The Guardianship of a Woman, Part IV: There is No Good “Wave” of Feminism

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

 

There Is No Good “Wave” of Feminism

 

There are those who contend that the first “wave” of feminism was “innocent” and perhaps even necessary and good. But the reality of the matter is that there has never been any good or justifiable “wave” of feminism. The goals of feminism have always been the same since its very inception. That is, its goals were to destroy the family, destroy marriage, and create dissension and antagonism between men and women. Indeed, not only was the wrongful guise of feminism to “liberate” women from the supposed “slavery” that was marriage, feminism’s ultimate goal has always been to liberate men from their rightful responsibilities as well, creating the modern society that we have today of unmotivated men disinterested in marriage and unchaste and vulgar women, incapable of finding that true depth of happiness and fulfillment in life that feminism was supposed to secure for the female sex.

In July of 1848, at Seneca Falls, New York, a group of racially and sexually integrated women’s rights activists made the infamous Declaration of Seneca Falls Convention. After a C-grade rehashing of the Declaration of Independence, the Seneca Falls Declaration read:

 

The history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her. To prove this, let facts be submitted to a candid world.

He has never permitted her to exercise her inalienable right to the elective franchise.

He has compelled her to submit to laws, in the formation of which she had no voice.

He has withheld from her rights which are given to the most ignorant and degraded men- both natives and foreigners.

Having deprived her of this first right of a citizen, the elective franchise, thereby leaving her without representation in the halls of legislation, he has oppressed her on all sides.

He has made her, if married, in the eye of the law, civilly dead.

He has taken from her all right in property, even to the wages she earns.

He has made her, morally, an irresponsible being, as she can commit many crimes with impunity, provided they be done in the presence of her husband. In the covenant of marriage, she is compelled to promise obedience to her husband, he becoming to all intents and purposes, her master- the law giving him power to deprive her of her liberty, and to administer chastisement.

He has so framed the laws of divorce, as to what shall be the proper causes, and in case of separation, to whom the guardianship of the children shall be given, as to be wholly regardless of the happiness of women- the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.

After depriving her of all rights as a married woman, if single, and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profitable to it.

He has monopolized nearly all the profitable employments, and from those she is permitted to follow, she receives but a scanty remuneration. He closes against her all the avenues to wealth and distinction which he considers most honorable to himself. As a teacher of theology, medicine, or law, she is not known…

He has endeavored, in every way that he could, to destroy her confidence in her own powers, to lessen her self-respect, and to make her willing to lead a dependent and abject life.

Now, in view of this entire disfranchisement of one-half the people of this country, their social and religious degradation- in view of the unjust laws above mentioned, and because women do feel themselves aggrieved, oppressed, and fraudulently deprived of their most sacred rights, we insist that they have immediate admission to all the rights and privileges which belong to them as citizens of the United States.

In entering upon the great work before us, we anticipate no small amount of misconception, misrepresentation, and ridicule; but we shall use every instrumentality within our power to effect our object. We shall employ agents, circulate tracts, petition the State and National legislatures, and endeavor to enlist the pulpit and the press in our behalf. We hope this Convention will be followed by a series of Conventions embracing every part of the country.[16]

 

The ladies and their male feminist supporters got their way. And what has been the result of all of this? What have been the ultimate consequences to every life in existence in America today? Even assuming that half of their assertions (half were only religious grievances- left out of the excerpt above- for which there was no redress at law in either case) were even true in the first place regarding the alleged abuses that man had supposedly inflicted upon the female sex, was what they were campaigning and petitioning for even a good cause in the first place? Before our own modern biases accede “yes” to the proposed question simply because it falls in line with modern mainstream propaganda, perhaps a deeper reflection about this issue is warranted. It can’t be supposed that their proposal was ever meant to lead to anything other than the complete annihilation of marriage and gender both at a social and legal level such as we have today. Those such as Elizabeth Cady Stanton were also advocates for marriage-law reform and liberalized divorce “as a needed outlet for men and women trapped in failed marriages.”[17] Does this sound suspiciously modern? Consider the following case and examine just how closely it resembles 21st century mainstream relationships today:

 

