Cover

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Frontmatter

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Contents

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p. vii

Acknowledgments

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pp. ix-x

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Introduction: Context in the Constitutional Order

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pp. 1-17

Constitutional interpretation is fraught with anxiety. There is always the chance that an interpreter of the United States Constitution will give into his or her own personal and political proclivities, so interpreters take pains to assume an appropriate posture. They may present themselves as religiously faithful or scientifically expert to the undertaking.1 Such protective measures shield the Constitution’s higher-law...

PART I: THE RISE OF RIGHTS

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1. Codification of the Common Law Considered

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pp. 21-44

The common law was British and feudal in its origins, and it vested power in unelected judges, but it was fairly unproblematic in the early American republic.1 The English common law was transplanted in the American colonies, and early Americans did not reject these feudal origins or case-law methods after independence. In fact, members of the Revolutionary War generation were likely to refer to the...

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2. Abstracting Rights

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pp. 45-66

Because the codification movement did not succeed in replacing the organic development of the common law with the precision of an authoritative and logical code, legal thought did not reject the contextual development of law that was possible under the common law. The law was much more amenable to releasing itself from context when constitutional rights discourse developed under the activism of the abolitionists. ...

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3. The Married Women’s Property Acts: Death Blow to Coverture?

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pp. 67-89

As the woman’s rights movement took shape in the mid-nineteenth century, it drew upon the legacies of the legal codification movement and the political abolitionist movement to assail the common law, one of the primary sources of women’s civil and political status. Woman suffragists drew attention to the relations of status and hierarchy in the domestic relations and made it more difficult to refer to the common law as a palladium of liberty. To emphasize the hierarchy of the common...

PART II: LINGERING STATUS

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4. The Married Women’s Property Acts: Collaborating for Coverture

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pp. 93-111

Despite the woman suffragists’ pronouncement that the married women’s property acts inflicted the deathblow to coverture, the rules of coverture and married women’s status persisted. Married women gained the right to own property, that linchpin of liberal theory, and even subsidiary rights to acquire, use, dispose of, and contract for that property, but often within limits. The civic capacity recognized in...

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5. The Domesticity of the Domestic Relations

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pp. 112-127

In interpreting the married women’s property acts, state supreme courts acted in collaboration with legislatures to retain the status of the common law and the legal construction of the household. The household remained a viable concept in law because of changes in the domestic relations themselves. Historically one of the domestic relations, ...

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6. Common Law Lost

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pp. 128-147

Coverture survived the passage of the married women’s property acts, and it even found a place for itself in the new regime of married women’s reformed status. Modern society could not complete the transition from status to contract while coverture proved so tenacious. Over the course of the nineteenth century, as the common-law doctrine of coverture increasingly became a political topic, rather than an issue internal to law, a new public narrative of the common law emerged. ...

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Conclusion

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pp. 148-152

When American liberalism lost its association with the common-law domestic relations, it became a doctrine defined by its abstract principles and understood outside the context in which it operated. Rights had always been contextualized. Property rights, freedom of speech, and equity had all offered the possibility of protective rights theories rooted in context. Even the abolitionists’ most abstracted rights theories were...

Notes

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pp. 153-178

Index

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pp. 179-181