How Women Influenced the Constitution with Mary Sarah Bilder

Episode Notes

Transcript

Speaker 1:

Today’s guest on SideBar is Mary Bilder, the founder’s professor of law at Boston College Law School.

Mary Sarah Bilder:

But what happens in the 19th century, and it’s particularly a story about exclusion on sex, gender, but also on race, is that people begin to realize that one of the things this new genre of the written Constitution can do is it can be exceptionally good at excluding people.

Speaker 3:

SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the College of Law with campuses in Santa Barbara and Ventura.

Speaker 1:

Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts La Deans Jackie Gardina and Mitch Winick

Jackie Gardina:

Mitch. We have mentioned numerous times how at the time that the federal Constitution was written and ratified, only white men were eligible to participate and in some cases only white property owning men. And we have had several guests who raised this point when questioning the Supreme Court’s use of originalism or history and tradition to interpret the constitution’s, meaning we’ve assumed that women and black and indigenous people did not contribute to the Constitution or to the conversation around it. Well, it turns out we may be wrong. If we look outside the walls of the Constitutional convention, we can see how women may have influenced the founders and the founding document and that the authors of the Constitution and those that debated its contours may have understood it to be more inclusive than we understand it to be now. And luckily we’ve once again invited an expert to help us unpack how women may have influenced the drafting of the Constitution

Mitch Winick:

Jackie, I share the beliefs of a number of our previous SideBar guests such as Julie Souk Pinene, Joseph Damon Hewitt Madiba, Denny Cezar, Garcia Hernandez, and of course the incomparable Ellie Maal who’ve highlighted the continued lack of constitutional protections for many of the diverse communities that make up our country. In many of these conversations, we’ve challenged the legitimacy of originalism and the authenticity of the more recent history and tradition arguments being used to interpret and reinterpret the Constitution. However, a better understanding of the history surrounding the discussions that helped form our constitution continues to help us understand how we got here and possibly the pathway to a more equitable and representative constitutional future. Our guest today, Mary Builder, is the founder’s professor of law at College law school. She earned both a JD and a PhD in history of American civilizations and studies from Harvard University. Her recent scholarship focuses on the early history of constitution, including the early constitutional status of women. Her most recent book, female Genius, Eliza Harriet, and George Washington at the dawn of the Constitution challenges the idea that America’s framing was solely attributable to white men. Welcome to SideBar Mary,

Mary Sarah Bilder:

Thanks so much for having me, Jackie and Mitch. I’m really looking forward to our conversation.

Jackie Gardina:

Mary, there are certain women’s names we know from the constitutional era, Abigail Adams, Martha Washington, Betsy Ross to name a few, but who is Eliza Harriet and what made you decide to write about her?

Mary Sarah Bilder:

So Eliza Harriet, and I want to be clear, that was her first name, her first and middle name, her full name was Elizabeth Harriet O’Connor. I call her Eliza Harriet because that was the part of her name that was her own, it was the part she chose to use. She was the first female lecturer, public lecturer in the United States. She was an ambitious female educator who had an idea of women being educated so that they could eventually participate in colleges and in the political forum. And very importantly, she gave public lectures in the summer of 1787 in Philadelphia, attended by George Washington and other convention delegates. And I argue in my book that her appearance there could have influenced or did influence the language of the constitution.

Mitch Winick:

Mary, you make an important point about history that unless someone like you steps up as a historical researcher and reporter of those times, it’s pretty easy for us to get a simplified version that just overlooks the influential voices that might not fit the narrative that we were taught in school. What we appear to have relied on are written public records in private papers, but of course, these were public figures that tended to be exclusively a group of white men. The so-called Fathers of Democracy. Given this backdrop, how did you find Eliza Harriet and how did you reconstruct her role and influence?

Mary Sarah Bilder:

It’s a great point that I know of Eliza Harriet because she shows up in the papers of some of these people, most particularly George Washington. And when I was working on my book on James Madison’s notes of the convention, I read all of the contemporary diaries and papers from the summer of 1787. The one I liked the most was not Madison’s notes, but was George Washington’s diary, and he kept a diary of what he did outside of the convention. One of the things he did was he said he went to hear a lady lecture and he called her tolerable. I wonder if that’s unusual or usual or what was she doing? Actually, I just sort of filed it in my head and then it ate away at me. And I particularly began to think, why do we focus so much within the convention? Why don’t we think about how people were influenced outside the convention?

