STARTING IN THE 1830S, a great social revolution swept through the United States. The era of Jacksonian democracy saw the abolition of property requirements for voting, the disestablishment of official churches in the states, and the removal of religious restrictions on the suffrage. Other reforms took longer. The drive to do away with slavery picked up momentum in the 1840s and 1850s, but it would take a civil war and the Thirteenth Amendment before the “peculiar institution” could be abolished.
At the same time that reformers looked to end bondage based on skin color, many of them also sought to end the legal disabilities of women. Traditional common-law rules forbid women from voting, holding property in their own name, and making contracts. If they wanted to sue, they had to do so in their husband’s name, and by law, the legal control of a husband over his wife was near-absolute.
After the Civil War the drive for women’s suffrage and for the removal of other legal impediments picked up steam, but it would take many years before women would be able to cast a ballot, and even more before they achieved full equality before the law. Bradwell v. Illinois illustrates well the courage of women pioneering in a new field, the obstacles they faced, and the ingrained male chauvinism of the legal establishment.
Myra Colby Bradwell had been born in 1831 in Manchester, Vermont, to upper-middle-class parents, and some people believe that she had been marked from birth to be a genteel rabble-rouser. Her strongly Baptist parents, Eban and Abigail Colby, took part in the antislavery agitation that roiled New England in the 1830s, and their hatred of the “peculiar institution” intensified after a proslavery mob in Illinois killed a close friend of the family in 1837. In 1843 the Colbys moved to Schaumburg Township in Cook County, Illinois, and Myra had a thorough if somewhat peripatetic education. In her teens she attended a school in Kenosha, Wisconsin, where an older sister lived, and then graduated from the Ladies’ Seminary in Elgin, Illinois, and became a district schoolteacher. In May 1852, over her parents’ opposition, she married the penniless but ambitious James Bradwell, who had moved to Illinois as a child with his immigrant parents.
An aspiring lawyer, James Bradwell had worked his way through part of the curriculum at Knox College. As was common in those days, before law schools came to dominate legal education, he then read law—that is, he apprenticed—in the office of a practicing attorney, but had not progressed far enough to be admitted to the bar. The young couple moved briefly to Memphis, where they established a private school that did well. But the slave culture of Tennessee offended them, and when their first daughter, who was also named Myra, was born in 1854, they moved to Chicago, where James resumed his legal studies. He was admitted to the Illinois bar a year later, and opened a law office, Bradwell & Colby, with his brother-in-law.
The partnership flourished, and Bradwell soon became a man of considerable influence in Chicago, at the time already a bustling, entrepreneurial, and growing city. He and Myra had two more children. In 1861 their first daughter, Myra, died; three years later they lost a fourth child, James.
Myra Bradwell became deeply involved in work related to the Civil War, especially with the Northwestern Sanitary Commission, organizing sanitary fairs and collection campaigns to raise money for the health care of wounded soldiers. When the Civil War ended, she volunteered at the Chicago Soldier’s Home, the Soldier’s Aid Society, the Illinois Industrial School for Girls, and—since her husband was a Mason—also got involved in the charitable activities of the Masonic women’s auxiliaries. For the rest of her life she continued to do volunteer work, and as the family’s fortunes grew, she also gained a reputation as a local philanthropist.
But Myra Bradwell had a passion to do more than volunteer work—she wanted to become a lawyer. From the earliest days of their marriage, James had tutored his wife in legal matters. In early 1868 Myra established a newspaper, the Chicago Legal News. Within two years the paper was carrying more advertisements than any legal newspaper in the country, and had developed a reputation for clear writing and perceptive analysis. Because of the laws regarding limitations on women owning property, the newspaper technically belonged to James, although he and everyone else knew that Myra ran it. Once she had the News up and running, she went to the Illinois legislature in late 1868 to obtain a special license suspending the legal disabilities associated with coverture (the legal term for the status of a married woman), such as the inability to make contracts, own property, or manage one’s own money. She then openly assumed full responsibility for running the Chicago Legal News, its contents, finances, and daily operations.
