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April 29, 2015

Amazing What You Find Doing Historical Research

Thinking about the constitutional law essay by Northwestern professor Steven Calabresi and some Brown University students (mentioned by Lydia in a couple of recent posts) I was struck by their main claim summarized in the abstract:

This essay examines the original meaning of the equality guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

- Congressional Register, 1866

So I did some digging on what the Congress that passed the Fourteenth Amendment thought about these issues and right from the get go, I discover they were not that enlightened when it came to women's "equal civil rights":

Mr. ELDRIDGE. Mr. Speaker, let me go a little further here. If it be true that the construction of this amendment, which I understand to be claimed by the gentlemen from Ohio, [Mr. Bingham] who introduced it, and which I infer from his question is claimed by the gentleman from Pennsylvania. [Mr. Stevens:] if it be true that that is the true construction of this article, is it not even then introducing a power never before intended to be conferred upon Congress. For we all know it is true that probably every State in this Union fails to give equal protection to all persons within its borders in the rights of life, liberty, and property. It may be a fault in the States that they do not do it. A reformation may be desirable, but by the doctrines of the school of politics in which I have been brought up, and which I have been taught to regard was the best school of political rights and duties in this Union, reforms of this character should come from the States, and not be forced upon them by the centralized power of the Federal Government.

Take a single case by way of illustration, and I take it simply to illustrate the point, without expressing any opinion whatever on the desirability or undesirability of a change in regard to it. Take the case of the rights of married women: did any one ever assume that Congress was to be invested with the power to legislate on that subject, and to say that married women, in regard to their rights of property, should stand on the same footing with men and unmarried women? There is not a State in the Union where disability of married women in relation to the rights of property does not to a greater or less extent still exist. Many of the States have taken steps for the partial abolition of that distinction in years past, some to a greater extent and others to a less. But I apprehend there is not to-day a State in the Union where there is not a distinction between the rights of married women, as to property, and the rights of femmes sole and men.

Mr. STEVENS. If I do not interrupt the gentleman I will say a word. When a distinction is made between two married people or two femmes sole, then it is unequal legislation: but where all of the same class are dealt with in the same way then there is no pretense of inequality.

[...]

Mr. BINGHAM. Excuse me. Mr. Speaker, we have had some most extraordinary arguments against the adoption of the proposed amendment.

But, say the gentleman, if you adopt this amendment you give to Congress the power to enforce all the rights of married women in the several States. I beg the gentleman's pardon. He need not be alarmed at the condition of married women. Those rights which are universal and independent of all local State legislation belong, by the gift of God, to every woman, whether married or single. The rights of life and liberty are theirs whatever States may enact. But the gentleman's concern is as to the right of property in married women.

Although this word property has been in your bill of rights from the year 1789 until this hour, who ever heard it intimated that anybody could have property protected in any State until he owned or acquired property there according to its local law or according to the law of some other State which he may have carried thither? I undertake to say no one. As to real estate, every one knows that its acquisition and transmission under every interpretation ever given to the word property, as used in the Constitution of the country, are dependent exclusively upon the local law of the States, save under a direct grant of the United States. But suppose any person has acquired property not contrary to the laws of the State, but in accordance with its law, are they not to be equally protected in the enjoyment of it, or are they to be denied all protection? That is the question, and the whole question, so far as that part of the case is concerned.

So it seems to me (with only some basic research) that the argument that the original meaning of the Fourteenth Amendment somehow gives women the equivalent civil rights to men is nonsense. But what about their other claims?

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