Women are not mentioned in the text of the original U.S. constitution. The white men, ranging in number from thirty-nine to fifty-five, who met in Philadelphia's Independence Hall in the summer of 1787, produced a document whose few references to race are mostly indirect, and whose references to gender are nonexistent. Male dominance was so deeply embedded in the political culture that the exclusion of women required no legal reinforcement. The Constitution's omission made it a white man's law for a white man's country. Those who were not white or male—Blacks, Native Americans, and women of all races—were disenfranchised and barred from full citizenship. Even as the Thirteenth, Fourteenth, and Fifteenth Amendments brought former slaves closer to equality after the Civil War, statutes subjected Asian aliens to special restrictions. The Constitution reflected and reinforced white male supremacy. But, paradoxically, the Constitution's words ultimately helped to create the conditions that would make change possible.
After the Revolutionary War each state determined the legal status of its residents: who was a free person, who was a citizen, who had rights, and what those rights were. In slave states, female slaves were treated as property, like male slaves. The status of free women depended on their marital and class status. All states followed the common-law doctrine of coverture, which gave a husband control of his wife's person and property. Most women, married or single, were denied the right to vote; but until 1806 a few communities enfranchised all property owners, of either sex.
The original Constitution affirmed the states' powers to make these decisions. It allowed the states to import slaves for twenty years without federal regulation and obliged every state to return all runaway slaves. It left common law in force and provided that the people eligible to vote in national elections "shall have the qualifications requisite for electors of the most numerous branch of the state legislature." The document mentioned few rights for anyone. The commitment to equality proclaimed in the Declaration of Independence eleven years earlier is reflected nowhere in the Constitution's text. The "Bill of Rights," the first ten amendments, was designed not so much to protect individual freedom as to protect state power by limiting the powers of the national government.
There was never any chance that the new Constitution would give women the vote or establish a constitutional right to equality. If the issue was raised at all in Philadelphia, no written record survives. Unlike slavery, which by 1787 had its critics, women's rights was not yet a political issue in the United States. No one had ever gone so far as to publicly advocate sexual equality. Not even the best-educated Americans were familiar with the writings of their English contemporary Mary Wollstonecraft; and the first feminist tract in the United States, Judith Sargent Murray's On the Equality of the Sexes, would not appear in print until 1790.
If any white women held office or exercised significant political power at the time the Constitution was adopted, their stories are lost to us. But women were far from silent or apathetic on public issues. Although fewer girls attended school than did boys, women were not kept illiterate or ignorant. Many were active supporters of the revolutionary effort. They served as spies, engaged in boycotts, raised money for the troops, and took over farms and trades while their male relatives fought.
The notion that a "woman's place is in the home," familiar from antisuffrage rhetoric of the nineteenth century, did not fit the reality of life in the eighteenth. The home was women's responsibility but not their only responsibility. Like most agrarian societies, early America did not make a sharp distinction between home and work. The transition to industrial capitalism, which later highlighted that distinction, had begun by the 1780s. But while economic changes were shrinking women's role outside the home, the Revolution fostered a new role for women that combined the public and the private. Tracts and sermons exhorted mothers to train their children in civic virtue, a task that required women to be well informed.
Privileged women did not lack opinions or the opportunity to express them. Mercy Otis Warren of Massachusetts, for example, was an anti-Federalist (an opponent of strong central government), whose published criticism of the draft Constitution so dismayed its supporters that they attacked her arguments in print. Similar to Abigail Adams, her sometime friend and sometime enemy, Warren was an early, albeit private, feminist. She opposed coverture, while Adams admonished her husband, John, to "remember the ladies" when he attended the Second Continental Congress in 1776. Feminist ideas were not a part of eighteenth-century U.S. political discourse, but women used their minds to read, analyze, and question everything, including their own position. And, perhaps without intending to, the Constitution that left the status quo in force also gave women access to the means of effecting change.
The original Constitution speaks not of "men," but of "persons." For example, no "person" under the age of thirty-five may be elected president; and the right of habeas corpus "shall not be suspended." In Anglo-American law, "man" is almost always used in the generic sense to mean "human being" rather than "adult male." But the fact that the Constitution consistently uses the word "person" has made it impossible, not merely difficult, for anyone to claim that constitutional rights do not apply to women or that women may not run for office.
The First Amendment freedoms of expression and association, which are essential for any sort of political activity, have been available to women who wished to promote change. The neutral language of the Constitution presumed women's eligibility for the offices that would give them power to pursue their goals. Several constitutional amendments have enhanced women's rights—most explicitly the Nineteenth (1920), which gave women the vote, but also the equal protection clause of the Fourteenth Amendment. Although the proposed Equal Rights Amendment fell short of ratification in the 1980s, women continue to use their rights to improve their status. Thus, even though the original Constitution was silent on the issue of sexual equality, its language, its recognition of individual rights, and the amending process helped empower women to effect change.
Judith A. Baer, Women in American Law Vol. 2 (New York: Homes & Meier Publishers, 1991); Mercy Otis Warren, Observations on the New Constitution, and on the Federal and State Conventions (New York: Thomas Greenleaf, 1788); Marlene Stein Wortman, ed., Women in American Law Vol. 1 (New York: Holmes & Meier Publishers, 1985).
Judith A. Baer
See also
Equal Rights Amendment (ERA);
Legal Status.