Bradwell used the pages of the News not only to advance the cause of women’s rights, but also for legal reform. She called for the adoption of uniform rules of legal practice throughout Illinois, and urged lawyers in the larger cities to specialize in particular areas of the law. She was fierce in her anger at disreputable lawyers, especially those who bribed jurors (a rampant practice not only in Chicago but elsewhere at the time), stole their clients’ money, drank too much, or obtained quick divorces for their clients. Bradwell inveighed against jury-packing, and insisted that lawyers and judges practice good manners in the courtroom, be on time, and avoid side conversations. To raise the quality of the state’s judges, she urged the legislature to raise judicial salaries and to improve courtroom conditions as well as facilities. She had nothing against judges deciding to run for elected office, but insisted that they first resign from the bench. She also supported bills that would have provided for compulsory retirement of judges at age sixty-five.
After Myra secured the private bill that allowed her to own property and manage the business, James started a spin-off publishing and bindery operation, the Chicago Legal News Company, which quickly became the city’s leading provider of legal forms, stationery, and printed briefs. The company then became the state’s official printer of its legal materials, guaranteeing its success. The two companies, of course, worked closely, and at the close of every legislative session Myra Bradwell could be found comparing the proofs of the printed proceedings and laws with the original handwritten texts at the state capital in Springfield. The News then published the latest legislation several months before the state published its own laws. As a result, no lawyer in the Chicago area, and in fact through much of Illinois, could be without the News.
A telling incident occurred on the evening of October 8, 1871, when Chicago’s Great Fire swept through the city. Bradwell went through the house, collected a few valuables, and gave them to her husband to bury in the front lawn to save them from destruction. The couple then fled to Lake Michigan, where they and other city residents stood in shallow water that night to avoid nearby flames. The fire raged for three days, and destroyed almost the entire city. Aside from losing their house, the Bradwells did not know where their thirteen-year-old daughter, Bessie, had gone. They found her, alive and well, the following afternoon. Truly her mother’s daughter, Bessie had rushed to the newspaper office to save the lengthy subscription list of the Legal News before the premises fell to the flames.
Nothing tangible could have been of greater value to Bradwell. With the city in ashes and most law offices and law libraries destroyed, copies of the Legal News, especially the back issues, became extremely useful to the survivors. Bradwell ensured that her paper became indispensable to a new group of clients—landowners—when she convinced the Illinois legislature to choose her paper as the official medium in which to publish all court records, including notices of land titles, that had been burned by the fire and then re-created through archival research. Advertisers believed her when she told them that “in no place in the world will there be such a demand for law books as in Chicago in the next few months.”
Although not a practicing attorney, and certainly not a member of the bar, she wielded a great deal of influence in Chicago and Illinois legal circles. Most of the state’s lawyers subscribed to the Chicago Legal News, and in editorials and in choosing which topics to feature as important, she helped shape opinion on matters as varied as judicial reorganization, regulation of railroads, city zoning, and women’s rights.
Unlike many other feminist activists at this time, Myra Bradwell worked on the inside rather than taking part in public demonstrations. While people like Susan B. Anthony and Elizabeth Cady Stanton organized rallies and marches for women’s suffrage, in early 1869 Bradwell quietly went to every judge in Cook County and secured their endorsement for giving women the vote. Stanton, who was no fan of the business-oriented Bradwell, nonetheless recognized her as a “woman of great force and executive ability,” one well entrenched in the powerful circles of bench and bar.
As the drive for voting rights continued, Bradwell gradually became a more visible part of it, serving as a member of the executive committee of the Illinois Woman Suffrage Association. In late 1869 the American Woman Suffrage Association, the umbrella organization for all of the state groups, organized a conference in Cleveland, Ohio, and Bradwell not only served as the temporary chair, but then became one of the permanent corresponding secretaries.
