Woman Suffrage and Women’s Rights

7. Taking the Law into Our Own Hands: Bradwell, Minor, and Suffrage Militance in the 1870s (1990) [Includes Images]

Taking the Law into Our Own Hands Bradwell, Minor, and Suffrage Militance in the 1870s Among the most contested elements of the Constitution have been the Reconstruction amendments, and a crucial aspect of that contest has been the relation of the Fourteenth Amendment to women’s rights. This essay addresses the early history of women’s rights claims to the Fourteenth and Fifteenth Amendments. It explores the legal arguments with which woman suffragists approached the Reconstruction amendments, the popular support and militant activism they inspired, and the role that the defeat of women’s rights claims played in the larger history of Reconstruction constitutionalism. This mid-nineteenth-century episode in women’s rights history was extremely brief, but it reverberates richly with many important and perplexing issues facing feminist thinkers and activists today. At various moments during which I worked on this essay, I felt that this material provided the historical key to current debates within feminism over “equality,” over “rights,” and over “politics.” Here, in the post–Civil War years, we can see proponents of women’s rights as they move from universal to particularistic arguments, providing us with the Gilded Age equivalent of the shift from “equality” to “difference ” in the feminism of our own time. While many of my contem7 114 Originally published in Visible Women, edited by Nancy Hewitt and Suzanne Lebsock. Urbana : University of Illinois Press, 1990. poraries emphasize the abstract and “male” character of such universalistic categories as “person” or “citizen,” I have chosen to stress the many costs to the women’s rights tradition of moving away from such frameworks —however “hegemonic” they may seem to our postmodern consciousness —which have helped situate women’s emancipation in the larger context of humanity’s freedom.1 Here, too, we can trace the course of the demands of a disempowered group based on the venerable but problematic constitutional concept of “rights.” Of late, “rights arguments” have been criticized, not only by conservatives but also by those on the left, for the assumption that entitlement inheres “naturally” in individuals, flourishing in a “private” realm that must be protected from interference, by others and by the state. Such a concept of “rights,” it is argued, masks the workings of power and favors those already privileged by existing social and political structures—men, white people, and the propertied.2 But this episode in women’s rights, perhaps the entire tradition, treats rights quite differently : as something to be won and exercised collectively rather than individually ; as the object of political struggle as much as of judicial resolution ; as that which government affirmatively establishes rather than negatively shields; and above all as that which has greatest meaning not to the powerful, who already enjoy their entitlements, but to the powerless , who have yet to have their full place in society recognized. Finally, this episode has implications for the character and place of the “political” in women’s history. While women’s historians have deepened our knowledge of the public activism of women, even—or especially —before their enfranchisement, much of this scholarship has followed what is called (in shorthand) “the separate spheres” model. Women, it is argued, have had—and may still have—their own political culture distinct from men’s, and they have chosen to work for their own and society’s betterment by embracing different institutions, following different rules, and adhering to different political values.3 This essay suggests that to the degree that nineteenth-century women abandoned a political terrain also occupied by men—of partisan power and judicial contest—they were driven from it by defeat and forced to pursue politics by other, more indirect means. This essay considers women as they attempted to march into power directly, through the main political enTaking the Law into Our Own Hands | 115 trance, rather than indirectly, through the backdoor of the nursery or kitchen. Most histories of women’s rights—my own included—have emphasized the initial rage of women’s rights leaders at the Radical Republican authors of the Fourteenth and Fifteenth Amendments. In 1865 Elizabeth Cady Stanton was horrified to discover what she called “the word male” in proposals for a Fourteenth Amendment. The second section of the amendment defines the basis of congressional representation as “male persons over the age of twenty-one” and in doing so makes the first reference to sex anywhere in the Constitution. The passage...