Women Under Reconstruction: The Congressional Understanding

Abstract:     
This Article examines the original understanding of the Fourteenth Amendment's significance for women, and concludes that the Amendment widely was understood to be consistent with a wide variety of disabilities and other discriminatory laws that the states then imposed on them. These understandings were based on several ideas: women enjoyed the same rights as men, but vicariously through their families; women, like children, were implied exceptions to the Amendment's prima facie requirements; and the legal regulation of women's rights was a kind of regulation of the family, peculiarly suited to the states rather than the federal government. The mindset that found these notions agreeable was composed of ideas about natural law, custom, and federalism. The Article concludes that these findings present a conundrum for originalists comparable in some respects to the difficulties posed by Brown v. Board of Education.

Number of Pages in PDF File: 68

Accepted Paper Series