Power  /  Debunk

Putting Women Back Where They Belong: In Federalism and the U.S. History Survey

Looking to the local level showcases how women claimed their rights in Early America.

To say that women do not figure prominently in the historiography of federalism is an understatement, to say the least. What could debates about the relationship between states and the federal government possibly have to do with women, particularly before the Civil War, when they lacked the rights necessary to access these levels of government? Everything, as I argue in “The Legal World of Elizabeth Bagby’s Commonplace Book: Federalism, Women, and Governance,” which appeared in the December 2019 special issue of The Journal of the Civil War Era. More than that, attention to federalism makes it possible to integrate women into parts of U.S. history survey courses where they are usually relegated to sidebars.

Why is federalism about women? Conventional approaches define federalism in terms of those areas of law and governance—states and the federal government—that lay beyond the reach of most women before the Civil War. But new scholarship has extended federalism to include all of the governing order’s layers, including those to which women of all races and ethnicities had some access: those linked to the state, such as county, municipal courts, and other local governing venues, as well as those that were not linked to the state, such as churches, voluntary organizations, and families. In fact, new work suggests that states and the federal government were more accessible to women and men without the full range of rights than previously thought. Of course, access did not translate into leverage. Race, ethnicity, and class shaped women’s influence within these venues. Still, this new vision of federalism moves all women from the margins to the center, showing them to be more involved in the business of governance than previously assumed.[1]

How does this vision of federalism work in the context of the U.S. history survey? The new republic’s founding provides a good example. Surveys generally include some treatment of Revolutionary-era state constitutions, the Articles of Confederation, and the U.S. Constitution. But the discussion usually ends there, as if states and the federal government constituted the entirety of the governing order and, moreover, that it excluded women. That was hardly the case. Petitioning, as recent work shows, allowed access even to these arenas. Local courts and other bodies at the county and municipal level, moreover, continued to operate much as they had in the colonial era. Not only did these local jurisdictions still serve as the primary governing arena for most people, but they also exercised considerable discretion over the issues that directly affected the lives of most people, including most women. It was not just the location of these venues, although that helped; it was also the body of law in operation there that made them accessible to women. Local areas had wide latitude in the area of public law, a specific, open-ended body of law, which oversaw matters relating to the general welfare–everything from interpersonal violence and property disputes to poor relief and pretty much anything else that touched on the public order.[2]