The Washington PostDemocracy Dies in Darkness

Why even diehard originalists aren’t really originalists

Consider “coverture,” a doctrine older than the Constitution, in which husbands controlled wives.

Supporters with the organization Public Advocate of the United States demonstrate in support of the Supreme Court nomination of Amy Coney Barrett. (Graeme Sloan/Bloomberg News)
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As the Senate Judiciary Committee met this week and last, “originalism” — a judicial philosophy especially associated with the late Justice Antonin Scalia — trended on Twitter. Some tweets asked whether originalism meant reviving coverture, an ancient legal concept in which husbands’ identities “covered” that of their wives. In British common law, the husband and wife were one legal person. As influential 18th-century jurist William Blackstone, whose work is often used as a source in the U.S. Supreme Court, put it, the “very being or legal existence of the woman is suspended during the marriage.”

Here, I explain what coverture is, how it has been used in the Supreme Court, and how it is linked with the search for the original public meaning of the U.S. Constitution.

What is coverture, and how is it relevant to originalism?

Coverture requires husbands to financially support their wives and requires married women to supply domestic service and sexual access. Women could not sue or be sued, control guardianship of their children, work without their husbands’ permission, have power over the wages they earned, own or control real estate or personal property, enter into contracts, defend lawsuits, sit on juries or design their wills. Husbands could legally beat their wives, and marital rape was not a crime, something U.S. courts reversed in the late 1970s under feminist pressure. The rape of a married woman by a man other than her husband was a property crime of man against man because the “disgrace” of rape diminished her value. Husbands could train and coerce “their” wives into desired “domestic habits” and judges should not interfere.

With some variation among the states, coverture was the dominant legal framework from the issuance of the Declaration of Independence through the post-Civil War ratification of the 14th and 15th Amendments. In 1833, Harvard law professor Joseph Story categorized married women — along with children, “idiots” and “lunatics” — as legal incompetents requiring oversight. Scalia sometimes relied upon Story to make sense of the Constitution.

During this period, the actual rights of American married women depended upon race (as enslaved women had no access to legally recognized marriage), class and location. In American feminism’s earliest moments, women creatively exploited the law to assert their rights. Beginning in the 19th century, feminists pressed for a series of state laws, the Married Women’s Property Acts (1830s to 1920). These allowed some women — mostly White, middle and upper class — to own property, keep income that they earned outside the home, engage in business, sue or be sued and (after the Civil War) write wills. But men remained heads of households with conjugal rights.

If the Senate confirms Barrett, Americans could lose faith in the Supreme Court

Coverture legally restricted women’s rights and citizenship for more than 100 years

The U.S. Supreme Court used coverture to limit women’s citizenship for over a century. Women could be denied the right to practice law because women who adopted “distinct and independent career[s] from that of her husband” were “repugnant” to the harmony, identity and interests of “the family institution,” the court wrote in 1872. In 1908, the court held that women’s working hours could be limited because the “physical wellbeing of woman” was an object of public interest to “preserve the strength and vigor of the race” and that “history discloses that woman has always been dependent upon man.”

Beyond economics, men had sexual monopolies over their wives as both a personal and property right. If a married woman had consensual extramarital sex, she injured her husband’s exclusive right to marital intercourse with her. And as late as 1961, the court found that women who murdered their husbands could be tried by all-male juries because Florida exempted women from juries as “the center of home and family life.”

The Supreme Court did not formally reject coverture until 1992

But feminism was changing the culture. By 1965, the court was growing uncomfortable with coverture as “peculiar and obsolete.” In 1976, the court rejected a husband’s right to veto his wife’s abortion, given the law’s reliance on coverture.

Still, it took the first female justice, Sandra Day O’Connor, to pen the most graphic and forceful rejection. In 1992’s Planned Parenthood v. Casey, the precedent that has governed abortion rulings since then, she rejected a law requiring women to obtain their husbands’ permission for an abortion, rejecting coverture as inconsistent with modern legal norms. Only “one generation” had passed since the court regarded women as having “‘special responsibilities’ that precluded full and independent legal status,” she wrote. Such a view, she continued, was “of course” no longer consistent with “our understanding of the family, the individual, or the Constitution” — even as she knew that four justices, including Scalia, upheld the husband’s consent.

Scalia insisted originalism was apolitical because the Constitution that he interpreted was dead — not living. He called it enduring and argued that he could discern “what it meant when it was adopted.” Even a brief look at coverture shows how difficult it is for originalists to objectively and comprehensively determine historical context — or how easy it may be to look away from history that does not match what O’Connor called “our modern sensibilities.”

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Susan Liebell (@SusanLiebell), associate professor of political science at St. Joseph’s University, co-hosts the “New Books in Political Science” podcast. Her article “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller,” is forthcoming from Polity.