The Guardianship of a Woman, Part VI: The Weakness of Her Sex

[The Guardianship of a Woman FULL ARTICLE PDF here (link stays on-site)]

 

The Weakness of Her Sex

 

If one looks at all of the writings of the ancients, and indeed, even down well into the twentieth century, it is found that there is always great emphasis on a woman’s “weakness-” both physical and mental- and on the duty of the male sex to provide for and protect women. The Romans had called a woman’s weakness infirmitas sexus and levitas animi. As the jurist Gaius says of the perpetual tutelage of women: “For the ancestors (veteres) wanted women, even adult women, to be in tutelage because of their levitas animi.”[24] And likewise, Cicero, “Our ancestors wanted all women to be under a tutor’s power because of the weakness of their judgment.”[25]

Guardianship of women was an ancient custom oftentimes even among unmarried women after they had reached adulthood. As Blackstone had explained it,

Among the ancient Greeks and Romans women were never of age but subject to perpetual guardianship, unless when married “nisi convenissent in manum viri:” and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty-five years.[26]

Though the laws and customs of England and America had no guardianship of adult unmarried women, women in Rome (even in the classical and post-classical period), were subject to perpetual tutelage. The Romans also held many of the same common-sense notions that our own traditional laws of England and America had held until arbitrary anti-sex discrimination legislation began to be forcibly pushed through Congress, state legislatures, and the courts:

In the early Roman Empire, as in most Western societies until the success of the women’s suffrage movement in the early twentieth century, women were citizens but were nonetheless legally barred from voting, holding magistracies, serving as jurors, and generally performing what were thought of as public duties.

(Ulpian in the first book on Sabinus)

Women are excluded from all civic and public duties (official civilia vel publica), and so they cannot be judges (iudices), hold magistracies, bring legal claims for others (postulare), represent others in court, or act as procurators (for others in lawsuits).

(Paul in the seventeenth book on the Edict)

Moreover, not everyone can be appointed a judge (iudex) by those who have the right to appoint judges. Certain kinds of persons are prevented from acting as judges by statute, by nature, or by convention…By convention, there are women and slaves, not because they do not possess judgment, but because it is traditional that they do not preform civic duties (civilia official).[27]

A “son-in-power” (in other words, a son who was still under the authority of his father (or grandfather if he was still living), as all children were perpetually under the authority of the male head-of-household, or pater familias, even in adulthood until he either died or they were emancipated) was also in a different position than a daughter-in power, as Roman law did not conceive that a daughter could be competent enough to truly enter into contracts or be held liable the same as her brother might be:

…if sons are otherwise qualified (of adult age, sane, and so on), they possess full capacity to contract with a third party. By contrast, as Gaius says, daughters-in-power (and also wives in archaic manus marriages), cannot be obligated to anyone; that is, they lack the capacity to make a contract that is binding upon themselves…Suppose that a daughter-in-power borrows from a neighbor a piece of jewelry which she then carelessly damages. According to Ulpian (D. 13.6.3.4), she herself cannot be sued on the contract for damaging the jewelry, and her pater familias can be sued only up to the value of her peculium, if she has one…[28]

The Romans, not only placing great emphasis on feminine weakness, also placed a great deal of value upon female sexuality. In particular, the Romans (as in all civilizations, including our own until recently), implemented protective legislation into their laws to protect especially virtuous women in their sexuality and placed great weight upon a woman’s fidelity in marriage. As Frier & McGinn describe it (and as described by the late classical Roman jurist Ulpian), Roman law protected women and adolescent males- but not adult males- from the sexual harassment of predatory males who make their advances “contrary to good morals.” Frier & McGinn further ask the question: “Is it fair to argue that…Roman law was based on a policy goal of difference between the sexes (where harassment undermines the ‘privileged status’ of women)?”[29]

Our own historical laws can be referred to, as well as the opinions of judges and learned men of ages past, to see that our laws and social values have always (again, until very recently) acknowledged that male and female sexuality are completely different things, and that men and women oftentimes have special circumstances not shared by the opposite sex. Not too far gone in history, the Supreme Court of the United States ruled against the male plaintiff in the case of Michael M. V. Sonoma County Superior Court 450 U.S. 464 (1981), who contended that California’s statutory rape law “…unlawfully discriminated on the basis of gender since men alone were criminally liable.”[30] But Justice William H. Rehnquist and four other of his contemporaries weren’t buying it:

 But because the Equal Protection Clause does not “demand that a statute necessarily apply equally to all persons” or require “things which are different in fact . . . to be treated in law as though they were the same…'” This Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances. As the Court has stated, a legislature may “provide for the special problems of women.”