And so I went back and started looking for Eliza Harriet. People had written a little bit about her, which helped, there’s five letters that are extent of hers. They are almost all to George Washington. And so I started there. She really shows us how biased the historical record is in favor of public figures, men and also in favor of people who have children. There’s a sort of type of heteronormativity about who we study and why we study them. I was really lucky. She was very ambitious and she used a form of print advertising to get her message out there. So she turns out to be in a lot of newspapers and new digital technologies allowed me to trace her through all sorts of newspapers and sort of rediscover her. So it was a fun project and I learned a lot along the way. So when

Jackie Gardina:

We think about Eliza Harriet, she was both educated and an educator. And at the time the constitution was being debated, the idea that women were deserving of education and were capable of discussing and participating in politics was taking hold on both sides of the Atlantic. So how do you think this debate may have influenced the Constitution itself?

Mary Sarah Bilder:

Well, one of the things that is interesting and also a little bit depressing when you do women’s history is that you go back through time and what you see is women repeatedly fighting against this notion that was very common across the western intellectual tradition that women were inferior and the reasons why they were inferior changed given other sort of philosophical and political ideas over the time period. So it was kind of a moving target. Every time women argued, we aren’t inferior because of X is wrong, then it turned out, oh, now there’s a new reason to explain it. They were inferior in part because it was a political world that imagined that the male father figure was the only legitimate form of political representation. And that resonated with theories of the way that Christianity imagined political power and the way that certainly the Anglo-American tradition had understood that Eliza Harriet is representative.

She’s not the only person, but she’s representative of a large group of people. Most of them women who in the mid 18th century begin to argue that women are actually intellectually capable. And that’s the description I used for the book, which is female genius. And that’s a contemporary term that people use to explain that women have intellectual capacity because the reason women are excluded from politics in this period was because it was argued they weren’t intellectually capable, they hadn’t been educated, and so they couldn’t participate from women’s perspective. If they could be intellectually capable and they could be educated, then they should be able to politically participate. And so in this period, we see in France and to some extent in the American colonies, women basically making a claim about education. And that claim is what we would think of as a constitutional inclusion claim. It’s not a sort of, oh, we just want to go to school. It’s a claim about who gets to participate in the political system. If you are educated, then you can participate.

Jackie Gardina:

After a quick break to hear from our sponsors, we will return to our conversation with Professor Mary Builder, author of Female Genius

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Mitch Winick:

Mary, I’m intrigued about this discussion of the idea of female intellectual capacity and even dipping my toe into this conversation makes me cringe because as Jackie well knows my life has been surrounded by women of great intellectual capacity. My mom was the president of League Women Voters in Texas and served on the national board, was an early warrior in the Equal Rights Amendment issues. And then my wife and daughter would tell you that there’s no shortage of female intellectual capacity and my family stepping aside from that, I hear your discussion of this and thinking that there was more of a contemporary conversation about female intellectual capacity there. And we’re talking the 17 hundreds. Fast forward, how do you bridge that into some of the conversations that are going on now? I worry that maybe particularly in the political sphere, we haven’t really progressed much. What are your thoughts about that?

Mary Sarah Bilder:

It’s a great point because I watched the State of the Union address and I loved watching Vice President Harris standing behind the President and then standing somewhat taller I thought, than the speaker. And one of the things that reminded us is how much examples matter and how important our sort of political imagination is in terms of thinking about what an example is. This is something that Eliza Harriet explicitly argued. So Eliza Harriet as a public lecturer, she’s the first public lecturer in the New American states, and she argued that a female example was something to be imitated and improved on by other candidates for literary fame. And what she means by literary fame is somebody people are going to write about in Plutarch’s lives. That reminds us how much of the way we imagine the political world has to do with the images that we see.

