- Legal History and the Politics of Inclusion
It was long acceptable to write legal history, even excellent legal history, without including women or gender. Legal historians rationalized that because women did not participate in the ostensibly most significant events of legal history—the drafting of the Constitution, canonical Supreme Court decisions, the passage of the Reconstruction Amendments, and the jurisprudence that created modern legal thought—they were irrelevant when writing “serious” legal history. While women might play a role in a social history of the law or in discussions of domestic relations law, on the whole, women and gender stood at the periphery of legal history. There is a temporal lag, moreover, between the fields of women’s history and legal history. What appears new in legal history, for example examining the intertwined nature of race, class, and gender, is already well accepted in gender and women’s history. Much of this is changing, however, as legal historians make conscious efforts to rethink what constitutes legal history and its actors. This review considers four very different books that explore how gender and race have structured law and the legal profession. Each interrogates the legitimacy of law by demonstrating how it has produced multiple injustices, thereby challenging the myth that law is about equity or fairness, and that the Constitution and the Bill of Rights produced a set of inalienable rights and liberties that applied to all. [End Page 155]
Barbara Welke’s Law and the Borders of Belonging is concise, assignable, and packed with insights. She calls her reading across disciplines a “border crossing,” as it synthesizes material from extensive historical subfields and explores how law has produced and structured inequality (160). Only an experienced scholar like Welke, who has been central in reshaping the paradigmatic narratives of legal history to include gender and race, could produce such a work. Her highly regarded Recasting American Liberty demonstrated how the law’s treatment of accidents stemming from railroads and streets cars was gendered and racialized.1 Borders of Belonging is directed at a more general readership. It does not produce entirely new knowledge on gender and women’s history, but it engages in an indictment of the prevailing myths of American legal history and American pluralism: for those who were not able-bodied white men, law produced inequality and injustice, often leaving women and people of color without legal protection.
Borders narrates a history of legal personhood, pulling no punches as it argues that the framing and adoption of the U.S. Constitution created white men as legally recognized individuals while women and people of color were excluded from such status. Slavery and the common law concept of coverture, in which married women’s legal identity was merged into that of their husbands, preventing them from owning property, contracting, or suing in their own name, were not unfortunate historical accidents. Instead, as the primary legal structures for such exclusions, they were central to shaping who possessed the bundle of rights and obligations that constituted citizenship.
During the long nineteenth century, white men across classes consolidated their power through women’s dependence and property ownership, including slaves. The formal roles that white men played as lawyers, judges, jurors, legislators, voters, and law enforcers created a shared identity among white men and gave them the power to produce law, whether through constitutions, legislation, rule-making, interpretations of the common law, jury verdicts, or how officials...