On No Constitutional Right to Be Ladies

This is a really difficult work to make sense of, and Kerber’s argument seems subtle but necessary. While most histories and analyses of the United States (and other countries, like France) have emphasized the nature of rights held by citizens, Kerber pushes back on this and argues that all rights have accompanying obligations. For instance, the right to benefit from civil government is accompanied by the obligation to pay taxes and to maintain loyalty to it. Yet, historically, these obligations have not been held equally by all people in the US.

Kerber makes this point through the case of women. She argues that, when the nature of state and citizenship was redefined in the volatile 1780s and 1790s, English domestic law maintained its full force in the newly independent country. Most importantly to English domestic law was the concept of coverture—the idea that a woman was owned by her husband (in all manners, including physically). As a result of this, women’s obligations were instead held by their husbands, while they could continue to benefit from rights. In her analysis, Kerber settles on five distinct obligations that all American citizens have: pay taxes, avoid vagrancy, serve on juries, risk life in military service, and refrain from treason. While women did not have obligations to serve on juries or risk military service (or, case dependent, pay taxes), they did have to avoid vagrancy and refrain from treason.

In Kerber’s view, women’s liberation in the United States also requires the expansion of the five obligations to be held by women as well. Women have since acquired the obligation (it sounds weird to say) to serve on juries, but women’s obligation to register for the draft still has not (and, in my view, will not) been accepted by either state or society. At the same time, the expansion of obligations suggests a whittling away at traditional legal coverture, albeit at a very slow pace. I think that Kerber would make the case that the fact that women can reasonably expect to be safe from physical violence in war without having to participate in war shows that staying power of coverture.

I’m sure that I’m missing tons here, it’s been a tough one to dissect, but it has made me think about citizenship differently.