It was really striking to me watching, basically that’s the first time we’ve seen what it would look like to have a woman standing in that political space. And that’s one of the things that Eliza Harriet really understood herself to be doing. When I did this book, one of the things that I found striking was there are very few pictures of women speaking in public, and we might even think back to thinking about when we’ve watched presidential debates how women get interpreted, and that’s partly because we’re just not used to understanding how a woman should sound in public, what’s the right role for her. And this is something that way back in 1787, Eliza Harriet wanted to make a difference about. She really believed that if women could start speaking in public standing up in front of people taking that male political role, then it would be much easier to imagine women doing political speeches, which is kind of what people thought the big role of politics was.

And women who follow her because of the way that constitutions decide to exclude women, they can’t speak inside of political assemblies. But there’s a long tradition in this country in the 19th century of women becoming public speakers outside, and many of those public speakers are reformers, political reformers, particularly on issues of anti-slavery. When I did this book, one of the things that I found striking was there are very few pictures of women speaking in public. We might even think back to thinking about when we’ve watched presidential debates, how women get interpreted, and that’s partly because we’re just not used to understanding how a woman should sound in public, what’s the right role for her. And this is something that way back in 1787, Harriet wanted to make a difference about. She really believed that if women could start speaking in public standing up in front of people taking that male political role, then it would be much easier to imagine women doing political speeches, which is kind of what people thought the big role of politics was. Women who follow her because of the way that constitutions decide to exclude women, they can’t speak inside of political assemblies. But there’s a long tradition in this country in the 19th century of women becoming public speakers outside, and many of those public speakers are reformers, political reformers, particularly on issues of anti-slavery. So

Mitch Winick:

Let me just follow up on that for just a second. And Jackie, and I try not to get too political, clearly we have our viewpoints on these things, but the juxtaposition that you just talked about of having the vice president of the United States standing up at the State of the Union, but then the response to the State of the Union being relocated into the kitchen of a home as a place for the proper response by a political woman has been a lot of the current conversation

Mary Sarah Bilder:

Eliza Harriet wrote about this. Eliza Harriet predicted that her example would lead women to leave the tette and the parlor, the private space and move to the college and the forum. That’s what she wanted to have happen. That’s what she thought her standing up there would make a difference. So I have to say I thought it was so discouraging to watch a woman who was elected as a political representative, as a senator, I don’t care what party you belong to give a public political speech from a private space to not appreciate the enormous progress that becoming a senator means and the notion that you somehow don’t belong in the political forum. That’s the whole point. I mean, honestly, I would think if the president sat there and gave it from his kitchen, that would also be inappropriate. But I think it’s also unwillingness to understand the importance of being a senator. I thought it was regardless of political party, very discouraging about how a political representative should behave.

Jackie Gardina:

So I’m going to take us back to the 18th century, not because I want to, but because I think it’s important that the listeners have an understanding of something that you bring out in your book that I don’t think I was aware of. So you make a distinction between the age of the Constitution, which is the time in which the Constitution was being debated and ratified, and the written constitution, what emerged from that debate and ratification process. You suggest that the age of the Constitution actually began with calls for more representative and inclusive government, but then when it came to interpreting the actual constitutional texts, it was interpreted as exclusive rather than inclusive. How did we get from the potential for inclusion in the age of the Constitution to a written constitution that needed to be amended to add an equal protection clause, a specific provision for women’s suffrage, a voting right act to make black suffrage real? And we’re still waiting on the equal rights amendment.

Mary Sarah Bilder:

Yeah, it’s such a great question. We have this kind of period where the boundaries aren’t sharp in the way that the Constitution is understood, and instead, we can think of the document that comes out in 1787 and the amendments that follow it as principles or structures or evidence of what people wanted. What that means is that it becomes much easier to imagine arguing about who’s included and who’s excluded. Those rules don’t yet look sharp and definitive to be interpreted exclusively by a bunch of judges. So I argue this period is a moment where if you look across the century that preceded it, what lots of people were trying to argue was that more people should be included in representation. This is the moment when the first black voter votes in London, Ignacio Sancho. Lots of people, particularly along religious grounds are arguing they shouldn’t be excluded and women imagine themselves in the same space.

