Book Review

Linda Kerber has written a carefully reasoned and highly intelligent book that aims to shift the standard debate on citizenship. Rather than focus on the expansion of rights over time, she turns our attention to the more sober but equally crucial subject of civic obligation. The choice makes sense given that her study is deeply concerned with women's problematic relationship to the state. From the perspective of feminists, the political history of women in America is anything but triumphant: white women were denied the vote until 1920, and states continued to find ways to exclude poor and noncaucasian women long after the passage of the Nineteenth Amendment; women were long excluded from military service and are still subject to combat restrictions; women were not included in jury service on a equal basis until 1975, and exemptions based on sex were not challenged as violations of equal protection until the late 1980s. Women have been burdened with numerous civil disabilities derived from marital status and normative rules upholding sexual difference, and they are not considered constitutional equals with men as demonstrated by the 1982 defeat of the Equal Rights Amendment and its failed revival more recently. Kerber's argument unmasks the liberal conceit that progress was—and is—inevitable.	1
The primary value of this compelling collection of essays, which center on representative cases, is its comprehensive treatment of a two-sided standard: obligation and liability. Kerber demonstrates that citizenship has been based on the presumption that the typical citizen must be capable of performing certain duties and must as well avoid the liability of becoming a burden or danger to the nation state. American citizenship has never simply guaranteed the blessings of life, liberty, and the pursuit of happiness, but it has instead provided a legal means for the exercise of state power in regulating who belong and who fall outside the full guarantees of due process, equal protection, and political standing. American citizenship, then, has used obligations to divide the population into classes, prescribing, even coercing, some to perform certain tasks, and excluding and penalizing others, for often dubious or prejudicial reasons.	2
Kerber identifies five essential obligations: paying one's taxes; avoiding vagrancy—or the obligation to work and not be a fiscal burden on the state; jury service; military service; and loyalty (or refraining from treason). Each of these obligations raises different and necessarily complex issues, yet for Kerber the common thread is gender, and the legacy of coverture as it continues to influence the ways in which women's duties are differently defined. In theory, feme covert, or married women's status under common law, merged a woman's legal identity into that of her husband and fueled a pattern of legal thinking that viewed women as dependents who secured their civic status through men.	3
The case of Martin v. Commonwealth (1805) is the starting point of Kerber's study, and although the author has previously addressed it in Women of the Republic (1980) and other articles, this case takes on new life, with the addition of personal details about the lawyers and claimant. Indeed, what is particularly refreshing about Kerber's narrative style throughout the book is that she weaves unusual insights about people's lives into a serious examination of legal decision making. The Martin decision rested on feme covert: the wife of a loyalist was not accorded a civic identity except through her husband, and this allowed Anna Martin's son to regain property passed down through her family that was confiscated during the American Revolution. Adjudication, though, led the state's attorney general, James Sullivan, to take a more radical, more egalitarian position than what was contained in the Declaration of Independence. He contended that a woman was a "person" and that the Massachusetts constitution granted women certain "rights and privileges." But he lost. The outcome of the case, notably the equation of women and aliens, resurfaced in naturalization laws: a married woman's civic identity came through men and affected the status of children, too, by making paternity a male right of citizenship until 1934.	4
In the subsequent chapter, focusing on legal practices during and after Reconstruction in Texas, Kerber highlights the dynamic of race and gender. She shows that unemployed black women were expected to work or face forced labor under the guise of vagrancy laws. Free black women without jobs were labeled a nuisance because they had no male guardians to protect their interests, nor did they have the same legal standing as free white male workers whose personal liberty could not be so easily violated. In the chapter on taxation and representation, Abby and Julia Smith's 1873-80 tax protest demonstrates how coverture only partially applied to single women in denying them the vote, but in assessing property taxes, the state assumed they were just as liable as men. Next, the 1957 Gwendolyn Hoyt case exposes the double standard in jury service: the liberal policy of excusing women, which, in essence, failed to ensure that a woman was tried by a jury of her peers. Lastly, Kerber covers the issue of military service, linking two cases: that of Helen Feeney and that of Robert Goldberg, both of which reached the Supreme Court (during 1979 and 1981 respectively). These cases demonstrate that in the post-World War II period the obligation of the draft simultaneously forced men to bear the greater burden of enlistment but penalized women by denying them the privileges of veteran benefits.	5
As with any study, this one prompts questions: Must coverture be the unifying rationale in explaining women's different treatment under the law? Furthermore, why not test this theory of obligation in a treason trial such as the famous case of the Rosenbergs in 1951? And is vagrancy primarily about an obligation to work, or is it more a reflection of the common law vision of the well-regulated society as developed by William Novak in The People's Welfare (Chapel Hill: University of North Carolina Press, 1996)? The problem, perhaps, was larger than coverture: by the antebellum period women were, legally, a subordinate class. Age, race, literacy, and other conditions of "disability" were invoked to divest potential citizens of their rights.	6
Nonetheless, Kerber effectively argues that duties can never be divorced from legal reasoning about rights. Her provocative study reveals that gendered assumptions have long defined citizenship and that obligation has been a most critical and common category of understanding in perpetuating women's unequal protection under the law.	7
Nancy Isenberg University of Northern Iowa

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