by Howard Zinn
Indeed, the same problem existed for the other provisions of the Constitution, like the clause forbidding states to "impair the obligation of contract," or that giving Congress the power to tax the people and to
A PEOPLE'S HISTORY OF THE UNITEO STATES
appropriate money. They all sound benign and neutral until one asks: lax who, for what? Appropriate what, for whom? Ib protect everyone's contracts seems like an act of fairness, of equal treatment, until one considers that contracts made between rich and poor, between employer and employee, landlord and tenant, creditor and debtor, generally favor the more powerful of the two parties. Thus, to protect these contracts is to put the great power of the government, its laws, courts, sheriffs, police, on the side of the privileged—and to do it not, as in premodem times, as an exercise of brute force against the weak but as a matter of law.
The First Amendment of the Bill of Rights shows that quality of interest hiding behind innocence. Passed in 1791 by Congress, it provided that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." Yet, seven years after the First Amendment became part of the Constitution, Congress passed a law very clearly abridging the freedom of speech.
This was the Sedition Act of 1798, passed under John Adams's administration, at a time when Irishmen and Frenchmen in the United States were looked on as dangerous revolutionaries because of the recent French Revolution and the Irish rebellions. The Sedition Act made it a crime to say or write anything "false, scandalous and malicious" against the government, Congress, or the President, with intent to defame them, bring them into disrepute, or excite popular hatreds against them.
This act seemed to directly violate the First Amendment. Yet, it was enforced. Ten Americans were put in prison for utterances against the government, and every member of the Supreme Court in 1798-1800, sitting as an appellate judge, held it constitutional.
There was a legal basis for this, one known to legal experts, but not to the ordinary American, who would read the First Amendment and feel confident that he or she was protected in the exercise of free speech. That basis has been explained by historian Leonard Levy. Levy points out that it was generally understood (not in the population, but in higher circles) that, despite the First Amendment, the British common law of "seditious libel" still ruled in America. This meant that while the government could not exercise "prior restraint"—that is, prevent an utterance or publication in advance—it could legally punish the speaker or writer afterward. Thus, Congress has a convenient legal basis for the laws it has enacted since that time, making certain kinds of speech a crime. And, since punishment after the fact is an excellent deterrent to the exercise of free expression, the claim of "no prior restraint" itself is destroyed. This leaves the First Amendment much less than the stone wall of protection it seems at first glance.
A KINO OF REVOLUTION
Are the economic provisions in the Constitution enforced just as weakly? We have an instructive example almost immediately in Washington's first administration, when Congress's power to tax and appropriate money was immediately put to use by the Secretary of the Treasury, Alexander Hamilton.
Hamilton, believing that government must ally itself with the richest elements of society to make itself strong, proposed to Congress a series of laws, which it enacted, expressing this philosophy. A Bank of the United States was set up as a partnership between the government and certain banking interests. A tariff was passed to help the manufacturers. It was agreed to pay bondholders—most of the war bonds were now concentrated in a small group of wealthy people—the full value of their bonds. Tax laws were passed to raise money for this bond redemption.
One of these tax laws was the Whiskey 'lax, which especially hurt small fanners who raised grain that they converted into whiskey and then sold. In 1794 the fanners of western Pennsylvania took up arms and rebelled against the collection of this tax. Secretary of the Treasury Hamilton led the troops to put them down. We see then, in the first years of the Constitution, that some of its provisions—even those paraded most flamboyantly (like the First Amendment)—might be treated lightly. Others (like the power to tax) would be powerfully enforced.
Still, the mythology around the Founding Fathers persists. To say, as one historian (Bernard Bailyn) has done recently, that "the destruction of privilege and the creation of a political system that demanded of its leaders the responsible and humane use of power were their highest aspirations" is to ignore what really happened in the America of these Founding Fathers.
Bailyn says:
Everyone knew the basic prescription for a wise and just government. It was so to balance the contending powers in society that no one power could overwhelm the others and, unchecked, destroy the liberties that belonged to all. The problem was how to arrange the institutions of government so that this balance could be achieved.
