Ch. 4.2. Women as Non-Voting Citizens: James Wilson’s Theory of Representation
(Continued from Lewis.)
According to the tenets of republicanism, participation in the republic, and not simply voting, should have restricted only to those who held enough property to secure a stake in the community and maintain their independence. Nascent liberals such as Wilson and Madison thought of the nation in much more expansive terms. Every free person who inhabited it was, in fact, a citizen, deserving of its protection and entitled to representation in the halls of government. In this context, women, who explicitly were to be represented but who just as explicitly were not permitted to represent themselves, became the touchstone of the modern, liberal state. By construing women as interested citizens incapable of representing themselves, liberalism provided a justification for the state: protecting those who could not protect themselves.
James Wilson set out this theory of representation in his Lectures on Law. Over the winters of 1790-1791 and 1791-1792, he delivered two sets of lectures at the College of Philadelphia, but he never completed the entire course, nor had he even completed revisions on the entire set of lectures at the time of his death in 1798. Born in Scotland in 1742, Wilson was not quite fifty years old when he was appointed the first Professor of Law at the College of Philadelphia, yet he had already played a prominent role in the critical political events of the era.
Educated at St. Andrews and the University of Edinburgh, he moved to America in 1765, settling in Philadelphia where he studied law with John Dickinson. He became active in the revolutionary movement, serving in a number of important capacities at the state and national level. His “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament” (1774) was one of the models for the Declaration of Independence, and Wilson himself was one of only six men to sign both the Declaration of Independence and the Constitution. In 1789, George Washington made him one of the original associate justices of the Supreme Court.
Even in the incomplete form in which Wilson’s Lectures were published after his death, they constitute one of the most significant–and least explored–documents in political and social thought from this period of American history. If they lack the focus of The Federalist, they make up for it with their sweep. And although coherent political and social theories are embedded in the writings of the great thinkers of the age–Jefferson, Madison, Hamilton, Adams–none of them set out as systematically to articulate a comprehensive theory of society and politics. In their subject matter, the Lectures invite comparison with John Locke’s Two Treatises of Government, and as such, they are a key text in the history of liberal thought in America.
Moreover, because Wilson was self-consciously a synthesizer, which is another way of saying that he was not always original, he is an especially useful guide to the assumptions shared by a wide range of political thinkers, particularly those whose thinking ran along liberal lines. Furthermore, because the lectures attempted to discuss systematically the relationship between society and government, they illuminate connections that others left unstated.
All of the dignitaries of the new federal government turned out for Wilson’s inaugural lecture as Professor of Law at the College of Philadelphia. Women also were among the audience–not an unusual occurrence for such events, and at one point Wilson addressed them directly.
Methinks I hear one of the female part of my audience exclaim: What is all this to us? We have heard so much of societies, of states, of governments, of laws, and of a law education. Is everything made for your sex? Why should not we have a share? Is our sex less honest, or less virtuous, or less wise than yours?
Women were not, Wilson averred, any less honest, virtuous, or wise than men. Moreover, although he doubted “whether it would be proper” for women “to undertake the management of public affairs,” they had an important role to play in society. He told the women in his audience that,
You have indeed heard much of public government and public law; but these things were not made for themselves: they were made for something better, and of that something better, you form the better part–I mean society–I mean particularly domestic society.
Wilson continued with a discussion of the relationship between government and society. Government is indeed highly necessary; but it was created to serve society, not as an end in itself. This was in fact one of the central tenets in his political canon. “Government,” to put it succinctly, “was instituted for the happiness of society.” Following John Locke, Wilson believed that government originated in a social compact, which created government, “by a human establishment, to acquire a new security for the possession or the recovery of those rights, to which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator.”
It is undeniable that the Common Law doctrine of coverture, which held that upon marriage a woman’s legal personality was merged into that of her husband, remained the basis for property and domestic relations law after the Revolution. It is equally true, however, that while some used coverture as a model for women’s political position as well, others were beginning to imagine that women could be participants in the social compact, acting independently of their husbands or other male protectors. James Wilson was one of those who found a place for women in the social compact.
Wilson’ s social and political theory implicitly promised them the full array of civil liberties. To be sure, the doctrine of women’s civil rights would come into conflict with the older doctrine of coverture and when it did, the more restrictive interpretation of women’s citizenship might prevail. The men who created the new national and state governments after the Revolution barely discussed the question of female citizenship. Hence, even when, as in the case of James Wilson, they seemed to expand the sphere of women’ s civil liberties, the Framers offered very little guidance about how those rights should be defined or enforced.
Nonetheless, during the first three-quarters of the nineteenth century, the constitutional foundation for women’s citizenship–that is, women’s entitlement to civil, but not political rights–was made increasingly secure. Women’s membership in civil society would be defined in relationship to that of free blacks. Just as the issues of race and gender had been joined in James Wilson’s language on representation offered to the Constitutional Convention, so too would they be linked in subsequent discussions in the nineteenth century.
In fact, the understanding of women’s civil rights emerged most clearly in discussions about attempts to limit the civil rights of free blacks. These discussions suggest that women were considered as members of civil society, entitled to representation and the rights of citizens, even if they could not themselves participate in government.
This understanding emerged as state courts began to define the rights of free blacks. For those states that wished to restrict them from voting, women served a useful purpose as an example of another class of adult citizens who could not vote. Women served as a point of reference for those who, while not holding political rights, nevertheless enjoyed the protections of citizens.
In 1872, Virginia Minor would sue the clerk in her home town in Missouri who refused to register her to vote. Her case made it to the Supreme Court in Minor v. Happersett (1874). The Court, while denying her the right to vote, confirmed what had become the prevailing wisdom:
There is no doubt that women may be citizens… There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of the general welfare. Each one of the persons associated becomes a member of the nation formed by the association.
Here, finally, was the explicit application of consent theory to women–but for the purpose of denying them the right to vote. The only real question, the Court insisted, was “whether all citizens are voters.” The answer, the Court held, was no.