'With Notice of the Consequences': Liberal Political Theory, Marriage, and Women's Citizenship in the United States

Abstract

Using case law and other legal sources, this article explores how many judges, scholars, and government officials in the nineteenth and early twentieth centuries used classical liberal political theory, particularly notions of consent, to construct a woman's changed citizenship on marriage as her own independent choice. In the United States, rules that made a married woman's citizenship dependent on that of her husband reveal a current of ascriptive citizenship in competition with the liberal political tradition, even while judges used that political theory to justify gender hierarchy and limit women's sexual citizenship. This article contributes to understandings of sexual citizenship--in this particular context, with whom and under what conditions a woman could legitimately enjoy sexual intimacy--by revealing certain layers and categories that masked its regulation. The underlying rules requiring marital citizenship change for women were themselves removed from direct questions of sexuality, creating a significant incentive structure for marriage with citizen men, but not prohibiting intimacy with others. Judges, legal scholars, and others justified the gender hierarchy that dependent citizenship created for married women through the liberal political theory that both assumed, and then disregarded, women's knowledge and consent.