The Supreme Court of Kansas staked out the boundaries of nuptial freedom in an 1887 ruling that welcomed common-law marriage into the state. The justices sustained the conviction of E.C. Walker and Lillian Harman for illicit cohabitation. During their wedding the pair had proclaimed their hostility to conventional matrimony in terms reminiscent of those expressed at the 1848 wedding of the women’s rights crusaders Lucy Stone and Henry Blackwell. Calling themselves Autonomists, the couple publicly declared their bond while repudiating all statutory controls on marriage. At the commencement of the ceremony, the bride’s father read an elaborate statement of the sect’s view of marriage as a “strictly personal matter.” The bride and groom denied “the right of society, in the form of church and state to regulate it, or interfere with the individual man and woman in this relation.” They dispensed with the traditional nuptial promise “to love and honor” each other, since this might not be possible to sustain. The groom also renounced his legal right to change his wife’s name, take her property, and retain custody of their children. Instead, he promised her complete equality. The bride then pledged that her fidelity would be guided by her conscience. After these pronouncements were published in the sect’s journal, local authorities arrested, convicted, and sentenced the pair to the county jail.

The ceremony repelled the state bench. Though the justices agreed that under the common law, nuptial regulations were merely directory, they refused to confer the status of common-law marriage on this union. Chief Justice Albert Horton thundered his opinion: “They have lived together, but had no intention of creating that relation of status known and defined by law and by customs and usages of all civilized societies as marriage. Thus living together under such circumstances did not in law constitute a valid marriage.” The court defended the state’s nuptial authority and refuted the plea that Walker and Harman’s civil rights has been violated. Instead, they assured the citizenry that the lax provisions of the law were amendable to reason.[18]

 

What was once shocking has now become mainstream under the guise of equality, civil rights and erroneous judicial interpretation of the Fourteenth Amendment of the United States Constitution, replete with the usurpation of all power by the Federal government, thereby wholly denying to the states the right to make their own laws to govern family life.


 

[16] Quoted in Melvin I. Urofsky & Paul Finkelman, Documents of American Constitutional and Legal History, Volume I (New York, 2002), pp. 327-28.

[17] Michael Grossberg, Governing the Hearth, Law and the Family in Nineteenth-Century America (Chapel Hill, 1985), p. 87.

[18] Ibid., pp. 97-98.

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The Guardianship of a Woman, Part III: The Origins of Guardianship For Women

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

 

The Origins of Guardianship for Women

 

But my heart is saddened inside every time that I think about the world that I live in; about those who would ever want to take that love and that protection away from me. Who is to say that our ancestors were wrong and that we are somehow right today? And will the future generations that succeed us believe that we were right and “enlightened” and “forward-thinking,” or will they look upon what we have done, what we have allowed, with horror and be scandalized?

The roots of guardianship for women are ancient. Among the Romans a woman initially entered into what was called manus marriage, where she left her father’s household and came under the manus, or control and power, of her husband. Scholars apparently do not know much about this form of marriage, which was already becoming obsolete (perhaps even “barbaric,” “crude,” and- dare someone say- “misogynistic?”) by the time of Rome’s classical period (the height of the empire before its decline and fall). As Bruce W. Frier and Thomas A.J. MgGinn relate:

The older form of Roman marriage involved the subjection of the wife to the control (manus) of her husband. This form of marriage was fast becoming obsolete already by the beginning of the classical period of Roman private law, and accordingly we know less about it than we would like…

One of the most remarkable features of Roman family law is that the Romans went through a transition from an archaic form of marriage featuring the wife’s legal subjection to her husband to a form of marriage resting almost entirely upon voluntary cooperation between the spouses, without, as it seems, passing through any intermediate stage.[12]

After the decline of manus marriage, Roman marriage began to look very much like the practice of the Western world in modern times, with marriages becoming highly unstable with a complete separation of husband and wife in all areas of life, sometimes to very sad and devastating outcomes.

Still in antiquity, guardianship of women is to be found even in Mosaic law. Women held a very high status as wives and mothers in the “Old Testament,” and Mosaic law placed women under the protection and guardianship of their husbands and fathers. In the “Old Testament” of the Bible, Numbers 30 relates that a father or husband may void any vows that a daughter or a wife makes unto the Lord. This is somewhat reminiscent of coverture under the traditional English and American common-law where a woman could not enter and bind herself in any contract without the express consent of her husband (and who in a lawsuit had to be the plaintiff or defendant in any suit initiated by or against the wife).

