A Closer Look at Bradwell v. Illinois

by Angela N. Johnson

Gwen Howerr Jordan’s article “Horror of a Woman” is extremley insightful in that it delves deep into the legal reasoning and procedure in the Bradwell v. Illinois case.  Moreover, Jordan’s article reveals an important insight that challenges modern interpretations of Bradwell v. Illinois, suggesting that Justice Bradley’s infamous concurring opinion in which he supports continued separate spheres was perhaps not the dominant ideology of the day (Jordan 2009, 1202).  According to Jordan, the opinion’s endorsement of the separate spheres argument was not as widely and uncritically accepted as Justice Bradley implied at the time of the Bradwell court decision.  Moreover, when looking at the Bradwell case (and the actions of Myra Bradwell, herself), this context allows the modern day reader to view the case as a strategy used to pursue women’s emancipation and equality under the Fourteenth Amendment, including the ability of women to enter the public sphere.  Bradwell used her case to advance women’s rights beyond opening the legal profession to women by arguing the 14th Amendment Equal Protection Clause should be applied to women and the Privileges and Immunities Clause barred sex-discrimination in employment. Though Bradwell’s fight did not end in a grand victory, “Bradwell was ultimately admitted to both the Illinois and the Supreme Court Bars.  By 1950 every state in the Union admitted women lawyers.  In 1971 the Supreme Court began using the Equal Protection Clause to strike down sex discrimination” (Jordan 2009, 1205). Jordan, by laying the foundation of Bradwell’s commitments and positions within women’s suffrage argues that Bradwell’s fight for a law license was primarily to advance women’s equality and that her own career choice (obtaining the license) was secondary. However, “Bradwell had never fought against marriage or motherhood, but she had always argued that being a wife and mother should not limit a woman’s citizenship status or be a barrier to a woman working in her chosen profession.  Bradwell wanted equal rights, not revolution” (Jordan 2009, 1218).

Though Bradwell lost her case, the sophisticated arguments she incorporated and developed were useful to other women’s rights activists in many early struggles for equality.  For example, “She acknowledged that the governing statute used the male pronoun in its recitation of requirements to enter the bar, but argued that it was not an explicit requirement that the applicant be male.  She cited as evidence the Illinois statute that specified “when any party or person is described or referred to by words importing the masculine gender, females as well as males shall be deemed to be included.”  Bradwell also cited other examples in the statutes where the court would have to interpret the male pronoun “he” to include women to avoid an absurd result” (Jordan 2009, 1218-1219). Bradwell additionally argued that two new Illinois Married Women’s Property Acts (passed in 1861 and 1869) allowed women to enter into contracts and own their own wages, which invalidated the rule of coverture (Jordan 2009, 1219-1220). Next, Bradwell argued that women’s role in public society were advancing; universities and even law schools were open to women and even the Government was employing women (both single and married) in many of its departments.  Bradwell also compared the advancement of women in the medical profession (as physicians). Bradwell turned to the example of Arabella Mansfield who had been granted a law license in Iowa following Judge Springer’s interpretation that the use of the word “male” did not imply a denial of the right to females (Jordan 2009, 1220). The judicial reasoning employed by Judge Springer was quite “instrumentalist” and was in opposition to the dominant “legal classicism” (which meant strict interpretation of the Constitution based on the original intent of those who drafted and enacted it).  Legal classicism opposed the early nineteenth century practice of some state court judges who had used the law to advance economic policies which supported growth and expansion, interpreting the laws in light of the current social and economic circumstances (Jordan 2009, 1221). Bradwell argued for a new interpretation based on the changed social conditions of women “as a matter of right and justice.” This was similar to early instrumentalist arguments which sought economic expansion – this time, seeking gendered justice.  According to Jordan, these progressive arguments were apparent in Bradwell’s legal briefs in the Bradwell v. Illinois case. Most fascinating, this line of thinking is echoed in arguments of Justices and legal scholars who argue for legal realism or living constitutionalism after Bradwell had already utilized this approach.  According to Jordan, “In the last two decades of the nineteenth century, Oliver Wendell Holmes (who some call the father of legal realism) published treatises challenging the notion of legal interpretation as objective and detached from social realities.  In the first decade of the twentieth century, Roscoe Pound conceived the term “sociological jurisprudence” . . . and advocated the concept that the law should be used to achieve social justice.  In the 1920s, Benjamin Cardozo advocated living constitutionalism, explaining that the “content of constitutional immunities is not constant, but carries from age to age.”  Although none of these men referenced Bradwell, their writings developed the arguments she set forth in her brief to the Illinois Supreme Court in November 1869” (Jordan 2009, 1222). According to Jordan, Elizabeth Cady Stanton also utilized the instrumentalist approach a year after Bradwell to argue in favor of a petition to grant women suffrage in 1870. Moreover, three weeks after Bradwell submitted her appeal to the United States Supreme Court which included a list of rights she enjoys as a citizen of the United States under the Privileges and Immunities Clause of the Fourteenth Amendment, Elizabeth Cady Stanton included similar arguments in her appeal for women’s suffrage to the Senate Committee on the District of Columbia (Jordan 2009, 1225). Then later, Susan B. Anthony’s attorney (Anthony was deemed incompetent to testify because she was a woman) “used these arguments in her defense in the case of the United States v. Susan B. Anthony” when facing illegal voting charges (Jordan 2009, 1227).