But while she certainly favored giving women the right to vote, Bradwell was far more concerned with removing economic and occupational limits on married women, the full dimension of which she had come to know personally as she struggled to establish and manage a thriving business. The culture of the late Victorian era did not look kindly on female autonomy, and in many states the old legal rules that gave a husband complete control over his wife and her earnings were still in place.
Myra Bradwell was well aware of the disabilities the law placed on women, restrictions that had deep roots in history. Since early times, society recognized and often revered women as the unique source of human life, but at the same time considered them not only physically and intellectually inferior to men, but also the major source of temptation and evil. In Greek mythology a woman, Pandora, opens the forbidden box that brings unhappiness to mankind, while Roman law described women as children, eternally inferior to men. The early Christian fathers perpetuated these views. St. Jerome declared that “woman is the gate of the devil, the path of wickedness, the sting of the serpent, in a word, a perilous object.” In the thirteenth century, Thomas Aquinas wrote that woman was “created to be man’s helpmeet, but her unique role is in conception . . . since for other purposes men would be better assisted by other men.”
The widely held view of women as naturally inferior to men greatly influenced their status in the law. The common law of England held that an unmarried woman could own property, make a contract, and sue or be sued in court. The law saw a married woman as one with her husband; she gave up her name, and virtually all of her property came under his control. When they married, women became subordinate to their husbands under the principle of coverture, a term defined by the English jurist Sir William Blackstone:
By Marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection and cover, she performs everything; . . . and her condition, during her marriage is called her coverture.
Under coverture a married woman could not make contracts, write wills, sue or be sued in court, or own property. Her money and even her household goods and clothing belonged to her husband in his role as head of the household. If a woman worked outside of the house for wages, the money she brought home belonged to her spouse. If a woman came from a wealthy family, she might have some rights to property and perhaps even be given a house. Unless her father had taken the trouble and expense to draw up papers giving her management rights as well, her husband had the sole right to manage or sell such property without her permission, and to keep the profits.
This attitude crossed the Atlantic, and the common-law rules regarding women became part of the colonial legal codes. At the time of the Revolution John Adams told a friend he hoped Massachusetts would not lower its voting qualifications. “It is dangerous to open so fruitful a source of controversy,” he explained. “New claims will arise; women will demand a vote.” Forty years later, his friend and cosigner of the Declaration of Independence, Thomas Jefferson, still opposed opening the franchise to women:
Were our State a pure democracy . . . there would yet be excluded from deliberations . . . women, who, to prevent depravation of morals and ambiguity of issues, should not mix promiscuously in the public meetings of men.
A married man had the legal right to sexual relations with his wife, and if she did not care for the intimacy, he could force her; the legal definition of rape specifically excluded husbands and wives. Just as he controlled their material wealth, the husband also had control of their children, and in the rare instances of divorce, custody automatically went to the father. English law carried over to the colonies and then to the states. During the early years of the Republic, a man virtually owned his wife and children as he did his material possessions. If an impoverished man chose to send his children to the poorhouse so he no longer had to support them, the mother legally had no standing to object.
The democratizing forces at work in the 1830s and 1840s did improve the situation somewhat. A number of states passed laws known as “married women’s property acts.” To some extent these laws resulted from pressure by early advocates of women’s rights, but they also grew out of the need of a dynamic capitalist society to preserve property to avert the financial problems and confusion that could result if creditors seized property and broke up estates. Mississippi enacted the first property act in 1839, in order to keep plantations and their slaves intact, and to preserve the family’s interests against creditors. New York followed in 1848, and Massachusetts in 1854, but despite their ability—in some states—to own property, there were still significant limitations on the ability of married women to run their own businesses, a fact that confronted the Bradwells when they established the Chicago Legal News.
Bradwell did more than rail at these injustices. Her role as editor of the Legal News and the company’s status as the state’s printer gave her access to judges, legislators, and important attorneys that most advocates of women’s rights lacked. In 1869 she drafted, and then personally lobbied the legislature to enact, a bill that allowed wives to retain a portion of their earnings. She also supported laws that set aside portions of estates for widows, permitted women to serve on elected school boards, and ensured equal custody of children after a divorce. In 1875 she successfully pushed a bill that opened the office of notary public to women, a post for which Bradwell had applied in 1868 and again in 1870, and on both occasions was denied because of her gender.
