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Law, Gender, and Injustice: A Legal History of U.S. Women

Joan Hoff
Copyright Date: 1991
Published by: NYU Press
Pages: 580
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  • Book Info
    Law, Gender, and Injustice
    Book Description:

    In this widely acclaimed landmark study, Joan Hoff illustrates how women remain second- class citizens under the current legal system and questions whether the continued pursuit of equality based on a one-size-fits-all vision of traditional individual rights is really what will most improve conditions for women in America as they prepare for the twenty-first century. Concluding that equality based on liberal male ideology is no longer an adequate framework for improving women's legal status, Hoff's highly original and incisive volume calls for a demystification of legal doctrine and a reinterpretation of legal texts (including the Constitution) to create a feminist jurisprudence.

    eISBN: 978-0-8147-7326-0
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Foreword
    (pp. vii-viii)
    Kathleen Barry

    The current women’s movement of the 1990s is more vigorous than ever. But despite all of its creative energy and political determinism, for the last twenty years the “prophets of doom” in the media have continually proclaimed it dead while academicians designate our demise in terms such aspostfeminism. Yet feminism has expanded to encompass the global dimensions of patriarchal oppression with theories and actions that reveal a sharpened politics and deeper analysis of sex class conditions. The racial, cultural, and national diversities among women make the work of international feminism all the more profound as it carves out and...

  4. Preface to the New Edition
    (pp. ix-xiv)
    Joan Hoff
  5. Acknowledgments
    (pp. xv-xx)
  6. INTRODUCTION Toward a Theory of Women’s Legal History
    (pp. 1-20)

    This book, which started out as a monograph on eighteenth- and nineteenth-century dower and equity procedures ten years ago, has become a study of U.S. women’s legal history extending from the War of Independence to the present. From the narrow focus of my earlier quantitative work on dower rights in South Carolina and interest in Mary Ritter Beard’s legal theories, I came to the conclusion that the colonial period, however important, simply did not set in motion major national trends affecting the legal status of all women as did the drafting of the Constitution, institutionalization of a legal system following...

  7. CHAPTER ONE The Masculinity of U.S. Constitutionalism
    (pp. 21-48)

    During the bicentenary of the U.S. Constitution in 1987, an orgy ofpraise and pomp and circumstance celebrating “We the People” exploded under the watchful guidance of retired chief justice Warren Burger. Only a few isolated voices like that of former Texas congresswoman Barbara Jordan could be heard saying, “as grand as it sounds, it is not true.” Amid uncritical praise for the wisdom of the framers and their concept of equality, Justice Thurgood Marshall, in a bicentennial address on 6 May 1987, courageously pointed out that the government created by the U.S. Constitution “was defective from the start, requiring several...

  8. CHAPTER TWO Women and the American Revolution
    (pp. 49-79)

    The impact of the American Revolution on women remains a controversial topic among colonial specialists. Much of the current historiographical debate hinges on two related but separate questions: had the political and personal perceptions of women changed significantly by 1787; and regardless of whether their subjective perceptions had been altered by the American Revolution, did the successful end to that conflict directly result in meaningful objective improvement in their actual socioeconomic and legal status? Answers to both revolve around whether the concepts of citizenship and private identity for women were enhanced or retarded by the American Revolution.

    Gender analysis has...

  9. CHAPTER THREE From British Subjects to U.S. Citizens
    (pp. 80-116)

    Before the War of Independence colonists existed in a collective condition of dependency, reflecting the feudal origins of the English state. All British colonial subjects, regardless of gender, occupied dependent positions in relation to the Crown. English subjectship meant certain obligations to the state, but it also carried with it certain rights and privileges that were mutually binding on women and men in ways that muted, rather than drew attention to, sex stereotyping. Not all English subjects were equal before the Crown, but under the English system class deference and dependence carried with them a personal and community sense of...

  10. CHAPTER FOUR Constitutional Neglect, 1787–1872
    (pp. 117-150)

    The first period in the development of the legal status of women in the United States lasted from 1787 to 1872. It can be characterized as one of constitutional neglect resulting, in part, from the fact that the Founding Fathers did not have women’s rights on their collective minds when they met in Philadelphia in 1787 to draft a new constitution. Nor were the Federalists and Antifederalists thinking about women when the Bill of Rights later came into existence during the battle over ratification. While neither document specifically denied equal rights to women, the Constitution and Bill of Rights created...

