full participation at the state and federal levels. Access did not imply equality, as I’ll explain below. But the key point here is that women were accustomed to being part of the public order—not in all its layers, but in some. That matters.

How did women access public law when most did not have the full range of rights? Historians have tended to focus on other bodies of law, namely those that focused on the rights of individuals at the state and federal levels. But, in fact, a number of different bodies of law circulated in the new republic: not just civil or private law (which primarily protected individual rights) and public law (including criminal and the regulation of matters relating to the social order generally), but also equity, the laws followed by merchants, various military codes, and the legal rules associated with religious denominations. They all worked differently. In particular, rights were not necessary to access public law, the body of law over which local jurisdictions had considerable discretion. Cases went forward as an offense against the public order, not a rights-bearing individual, which meant that married women, minor daughters, and sometimes even enslaved women could make claims within it.

What kinds of claims did women make? All kinds. Married and enslaved women claimed property for themselves. Free black women claimed ties of belonging—citizenship—to the places where they lived, as historian Martha Jones has shown. All women challenged violence committed against them by their husbands, fathers, employers, and masters as well as physical violence, sexual assault, rape, and other injustices committed by third parties. But their complaints were not just about themselves. They also acted on behalf of friends, family members, and neighbors. Collectively, these cases suggest the issues that concerned women as well as the extent to which they involved themselves in the governance of their communities.[3] The frame of public law accentuated the communal implications of their individual actions, by turning an offense against a single woman into a public matter: it was not just one woman who was hurt by a husband’s excessive force; the entire community was. See a selection of online sources provided here.[4]

What effect did their claims have? These cases could have transformative effects for individuals, when they were successful. Collectively, they formed potent legal principles that placed outer limits on expressions of patriarchal authority—but only in particular places. Local cases addressed particular problems in specific communities. They did not become a general body of law, applicable over wide spaces. Women’s claims, moreover, did not necessarily challenge the structural hierarchies of the social order, even in local areas. The system accommodated them. It could, because change was not really the point of this area of law in which women worked. To the contrary: public law upheld the existing social order, including the rigid hierarchies that defined it in this period. All those who stepped out of their place fared badly. To the extent that anyone of subordinate status had credibility, it was because of the social ties that defined their subordination. The system favored the wives and daughters of respectable, white men and those who maintained their own reputations within their communities. Poor white, free black, and enslaved women had more difficulty. They could maneuver in this area of law, although they needed stellar reputations and connections to powerful people to do so—which meant that they were most successful when they conformed to the rigid hierarchies of the time. The outcomes also affirmed those hierarchies. Husbands or masters convicted of abusing their wives or slaves were disciplined because they had abused their authority, not because patriarchal authority itself was problematic. Women were allowed to keep property, without acquiring property rights that would have made such cases unnecessary.

How do women’s legal actions fit within narratives of U.S. history? Bottom line: all of the cases brought by women in local courts are a central part of the history of the founding. The political landscape of the time not only included complaints about such things as women’s property ownership and sexual assault, as well as debates in the Federalist Papers, but also managed to diffuse those issues, to the point where the memory of them has almost disappeared altogether. All of that is part of federalism—and the politics of the new republic. Incorporating public law in municipal and local contexts recovers the history of the majority of students sitting in the survey class. It was not that women never owned property, until married women’s property acts. It was not that women remained silent about their own problems and those of their communities, until they had the right to vote. Incorporating public law illuminates the effects of federalism in real people’s lives, making abstract concepts more concrete and more meaningful.

 

[1] For an overview of this work, see Laura F. Edwards, “Sarah Allingham’s Sheet and Other Lessons from Legal History,” Journal of the Early Republic 38 (Spring 2018): 121-47. As recent scholarship has shown, the right of petitioning provided formalized access to states and the federal government to those without rights and played a significant role in directing public policy. See Maggie Blackhawk, “Petitioning and the Making of the Administrative State,” Yale Law Journal 127 (2018): 1448, and “Lobbying and the Petition Clause,” Stanford Law Review 68 (2016): 1131.

[2] Hendrik Hartog’s pathbreaking article, “Pigs and Positivism,” Wisconsin Law Review 4 (July 1985): 899-935, opened up the legal world beyond state and federal law. Also influential in this regard is Ariela J. Gross, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton, NJ: Princeton University Press, 2000). For the operation of public law at the local level, see Laura F. Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009).

[3] For a particularly revealing study, see Meggan Farish, “Rethinking Violence, Legal Culture, and Community in New York City, 1785-1826” (Ph.D. diss., Duke University, 2018).

[4] For other examples of cases, see Edwards, The People and Their Peace, particularly pp. 55-202. The points here are based not just in my own research, but also in the work of others. For examples of African American women claiming freedom, rights, and belonging, see Martha Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (New York: Cambridge University Press, 2018); Kelly Kennington, In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America (Athens: University of Georgia Press, 2017); Anne Twitty, Before Dred Scott: Slavery and Legal Culture in America’s Confluence, 1787-1857 (New York: Cambridge University Press, 2016). For African American women’s property claims, see Dylan Penningroth, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003). Wives also advocated for themselves through divorce cases; see Hendrik Hartog, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000); Michael Grossberg, A Judgment for Solomon: The d’Hauteville Case and Legal Experience in Antebellum America (New York: Cambridge University Press, 1996).