By the early 1870s, Myra and James had done well indeed. He had been named a county judge, and by any standard, she has to be counted as one of the most successful and prosperous businesswomen of the latter nineteenth century. To replace the house that burned in the 1871 fire, they built a large mansion on the shores of Lake Michigan. She wanted more, however, and inevitably Myra Bradwell thought of the law.
Again she confronted the pervasive bias against women. Although during colonial times women had been allowed to represent themselves in some courts, this had been more because of a lack of trained lawyers in America than any sensibility regarding women. Not until 1869 did the St. Louis Law School become the first law school in the United States to admit women. In 1870 an accredited institution, the Union College of Law in Chicago, awarded a woman a law degree. These were not, however, signs of a new, egalitarian age. Most states continued to exclude women from the legal profession. In Iowa, for example, the law permitted “any white male person” admission to the bar, and it took a very creative reading of that law by the Iowa Supreme Court in 1869 for the state to allow Arabella Mansfield admission to the bar, the first woman who secured that status.
There is no question that at age thirty-eight Myra Bradwell knew as much law as any lawyer in Illinois. She had been her husband’s partner on the Legal News as well as in the printing of state legal business and private briefs. As his business expanded he had talked to her constantly, explaining the problems before him and the legal issues involved. She wrote the editorials and, very often, the analytical articles for the paper. She saw no reason that she should not be admitted to the bar so she could actually practice law, and in 1869, knowing she would be turned down, she passed the required examination with “high honors.” She applied for admission to the bar, and included the required letter from an inferior court attesting to the fact that she was a “person” of good character, only to learn, as she had expected, that she would be turned down for the sole reason that she was a woman—and a married woman—and therefore ineligible.
The Illinois Supreme Court declared that it was “compelled” to deny her application because, unlike men, she would “not be bound by the [contractual] obligations necessary to be assumed where the relation of attorney and client shall exist, by reason of the disability imposed” by her “married condition—it being assumed that you are a married woman.” Because of her coverture, the committee explained, Bradwell would not have the power to uphold the implied contracts that were standard between attorneys and clients. Married women could not, under existing Illinois law, contract on their own behalf without their husband’s consent, a fact Bradwell already knew.
The fact that Arabella Mansfield had gained approval to practice law in Iowa greatly heartened Bradwell. She decided to fight the decision and appealed it. In her brief, she insisted that “it is neither a crime nor a disqualification to be a married woman.” Married women, she pointed out, often acted as legal agents for their husbands and under Illinois law could enter into contracts on behalf of their spouses. She saw no difference between a woman acting as a legal agent for her husband and an attorney acting as an agent for a client. Moreover, since passage of the Illinois Married Women’s Property Act in 1861, a married woman could now contract with respect to any property she might hold separately from her husband.
The court’s decision made little sense since Bradwell, as editor and publisher of the Chicago Legal News, had been doing for years what the court said she could not do—make and uphold contracts. In fact, she not only had a contract with the state legislature to publish its minutes and enactments, she had a contract with the Illinois Supreme Court to print its opinions in her paper. Bradwell argued that a woman like herself, who was legally entitled to carry out business contracts without the express consent of her husband, should be considered a femme sole—a single woman—under common law. Bradwell had, of course, secured the right to act on her own behalf because of a private bill enacted in the Illinois legislature—an option, she claimed, open to all married women.
If a married woman lawyer failed “to perform her duty, or to comply with all her contracts as an attorney,” then the court could punish her as it would punish a man who failed in his duty, by striking his name from the roll—that is, disbarring him. She called on the court to approve her admission, claiming that in doing so it would “strike a blow [for] the rights of every married woman in the great State of Illinois who is dependent on her labor for support.”
