No Constitutional Right to Be Ladies?

By Ashleigh Nix ’10

Does the US Constitution view men and women equally? That is the question that Dr. Linda Kerber will address in a public forum on September 17 at 7 pm in the Hartness Auditorium of Converse College. Kerber’s visit is in celebration of Constitution Day 2008 and is sponsored by The George Dean Johnson Jr. Chair in History.

“The men who put the Constitution into practice and who interpreted it all these years failed to include women in the guarantees that the Constitution is supposed to offer all Americans,” said Kerber.

Kerber notes a few instances in the topics of jury service, citizenship and the right to petition where the Constitution applies differently for women than men. “Jury service is located in Article III, Section 2 but in most states, women did not even serve on a jury until long after women got the right to vote (1920),” she said. “For example, women in South Carolina were banned from jury duty until 1967, when the federal court noted that it denied equal protection towards women. Not until 1975 did the U.S. Supreme Court rule that laws forbidding women from serving on juries are unconstitutional and that men and women must be eligible for jury service on the same terms; not until 1992 did the Supreme Court rule that peremptory challenges based on gender are impermissible.”

The discrepancies exist even at the level of citizenship. “Men have never put their citizenship at risk by marriage. But between the mid-nineteenth century and the early 1920s, American-born women who married foreign-born men lost their citizenship,” said Kerber. “Even Ulysess S. Grant’s daughter, who had married an Englishman, had to petition Congress to restore her citizenship after she was married. Hundreds of American women married to German men had to register as ‘Alien enemies’ during World War I. Even after the law was changed, American-born women could retain their citizenship only if they married men who were not Asian or from India. This amendment was altered after World War II.”

Although the right to petition is secured by the First Amendment, “women’s petitions were regularly tabled by the U.S. Congress until after the Civil War,” said Kern. The right to petition essentially provides the right to ask the government to right a wrong. “Most generally, at the time the Constitution was put into effect, all states’ marriage practices included the practices of coverture, which gave to men at marriage virtually unconditional access to their wife’s body and control over her property . These practices saturated national and state law, and were alive in the 1970s until the feminist movement targeted them.”

Even though the Fourteenth Amendment assures “equal protection of the laws,” the meaning of equal protection has changed, and, according to Kern, will change over time. “What counts as ‘equal protection’ has covered many of the changes in our practices over the last generation. But some questions remain open, notably whether the right to decide on one’s medical care, including abortion, is a matter of equal protection of the laws,” said Kerber.

Currently serving as the May Brodbeck Professor in Liberal Arts and Sciences at the University of Iowa, Kerber focuses on the history of authority, gender and citizenship as a professor in the school’s Department of History. She also lectures