Subversive Moments: Challenging the Traditions of Constitutional History
Cain, Patricia A., Kerber, Linda K., Texas Journal of Women and the Law
For the past five years we have been making our own subversive intervention into the law school curriculum. Courses in "Gender and the Law" are now common. Our course, "Gender and Constitutional History," is a variation that we have found invigorating to teach jointly: one of us is trained as a lawyer, the other as a historian. Roughly half of our students are law students; the others are humanities and social science graduate students; a few are advanced undergraduates. We promise to teach the law students to think like historians and the non-law students to begin to think like lawyers. More importantly, we seek to restore historical context to legal analysis.
When we began teaching this course, we did not appreciate how extensively we would challenge the assumptions that the law students brought to the classroom. The non-law students already knew they did not think like lawyers and were looking forward to this taste of a new discipline. But the law students had been well taught how to exclude "extraneous" data from the analysis of principles, many of the law students found restoring historical chronology and context challenging and invigorating. We also gained our own fresh perspectives. When assigning papers in which students reconstructed the history of litigation on equal treatment in the state of Iowa, we found, to our delighted surprise, that our students could make significant contributions to our understanding of women's history, the history of the state, and indeed, the history of the nation. (Our understanding of Plessy v. Ferguson1 shifts when we take note of Emma Coger, who won her lawsuit against a steamboat company that refused to let her in to the first class dining room. The history of suffrage looks different when we know that in 1904 the women of Des Moines won a lawsuit defending their right to vote on bond issues that threatened to raise their taxes. Who knew that teachers in Cedar Rapids had sued the school district to retain their positions after maternity leave? Who knew that thirty years ago it was illegal in Iowa for a hairdresser with a cosmetologist's license to cut the hair of a man, but it was legal for a hairdresser with a barber's license to cut the hair of a woman?) Our students taught us quite as much as we taught them.
The first "Women and the Law" courses were developed in the early 1970s.2 These early courses were offered mainly in response to the demands of what was becoming a critical mass of women law students.3 Often the course was only nominally taught by a supportive law professor willing to lend her name to the course, and was instead essentially taught by students from materials that they had developed.4 By 1985, these courses were so numerous that Ann Shalleck of American University hosted a small but national conference of women law professors who shared syllabi and materials for Women and the Law courses.5 Conversations at that early meeting focused on whether women and the law courses were merely a temporary "fix" for the problem of omission, or whether it was a worthy endeavor on its own account. At that early meeting, participants concluded that studying issues about women across the curriculum in a single course was an important consciousness-raising endeavor; professors and students were gaining important insights as they linked together issues that had been scattered.
These courses drew from the fields of family law, constitutional law, employment law, and criminal law. Much of what they taught-e.g. the inability of women to name their own children6-was either not covered in the standard substantive courses or was scattered in the standard curriculum and often taught from an outsider perspective, creating different implications.
These first courses were taught in an exciting political context fueled by grassroots feminist movements. In the early 1970s, the National Conference on Women and the Law began hosting annual conferences that focused on cutting-edge legal issues that affected women as a class. …