  11. CHAPTER FIVE Constitutional Discrimination, 1872–1908
    (pp. 151-191)

    The second period in the development of women’s legal status in the United States lasted from 1872 until 1908. During these years, the legal discourse relating to women changed dramatically in response to their demands based on a heightened sense of rights consciousness. During Reconstruction, courts and state houses stopped benignly or malignly neglecting women and began to discriminate actively against those who wanted to vote or enter certain previously all-male professions, such as law and medicine. Legal fictions, false-protection arguments (and, occasionally, false-equality ones) reinforcing certain female common-law disabilities abounded during this period of overt constitutional discrimination against women....

  12. CHAPTER SIX Constitutional Protection, 1908–1963
    (pp. 192-228)

    The third period in the development of the legal status of women lasted from 1908 until the early 1960s. Unlike the first period of constitutional neglect, in which women’s rights as citizens were largely ignored, and the second period of constitutional discrimination, in which the courts actively discriminated against women’s professional, political, and civil aspirations, this third period was characterized by several major Supreme Court decisions (originating withMuller v. Oregonin 1908) and a variety of state legislation aimed primarily at protecting lower-class, working women. These decisions and statutes were based on what are considered today to be debilitating...

  13. CHAPTER SEVEN Constitutional Equality, 1963–1990
    (pp. 229-275)

    The legal status of women in the United States changed more rapidly in the last twenty-five years than in the previous two hundred. This fourth period in the constitutional history of the female half of the population began with the Equal Pay Act in 1963 and the addition of the wordsexto Title VII of the 1964 Civil Rights Act. It continued with a series of executive orders, more congressional legislation, and Supreme Court decisions dating from the early 1970s through 1990. The result is that women are as close to achieving equal rights under the law with men...

  14. CHAPTER EIGHT The Limits of Liberal Legalism: Marriage, Divorce, Pregnancy, and Abortion
    (pp. 276-315)

    “I feel as never before,” Elizabeth Cady Stanton wrote to Susan B. Anthony in 1853, “that this whole question of women’s rights turns on the pivot of the marriage relation, and, mark my word, sooner or later it will be the topic for discussion.” Stanton was correct, to the degree that cohabitation problems among married and an increasing number of unmarried couples remain at the heart of domestic-relations law. In this same pre–Civil War letter, however, Stanton correctly questioned whether the “world [was] not quite willing or ready to discuss the question of marriage” in ways that would improve...

  15. CHAPTER NINE The Epitome of Liberal Legalism: The ERA and Pornography
    (pp. 316-349)

    Historians of American politics have long known that periods of conservative backlash follow major wars, especially in the twentieth century. That another such time of disillusionment and an attempt to return to some mythical past would ensue following the end of the Vietnam War came as no surprise, therefore, from a historical perspective. As it turned out, the profound cultural and political reaction the country began to experience in the mid-1970s exceeded that following World War I in the 1920s. Yet, the backlash triggered by Vietnam, Watergate, and “stagflation” is often ignored by those studying the achievements and failures of...

  16. CHAPTER TEN Beyond Liberal Legalism: From Equality to Equity
    (pp. 350-376)

    In the 1980s, some contemporary feminist historians and lawyers began, more than ever before, to question whether women’s long-sought-after goal of obtaining equality based primarily on individual, male rights as embodied in the U.S. Constitution and the Bill of Rights should be pursued to its logical conclusion. Such women looked back on a quarter-century of dramatic improvement in their legal status and began suggesting ways to recognize the limits of, and ways to go beyond, liberal legalism as they entered a fifth period in their constitutional development—the one I hope will be viewed by legal historians of the future...

  17. APPENDIX ONE Married Women’s Property Acts, 1800–1900
    (pp. 377-382)
  18. APPENDIX TWO 1848 Declaration of Sentiments
    (pp. 383-387)
  19. APPENDIX THREE 1876 Declaration of Rights
    (pp. 388-392)
  20. APPENDIX FOUR Constitutional Amendments
    (pp. 393-394)
  21. APPENDIX FIVE Summary of Federal Litigation and Congressional Legislation, 1963–1990
    (pp. 395-407)
  22. APPENDIX SIX 1989 Declaration of Interdependence
    (pp. 408-409)
  23. APPENDIX SEVEN Abortion in the United States since Webster
    (pp. 410-422)
  24. APPENDIX EIGHT On Sexual Harassment and the Silencing of Women
    (pp. 423-438)
  25. Notes
    (pp. 439-522)
  26. Bibliography
    (pp. 523-542)
  27. Index
    (pp. 543-558)
  28. About the Author
    (pp. 559-560)
  29. Back Matter
    (pp. 561-561)