icon caret-left icon caret-right instagram pinterest linkedin facebook twitter goodreads question-circle facebook circle twitter circle linkedin circle instagram circle goodreads circle pinterest circle

Doris writes a weekly column for LaGaceta, the nation's only trilingual newspaper, which has pages in English, Spanish, and Italian.  Begun in 1922 for Tampa's immigrant community, it continues to thrive more than a century later.  Her column is titled "In Context," as it aims to put contemporary issues in the context of the past.

Democracy Used to Be a Dirty Word

Any one who lived through the civil rights movement for black Americans understands that “states’ rights” was a convenient code for racism. Conservative politicians railed that legal changes to protect the inalienable rights of African Americans were a violation of “states’ rights.”

Most Florida lawmakers, along with those in other Southern states, contended that their state legislatures had a right to pass and enforce laws that discriminated against people born with the wrong skin color. As the battle lived out in the 1960s, the majority of Americans decided that states should not have such exclusionary laws, and the federal government overrode those that stubbornly remained. A century after the Civil War made that point, black people finally saw the promise of true liberty.

While almost everyone today sees “states’ rights” as an antiqued philosophy, astonishingly few see that it also is key to understanding women’s rights. Historians don’t teach it that way, and so this huge point goes unacknowledged.

I saw the light turn on in the eyes of a recent audience. I do a lot of speeches during Women’s History Month, and eye contact with audience members always is important. In a speech to the League of Women Voters, however, the light bulbs seemed to literally pop when I said that all of history should be seen as a struggle between women’s rights and states’ rights. Leaguers are sophisticated people who know more about government and history than 99% of Americans, but this was a new concept for most.

* * *

Most people also don’t realize that “democracy” was a dirty word when the Constitution was adopted in the 1780s. “Democracy” was used like “communism” was in the 1950s, as a catch-all word for everything evil. The men who wrote the Constitution did not believe in democratic government and did not intend for most people – even most white men – to vote.

But as Americans moved west in the early1800s and new states were carved from former territories, new state governments expanded the right to vote. Property ownership was very much tied to enfranchisement, and it was easy to own property in the wilderness. As the ideas of westerners such as Tennessee’s Andrew Jackson took hold in the 1830s, “Jacksonian Democracy” extended voting privileges not only on the frontier, but also to white working-class men in urban areas. Even Jews, Catholics, and property-less white men now could cast a ballot.

For women, though, statehood often meant a step backwards. In the colonial era of the 1600s, women freely went to court and argued their own cases. Even the class of women called indentured servants – Europeans who sold themselves into temporary slavery for the cost of passage to the New World – went to court. Countless records exist of women (and men) who persuaded courts to enforce the terms of an indenture contract, even down to whether or not the servant had adequate underwear.

But under state governments, women lost their right to sue. As the colonies became states, legal codes were rewritten to eliminate many rights that women had enjoyed when governance was smaller and closer to the people. Married women literally had no rights in most states: the marriage license dissolved the individual female (femme sole) and merged her identity with that of her husband (femme covert). The Latin word meant that his existence legally covered – or buried – hers.

In most states, a woman could not file for divorce; only her husband could do that – and he rarely had any incentive to do so, as her inherited property became his. Even her earned income was legally his. In Pennsylvania, for example, the colony established on brotherly love was replaced by a legalistic state. It granted many rights to men, and the husband of Pittsburgh journalist Jane Grey Swisshelm sued her siblings for the money that she would have earned if she had not nursed her dying mother. Even her missing income was his.

The rare femme sole who refused to marry nonetheless paid taxes to the state, even though the states gave her no rights. For decades, women protested against this violation of the principle of “no taxation without representation,” but the state prevailed. Lucy Stone allowed a New Jersey sheriff to sell her personal goods rather than pay taxes to a government that did not grant her civil rights, and other women did likewise.

In Connecticut, sisters Julia and Abby Smith refused to pay taxes on their Gastonbury farm because they could not vote. The court sold their cattle to a male neighbor – and newspapers treated “the Gastonbury Cows” as laughable cartoon material. They completely missed the underlying principle of taxation without representation, something presumably enshrined in the American Revolution.

