www.common-place.org · vol. 2 · no. 4 · July 2002
Jan Lewis is professor of history, Rutgers University, Newark. She is interested in the connections among family, gender, race, and political thought in the early national era. This article is part of a book she is completing for Cambridge University Press on that topic.
"But what if women indeed were mentioned? Would we have to change our interpretation of the place of women in the Constitution?"
Why the Constitution Includes Women
Several years ago, a friend who was editing a special issue of a history journal asked me to contribute an article about women and the Constitution. Having just completed some research on women and The Federalist, I knew the technique that I would use: Assuming that women were nowhere discussed in the debates in the Constitutional Convention, I would look at the use of gendered language for clues about what the Founders thought about women and their place in the government they were creating. Like most other historians, I believed that the available political ideologies--republicanism and liberalism--excluded women. Republicanism extolled self-sacrifice for the common good, while liberalism vaunted the individual. But neither ideology, received wisdom held, thought that a woman could be a citizen, with a politically significant self, either to sacrifice or to be served by government.
I wanted to study the terms of exclusion, the bases for asserting that women were politically insignificant. I thought that if I paid close attention to the way in which language was used and if I listened carefully to the silences--the places where gender might have been discussed but wasn't--then I might have something useful to contribute to our understanding of the place of women in early American politics and political thought.
So I dutifully went about my work of reading through the Records of the Federal Convention (New Haven, 1986), the compilation of notes taken by James Madison and other participants in the Constitutional Convention and the closest thing we have to an actual transcript of the debates, looking for a hidden discourse of gender. What I found there surprised me--an explicit reference to women in one of the most important moments of one of the most important debates. (The Records are now online at the Library of Congress's American Memory Website.)
The reference wasn't supposed to be there, we've been told. So far as I know, no historian or political theorist had ever noticed these words before or remarked upon them. In fact, the reigning assumption was that women were nowhere mentioned in the Constitution, and the only question was what should be made out of this fact. Some have argued that women's omission meant that they were implicitly included, and hence were members of what Benedict Anderson has called the "imagined community" of the new American nation. Others have argued that women's omission was intentional and hence that women were not part of the political community created by the Constitution.
But what if women indeed were mentioned? Would we have to change our interpretation of the place of women in the Constitution? And would the context in which women were mentioned shed new light on other aspects of the Constitution? Would we have to think about the Constitution in new ways?
Women were introduced, as it were, to the Constitutional Convention on June 11, in one of the early debates about representation in what would become the House of Representatives. According to James Madison's notes, Roger Sherman of Connecticut proposed that each state's representation "should be according to the respective numbers of free inhabitants." Two South Carolinians, John Rutledge and Pierce Butler, immediately responded that representation should instead be based not upon population but upon each state's material contribution to the national government. It was in this context, a debate about whether representation should be based upon population or wealth (which would include slaves), that Pennsylvania's James Wilson, one of the most active and influential members of the convention, suggested that it be "in proportion to the whole number of white & other free Citizens and inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians paying taxes, in each state."
We can recognize this formulation as the first draft of the infamous Three-fifths Clause, which is what it became by the end of the summer, after several more months of debate and editing by the Committee of Style (the Convention's copy editors, charged with improving the document's rhetoric without changing its substance). Purely for stylistic reasons the Committee deleted the phrase "of every age sex & condition" (along with, incidentally, the adjective "white"). In other words, the framers had expressly included women among those whom the new government was intended to represent, and then had almost immediately edited their presence out, leaving explicit only--and I will return to this matter later--an odious compromise with slavery.
It might be objected that when the convention struggled to find the words for an acceptable compromise on slavery, it was merely engaged in formulas and word games, and not trying to make a sweeping statement about gender and politics. To some extent, that is true. The delegates to the Continental Congress had wrangled over that issue year after year. When James Wilson introduced this germ of the Three-fifths Clause, he was simply repeating, word-for-word, the formulation for levying assessments that Congress had recommended in 1783. Both in Congress and the convention, the delegates were trying to effect a simultaneous compromise on two very difficult issues: first, whether taxation and representation should be based on population or on wealth, and then, how slaves should be taken into account.
The issue of gender, make no mistake, was rather far from anyone's mind. In Congress and then in the convention, when the delegates hammered out their formulas for representing and accounting for slave property, nobody spoke up when the term "sex" was mentioned. And, there is no record of any discussion about women, their rights, or their duties, at any point during the Constitutional Convention. On this, the standard interpretations have been correct.
At the same time, however, gender had been brought into the discussion, and even though no one wanted to draw out the implications of this fact, it could not help having important implications for government and political thought. As feminist scholars always note, gender is always there. In any political theory or any form of government, women are either included or excluded; the only question is on what terms, and whether those terms are explicit or implicit. The Constitution presents an interesting case, for the explicit--but unexamined--inclusion of women was quickly obliterated, making the presence of women in the Constitution even more shadowy. Unless the light is very bright, you cannot see them at all. Still, they are there, and the terms of their inclusion have important implications.