In fact, we have lots of evidence that in London, women political debating clubs argued explicitly that they should be allowed to vote and to hold office. We can come back to, I think the Constitution was written to allow for that possibility. We know women and people of color participate in politics and vote in New Jersey in this period. So it was not outside of the political imagination. But what happens in the 19th century, and it’s particularly a story about exclusion on sex, gender, but also on race, is that people begin to realize that one of the things this new genre of the written constitution can do is it can be exceptionally good at excluding people. Now, this flips what we tend to think of in liberal constitutional theory, which is constitutions are liberal and inclusive, but what written constitutions turn out to be really good at is barring people from power, excluding people. And we see that in the ways that state constitutions are interpreted in this period and amended to increasingly create a set of political actors limited to white men. And the reason constitutions are so good at this isn’t hard to understand. The people in power become the only people who are allowed to participate in interpreting and changing them. So once you move towards exclusion, it’s incredibly difficult to move away from exclusion,

Mitch Winick:

Mary, even though you’ve been researching the context and founding document. And in doing so, you call yourself a constitutionalist, not an originalist. We have challenged the legitimacy of originalism and the authenticity of history and traditional arguments on this program a number of times as an effective way to interpret the Constitution. Tell us what do you mean by constitutionalist? And from a personal standpoint, I’d like to know, do you think would this be a better context for the current court to use in interpreting the Constitution?

Mary Sarah Bilder:

Yes,

Mitch Winick:

Yes.

Mary Sarah Bilder:

I don’t think originalism makes sense. You can go way back to the beginning when it was first invented in 19 86, 19 87, and people pointed out, none of the framing generation thought originalism would’ve made any sense. So from an originalist originalist point of view, it doesn’t make any sense. It’s intellectually incoherent with the notion of a constitution. So if you think about a constitution as a frame of government, it makes no sense that that frame of government should be frozen imaginatively in a certain moment. It’s also unworkable in any realistic sense, and you can see that I think in the Second Amendment cases where we have judges basically saying, there’s no way I can figure out what you want me to figure out, and it involves a lot of saying, this type of law counts and this type of law doesn’t count. I call myself a constitutionalist because I think the idea of the Constitution as a form of government, as a frame of government is an incredibly important one.

What that means is that we do have a form of government, a constitutional form of government that imagines that government power is bounded in certain ways. I’m somebody who thinks those boundaries matter. That is one of the really important things that constitutions do is they put limits on what government can do. Working those limits out is a really hard question, and I think history has a really important role in helping us understand what the people in the past thought were those limits, why they thought those limits were where they were, and then helping us think about are the reasons for those limits reasons that still make sense today? I think of myself as a constitutionalist because this was the long history of constitutional was a history about power having to be limited, but having to be limited differently in different moments across time. I think my great frustration has been the way in which the court misunderstands what history is for history is not for constitutional interpretation to drag us into the past and insist that we be locked there. It’s to help us understand why people in the past saw something so that we can decide whether or those reasons still continue to make sense. Today

Jackie Gardina:

We are going to break to hear from our sponsors When we return, we’ll continue our conversation with Mary Builder author, A female genius

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Jackie Gardina:

Mary, I want to stay on this idea of cabining power. Stephen Vladeck joined us to discuss his book, the Shadow Docket, which reveals how the Supreme Court has really amassed power unimagined when the Constitution was written. How do you talk to law students about this change?

Mary Sarah Bilder:

I think one of the really interesting things that thinking about this period helps us understand is that the 1787 Constitution for the first time tried to imagine what would it look like to have the judiciary as an independent separate branch. Prior to that, everybody had always understood that the judiciary was in essence either the agent of the legislature or the agent of the executive. That’s why in Federalist 78 Hamilton sort of like everybody knows it’s either the executive or the judiciary. And one of the things that the 1787 Constitution tries to imagine is how can we start using the judiciary as a way to help further check the tendencies to aggregate power in the executive and the legislature? They’re not that interested in Article three, it’s why Article III is the shortest. It’s why the judiciary is radically under imagined, right? They say there’s one Supreme Court, six people because we think even would be better.