States also gave automatic child custody to fathers, another huge disincentive for divorce. Fanny Kemble, for instance, was an Englishwoman who married a Georgian planter; when she realized that she could not live among slaveholders, she had to give up her three children. In Massachusetts, a state senator repeatedly had his wife committed to insane asylums so that he could more easily abuse their daughter. Her family recognized the wrong, but they were legally helpless.

Women always assumed that they had the right to petition, however, and after feminists organized petition drives in the 1850s, Northern states began to change these laws. Few Southern women were audacious enough to petition for their own rights (although some Hillsborough County women signed an 1860 petition to secede from the Union), and their property rights under state law remained archaic.

South Carolina’s Mary Chesnut, for example, lost the five plantations she had managed while her husband was alive: because they did not have children, the property reverted to his family. She was a brilliant woman who had lived in Washington when he was a US senator, and her diaries provide us with much political information. Under South Carolina law, however, she was forced to spend her widowhood making butter that she sold with help from a former slave. South Carolina law long remained medieval, and as late as World War II, it was literally impossible to divorce there.

In Louisiana, even a woman’s clothes legally belonged to her husband; she was not free to sell them. Louisiana law also refused to recognize a woman as a witness. In a case during the early 1900s, a New Orleans orphanage lost the generous bequest that a donor intended because only women had signed the document testifying to her intentions. Had they brought their illiterate – but male – janitor into the room to make his mark, the will would have been upheld.

* * *

Far into the twentieth century, states routinely excluded women from tax-supported colleges and universities, especially to law and medical schools. A Michigan woman had to go to court for the right to tend bar, as state law forbade female bartenders. As late as 1972, Idaho law gave men automatic status as executors of family estates; in Reed vs. Reed, a woman had to go to court to overrule the law so that she could take control from her brother, who was mentally incompetent. Inheritance law in many farm states gave sons more power than widows who built the farm.

Locally in 1961, the US Supreme Court upheld state law in Hoyt vs. Florida, ruling that the automatic exclusion of women from jury service was constitutional. Eighteen other states had similar laws that allowed women to serve, but only if they took special steps to volunteer. At least three states, all in the South, barred women from juries completely – meaning no jury of her peers for female defendants or opportunity for female attorneys. Female judges were unfathomable – and that was 1961, the year I graduated from high school.

Even later discriminatory cases were in the so-called liberal Northeast. Griswold vs. Connecticut (1965) often is cited today as the bulwark of personal privacy – something that conservatives claim to value – but the case really was about women, and specifically their right to birth control. Connecticut, with its large Catholic population, banned the sale of contraceptives, and after Estelle Griswold had the personal courage to pursue the case, the US Supreme Court struck down the state law.

Massachusetts lawmakers tried to get around the ruling by restricting sales to individuals who could prove that they were married, but in Eisenstadt vs. Baird, the Court declared that the state could not prosecute Bill Baird, an unmarried man, for purchasing contraceptives. That was in 1972, the year I moved from Massachusetts to Florida. By contrast, contraceptives now are available on Publix shelves, and many reputable polling sources report that Catholics practice birth control at the same rate as Protestants.

But if you think that the conflict between women’s rights and states’ rights is over, think again. Any woman gains or loses the right to make decisions about her own body when she crosses state lines. Just a few days ago, North Dakota lawmakers banned the termination of pregnancies that are beyond six weeks – when a woman barely knows whether or not she has missed her period. Because men cannot get pregnant, such laws do not apply to them, and the conflict between women’s rights and states’ rights continues.

Would black people today give up the right to eat in public restaurants based on state borders? Would any man surrender any right because he moved from South to North Dakota? That is the framework in which these important decisions should be made. And just as in the past, “states rights” is a code for fascism and legal terrorism, and for keeping the victim in her place.

Doris Weatherford writes a weekly column for La Gaceta, the nation's only trilingual newspaper. With pages in Spanish, Italian, and English, it has been published in Tampa since 1922.
Make a comment to the author