And Moses spoke unto the heads of the tribes concerning the children of Israel, saying, This is the thing which the Lord hath commanded.

If a man vow a vow unto the Lord, or swear an oath to bind his soul with a bond; he shall not break his word, he shall do according to all that proceedeth out of his mouth.

If a woman also vow a vow unto the Lord, and bind herself by a bond, being in her father’s house in her youth;

And her father hear her vow, and her bond wherewith she hath bound her soul, and her father shall hold his peace at her: then all her vows shall stand, and every bond wherewith she hath bound her soul shall stand

Bur if her father disallow her in the day that he heareth; not any of her vows, or of her bonds wherewith she hath bound her soul, shall stand: and the Lord shall forgive her, because her father disallowed her.

And if she had at all a husband, when she vowed, or uttered ought out of her lips, wherewith she bound her soul;

And her husband heard it, and held his peace at her in the day that he heard it: then her vows shall stand, and her bonds wherewith she bound her soul shall stand.

But if her husband disallowed her on the day that he heard it; then he shall make her vow which she vowed, and that which she uttered with her lips, wherewith she bound her soul, of none effect: and the Lord shall forgive her.

But every vow of a widow, and of her that is divorced, wherewith they have bound their souls, shall stand against her.

And if she vowed in her husband’s house, or bound her soul by a bond with an oath;

And her husband heard it, and held his peace at her, and disallowed her not: then all her vows shall stand, and every bond wherewith she bound her soul shall stand.

But if her husband hath utterly made them void on the day he heard them; then whatsoever proceeded out of her lips concerning her vows, or concerning the bond of her soul, shall not stand: her husband hath made them void; and the Lord shall forgive her

Every vow, and every binding oath to afflict the soul, her husband may establish it, or her husband may make it void.

But if her husband altogether hold his peace at her from day to day; then he establisheth all her vows, or all her bonds, which are upon her: he confirmeth them, because he held his pace at her in the day that he heard them.

But if he shall any ways make them void after that he hath heard them; then he shall bear her iniquity

These are the statutes, which the Lord commanded Moses, between a man and his wife, between the father and his daughter, being yet in her youth in her father’s house.[13]

Coming to our own history, the very word “wedding” itself has its roots in one of the most ancient forms of contract consisting of the transfer of a woman’s guardianship from her birth family to her husband:

In order to conclude a contract Anglo-Saxon law required numerous external acts, and several of these survived for many centuries. First of all there was the wed, which after the Norman Conquest was called a gage, and consisted of a valuable object which was delivered by the promisor either to the promisee himself or to a third party as security for carrying out the contract…

The occasions upon which it became necessary to contract during the Anglo-Saxon age were mainly of two types. In the first place the solemn ceremonies by which a betrothal was effected were essentially contractual, for the betrothal was in effect a contract for a sale. The Anglo-Saxon marriage on its civil side (which was independent of the Church’s sacramental views) still consisted of the sale by the woman’s kinsfolk of the jurisdiction or guardianship over her (which they called mund) to the prospective husband. Even after this ceased to be a strictly commercial transaction, betrothal and marriage ceremonies retained a good many survivals of the older order- Maitland has described the marriage forms of the Church of England as “a remarkable cabinet of legal antiquities,” and the Episcopal Church of America has also retained most of them. The betrothal was effected by the delivery of a wed and thus became a “wedding,” that is to say, the conclusion of a contract for a future marriage.[14]

The roots of marriage forming a type of guardianship over a woman are ancient, then. Are we supposed to say that our way is any better? Are we happier? Are men, women and children prospering, happier, less suicidal, less depressed, less anxious, less lonely than our ancestors? Are we truly to say that it is better to take a woman away from the love and protection and guardianship of a man who is yet sworn to provide for and protect her- and her alone- for a lifetime, forsaking all others and whatever they may say or do in the process?  What woman could not look upon the writings of Blackstone and the writings of the ancients, learned and knowledgeable in the law, and not feel some sort of deep desire, longing, and stirring within her heart at the love and deep passion that being one- physically, legally- spiritually perhaps- if one wishes to carry it that far- with a man that she loves?