Beyond that, we don’t really have a lot of opinions, so the judiciary is under imagined, but it’s the beginning of the idea that the judiciary should play a role in that system. You could get rid of Article three, but I don’t think we’re going to do that. I think instead the trick is how does Article three and how do Article three courts understand with humility the role that they’re being asked to play in that system and the role they’re being asked to play in that system is not to become supreme to the other two branches. And I think this is something that the current court has perhaps not completely grasped the court’s very much a creature, slightly a creature of the Constitution, but largely a creature of Congress. And I think that being more aware of that would put the court back in a more balanced position. I also personally would like to see the court no longer serving lifetime tenure with the justices on the court. I think that’s completely compatible with understanding of Article three. And so I really do like those plans, which imagine the federal judges holding their terms on lifetime tenure, but not being tenured to a court for a lifetime.

Mitch Winick:

We’ve had a number of our guests address that issue, and they all agree with you. I don’t think anybody thinks that the original expectation would be that someone would serve for 40, 50 years on the Supreme Court, and there actually was some creative ideas presented how you could make that transition move Supreme Court Justices into a senior status where they could rotate back to the regional courts to sit in cases where there are conflicts and they could stay involved useful, and yet we would get fresh blood in the court that would be more current.

Mary Sarah Bilder:

We can see from the fact that the first Judiciary Act creates an even number of justices on the court, that the current tendency to decide things by five four is, and I’m not saying this from an original understanding point of view, but from a structural constitutional way that the court was supposed to fit in with the other branches. Everything’s not supposed to be decided by one person with lifetime tenure. And that isn’t the deep structure. I think of our form of government. I’m probably in the minority on this, but I would love us to move to an even number of justices on the court. I think that that would also go somewhat farther to forcing the court internally to have to think a lot harder about what cases it takes and how it decides its cases.

Mitch Winick:

I would point the finger back at you and Jackie and me as legal educators for a moment. One of the problems I see in what you’ve described is we just assume in law school that we really don’t have much of an obligation to teach the history surrounding many of these legal concepts. We just leap right into talking about the cases without talking about the history. Do you think we should be re-looking at the way we conduct legal education, expand it and bring more history and context into our educational process?

Mary Sarah Bilder:

Well, I think this is one of the ironic things that’s happened because of originalism, which is certainly when I first started 30 years ago working on matters of the Constitution, most people thought it was pretty boring and wasn’t that interesting? A lot of law books really did do, as you say, they sort of just jumped into it. I think what we see in part because of the rise of originalism is we see a lot of people, particularly not with historical training, but working on pro originalist arguments. But we also see now a lot of people interested in what the larger history was. So this has made this period suddenly one that’s really interesting to a lot of people. I have to say, when I started working on my Madison book, nobody would’ve interviewed me on what happened in the convention. It just wasn’t something people were interested in. Even back then. I did a lot of podcasts now on what’s going on, so I think this is sort of a nice thing that’s happening. I think a lot of the work around originalism has also raised questions about how do we teach civics? How do we think about larger questions of how do we imagine the early formation of the American government? I’m sort of happy to go with that. Better to have a debate over what type of government existed in 1787 than to have nobody talking about it.

Jackie Gardina:

Mary, you spent a lot of time, energy, and effort researching and then writing the book Female Genius. What is it that you hoped it would shed a light on in terms of current understanding of our legal system about women in our legal system, about the Constitution?

Mary Sarah Bilder:

Well, one of the things that I think the book, in its most deepest mode imagines, is helping us think about the space that a female president or a female vice president would occupy. And realizing that that’s not as unimaginable to the framing generation as we might think. They held out the possibility of that, that the Constitution was drafted in a gender neutral 18th century way to allow for that possibility. And that in some ways, it’s a lot of contemporary thought that’s made it difficult to imagine having a female president. One of the things I talk about in the conclusion of the book is how many women in particular worked so hard to make the idea of a woman standing up in front of people speaking a reality and how important all of those examples are in helping us shift our sort of prejudices about what appropriate power looks like.

So to go back to the State of the Union, I have to say I was so happy to see all of the women on the floor there that just looked different to me than even if you went back 20 years, you could no longer have the TV cameras picking out one person of color, one woman, another woman. It just looked like a lot of people, it looked way more representative of what American society is, and I think that the more we see that, the more we see that in state legislatures, the more we see that in state supreme courts, the more we see that on the Supreme Court, the easier it will become for us to have a more representative democracy. Mary,

Mitch Winick:

That feeds right into another theme that Jackie and I like to focus on, which is particularly the role of young women in our law schools as future leaders. What would you say to them? I think I can guess based on your last comment, the power of what their success could be. What would you specifically direct to a young woman lawyer as she looks forward into leading both the legal side of these issues, the historical narrative, the political narrative, and ultimately and hopefully the social progress in our society?

