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From Myra Bradwell to Hillary Clinton \\server05\productn\N\NVJ\9-3\NVJ303.txt unknown Seq: 1 13-OCT-09 11:53 AGENTS OF (INCREMENTAL) CHANGE: FROM MYRA BRADWELL TO HILLARY CLINTON Gwen Hoerr Jordan* ABSTRACT In this Article, the author asserts that after the Civil War, when the race and gender hierarchies that ordered American society were vulnerable, a little-studied collection of activist women lawyers led a law reform movement that established women’s rights incrementally. They were among those thinking about and experi- menting with different ways of framing, securing, and enforcing women’s full and equal citizenship rights. Their dual status as lawyers and women shaped their goals and strategies. As lawyers and licensed members of the legal profession, they oper- ated within the conventional institutions of power—lobbying the legislatures to enact new laws and urging judges to implement a new form of legal reasoning that sup- ported their claims. As disenfranchised women, they operated within nongovernmen- tal women’s associations—gathering support for their law reform campaigns and using their social capital to pressure governmental institutions to grant women rights. The author argues that these nineteenth-century law reform campaigns laid the foundation for the campaigns of the twentieth-century women’s rights movement that incrementally transformed the legal status of women in America from a position of subordinate inequality to a formal equality, but have not been effective in securing women’s substantive equality. TABLE OF CONTENTS INTRODUCTION ..................................................... 581 R I. THE ORIGINS OF THE WOMEN’S LAW REFORM MOVEMENT ..... 590 R A. Married Women’s Property Acts ......................... 590 R B. Woman Suffrage ........................................ 598 R II. THE DEVELOPMENT OF THE WOMEN’S LAW REFORM MOVEMENT: WOMEN LAWYERS AND THEIR ARGUMENTS FOR A NEW JURISPRUDENCE ........................................ 600 R * Ph.D., J.D., Visiting Assistant Professor, Northern Illinois University, former J. Willard Hurst Legal History Fellow, University of Wisconsin Law School. The author wishes to thank Arthur McEvoy, Jane Larson, Eric Arnesen, Susan Levine, Katrin Schultheiss, Felice Batlan, Barbara Babcock, Barbara Welke, Dan Hamilton, Elizabeth Mertz, Stuart Macaulay, Mitra Sharfi, Laura Singleton, Risa L. Lieberwitz, Marianne Constable, Rima Schultz, the Honorable Joan Humphrey Lefkow, the Honorable Elaine Bucklo, the participants of the University of Wisconsin Socio-Legal Studies Brownbag, the UW Institute for Legal Studies Fellows Colloquium, the Chicago Bar Association Alliance for Women, and the comments of a number of anonymous reviewers on earlier versions of this Article. 580 \\server05\productn\N\NVJ\9-3\NVJ303.txt unknown Seq: 2 13-OCT-09 11:53 Spring 2009] AGENTS OF CHANGE 581 A. Myra Bradwell’s Case and the Gendered Origins of Sociological Jurisprudence .............................. 603 R B. Developing Networks to Advance Women’s Law Reforms . 612 R III. WOMEN LAWYERS AND NGOS ............................... 622 R A. Women Lawyers’ Networks and Women’s Associations .... 622 R B. Women Lawyers and the World’s Columbian Exposition . 625 R IV. A BRIEF SURVEY OF THE LEGACY OF THE WOMEN’S LAW REFORM MOVEMENT ........................................ 630 R A. Legacy of Positive Law and Judicial Interpretation Campaigns ............................................. 631 R B. Legacy of Women Lawyers Professional Advancement Campaigns ............................................. 637 R C. Legacy of Campaigns through NGOs .................... 639 R CONCLUSION ....................................................... 643 R INTRODUCTION “I’ve been an agent of change . [for thirty-five years] . I [have] worked to help make the case for [many specific law reforms].”1 “[P]roducing positive change[,] [t]ranslating those words into action is something that is the . slow, hard, boring of hard boards in politics . .”2 “I think the American people are hungry for something different and can be mobil- ized around big changes—not incremental changes, not small changes.”3 Former Senator Hillary Rodham Clinton (and now Secretary of State) and her 2008 presidential campaign embodied the legacy of the American women’s rights movement. For almost two centuries, women’s rights activists employed a strategy of law reform campaigns to secure incremental rights, and ultimately, substantive equality for women. These efforts were primarily responsible for the transformation of women’s social and legal position in American society. Law reforms transformed women from feme sole and feme covert to citizen in the nineteenth century, secured the vote for women in the twentieth century, and made possible Senator Clinton’s powerful presidential campaign in the twenty-first century. Clinton acknowledged that despite these progressions, “the journey [isn’t] over”; substantive gender inequalities remain.4 As a lawyer and politician, she pledged to “overcome [the] barriers and obstacles” that per- sist through a continued application of the law reform strategy.5 1 See Senator Hillary Clinton, Former Senator John Edwards, Senator Barack Obama, Gov- ernor Bill Richardson, Democratic Presidential Debate at Saint Anselm College (Jan. 5, 2008) (transcript available at http://www.nytimes.com/2008/01/05/us/politics/05text-dde- bate.html?pagewanted=all) [hereinafter The Democratic Primary Debate in New Hampshire] (statement of Sen. Hillary Clinton). 