Wednesday, November 23, 2011

100 years ago today: Questions of personhood

Winning full rights in society isn't a matter of battlefield set pieces--it is like taking a city one street and one house at a time.

One might think that the women of California having earlier in the year won the right to vote would have then been automatically accorded all the rights and privileges enjoyed by those who had already been enfranchised. This was not the case. Watching women who had already won the right to vote then have to separately struggle for the right to do things such serve on a jury highlights the degree to which women had not been treated as second class citizens because they didn't have the right to vote but rather had been denied the right to vote because it served the powers that be to treat them as second class citizens.

Case in point--the article JURY SERVICE ONLY FOR MEN, DECLARES WEBB / Attorney General Gives Informal Opinion on Present Law of California on the front page of The San Francisco Call November 23 1911:
Jury service is not a political right, he [Webb] said. "It is a duty incident to citizenship. It is in the nature of a burden which may by law be cast upon all or certain citizens. It is a judicial service, the performance of which is enjoined by law upon some citizens and which other citizens are debarred from performing because they do not possess the qualification which the law prescribed for those by whom this service shall be performed.
Webb was being disingenuous at best. Serving on a jury is not only a duty it is a right. First, if only a specific subgroup of society is able to serve on juries then only their perspective on the law will be reflected. Second, if women are barred from sitting on juries it will have a substantial impact on their ability to function as lawyers and judges. Third, if women are barred from juries it will have a substantial impact on their ability to run for and win any political position that involves the courts or the law. Even were it true that individual women were statistically more likely to suffer from particular impediments that would stand in the way of serving as jurors there was already in place a way of examining all jurors before selecting them to hear a case. Just as some men were found unfit (in general or for the purposes of a particular case) to be jurors so could unfit women be dismissed from jury duty.

The Supreme Court of the United States had ruled unconstitutional state laws that debarred men from sitting on juries on the basis of their race and yet specifically allowed that citizens of all races could be debarred from juries on the basis of their gender. Given the wording of the fourteenth amendment to the Constitution:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
and the words of the ruling in U.S. Supreme Court Strauder v. West Virginia, 100 U.S. 303 (1879)
The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law as jurors because of their color, though they are citizens and may be in other respects fully qualified, is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.
Reading the opinions in that (and similar) cases one is forced to conclude that the court did not consider women to be, in truth persons.

In the words of Burnita Shelton Matthew, from "The Woman Juror" WOMEN LAWYERS' JOURNAL Vol. 15, No. 2 (January 1927)
Since the adoption of woman suffrage, women have arrived, so to speak, and are demanding the why and wherefore of their exclusion from jury service. Evidently they are not satisfied with the reasoning of the great English jurist, Sir William Blackstone. He held that the common law requires jurors to be free and trustworthy "human beings," and that while the term "human beings" means man and women, the female is, however, excluded on account of the defect of sex. If it be, as Blackstone says, a "defect of sex" that bars women from the jury box, the women claim that the defect lies in the masculine, not the feminine ranks. Anyway, in these modern days, women always take what Blackstone said with a grain of salt. They remember that when expounding the common law – a law which actually bristled with injustices to womankind, and which even permitted a man to beat his wife, Blackstone remarked that under it, a female is "so great a favorite."

As women are dissatisfied with Blackstone’s reasoning, so they are dissatisfied with the reasoning of the United States Supreme Court. That court has decided that a state can not bar colored men from jury service because the debarment would brand them as an inferior class of citizens, and deprive them of the equal protection of the law which is guaranteed by the National Constitution. Since the Constitution guarantees that protection to persons and not merely to negroes, that doctrine should apply to women as well. However, with the curious ability which judges of the male persuasion have manifested to regard women as persons at one time, and not as persons at another, the court in this case said that certain restrictions might legally be put upon jury service – such as limiting it to males!
I will write more about court cases that specifically address that question the personhood of women in a future post.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.