Constitutional Context: Women and Rights Discourse in Nineteenth-Century America. By Kathleen S. Sullivan. (Baltimore: Johns Hopkins University Press, 2007. xii, 181 pp. $45.00, ISBN 978-0-8018-8552-5.)

Abstract

Kathleen S. Sullivan, a political scientist, aspires in her first book to join conversations on several topics: the lost capacity of common law to serve liberal society; dysfunctional narratives promulgated by suffragists; constitutionalism shaped by public discourse; and stubborn legal problems in women's rights litigation. She offers a historical narrative that implicates nineteenth-century women in “challeng[ing] the legitimacy of status in American political thought” and pushing the Supreme Court to adopt “the politically developed doctrine of abstract equality rather than the more contextually determined practice of equity” (pp. 5, 4). Her narrative is adventurous. It opens early in the century with debates between supporters of the common law and those who would codify American law. Common lawyers won the argument, but what matters is that “a language of derision toward [the common law] had been introduced” (p. 43). From there it is on to the abolitionist movement, where women, while asserting their right to free speech, claimed rights without regard for the social order or women's status in it; they developed an “abstracted rights discourse” (p. 59). With nary a road sign, Sullivan next turns to the married women's property acts and echoes a modern consensus that coverture was not terminated but modernized by the acts' small steps toward economic autonomy for wives. But activists, armed with the aforementioned derision for common law and discourse of abstract rights, constructed a “suffrage narrative” that painted common law as a relic of barbarism and celebrated the acts for putting an end to coverture. They thereby obscured the survival of coverture and distorted subsequent discussions about women's progress.