She failed, and it is worthwhile quoting from the Illinois Supreme Court’s opinion to get a sense of how the male-dominated society and bar viewed the prospect of a woman lawyer:
Whether, in the existing social relations between men and women, it would promote the proper administration of justice, and the general well-being of society, to permit women to engage in the trial of cases at the bar, is a question opening a wide field of discussion, upon which it is not necessary for us to enter. It is sufficient to say that, in our opinion, the implied limitation upon our power [as a court]. . . , must operate to prevent our admitting women to the office of attorney at law. If we were to admit them, we should be exercising the authority conferred upon us in a manner which, we are fully satisfied, was never contemplated by the legislature.
It is to be remembered that at the time this statute was enacted we had, by express provision, adopted the common law of England . . . so far as they were applicable to our condition.
It is to be also remembered that female attorneys at law were unknown in England, and a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of bishops, or be elected to a seat in the House of Commons.
It is to be further remembered, that when our act was passed, that school of reform which claims for women participation in the making and administering of the laws had not then arisen, or, if here and there a writer had advanced such theories, they were regarded rather as abstract speculations than as an actual basis for action.
That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth.
In view of these facts, we are certainly warranted in saying that when the legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women.
Although Bradwell had originally been turned down on the grounds that she was a married woman, the Illinois court’s decision made clear that the real reason was her gender. Women—married or not—would not be allowed to practice law. There was only one resort left: appeal to the U.S. Supreme Court, relying on the wording of the Fourteenth Amendment—“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 any person within its jurisdiction the equal protection of the laws.” The Supreme Court had not yet handed down any decisions interpreting the meaning of any of these clauses. The wording did not refer to “men” but to “citizens” and “persons.” A plain reading of those phrases, she believed, should be enough to win her case.
Bradwell could not, of course, argue her own case before the Supreme Court, since women were, at the time, also excluded from admission to the Court’s bar. She secured the services of Sen. Matthew Hale Carpenter of Wisconsin, an experienced advocate as well as a supporter of women’s rights. It is unclear from the evidence whether Bradwell herself worked on the appellate brief, but in the preface there is a lengthy assurance that giving women the right to practice law would not imply that they should also be given the right to vote. According to Bradwell’s biographer, Jane Friedman, Bradwell directed Carpenter to make that argument in order to reassure the conservative justices that they were not starting down a slippery slope to full equality. (The same Court would, in fact, soon rule unanimously in Minor v. Happensett [1875] that while women were citizens, the suffrage was not a privilege of citizenship.)
Other sources suggest that she may not have been consulted, but given her extensive knowledge of the law, this is improbable. Although a strong supporter of women’s suffrage, Bradwell might well have chosen to compromise one goal in order to secure another. She recognized that the constitutional argument for suffrage was weak; after all, despite gaining citizenship in the Fourteenth Amendment, the former slaves had not secured suffrage until the passage of the Fifteenth Amendment in 1870. That amendment spoke to “race, color, or previous condition of servitude,” and not to gender. From a legal standpoint, the argument for allowing women to make contracts seemed far stronger. We do know that Susan B. Anthony, the leader of the women’s suffrage movement, believed Bradwell had a hand in the brief, and wrote her a letter scolding her for the reasoning.
Whether Bradwell advised him or not, in the end Carpenter decided to rely on the privileges and immunities clause guaranteeing citizens the same rights in every state of the Union. He claimed that admission to the bar, and the pursuit of “other ordinary avocations,” belonged in those constitutionally protected privileges that a state could not abridge. He suggested that the clause should be read broadly: “If this provision does protect the colored citizen, then it protects every citizen, black or white, male or female. . . . Intelligence, integrity and honor are the only qualifications that can be prescribed as conditions precedent to entry upon any honorable pursuit or profitable avocation.”
