Married Women’s Property Rights and the Privileges or Immunities Clause

In the McDonald oral argument, Justice Ruth Bader Ginsburg implied that an originalist approach to the Privileges or Immunities Clause might justify protecting property rights for men, but not for married women. She claimed that “a large portion of the population at that time [1868] didn’t have those rights” and asked McDonald’s counsel Alan Gura whether “married women at that time across the nation ha[d] the right to contract, to hold property, to sue and be sued.” Presumably, Ginsburg meant to criticize originalism rather than endorse gender discrimination. If so, I think the argument fails.

Unfortunately, Gura failed to point out that most states had enacted Married Women’s Property Laws by the 1850s, which did indeed give them the right to own property separate from that of their husbands.

There were, in many states, greater limitations on married women’s freedom of contract. But some married women were nevertheless employed outside the home under employment contracts, and the married women’s property laws gave them the right to sign contracts related to their property. New York’s widely influential 1860 law on “The Rights and Liabilities of Husband and Wife” also gave married women broad rights to contract and to sue and be sued. Thus, an originalist approach would certainly protect married women’s right to property and at least a fairly broad right to contract.

Ginsburg would have been on firmer ground in pointing out that states did not give women the right to occupational freedom equal to that of men, and many had laws banning women from various professions. In 1873, the Supreme Court upheld an Illinois law barring women from becoming lawyers against a P or I Clause challenge in Bradwell v. State. The majority of the justices upheld the law simply on the ground that the Clause did not protect occupational freedom for anyone, as they had ruled in the Slaughterhouse Cases at the same time.

The four Slaughterhouse dissenters could not take that position because they had just argued in Slaughterhouse that the Clause did protect “the right to pursue a lawful employment in a lawful manner.” One, of them, Chief Justice Salmon P. Chase, actually dissented in Bradwell. That is significant, since Chase was one of the main originators of the free labor legal ideology that underpinned the Fourteenth Amendment. The other three signed on to a concurrence by Justice Bradley in which the concluded that the exclusion of women could be upheld because:

It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the State; and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.

In other words, these three justices upheld the exclusion of women despite the general principle of occupational freedom under the P and I Clause, based on their factual understanding of women’s “characteristics, destiny, and mission.” If that factual understanding turns out to be wrong, they could no longer argue that the power to discriminate against women in this way would fall under “the police power of the State” and would be required to strike the law down. Similarly, in Slaughterhouse, these same justices engaged in a detailed inquiry to determine whether New Orleans’ monopoly over slaughtering had a legitimate police power rationale. Today, if not in 1873, it is fairly obvious that Bradley’s factual understanding of women’s nature and capabilities was wrong. The same goes for similar rationales for restrictions on married women’s freedom of contract.

Thus, the legal rule Bradley advocated would compel a different outcome in any similar case today. Originalism requires judges to apply the legal rules established by the framers. But it doesn’t require them to perpetuate factual errors in the evaluation of evidence used to determine how the rule applies to any given case. Assume that in 1873 a regulation were upheld based on scientific evidence derived from the popular 19th century theory of phrenology, which held that people’s abilities and character could be predicted based on the shape of their skulls. For example, a state could have enacted a law forbidding a person with the wrong type of skull to become a lawyer. Later research proves that phrenology is a bogus pseudosciece. A consistent originalist judge would overrule the 1873 decision if legislatures continued to enact statutes claiming a police power rationale for curtailing occupational freedom based on phrenological evidence. The same goes for statutes that restrict constitutional rights based on discredited nineteenth century factual assumptions about women.

In some cases, of course, it may be difficult to determine whether the state’s factual claims are correct or not, and there can be legitimate dispute over the question of how much deference to give the legislature in those situations. But where the factual evidence is as overwhelming as in the case of women’s abilities today, even a relatively deferential originalist judge would have to strike the law down.

In sum, there is no compelling reason to believe that an originalist interpretation of the P or I Clause requires courts to protect men’s rights to property, contract, and occupational freedom more than those of women.

UPDATE: I should note that it is very unfortunate that Chief Justice Chase dissented in Bradwell without writing an opinion explaining his reasoning. I assume that he did that because he was near death at the time (Chase died on May 7, 1873, just a few weeks after Slaughterhouse and Bradwell came down). Perhaps those more expert in the history can point out some other reason why he chose not to write a dissent.