We need not be medical doctors to discern that young men and young women are not similarly situated with respect to the problems and the risks of sexual intercourse. Only women may become pregnant, and they suffer disproportionately the profound physical, emotional, and psychological consequences of sexual activity. The statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe.

The question thus boils down to whether a State may attack the problem of sexual intercourse and teenage pregnancy directly by prohibiting a male from having sexual intercourse with a minor female. We hold that such a statute is sufficiently related to the State’s objectives to pass constitutional muster.

Because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female, a legislature acts well within its authority when it elects to punish only the participant who, by nature, suffers few of the consequences of his conduct. It is hardly unreasonable for a legislature acting to protect minor females to exclude them from punishment. Moreover, the risk of pregnancy itself constitutes a substantial deterrence to young females. No similar natural sanctions deter males. A criminal sanction imposed solely on males thus serves to roughly “equalize” the deterrents on the sexes…

In upholding the California statute, we also recognize that this is not a case where a statute is being challenged on the grounds that it “invidiously discriminates” against females.

To the contrary, the statute places a burden on males which is not shared by females. But we find nothing to suggest that men, because of past discrimination or peculiar disadvantages, are in need of the special solicitude of the courts. Nor is this a case where the gender classification is made “solely for . . . administrative convenience…” or rests on “the baggage of sexual stereotypes.” As we have held, the statute instead reasonably reflects the fact that the consequences of sexual intercourse and pregnancy fall more heavily on the female than on the male…[31]

Other cases may be referred to, and there is certainly evidence that the Founding Fathers did not envision the society that we have today. Not only does the Constitution of the United States forbid either Congress or the states from “impairing the obligation of contracts”[32] and thereby calling into question the entire constitutionality of all legislation attempting to make men and women equal out in the working world, but it can never be supposed that they meant for the Constitution to impose all of the same rights and duties upon both sexes in every sphere of life either. Consider the infamous instance of Abigail Adams, when writing to her husband -arguably among the most famous of the Founding Fathers-, John Adams, that he “remember the ladies:”

On March 31, 1776, Abigail Adams appealed to her husband, John Adams, who was busily engaged with the Continental Congress in Philadelphia. She urged that “in the new code of laws which I suppose it will be necessary for you to make, I desire you would remember the ladies…” His curt reply mirrored the attitude of the times: “As to your extraordinary code of laws, I cannot but laugh.”[33]

Significantly, in Minor v. Happersett, 88 U.S. 162 (1875), Muller v. Oregon, 208 U.S. 412 (1908), Radice v. New York, 264 U.S. 292 (1924), Goesart v. Cleary, 335 U.S. 464 (1948); Hoyt v. Florida, 368 U.S. 57 (1961), and other peculiar state cases such as the Oregon Supreme Court case of State v. Hunter, 300 P.2d 455 (Ore. 1956). Cases such as MullerRadice, and Goesart upheld protective legislation for women, on the grounds of female weakness, women’s role as the bearer of the children, and of man’s duty to safeguard female sexuality and be the providers of women and children, with the justices issuing what I would consider very beautiful- if paternalistic and romantic- opinions.

These cases have since been overturned, of course, leaving no room for either Congress or the states to enact any kind of legislation- no matter how much it might appeal to the common sense and reason of mankind nor how necessary a legislature might deem it to protect the family- that would treat the sexes differently, leading to many arbitrary abuses, confusion, instability, and injustice as a result.


 

[24] Frier & MgGinn, A Casebook on Roman Family Law, p. 450.

[25] Ibid.

[26] James Stewart, The Rights of Persons, According to the Text of Blackstone, Incorporating the Alterations Down To the Present Time (London, 1839), p. 499.

[27] Frier & McGinn, A Casebook on Roman Family Law, p. 457.

[28] Ibid., p. 251.

[29] Ibid., p. 469.

[30] Fisher & Harriger, American Constitutional Law, Volume 2, Tenth Edition: Constitutional Rights, Civil Rights and Civil Liberties, p. 869.

[31] Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469-76 (1981).

[32] U.S. Const. art.I, §10. “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”

[33] Fisher & Harriger, American Constitutional Law, Volume 2, Tenth Edition, Constitutional Rights, Civil Rights and Civil Liberties, p. 845.

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