4) Looking at the Susan B. Anthony case,
the Myra Bradwell case, and Edwards et al (The Persons Case), discuss the
relationship between legal personhood, public rights, and self-determination.
In the Susan B. Anthony case, the issue before the judge was whether or not the defendant "knowingly" cast an illegal ballot. Try as I may, I cannot find any evidence that women were not considered to be 'legal persons' under American jurisprudence, although archaic common law of the sort no doubt exists in the United Kingdom. Rather, it seems to be that the restriction that kept women from voting was cultural/religious in nature, ultimately stemming from Christian dogma that places women as subservient to men. What I mean to say is that this appears to come primarily from ecclesiastical law and cultural tradition, rather than common law or legislated law. There does not appear to have been any sort of definition on the topic, nor any enacted legislation, that explicitly prevented women from being legal persons. Nor does the fourteenth amendment state that existing cultural traditions should be modified. Further, when the nineteenth amendment was finally constructed, it commanded the states not to deny suffrage on the basis of sex - an admission that the right was always there in the first place, but that it was being unconstitutionally withheld. I consequently see no option but to reject the idea that the Anthony case had anything to do with legal personhood; rather, it seems to have had to do with traditional societal gender roles, as enforced by Christianity - it was against the norms that Christian society upheld, rather than against any secular law.
In the Susan B. Anthony case, the issue before the judge was whether or not the defendant "knowingly" cast an illegal ballot. Try as I may, I cannot find any evidence that women were not considered to be 'legal persons' under American jurisprudence, although archaic common law of the sort no doubt exists in the United Kingdom. Rather, it seems to be that the restriction that kept women from voting was cultural/religious in nature, ultimately stemming from Christian dogma that places women as subservient to men. What I mean to say is that this appears to come primarily from ecclesiastical law and cultural tradition, rather than common law or legislated law. There does not appear to have been any sort of definition on the topic, nor any enacted legislation, that explicitly prevented women from being legal persons. Nor does the fourteenth amendment state that existing cultural traditions should be modified. Further, when the nineteenth amendment was finally constructed, it commanded the states not to deny suffrage on the basis of sex - an admission that the right was always there in the first place, but that it was being unconstitutionally withheld. I consequently see no option but to reject the idea that the Anthony case had anything to do with legal personhood; rather, it seems to have had to do with traditional societal gender roles, as enforced by Christianity - it was against the norms that Christian society upheld, rather than against any secular law.
That being said, ecclesiastical
law certainly places women as subservient to men and, whether the precise
language was being used or not, a strong parallel is possible. Can we move
beyond the point of acknowledging the parallel abstractly? In later years,
Susan B. Anthony would use the same kind of language as in the 'persons' case,
but she seems to have either been reading very heavily into the existing legal
material, or drawing on ideas taken from overseas. Does that allow a
revisionist reading into the case that constructs the language of legal
personhood? To do so would be to ignore the greater context of a judicial
system that would overrule secular law with ecclesiastical law, citing the
supremacy of God. Women were already legally persons, and already legally
citizens, but this was irrelevant in the face of church law. Unfortunately,
Miss Anthony's own religious leanings had her prefer to study English
jurisprudence and import the language of a foreign country rather than confront
the religious fundamentalism that denied her the basic rights that the state had
granted her. So, taking this approach is illusory and cursory; it obscures the
real issue of dogma trumping secular law, in a state where the separation is
supposed to be constitutionally protected.
Whether voting is an effective
means of change or not, it is considered a public right. I cannot, however,
entertain the idea that there is any connection between voting and
self-determination: this is a bourgeois fantasy that cannot be responsibly
upheld. So, while the case draws a clear connection between legal personhood
and public rights, it is only within the context of taking part in the
meaningless ritual of voting, and does not really address self-determination in
any meaningful context. Given that Miss Anthony appears to have been upper
class, class being the true factor of self-determination, self-determination
doesn't seem to be something she lacked, whether she could legally vote or not.
Rather, her aim seemed to be to fight for the right of women to be equally
complacent in their slavery as men. An anarcha-feminist critique of Susan B.
Anthony would argue that she should have been fighting to abolish statist
hierarchy, not fighting for the right to periodically validate it.
There is not really any coherent connection between legal personhood, public rights and self-determination in the Anthony case. In the United States, women were legal persons the whole time and voting has nothing to do with self-determination.
There is not really any coherent connection between legal personhood, public rights and self-determination in the Anthony case. In the United States, women were legal persons the whole time and voting has nothing to do with self-determination.
The Bradwell case deals with a
more substantive issue, that of admission to the bar, or, more generally,
employment. The right to equal opportunity for employment is certainly
connected to self-determination, especially in the context of women living more
than a century ago, as denying the ability to raise an income was, at the time,
equivalent to enforcing patriarchal dominance; if women could not work, they
could not survive outside of marriage. Yet, there is still no connection to
legal personhood. At no point does the judge deny that Bradwell is a legal
person, or has rights stemming from that. Rather, the judge again enforces
Christian patriarchy and natural/ecclesiastical law, rambling away about the
proper place of women, who are unfit for serious work by nature of being
created unequal. So, again, we cannot see the connection between legal
personhood, public rights and self-determination - except to point out that the
ability to secure employment is fundamental to self-determination in a society
built on labour contracts. We can only see the effects of an incomplete
separation between church and state.
The Canadian
"persons
case" is another matter altogether. Here, it was claimed that females
could not be appointed as senators because they are not legal persons - a
clear
and unambiguous argument rooted in constitutional law, rather than
natural or
ecclesiastical law. This was upheld in Canadian courts by a literal
interpretation of the constitution. In what was perhaps the first
substantive
post-modern legal analysis, the Privy Council over-turned it by finding a
contradiction embedded within the language of the constitution. Once it
was
established that women were indeed legal persons, their public right to
hold
public office followed automatically, constructing a clear connection
between
personhood and rights. Yet, might things have been different in Canada
had it not been populated primarily by loyalists fleeing religious
fundamentalism,
if there was a weaker separation of church and state or if certain
denominations had become established? The connection is legally clear,
but
seems tenuous in practice, by the American example, at best; beware of
the
power of natural law theory to overrule positive law.
LAWS 2201
feb. 2013
http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/naturallaw.html