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-French a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for that grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage. A woman indeed may be attorney for her husband; for that implies no separation from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself; and if she contracts debts for them he is obliged to pay them; but, for anything besides necessaries, he is not chargeable. Also if a wife elopes, and lives with another man, the husband is not chargeable even for necessaries; at least if the person, who furnishes them, is sufficiently apprized of her elopement. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together. If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued, without making the husband a defendant.[15]

She is covered, protected, cherished by him. What greater love can there be on this earth? What woman, secure in her femininity, does not dream of such lasting love? To take her out of that love, that protection, that civil disability where she is under the guardianship of her husband, then husband and wife lead a separate existence. Marriage is then rendered either unstable or, as is the way in the modern era, near obsolete.


 

[12] Bruce W. Frier & Thomas A.J. McGinn, A Casebook on Roman Family Law (New York, 2004), p. 88. See also ibid., pp. 89-94, cases 37-40 for specific cases regarding a wife’s status under Roman manus marriage regarding property, succession and divorce.

[13] Numbers 30:1-16 (King James).

[14] Plucknett, A Concise History of the Common Law, pp. 628-29.

[15] Blackstone, Commentaries on the Laws of England Book the First, pp. 442-43.

The Guardianship of a Woman, Part II: One In The Law

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

 

One in the Law

 

But if you want to know what it is that a woman thinks and feels, then ask a real flesh-and-blood woman what she really feels inside, what she really desires, really needs. If I obey him and submit to him it’s because I love him, trust him, believe in him and need him to provide for and protect me. Our earliest laws and oldest legal precedents back up the assumption that husband and wife are to be one flesh, one in the law. Indeed, the common-law made a woman civilly dead whenever she entered into marriage with a man. He was to be her everything in life, in law. She could not contract then without his consent, sue or be sued, nor own and control anything separately from her husband unless special provisions were made via trust or, in specific circumstances, equity[3].

 

The legal term for the status of married women was “coverture,” which meant that wives were “covered” by their husbands in all areas of life, especially the control of property. With few exceptions, husbands could buy and sell property of any kind, real or personal, without the wife’s permission. In turn, wives could rely on courts to force husbands to provide them with the necessities of food, clothing, and shelter.[4]

 

Chancellor James Kent of New York, Writing in Volume II of his Commentaries on American Law, described the common-law doctrine of coverture as it had been carried over into our earliest American law (largely unaltered) as such:

 

The husband is bound to provide his wife with necessaries suitable to her situation, and his condition in life; and if she contracts debts due for them during cohabitation, he is obliged to pay those debts; but for anything beyond necessaries he is not chargeable. He is bound by her contracts for ordinary purchases, from a presumed assent on his part; but if his dissent be previously made known, the presumption of his assent is rebutted, and it is said he is not liable, though the better opinion would seem to be, that he may still be liable; though the seller would be obliged to show, at least, the absolute necessity of the purchase for her comfort.[5]

 

Chancellor Kent goes on to further make clear that it is the marriage that makes the husband liable, as it is his duty as a husband, not a debtor, to provide for his wife and maintain her:

 

But Lord Talbot said, that nothing less than an act of parliament could alter the law; and the rule was fixed, that the husband was liable to the wife’s debts only during the coverture…The husband is liable, not as the debtor, but as the husband. It is still the debt of the wife, and if she survive her husband, she continues personally liable.[6]

 

And if the husband refuses to provide for his wife? Kent states that the laws suggest he may still be liable. If he cannot be charged, then the wife had grounds for a divorce a mensa et thoro, where the court would then order the husband to pay her a fixed maintenance.[7] Blackstone described it thus:

 

In case of divorce a mensa et thoro, the law allows alimony to the wife; which is that allowance, which is made to a woman for her support out of her husband’s estate; being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law de estoveriis habendis, in order to recover it. It is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony.[8]

 

In book three of his Commentaries on the Laws of England, Blackstone states:

 

…The last species of matrimonial abuses is a consequence drawn from one of the species of divorce, that a mensa et thoro; which is the suit for alimony, a term which signifies maintenance: which suit the wife, in case of separation, may have against her husband, if he neglects or refuses to make her an allowance suitable to their station in life. This is an injury to the wife, and the court christian will redress it by assigning her a competent maintenance, and compelling the husband by ecclesiastical censures to pay it. But no alimony will be assigned in case of a divorce of adultery on her part; for as that amounts to a forfeiture of her dower after his death, it is also a sufficient reason why she should not be partaker of his estate when living.[9]

 

There have never been ecclesiastical courts in America as in England, but the common-law generally followed the same course. Alimony was to enforce the husband’s duty to provide for his wife as if the marriage still continued, provided she was not guilty of wrong-doing. Nor could the law dictate how the husband would provide for her nor how he would head his family unless suit was brought against him for wrong-doing. Therefore, alimony might sometimes have been her only remedy if the husband breached his part of the contract of marriage and refused to provide for her.