Today we look at such an assertion as commonsensical, but we are the heirs of more than six decades of equal protection jurisprudence, which has struck down invidious discrimination based on race, religion, gender, alienage, and sexual orientation. In 1873, however, Carpenter’s argument was unprecedented. “Of a bar composed of men and women of equal integrity and learning, women might be more or less frequently retained as the taste or judgment of clients might dictate,” the brief continued. “But the broad shield of the Constitution is over all, and protects each in the measure of success which his or her individual merits may secure.”
(Carpenter, in what can only be described as a stretch, noted that Bradwell had at one time been a resident of Vermont, which had a far more liberal stance regarding the ability of women to make contracts. Since she would have been able to make contracts in Vermont, he argued, the privileges and immunities clause meant that she should also be allowed to do so in Illinois.)
Matthew Hale Carpenter rose to begin oral argument on Saturday morning, January 18, 1873. “The question does not involve the right of a female to vote,” he began, echoing the opening of the brief. “It presents a narrower matter: Can a female citizen, duly qualified in respect of age, character, and learning, claim, under the Fourteenth Amendment, the privilege of earning a livelihood by practicing at the bar of a judicial court?”
Prior to the ratification of the Fourteenth Amendment, the question of privileges and immunities was strictly a matter of state law, and if a citizen left one state to live in another, he did not carry the rights he enjoyed in the first state to the second, but received only those applicable in the latter. But now the federal government ensured that the rights exercised in one state were available in all, and no state could lessen such rights.
Carpenter then went on to argue that the right of admission to the bar of a qualified person fell into this category, and could not be denied to anyone simply because of gender. Carpenter cited cases such as Cummings v. Missouri (1867), in which the Court had held that among the basic liberties of Americans was the right to enter an avocation, and that the right to do so could not be denied to anyone.
“The profession of the law,” he argued, “like the clerical profession and that of medicine, is an avocation open to every citizen of the United States. And while the legislature may prescribe qualifications for entering upon this pursuit, they cannot, under the guise of fixing qualifications, exclude a class of citizens from admission to the bar.”
As for the difficulties supposedly related to her inability to make the normal type of contract between attorney and client, Carpenter dismissed them out of hand. Once Bradwell had been admitted to the bar, she would become an officer of the court and therefore subject to its summary jurisdiction: “Any malpractice or unprofessional conduct towards her client would be punishable by fine, imprisonment, or expulsion from the bar, or by all three.” In fact, the Illinois high court had, in its full opinion, abandoned the arguments that her coverture would create difficulties. It had denied her admission solely on the basis of her gender, and the Fourteenth Amendment did not permit that sort of class discrimination. “I maintain,” he concluded,
that the Fourteenth Amendment opens to every citizen of the United States, male or female, black or white, married or single, the honorable professions as well as the servile employments of life; and that no citizen can be excluded from any one of them. Intelligence, integrity, and honor are the only qualifications that can be prescribed as conditions precedent to an entry upon any honorable pursuit or profitable avocation, and all the privileges and immunities which I vindicate to a colored citizen, I vindicate to our mothers, our sisters, and our daughters. . . . The broad shield of the Constitution is over them all, and protects each in that measure of success which his or her individual merits may secure.
No one answered Carpenter’s arguments because the state of Illinois did not send a lawyer to represent its high court, for reasons that are unknown. It is possible that it felt Myra Bradwell’s case to be so weak that it was unnecessary to go to the expense of having counsel present. One could equally surmise that so many high officials in the state government thought so well of her that they hoped she would prevail, and thus chose not to oppose her.
On April 14, 1873, the Supreme Court handed down its decision in the Slaughterhouse Cases (see preceding chapter), and there gave its first judicial interpretation of the meaning of the privileges and immunities clause. Justice Samuel F. Miller dismissed the claim of the New Orleans butchers that the Fourteenth Amendment gave them protection to carry on their professions as they saw fit without interference from the state in the form of regulations over where they could do that business. It is likely that the Court held off ruling on Myra Bradwell’s petition until after it had decided the Louisiana case, which presented more complex issues than that of one woman wanting to practice law. The very next day, also speaking through Justice Miller, it ruled against her by an 8–1 vote.