First of all, the mere mention of "sex," however fleeting and inadvertent, means that the Constitution rests on an inclusive theory of representation. Historians who believe that the American Revolution and the new American nation rested on a foundation of republican political thought have generally argued that government represented only those men who had sufficient property to make them independent; government was supposed to be for and by the propertied. To be sure, there was debate in the Convention about whether property or persons were to be represented--and it was the advocates of persons who prevailed. Once representation was shifted off the ground of property and onto that of persons, there was no longer any obvious rationale for excluding women. It would have been quite easy to use the word "men," but the delegates chose instead the more inclusive "persons," and in their debates, if not the final, edited version of the Constitution, they made it clear that "persons" included women.
They did so, I believe, for two reasons. First, many of them believed that the purpose of government was to protect society. Wilson himself made this clear a few years later in his Lectures on Law--delivered to an audience of both men and women in Philadelphia over the winters of 1790-91 and 1791-92--when he noted that "by some politicians, society has been considered as only the scaffolding of government; very improperly, in my judgment. In the just order of things, government is the scaffolding of society; and if society could be built and kept entire without government, the scaffolding might be thrown down, without the least inconvenience or cause of regret." This notion was not original to Wilson, by any means. Rather, it was the liberal orthodoxy of Paine, of Madison, of Jefferson. Men (and women) realized their potential not in public, but in private. Hence, "government was instituted for the happiness of society."
And women were members of society. Every political and social theorist who discussed this matter--not only Wilson, but Paine, Jefferson, and all the influential Scottish thinkers from Francis Hutcheson to Adam Smith--were explicit here. If government's role was to protect society, and society included women, one of the objects of government was the protection of women.
Implicit, then, in the Constitution's doctrine of representation was that the new government, in securing the happiness of society, was to look after women--not as women, but as members of society. To put it another way, the liberalism of the Constitution is far more capacious than we have generally imagined. Most historians of American political thought consider liberalism a rather cramped philosophy, one that rests on the Lockean principle of self-ownership. Society, in this view, is nothing more than what C.B. Macpherson called "relations of exchange between proprietors," and political society nothing more than "a calculated device for the protection of this property and the maintenance of an orderly relation of exchange." Yet the handful of words that the Committee of Style deleted from James Wilson's formula for representation suggests the presence of a liberalism that is more encompassing, more generous, more nurturing even--or at least a liberalism with that potential.
We can see some of that potential when we look at the Bill of Rights. Those who characterize liberalism as excessively individualist often also complain that Americans are exceedingly concerned with their rights. But the rights protected by the First Amendment are not, by and large, the rights of the atomized individual but those that are expressed in public. The Establishment Clause protects both the right of conscience and the right to worship with others, while the freedoms of speech, press, assembly, and petition are clearly the rights of the public sphere; they are the rights that sustain society. And the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments all protect citizens from overbearing government, not from their fellow citizens. Significantly, all of these rights pertained to women. Women were not, as Linda K. Kerber has recently demonstrated, called to the duties of citizenship. But they certainly were accorded its rights.
The Constitution, then, included women, and it made women rights bearers. But that does not seem to have been the express intent of any of the Constitution's authors. If it had been, surely they would have been more explicit about it, and the Committee of Style would not have deleted James Wilson's phrase about "every age sex & condition." When Wilson introduced that language, his purpose was not to make sure that women--or children, or any of the others who could not represent themselves--were represented, but to solve a particular problem, one that had very little to do with gender. That problem was whether wealth or population was to be represented in the House, and how slaves were to be counted, whichever approach was used. Why, then, add the phrase about age, sex, and condition, and not just leave it at "three fifths of all other persons"? Why mention gender at all?
Let us remember why Wilson introduced the clause and what its origins were, which brings us to the second reason that the Constitution includes women. Here we leave the realm of abstract principle and enter the one of practical politics, or, to be more accurate, the one where principle and politics converge. Wilson was suggesting that representation be based upon population--a democratic proposition--and sweetening it for Southerners by offering to count three-fifths of their slaves. Context, however, shapes meaning: When the same formulation had been suggested in the Continental Congress several years earlier for levying taxes, it penalized the South, rather than rewarding it, for the South would have paid extra taxes for its slave population.
The debates over taxation had begun in 1775, when Benjamin Franklin suggested that each state's expenses be computed in proportion to the number of male polls between sixteen and sixty in that state. Because this was a standard formula in the North for determining who voted--male taxpayers--it might have seemed a reasonable and innocent basis for assessing taxation. In the context of Congress's debates, however, it was a significant concession to the South, as it would have excluded all slaves from taxation, even though adult slaves, male and female both, were generally taxed in the South. A year later, John Dickinson countered with what might have seemed a much more democratic proposition, that taxes be in proportion to the total "Number of Inhabitants of every Age, Sex and Quality, except Indians not paying Taxes." Clearly, however, the language was crafted as a response to Franklin's proposal, and Dickinson's intent was to make certain that the Southern states were taxed on their slaves. Without even using the word "slave," Franklin and Dickinson had opened up a discussion about slavery.
