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Description
The leading concern in women's rights litigation for the first half of the twentieth century involved women's rights in the workplace. One of the first cases of this kind to come before the High Court was the 1908 case of Muller v. Oregon. In a unanimous decision, the Court held that men and women were two distinct classes of workers and ruled that single-sex protective legislation was constitutional. Although the Court's decision is considered a "judicial landmark" in labor reform, the decision has come under increasing disfavor in recent years for its treatment of women (Mason 293). Assessing the long-term impact of this decision, Nancy Woloch remarks, "Muller v. Oregon leads a double life in constitutional history, as both a step forward on the road to modern labor standards and a step backward away from sexual equality" (4). Scholars agree that the decision in this case established important precedent, not only for women's rights in the workplace but also for the legal treatment of women more generally (Otten 72). Muller v. Oregon marks a significant moment in the rhetorical history of women's rights in the United States. I argue that the Supreme Court employed a Darwinian framework to justify its decision in Muller v. Oregon. This framework provided an up-to-date sanction for the logic of separate spheres at the core of the ruling and marked a secular and physiological shift in the Court's jurisprudence of gender equality. In addition to affirming a public man/ private woman binary, the rhetorical community that emerged from the Court's "Darwinian Separate Spheres" replicated racialized logics and depended on the exclusion of a majority of women from the white domestic ideal. This analysis traces out the implications of the community of meaning that emerges from the Court's Darwinian defense of Separate Spheres and discloses the United States Supreme Court as a distinctly rhetorical institution.
The Law as Rhetoric: A Site for Critical Inquiry
Feminist legal scholars have long been interested in the effects of Supreme Court decisions. Catherine MacKinnon critiques much of this work for its preoccupation with the empirical effects of law and its neglect of the power relations solidified, transformed, and resisted through the language of the law (238). Like MacKinnon, other feminist legal scholars influenced by the "Law and Literature" and Critical Legal Studies (CLS) movements have broadened their focus beyond the specific rules of law at work in legal decisions to an approach that recognizes the rhetorical dimensions of judicial opinions. [1] James Boyd White's conceptualization of the law as a constitutive rhetoric informs the present inquiry. Understanding the law as a constitutive rhetoric begins with the assumption that language creates relationships and communities among speakers, listeners, and those about whom they speak. White explains that analyzing the constitutive nature of legal discourse involves uncovering the rhetorical communities that are created through the language of the law and engaging in a political and ethical assessment of them. This approach shifts the focus of legal criticism from the distribution of social goods that results from legal discourses to the nature of the community created in the discourse. As White explains, "The central idea is not of goods, but of voices and relations: what voices does the law allow to be heard, what relations does it establish among them? With what voice, or voices, does the law itself speak? These are the questions with which rhetorical criticism would begin" ("Law as Rhetoric" 697).
Although the art of rhetoric was anchored to the practice of law within the classical rhetorical tradition, contemporary rhetorical scholars have only recently turned to the judicial opinion as an appropriate site of rhetorical inquiry. [2] Over the last decade, indeed, rhetorical studies of the law have demonstrated that a rhetorical perspective has much to contribute to the project of legal criticism. Several feminist rhetorical scholars have found this line of inquiry significant and productive. Carrie Crenshaw explains, "feminist criticism of legal argument is an especially important endeavor. Because the law institutionalizes relations of power, it can authorize and order our conceptions of social justice and it is a prominent model for theories of practical argument" ("Normality of Man" 183). Carrie Crenshaw is one of two rhetorical critics that have noted the rhetorical significance of Muller v. Oregon. In one study, Crenshaw traces the history of workplace protection rhetoric ("Protection of women"). She argues that the protection of "woman-as-mother" that appears in Muller is attitudinally united to contemporary rhetorics that claim to protect unborn children. Although Crenshaw points to the Court's characterization of woman in Muller, an extended analysis of the legal opinion is beyond the scope of her study. Todd McDorman's analysis of workplace rights rhetoric also includes a brief analysis of Muller. McDorman argues that the Court's use of "maternal function" as a label for all women obscured the rights of working women in the case of Muller v. Oregon. Both of these rhetorical projects have yielded important insight, namely that the rhetoric of workplace rights has shifted focus to the fetus to continue to restrict the rights of women. Crenshaw and McDorman both assign considerable weight and influence to the Muller opinion; however, because of a broad historical focus, detailed analysis of the rhetoric of Muller v. Oregon is minimal in both studies.
This study is motivated by the belief that entire communities of meaning are advanced through judicial opinions. It follows, then, that woman-as-mother is only one construct of the community that is given life in Muller v. Oregon. The construct of woman is constituted by other constructs in this community--man, work, home, race, class. By repositioning woman-as-mother within this rhetorical community, we can more fully understand the woman-as-mother construct. In addition, given the influence attributed to this decision, a thorough investigation of the rhetorical community of Muller v. Oregon promises to yield significant insight into the rhetorical history of gender and sex politics in the United States.
Background to Muller v. Oregon
The first women's rights case to come before the United States Supreme Court was Bradwell v. Illinois. The 1879 case challenged for the first time a sex classification as a violation of the Fourteenth Amendment. [3] Myra Bradwell filed suit after she studied law under her husband and passed the Illinois bar examination, but the Illinois Supreme Court refused to admit her because of her sex. The United States Supreme Court ruled in favor of Illinois and argued that the Fourteenth Amendment was designed to protect against race discrimination only and did not extend to the protection of women's rights. Bradwell was the first of a long line of cases that would deny women protection against sex discrimination.
Perhaps the most significant consequence of the Court's ruling, though, is that the rhetoric of Bradwell v. Illinois embedded an ideology of separate spheres into the High Court's jurisprudence of gender equality. Justice Bradley's concurring opinion is revealing:
Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. (20-21)
Separate spheres "ideology flourished after the Industrial Revolution when a distinction between the space of work and the space of the family emerged along with the belief that men were properly suited for the public sphere of paid labor and political activity while women were properly suited to the... |
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