Miller first dismissed what, at best, had been a somewhat frivolous claim that because Bradwell had years ago lived in Vermont, therefore Illinois had to grant her the same right to make contracts that she would have enjoyed in Vermont. Bradwell had not lived in Vermont for many years; she was clearly a citizen of Illinois, and therefore subject to the laws of that state. Miller also dismissed Carpenter’s claim that among the rights and privileges belonging to all citizens in the United States was admission to the bar if they proved the requisite learning and good character required.
“There are privileges and immunities belonging to citizens of the United States,” the Court agreed, and “it is these alone which a state is forbidden to abridge.” Miller did not explain what these rights were, but he was quite clear that “the right to admission to practice in the courts of a state is not one of them.” In fact, in many states and even in the federal courts one did not even have to be a citizen to be admitted to the bar, but that determination rested solely in the hands of the legislature, and had nothing to do with the Fourteenth Amendment.
Miller did not say more, merely noting that the opinion rendered in the Slaughterhouse Cases “renders elaborate argument in the present case unnecessary.” The right to control and regulate the granting of licenses remained wholly within the power of the state. The Court did not need to reiterate the arguments in the earlier case. “It is sufficient to say they are conclusive of the present case.”
Had the decision stopped here, Bradwell v. Illinois would probably be remembered today, if at all, as one more relatively minor decision that kept women in a status of legal inferiority. Instead, Justice Joseph Bradley, joined by Justices Stephen J. Field and Noah H. Swayne, entered a wholly superfluous concurrence that has earned itself a certain notoriety in American legal history. Bradley took on a far wider issue than the meaning of a clause in the Fourteenth Amendment; he addressed the whole question of equal rights for women. He conceded that in recent years there had been changes in the law that allowed women greater freedom to own property and to act for themselves in some legal transactions. Then, in extremely paternalistic tones, he declared:
Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.
Bradley went on to explain approvingly that the common law viewed the husband as the wife’s “head and representative in the social state,” and the laws flowing from and depending upon this “cardinal principle still exist in full force in most States.” While he noted that many women were unmarried, and therefore not affected by these “duties, complications, and incapacities,” he considered these exceptions irrelevant:
The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and can not be based upon exceptional cases.
While noting the advancement of women in certain fields, a movement, he claimed, that had his “heartiest concurrence,” this did not mean that they had the right to be admitted into every office or position, especially those that required special skills or knowledge:
This [decision] fairly belongs to the police power of the state, and, in my opinion, in view of the peculiar characteristics, destiny, and mission of women, it is within the province of the legislature to ordain what offices, positions, and callings shall be filed 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.
Women, it seemed, were much too delicate to practice law; it took “sterner” character, the type that only men enjoyed.
The views expressed by Justices Miller and Bradley that because of the special nature of women, states could regulate their legal rights lasted well into the twentieth century. Even with the passage of the Nineteenth Amendment in 1919 granting women the right to vote, many states retained laws on the books limiting what women could do economically as well as legally. The Supreme Court in Goesart v. Cleary (1948) upheld a Michigan law prohibiting a woman from tending bar, unless she was the wife or daughter of the male owner. Justice Felix Frankfurter made lighthearted reference to barmaids in literature—“We meet the alewife, sprightly and ribald, in Shakespeare”—but then went on to note that, although being a barmaid had long historic roots, “Michigan could, beyond all question, forbid all women from working behind a bar [because] liquor traffic is one of the oldest and most untrammeled of legislative powers.”
A little over a decade later, in Hoyt v. Florida (1961), the Supreme Court unanimously upheld the Florida system of jury selection that discouraged most women from service. Where all male voters were registered automatically for jury duty, women who wanted to serve had to sign up separately, leading most women not to do so. The state’s justification was that it did not exclude women from jury duty, but merely spared them the obligation in recognition of their place at “the center of home and family life.”