Mary Sarah Bilder:

And I think this is true of all people without regard to sex. I think that that’s one of the really important things that the 19th Amendment says people can vote without regard to sex, that we have constitutional principle to which sex does not matter, or gender doesn’t matter in that exclusionary way. I think for students, there’s two pieces of that. One to circle back to Eliza Harriet, she said the example was to be imitated and improved on. And I think it’s that improving on piece that we have to always think about. The example isn’t there to be, that’s the highest anybody can get. It’s okay, I’m going to go a little bit farther. I’m going to push it a little bit more. And I think sometimes we think of examples as being ceilings when actually these extraordinary examples are themselves just floors. And so I really encourage younger people to sort of be more ambitious than the people they see beyond them.

I think the other thing that this book really brought home to me was, and this is going to be strange given my job, I hate speaking in public. I hate speaking in class. I have to hope that the other personality that is Professor Builder shows up because I have enormous anxiety about public speaking. And one of the things that I really thought about a lot in this book was I went to see some of the places that Eliza Harriet spoke, and I tried to imagine what it would look like if you did it in a movie. I’d worked with Steven Spielberg many, many years ago as a legal historian on Amistad. What would it look like if George Washington’s in the audience, and there’s a woman in 18th century close standing up there in front of everybody, and how terribly brave she had to be to get up there and do that.

And that was, I think, for me, a really helpful way of thinking that even when I give a public talk and I’m terrified inside and maybe I don’t think I did the job that I wanted to do, simply standing up there as who I am matters. And I think that matters for all sorts of people. If you are a person who does not see yourself reflected in people who are speaking in public, I think there’s a story here about the importance of as scary as it is, realizing that just by standing up there speaking, you’ve created an example for people.

Jackie Gardina:

Mary, I think that’s a great place to end. Thank you so much for joining us on SideBar Today.

Mary Sarah Bilder:

Thank you so much for having me.

Mitch Winick:

Thanks Mary

Jackie. This was a great conversation, particularly because it helped us put a historical context on many of the conversations we’ve been having here on SideBar related to originalism history and tradition as those things are being used to currently interpret the Constitution. What Mary helps us understand is that there was a lot more going on. If we really want to talk about history and tradition as it relates to the Constitution, perhaps all of us should become a little better informed about those who were involved in that history. And in this case, Eliza Harriet who had George Washington in the audience when he was in town, to start discussions about drafting the Constitution. What an amazing image that provides, and one that I would hope would help transition us from these concepts of originalism, which of course, as you know, I’m very dubious about to this idea of constitutionalists who would frame history in their discussion of how to interpret the current constitution.

Jackie Gardina:

I think one of the things that was really interesting for me, Mitch, is, and I thought about in the context of our conversation with Madiba Dennis about her book, the Originalism Trap, and it’s been a part of other conversations where we assume that an inclusive pluralistic democracy was really a post-reconstruction idea. But what Mary builder’s book shows is it was actually very much a part of the conversation that they were having at the time that it was ratified, and it was after it was written down that it became a way to interpret it exclusively instead of through the spirit of the age of the Constitution, which was a much more inclusive representative democracy. So I think it was just so helpful for me to actually place that inclusiveness back in 1787 instead of 1868 after a civil war.

Mitch Winick:

And as concerned as we are that from the 1920s, we still don’t have an equal rights amendment. Mary gives us the challenge that standing up to discuss these things, being an example for those who are both in school, in our community, in Congress, hopefully on the Supreme Court, is still the answer of how we move these conversations forward.

Jackie Gardina:

I love the way that she did, especially as it related to her personally, about the need to be brave and how brave Eliza Harriet was, and how we each need to embody that bravery in today’s political world and stand up and speak for the things that we believe in. Once again, I want to thank everyone who joined us today on SideBar and as always, Mitch, and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

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Jackie Gardina:

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Mitch Winick:

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