 

…But as the husband is the guardian of the wife, and bound to protect and maintain her, the law has given him a reasonable superiority over her person…the husband is the best judge of the wants of the family and the means of supplying them, and if he shifts his domicile, the wife is bound to follow him wherever he chooses to go…If the husband abandons his wife, or they separate by consent, without any provision for her maintenance, or if he sends her away, he is liable for her necessaries, and he sends credit with her to that extent. But if the wife elopes, though it be not with an adulterer, he is not chargeable even for necessaries. The very fact of the elopement and separation, is sufficient to put persons on inquiry, and whoever gives the wife credit afterwards, gives it at his peril. The husband is not liable unless he receives his wife back again. The duties of the wife, while cohabiting with her husband, form the consideration of his liability. He is, accordingly, bound to provide for her in his family and while he is not guilty of any cruelty, and is willing to provide her a home, and all reasonable necessaries there, he is not bound to furnish them elsewhere. All persons supplying the food, lodging and raiment, of a married woman, living separate from her husband, are bound to make inquiries, and they give credit at their peril.[10]

 

Though it has been considered as “progress” and “modern” to do away with coverture– and indeed all legal sex distinctions and “stereotypes”- the legal fiction of husband and wife as one person in law- a doctrine perhaps as old as the common law itself[11]– should have never been disturbed by the courts or legislatures.


 

[3] See James Kent, Commentaries on American Law, Volume II, Third Edition (New York, 1827), pp. 149-54 for a wife’s capacity to own, control, or convey property as if she were femme sole (a single woman).

[4] Peter Irons, A People’s History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped our Constitution (Penguin, 2006), p. 11.

[5] James Kent, Commentaries on American Law, Volume II, Third Edition, p. 146.

[6] Ibid., p. 145.

[7] See Ibid., p. 148, n. a: “Houliston v Smyth, 3 Bingham’s Rep. 127. “In this case the court considered the law to be, that if a man rendered his house unfit for a modest woman to continue in it, or if the wife had reasonable ground to apprehend personal violence, she was justified in quitting it, and the husband would be liable for necessaries furnished for her support.”; “The husband is bound to provide his wife with necessaries, when she is not in fault, from a principle of duty and justice; and the duty will raise an assumpsit independent of his consent, and when no consent can be inferred, as in the case of a refusal on his part to provide her with necessaries. If he turns her out of doors, and forbids all mankind from supplying her with necessaries, or if she receive such treatment as affords a reasonable cause for her to depart from his house, and refuse to cohabit with him, yet he will be bound to fulfill her contracts for necessaries, suitable to her circumstances, and those of her husband.” Ibid., pp. 147-48

[8] William Blackstone, Commentaries on the Laws of England. Book the First, Third Edition (Oxford, 1765), pp. 441-42.

[9] William Blackstone, Commentaries on the Laws of England Volume 3 (Chicago, 1979), pp. 94-95.

[10] Kent, Commentaries on American Law Volume II, pp.145-46. Apparently, the opinion of the judges was that if the wife returns yet the husband refuses to receive her, he is liable.

[11] “The common law was the custom of the King’s Court, and an outgrowth of feudal conditions…but it is only in the local custom of numerous cities towns and villages that we can see how different the life of the ordinary people was. In these customs, for example, we find that the position of the married woman was very different from that which the common law assigned her, the complete merging of personality being obviously out of harmony with bourgeois habits. Local customs frequently keep the woman’s property free from her husband’s control, accord her liberty of contract (which was denied at common law), and even allow her to trade separately upon her own account. The extent of these local customs is hardly known. Many custumals have survived, but many others have not…by the merest chance an example of this recently came to light. In defence to an action of account in 1389, it was pleaded that by the custom of the little village of Selby in Yorkshire a husband was not liable for the commitments of his wife incurred in the course of her separate trading…the common law, even so late as 1389, did not extend to all persons and places…there was an incalculably large mass of customary law involving very different principles in numerous different communities of which we only know a fraction.” Plucknett, A Concise History of the Common Law, pp. 313-14.