Not until Reed v. Reed (1971) did the Court finally begin to grapple with the question of full legal equality for women. An Idaho law dating to 1864 required that when the father and mother of a deceased person both sought appointment as administrator of the estate, the man had to be preferred over the woman. In a brief and unanimous opinion, the Idaho Supreme Court upheld the law; in an equally brief and unanimous opinion, the U.S. Supreme Court ruled the law unconstitutional under the equal protection clause. The Court had finally begun the long march away from Joseph Bradley’s paternalism.
Before leaving Bradwell, one might note the following. There was one dissent, by Chief Justice Salmon P. Chase, who happened to be a distant cousin of Bradwell’s. But because he was critically ill and would die within a few weeks, there was no accompanying opinion, just a dissenting vote. Where the Court had voted against the New Orleans butchers by a bare 5–4 majority, it was nearly unanimous in its rejection of a woman’s claim to practice law. Finally, where Bradwell’s attorney, Sen. Matthew Hale Carpenter, had argued energetically for her right to be admitted to the bar under terms of the Fourteenth Amendment, he had argued against the butchers in the Slaughterhouse Cases, believing the Louisiana law to be a simple and legitimate health regulation. Bradley, on the other hand, had been a dissenter in the Louisiana case, believing that the butchers—all male, of course—had a constitutional right to pursue any lawful employment. He joined all but one of his colleagues in their view that women had no such right.
Even while the Supreme Court pondered her appeal, Bradwell and two of her protégés, Ada Kepley and Alta Hulett, had been busy drafting and lobbying the Illinois legislature for a statute providing that “no person shall be precluded or debarred from any occupation, profession or employment (except military) on account of sex.” Bradwell’s reputation as well as her superb lobbying skills led the legislature to pass the measure in 1874, and then the Illinois Supreme Court had no choice but to admit—however grudgingly—women to the bar. Bradwell also drafted legislation making women eligible to hold elective office in the Illinois public school system. The bill also passed, although it would be 1892 before the assembly passed a law—also drafted by Bradwell—allowing women to vote in school board elections.
Despite having drafted and secured passage of legislation allowing all persons, regardless of sex, to pursue an occupation, Myra Bradwell never reapplied for admission to the bar. In 1890, however, the Illinois Supreme Court decided to act. It issued an order granting Bradwell’s original application to practice law, and she became the first person in Illinois granted a license on the court’s own motion. Two years later, on March 28, 1892, she was admitted to the bar of the Supreme Court of the United States, on the motion of Attorney General W. H. H. Miller.
Myra Bradwell died of cancer on February 14, 1894. Her daughter, Bessie Bradwell Helmer, who had heroically saved the subscription lists during the Great Fire, continued her mother’s work with a career in law and as publisher of the Chicago Legal News until 1925. A week after Bradwell’s death, Bessie published a tribute to her mother, stating: “The future historian will accord her the breaking of the chain that bound women to a life of household drudgery. She opened the doors of the professions to her sex, and compelled law makers and judges as well, to proclaim that it was not a crime to be born a woman.”
Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873)
Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867) Goesart v. Cleary, 335 U.S. 464 (1948)
Hoyt v. Florida, 368 U.S. 57 (1961)
In re Bradwell, 55 Ill. 535 (1869)
Minor v. Happensett, 88 U.S. (21 Wall.) 162 (1875) Reed v. Reed, 404 U.S. 71 (1971)
Bradwell’s life story is told in Jane M. Friedman, America’s First Woman Lawyer: The Biography of Myra Bradwell (1993). A good and popular overview of cases affecting women is Claire Cushman, ed., Supreme Court Decisions and Women’s Rights (2001). The broader subject of women’s rights is explored in the classic book by Eleanor Flexner, Century of Struggle: The Women’s Rights Movement in the United States (enl. ed. 1996), and the legal impediments are well explicated in Joan Hoff, Laws, Gender, and Injustice: A Legal History of U.S. Women (1991). Perhaps the best book on women’s changing role in the constitutional order is Linda K. Kerby, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (1998).