2 Meet the Press: Hillary Clinton (NBC television broadcast Jan. 13, 2008). 3 The Democratic Primary Debate in New Hampshire, supra note 1 (statement of Sen. Barack Obama). 4 Meet the Press: Hillary Clinton, supra note 2. 5 Id. Secretary Clinton continues to advocate for law reforms to advance women’s rights including: the Paycheck Fairness Act to address the pay disparities between men and women, see Senator Clinton Reintroduces Bill Aimed at Ending Pay Gap, HR.BLR.COM (Mar. 7, 2007), http://hr.blr.com/news.aspx?id=75529, the Prevention First Act to expand \\server05\productn\N\NVJ\9-3\NVJ303.txt unknown Seq: 3 13-OCT-09 11:53 582 NEVADA LAW JOURNAL [Vol. 9:580 In contrast, in running against Senator Clinton for the Democratic presi- dential nomination, then Senator Barack Obama challenged the continued use of the incremental change strategy. Obama suggested that now was time for a more effective approach, one that would secure root change.6 He argued that despite the political courage of past activists or the import of the legislative victories, “[W]e never built the majority and coalesced the American people around being able to get the other stuff done,” to achieve real equality for all Americans.7 Senator Obama is not the first to argue for a new strategy. Over the past two centuries radical feminists and others have advocated for a funda- mental restructuring of society and its institutions,8 but despite these calls and the shortcomings of the past campaigns, the law reform strategy remains the primary tool of the women’s rights movement.9 This Article goes back to the beginnings. It examines the origins and development of the law reform strat- egy of the women’s rights movement to inform the continuing debate on the most effective means to secure substantive equality for all people in American society. Women’s rights activists began drafting and advocating law reforms that would grant women specific rights in the early nineteenth century as a means to achieve women’s emancipation and equality.10 They used natural law, the family planning services to low-income women, see Glass Booth Election 2008, Hillary Clinton on Abortion and Birth Control, http://glassbooth.org/explore/index/hillary-clinton/1/ abortion-and-birth-control/16/ (last visited June 20, 2009), and the Prevention First Act, Open Congress, S.21: Prevention First Act, http://www.opencongress.org/bill/111-s21/show (last visited June 20, 2009). 6 See The Democratic Primary Debate in New Hampshire, supra note 1 (statement of Sen. Barack Obama). 7 Id. 8 See SHULAMITH FIRESTONE, THE DIALECTIC OF SEX: THE CASE FOR FEMINIST REVOLU- TION (1970), for a history of radical feminism in the United States to 1970 and an argument for a feminist revolution. See also GEORGE SAND, To Members of the Central Committee of the Left, in GEORGE SAND: IN HER OWN WORDS 410, 411 (Joseph Barry trans., ed., 1979); Lori D. Ginzberg, “The Hearts of Your Readers will Shudder”: Fanny Wright, Infidelity, and American Freethought, 46 AM. Q. 195 (1994) (describing the radical positions of Amer- ican feminist Frances Wright). See also MARGARET H. MCFADDEN, GOLDEN CABLES OF SYMPATHY: THE TRANSATLANTIC SOURCES OF NINETEENTH-CENTURY FEMINISM 80 (1999), for a non-American, feminist call for a radical change. Sand, a French author, argued in 1848 that there must be a radical transformation in society before women could be an effec- tive political force. Id. 9 See National Organization of Women, Take Action!, http://www.now.org/actions (last vis- ited June 20, 2009) (listing NOW’s agenda which is heavily weighted toward legislative action); see also Equal Rights Advocates, About ERA, http://www.equalrights.org/about/ about_era.asp (last visited June 20, 2009) (“Since 1974, [its] mission has been to protect and secure equal rights and economic opportunities for women and girls through litigation and advocacy.”); Feminist Majority, http://feministmajority.org (last visited June 20, 2009) (stat- ing its motto “Working for Women’s Equality from the Streets to the Legislature”). 10 See ELLEN CAROL
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