The Constitution of 1787 was written at a time when men assumed that women were the inferior sex. They assumed certain stereotypes about men and women. It was assumed that women were emotionally and physically weaker than men, and intuitive. It was assumed that men were more intelligent, and rational, and were guided by intellect and logic rather than emotion and sentimentality. It was assumed that a woman’s greatest desire and ambition in life was to be a wife and mother and to please her man. The Constitution did not extend rights to women.
In the colonial period, and in early America, women were thought of as property. It was assumed that women belonged to men. Children were under the authority of their fathers. When a woman married, she was placed under the authority of her husband. If she became a widow and did not marry, she was considered to be under the authority of her oldest son. If there was no son, then the next closest male relative (son-in-law, brother-in-law, nephew would suffice. Down to the Civil War, legally, any property that a woman possessed became the property of her husband when she married. Mary Chesnutt, wife of Senator James Chesnutt, was a wealthy heiress. She describes in her famous Diary how her husband assumed control of her fortune, paid off his debts, and then placed her on an allowance. He then complained about how she spent her own money. Women could not make contracts without the consent of their parents or (if married) their husband. Any employment (especially outside the home) is a contract. A bank loan is a contract. Women could not even write a will and leave property to their children without the consent of their husband. And of course women could not vote, hold office or serve on juries. Women were dependents, rather like children, or minors, and were second class citizens. The "compensation" in this was that women were protected. The implied bargain was that women would agree to subordination and second class citizenship in exchange for a man protecting them and providing for them.
Early advocates of the cause of women’s rights included Lucretia Mott, Sarah Grimke and Abby Kelly. In 1848 women’s rights activists held a convention at Seneca Falls, NY. There, led by Lucretia Mott and Elizabeth Cady Stanton, they drafted a declaration of sentiments that proclaimed That "all men and women are created equal." This corrected the omission of Jefferson’s famous Declaration.
In 1869 Congress considered the 15th Amendment. Susan B. Anthony and Elizabeth Cady Stanton urged that women be given the right to vote. The Republicans ignored them. Congress was ready to permit black men to vote, but men in general were not prepared to allow their wives to vote. Perhaps the men in Congress felt that the freed slaves no longer "belonged" to them, but they did feel that their wives "belonged" to them and should obey them (rather than cast an independent vote). Indeed, many commentators said that if you gave a woman a vote you would just be giving her husband two votes because women would vote the way that their fathers or husbands "told" them to vote.
In the West it was often necessary for a woman on the frontier to be able to shoot a gun and deal with wild animals. There was less of the idea that women are weak, frail, delicate creatures who faint at the sight of everything unpleasant. In 1869 the territory of Wyoming gave women the right to vote, which they retained in state and local elections when Wyoming became a state in 1890. Women received the right to vote in Colorado in 1893, Utah and Idaho in 1896, Washington state in 1910, and California in 1911. Arizona, Kansas and Oregon followed in 1912, and Illinois in 1913. In 1917 New York became the first state east of the Mississippi to grant women the right to vote.
The activist who raised women’s suffrage to a new level was Alice Paul. She was determined to embarrass men into giving women the right to vote. In March 1913 she organized a march in Washington, DC, during the inauguration of Woodrow Wilson. By 1917 her followers picketed in front of the White House. They were arrested and briefly went on a hunger strike to draw attention to the cause. Men wee not accustomed to such assertiveness on the part of women.
In 1918 the House of Representatives passed the Anthony Amendment, that the right of citizens of the US to vote shall not be denied or abridged by the US or by any state on account of sex. Recall that a proposed amendment to the Constitution requires a two-thirds vote of both Houses. In 1918 President Wilson (finally) gave support to the Amendment, and urged the Senate to pass it. Unfortunately, if fell two votes short of the necessary two-thirds. New elections were held in November 1918, and the Senate voted again in June 1919. The amendment passed by exactly the necessary two-thirds, as the Nineteenth Amendment. By August 1920, three-fourths of the states had ratified the Amendment.
Alice Paul urged an amendment that specified that women are entitled to equal rights with men in the eyes of the law. Not until 1972 did Congress approve the ERA, and even then it was not possible to get three-fourths of the states to ratify it.
There are a few court cases that also are noteworthy.
BRADWELL V. ILLINOIS
One of the most famous instances of discrimination against women was the case of Bradwell v. Illinois, in 1872. Mrs. Bradwell wanted to attend law school in Illinois. Illinois did not permit women to attend law school or practice law. In the English common law, only men were admitted to the bar. Bradwell claimed this was a violation of the Fourteenth Amendment, which guaranteed equal protection of the law. Bradwell asserted that it was one of the privileges and immunities of women as citizens to engage in any profession, occupation or employment.
The Supreme Court ruled against her and said:
It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender.
The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded on divine ordinance, as well as the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.
The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.
The decision continued:
A married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him.
It is true that many women are unmarried and not affected
by any of the duties, complications, and incapacities arising out of the
married state, but these are exceptions to the general rule. The paramount
destiny and mission of woman are to fulfill the noble and benign offices
of mother and wife. This is the law of the Creator. And the rules of
civil society must be adapted to the general constitution of things, and
cannot be based upon exceptional cases.
IN RE LOCKWOOD
About 1894 Miss Belva Lockwood applied to the bar in Virginia. She was not permitted to join, and filed a lawsuit which reached the Supreme Court. The Virginia Court of Appeals ruled against her, and she appealed to the Supreme Court. In the case Lockwood contended that the Fourteenth Amendment stated no state could deny any person the equal protection of the law. The issue before the courts was whether person meant both males and females, or only males. The VA state court held that the term "person" as utilized in the Fourteenth Amendment applied only to males. For legal purposes, a woman was not a person.
The Supreme Court allowed the lower court ruling to stand, and refused to overturn it. The exact, verbatim decision of the Supreme Court, in the case called "In Re Lockwood," was
"It was for the Supreme Court of Appeals [of VA] to construe the statute of Virginia in question, and to determine whether the word "person" as therein used is confined to males, and whether women are admitted to practice law in that Commonwealth. Leave denied." By allowing the state to decide, and not overturning this precedent, in effect the Supreme Court agreed that under the Constitution a woman was not a legal person.
OTHER EXAMPLES OF INEQUALITY
As late as 1945 the state of Illinois would not allow a woman to vote because she had not changed her name and taken her husband's name when she married (Schulder, in Morgan, p. 165-166). Thus it invalidated her voter registration because of "her statutory duty to cancel her registration under [her maiden name] and re-register in her husband's name to preserve her right to vote." (Schulder, in Morgan, p. 166).
Likewise, as late as 1966, the US Supreme Court upheld a state law on coverture. This is based on the common-law concept that the husband and wife are one, and that one is the husband. Therefore, a married woman cannot make any contract without the consent of her husband. The 1966 case involved a woman in Texas who had contracted for a loan from a bank. The courts held the loan was invalid because as a married woman she had no legal right to enter into a contract without the consent of her husband. (Schulder, in Morgan, p. 165).
Fortunately, the women’s movement of the 1960s has changed public opinion and created greater acceptance of the idea that women should have equal rights with men. However, it is still the case that women on average earn about 76 cents for every dollar that a man earns.
Another pioneer for women’s rights was Margaret Sanger, who opened a birth control clinic in New York City in 1916. She devoted her life to the cause of birth control and family planning. She died in 1966, just as the FDA was approving the birth control pill.