But Bradewell’s arguments (through her attorney) for her Supreme Court appeal were different than her state-court approach.  The focus was less on the type of legal reasoning that ought to be employed (strict interpretation/legal classicism or institutionalism) but simply that the right to work which was a “liberty of pursuit” was one of the fundamental rights included in the Privileges and Immunities Clause of the Fourteenth Amendment.  The majority opinion denied Bradwell the right to practice law.  Justice Bradley’s infamous concurring opinion argued that granting Bradwell a license to practice law would violate the doctrine of “separate spheres.” But as the author of this article notes, the opinions of the justices of the Supreme Court did not necessarily reflect the majority opinions of the public, “There were some state courts and legislatures that granted women rights, including the right to practice law, even as Justice Bradley pronounced that it was a violation of divine and natural law.  And there was evidence of significant public support for the women who sought to enter the profession” (Jordan 2009, 1234).  Jordan notes examples such as Alta Hulett’s push for legislation which would open all professions to women (her hometown newspaper in Rockford, Illinois reported “she is an honor to Rockford). Other states who had already granted women the right to practice law felt viewed the Bradwell v. Illinois decision as archaic, made by “old fogy” judges (Jordan 2009, 1236). Hundreds of newspaper articles were published decrying Justice Bradley’s opinions and many bar associations supported women’s inclusion to the profession.   “Public support for women lawyers increased throughout the decade.  By 1877 the New York World published an article encouraging women to practice law, especially in the Federal Courts” (Jordan 2009, 1239).

Given Bradwell’s influence on other women’s rights activist and arguments (mainly for women’s suffrage), it is unsurprising that “Bradwell’s direct influence is most visible in the arguments offered by other women lawyers, who involved her words in support of their own law license applications” (Jordan 2009, 1228).  Belva Lockwood, for example, utilized nearly identical arguments in her own pursuit of being admitted to practice law before the United States Supreme Court (she was already licensed to practice law in the District of Columbia) and then later when drafting a bill that granted women the right to be admitted to practice law on the same grounds as men. That bill was enacted in February 1879 and Lockwood was admitted to the Supreme Court bar on March 3, 1979 (Jordan 2009, 1230). Even in the twentieth century, Bradwell’s innovative arguments were used by Catharine Waugh McCulloch and Dorothy Kenyon for their campaigns for women’s jury service (Jordan 2009, 1242).  Bradwell’s work, though not immediately successful, was greatly beneficial to the women’s movement.  Moreover, her development of rights-based legal arguments have been useful to others fighting for equality.

Source Citation: Jordan, Gwen Hoerr. “”Horror of a Woman”: Myra Bradwell, the 14th Amendment, and the Gendered Origins of Sociological Jurisprudence.” Akron Law Review, 2009: 1201-1242.

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