In the context of these debates, the language of sex was an instrument for taxing--or not taxing, as the case might be--slaves. To propose counting only tax-paying males between sixteen and sixty was to exclude a significant part of Southern wealth--and wealth-creating laborers, including female slaves--from taxation. To counter, as Dickinson did, with a proposal to tax everyone, whatever their age, sex, or status, was to advocate that slaves be taxed. Hence, Dickinson's "every Age, Sex and Quality" meant "tax the slaves." To those words, Congress eventually added the Three-fifths Clause, which represented a compromise between Franklin's proposal (tax none of the slaves) and Dickinson's (tax them all). Had the clause gone into effect, it would have exacted a partial tax on slave property. But then, when James Wilson suggested exactly the same language as the basis for representation in the House, it gave the South a bonus for holding slaves, increasing their representation in the House by about 25 percent. When it would have inflated their tax bill, the Southern states quite obviously would have preferred not to have their slaves counted, but when it would increase their representation in Congress, they just as obviously would want all of their slaves to be counted. Women, then, were brought into this debate not for themselves, but only to enable the delegates, first in Congress and then in the Convention, to deal with the divisive issue of slavery by embedding it in more general, less inflammatory terms.
Looking back on these debates and political maneuverings more than two centuries later can make one dizzy. The delegates to the Continental Congress and the Constitutional Convention were always aware of both the philosophical implications and practical effects of any proposal they made, and although they tried always to gain the practical point without sacrificing ideological consistency, they sometimes impaled themselves on the horns of their own contradictions. So it was with gender and slavery. Between 1775 and 1788, democrat after democrat laid out the rationale for broad representation, one that implicitly included women and accorded them civil rights. But these same democrats, in order to create a form of government that best protected both liberty and their own states' interests, made or resisted a series of compromises with slavery. In the process, the inclusive language of gender--"every age, sex & condition"--was twisted to sustain slavery.
So far as I can tell, the first person to notice that the Constitution included women was not a feminist trying to use that principle to empower women or to make a claim on their behalf. Instead it was a Kentucky senator, Richard M. Johnson, who, in the 1820 debates over the Missouri Compromise, defended the Three-fifths Clause. True, slaves, who could not vote, were represented, but so were women and minors. Then, in 1843, another Southern congressman, Thomas Gilmer, from Virginia, elaborated the argument by pointing to women and comparing their political status to slaves. Gilmer began with a paean to the protective state. "Each State is responsible for the care and protection of every part of its population; and its power should be in proportion of its responsibility." By this principle, slaves should be represented, "as part of the human family, whose lives and sustenance are protected by government . . ." "It is true," Gilmer acknowledged, "that slaves do not vote. Neither do women or minors. Yet these are enumerated in the apportionment of representatives. Representation is never confined to that class of population alone who vote." Women (and children) now stood for all those who were represented but who could not represent themselves. The denial of women's right to vote became an instrument for the perpetuation of the power of slaveholders.
So what does this convoluted history tell us? It holds, I think, both a promise and a warning. First, the promise: The Constitution and the liberal political thought that informed it embodied a doctrine of protection and inclusiveness that make both document and doctrine richer, more encompassing, more hopeful, and more social than critics have sometimes thought. The Constitution included women, and it called for their protection as members of society. But a vision does not realize itself; and a promise does not bring its own fulfillment. Principles can be bent to a variety of ends. The social Constitution and its doctrine of protection, even at the time they were authored, were bent to sustain slavery. In half a century's time, that vision had been all but forgotten except by those who would use it to defend the continuing subjugation of other human beings. We might object that this is not what the Founders intended except that they gave us both the promise and its perversion, conceived at the same moment, the one always the other's undoing.
Yet, if there is undoing, there is doing as well, and what has been undone, may yet be repaired. This, perhaps, is what Elizabeth Cady Stanton, Susan B. Anthony, Antoinette Brown Blackwell, Lucy Stone, and a handful of other feminists were thinking in 1866 when they petitioned Congress for universal suffrage. The Constitution, they noted, "classes us as 'free people,' and counts us as whole persons in the basis for representation . . ." Feminists remembered that the Constitution included women, and they asked the nation, as should we, to make something of it.
Some of this article is adapted from my "'of every age sex & condition': The Representation of Women in the Constitution," Journal of the Early Republic 15 (1995): 359-87. Rosemarie Zagarri and Linda K. Kerber have been exploring, respectively, the promise and the limitations of early American political thought for women. See Zagarri's "Morals, Manners, and the Republican Mother," American Quarterly 44 (June 1992): 192-215, and "The Rights of Man and Woman in Post-Revolutionary America," William and Mary Quarterly, 3d Ser., 55 (1998): 203-30, and Kerber's No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York, 1998). The quotation from Wilson can be found in Robert Green McCloskey, The Works of James Wilson, 2 vols. (Cambridge, Mass., 1967). The quotation from C.B. Macpherson is in his The Political Theory of Possessive Individualism: Hobbes to Locke (London, 1962). The Journals of the Continental Congress are also at the Library of Congress's American Memory Website. I thank Margo Anderson for a serendipitous meeting and the reference to the Missouri debates.
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