This passage goes to show that the legal fiction of husband and wife as one in law went back for centuries, but also that many times the principles of coverture did not extend, therefore there is no basis in history for truthfully asserting that women- even married women- could never own or control their own property or earnings.; For the origins of the common law, see generally Arthur R. Hogue, Origins of the Common Law (Indianapolis, 1966).

The Guardianship of a Woman, Part I: Introduction

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

 

A legal history is not perhaps the place to make suggestions as to the law of the future. It is concerned with the past. But if history is to be something more than mere antiquarianism, it should be able to originate suggestions as to the best way in which reforms in the law might be carried out so as to make it conform with present needs.[1]

 

 

 

Introduction

 

I was told one time by my own mother that, “No one will ever care about you the way your mother does” when I was once going through a hard time in this life. We are told of things such as “blood is thicker than water” and mainstream culture is full of anything that would lead us away from true intimacy, true lasting marriage, true monogamy…anything that would take us outside of the mainstream, away from popular culture, away from friends and the ways of the world and place one man and one woman together for a lifetime.

Far beyond my own personal feelings on this matter, the ways of our ancestors and even oftentimes the laws[2] down to the present will back up the foregoing assertion, that there is no one that will ever love you like your husband; that marriage means forsaking all others and letting their influence fade away into the background as nothing more than idle chatter. Assuming his love is true and good, assuming he has proven what he says, made good on all his promises, there is no deeper intimacy.

Trust me when I say from deep inside of my heart and soul that my relatives don’t matter to me. No one else can cherish me, love me, provide for me the way that he does. My heart inside thinks of the millions of ways that others have tried to break us up, yet my heart inside turned away from those who would look down at me, wish to hurt me. I remember it was well over a decade now, when I told him “You’re going to marry me.”  I could care less about all others, could care less about the ever-shifting tides of public opinion. I have studied far too many epochs of human history to know that what is dissent and heresy one day often becomes, in time, commonly accepted mainstream dogma. Even law students are routinely told to read dissenting opinions, as dissent, in time, often becomes majority opinion.

———————————————-

 

[1] Holdsworth, Quoted in Theodore F.T. Plucknett, A Concise History of the Common Law (Indianapolis, 2010), p. 655.

[2] Consider the circumstance that privileged communications are not favored in the law, and that any privileged communications between parent and child (or that of any other blood relatives) have no basis in historical precedent, are a recent development perhaps recognized by no more than five jurisdictions in the United States, and were not even among the nine proposed testimonial privileges for the 1972 proposed rules of evidence. See Norman M. Garland, Criminal Evidence, Seventh Edition (New York, 2015), pp. 86-93.

My Review of “Why We Lost the ERA”

Review of “Why We Lost the ERA” by Jane Mansbridge

I give this book five stars not because I agree with Mansbridge and the feminists (I strongly disagree), but because of the information contained in the book. Written in the late 80s, this book is 100% relevant to women today. This book finely showcases the absolute stupidity of the modern feminist movement. Though Mansbridge does state her opinion quite clearly in the book, she does attempt to keep it neutral when discussing the pros and cons of the ERA. She conveniently tells her readers to go ahead and skip to page such and such twice in the book (probably so her female audience wouldn’t read about how badly feminism has actually screwed them over- I didn’t skip ahead but read the entire thing). She goes on for nearly two hundred pages about all the ways in which the ERA could be interpreted to hurt women and goes into detail about past Supreme Court decisions that could (could being the key word here) effect how the ERA would be interpreted. Pretty much, it would offer no benefit to women the only reason the feminists wanted it was because of what it symbolized (a societal affirmation of the feminist perspective). Never mind that the amendment itself doesn’t even mention women. All it would have done is invalidate all laws that protected and favored women (alimony, child custody, child support, statutory rape, different treatment of unwed mothers and fathers, the draft, combat service, etc…). ERA or not, feminists have continuously gotten it their way, which she mentions in the book. From the book:

 

“From the beginning, ‘equal rights’ meant ending special benefits. An ERA would have made unconstitutional the protective legislation that socialists and social reformers like Florence Kelley, frustrated by the lack of a strong working-class movement in America, had struggled to erect in order to protect at least women and children from the worst ravages of capitalism…Nonetheless, the ERA never came close to passing until 1950 and 1953, when the U.S. Senate passed it, but with the ‘Hayden rider,’ which provided that the Amendment ‘shall not be construed to impair any rights, benefits, or exemptions now or hereinafter conferred by law upon persons of the female sex.’ In both years the House of Representatives recessed without a vote. Because the women’s organizations supporting the ERA knew that special benefits were incompatible with equal rights, they had tried to block the amended ERA in the House and were relieved when their efforts succeeded.”

 
“The Supreme Court’s extension of the equal protection clause of the Fourteenth Amendment to include women meant that by 1982 the Court had declared unconstitutional, either directly or presumptively, almost all the laws that proponents in the 1972 Congressional debates had said the ERA would change. The major exceptions were all-male draft registration, which because of the ERA’s legislative history would almost certainly have been declared unconstitutional if the ERA had been ratified, and certain laws designed to benefit women rather than men.” (87)

 
“From the very beginning of the modern women’s movement in the mid-1960s, feminists had been ideologically opposed to, or at best ambivalent about, homemaking as a full time career. NOW’s founding statement of purpose, in 1966, stated:

 
‘We believe that a true partnerships between the sexes demands a different concept of marriage, an equitable sharing of the responsibilities of home and children and of the economic burdens of their support.’

 
While NOW’s word ‘equitable’ was not nearly as strong as the more radical groups’ demands for ‘equal’ sharing, NOW’s ‘different concept’ of marriage still implied an androgynous division of labor, in which men took half the responsibility for child care and housework and women took half the responsibility for bringing in money. This position became not just an implication but an article of faith for later feminists…

 
…The very existence of full-time homemakers was incompatible with many goals of the women’s movement, like the equal sharing of political and economic power. Women can never hold half the economically and politically powerful positions in the country if a greater proportion of women than men withdraw from competition for those positions. More important, if even 10 percent of American women remain full-time homemakers, this will reinforce traditional views of what women ought to do and encourage other women to become full-time homemakers at least while their children are very young…Thus the more full-time homemakers there are, the harder it will be to break traditional expectations that homemaking ought to be a woman’s career. This means that no matter how any individual feminist might feel about child care and housework, the movement as a whole had reasons to discourage full-time homemaking.” (99-100)

 
“The typical NOW member had not been born in Illinois and did not necessarily expect to spend her life there. In my local NOW chapter, many of the members were recent migrants to the city, at least half were under forty, several were lesbians, and many were unmarried. ” (169)

 
“Pro-ERA marches and demonstrations also provided important opportunities for autonomous action. In the early days of the ERA struggle, pro-ERA demonstrations were open to all. As a consequence, almost every demonstration had a socialist and a lesbian contingent, with banners proclaiming their identities as well as their support for the ERA. After considerable debate, NOW decided not to allow socialist and lesbian banners in its ERA demonstrations. While many disagreed with this decision, it was explicit and relatively participatory.” (131)

 
“From the point of view of the movement as a whole, each organization, as well as each individual, was also an autonomous actor…Now could not keep the president and vice-president of ERA Illinois from attending a Republican fund-raising dinner. ERA Illinois could not keep NOW from calling a demonstration in the last days of the legislative session.” (131)

 
“During this moratorium, feminists will need to discuss what would be best for all women in the realms of combat, school athletics, prisons, and sex-blind legislation generally. Since about 1980, as more women have experienced the results of gender-neutral legislation like no-fault divorce and joint custody, some feminists have begun to articulate a critique of egalitarianism that looks much like Marx’s critique of bourgeois equality. They argue that in a society where one group holds most of the power, ‘neutral’ laws usually benefit the powerful group. From this perspective, a constitutional amendment that bars women from using their electoral majority and moral leverage to pass laws explicitly redressing the traditional balance of power may actually help maintain male supremacy. Although the ERA’s direct legal mandate for gender neutrality would probably have been balanced by its indirect political mandate for legislation and judicial interpretations that benefited women, its defeat still raises, in a different form, the questions that Florence Kelley raised in the 1920s. An open discussion of these issues among feminists would probably make some feminists more aware of the concerns that motivated mainstream legislators to vote against the ERA.” (197)

 

 

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