Were the Founding Fathers wise and just men trying to achieve a good balance? In fact, they did not want a balance, except one which kept things as they were, a balance among the dominant forces at that time. They certainly did not want an equal balance between slaves and masters, propertyless and property holders, Indians and white.
TO2
A PEOPLE'S HISTORY OF THE UNITED STATES
As many as half the people were not even considered hy the Founding Fathers as among Bailyn's "contending powers" in society. They were not mentioned in the Declaration of Independence, they were absent in the Constitution, they were invisible in the new political democracy. They were the women of early America.
6 THE INTIMATELY OPPRESSED
It is possible, reading standard histories, to forget half the population of the country. The explorers were men, the landholders and merchants men, the political leaders men, the military figures men. The very invisibility of women, die overlooking of women, is a sign of their submerged status.
In this invisibility they were something like black slaves (and thus slave women faced a double oppression). The biological uniqueness of women, like skin color and facial characteristics for Negroes, became a basis for treating them as inferiors. True, with women, there was something more practically important in their biology than skin color—their position as childbearers—but this was not enough to account for the general push backward for all of them in society, even those who did not bear children, or those too young or too old for that. It seems that their physical characteristics became a convenience for men, who could use, exploit, and cherish someone who was at the same time servant, sex mate, companion, and bearer-teacher-ward en of his children.
Societies based on private property and competition, in which monogamous families became practical units for work and socialization, found it especially useful to establish this special status of women, something akin to a house slave in the matter of intimacy and oppression, and yet requiring, because of that intimacy, and long-term connection with children, a special patronization, which on occasion, especially in the face of a show of strength, could slip over into treatment as an equal. An oppression so private would turn out hard to uproot.
Earlier societies—in America and elsewhere—in which property was held in common and families were extensive and complicated, with
A PEOPLE'S HISTORY OF THE UNITED STATES
aunts and uncles and grandmothers and grandfathers all living together, seemed to treat women more as equals than did the white societies that later overran them, bringing "civilization" and private property.
In the Zuni tribes of the Southwest, for instance, extended families— large clans—were based on the woman, whose husband came to live with her family. It was assumed that women owned the houses, and the fields belonged to the clans, and the women had equal rights to what was produced. A woman was more secure, because she was with her own family, and she could divorce the man when she wanted to, keeping their
property.
Women in the Plains Indian tribes of the Midwest did not have farming duties hut had a very important place i
n the tribe as healers, herbalists, and sometimes holy people who gave advice. When bands lost their male leaders, women would become chieftains. Women learned to shoot small bows, and they carried knives, because among the Sioux a woman was supposed to be able to defend herself against attack.
The puberty ceremony of the Sioux was such as to give pride to a young Sioux maiden:
Walk the good road, my daughter, and the buffalo herds wide and dark as cloud shadows moving over the prairie will follow you... . Be dutiful, respectful, gende and modest, my daughter. And proud walking. If the pride and the virtue of the women arc lost, die spring will come but the buffalo trails will turn to grass. Be strong, with the warm, strong heart of die earth. No people goes down until tbeir women are weak and dishonored. . ..
It would be an exaggeration to say that women were treated equally with men; but they were treated with respect, and the communal nature of the society gave them a more important place.
The conditions under which white settlers came to America created various situations for women. Where the first settlements consisted almost entirely of men, women were imported as sex slaves, childbear-ers, companions. In 1619, the year that the first black slaves came to Virginia, ninety women arrived at Jamestown on one ship: "Agreeable persons, young and incorrupt... sold with their own consent to settlers as wives, the price to be the cost of their own transportation."
Many women came in those early years as indentured servants— often teenaged girls—and lived lives not much different from slaves, except that the term of service had an end. They were to be obedient to masters and mistresses. The authors of Americans Working Wo?nen (Baxandall, Gordon, and Reverby) describe the situation:
THE INTIMATELY OPPRESSED
IOJ
They were poorly paid and often treated rudely and harshly, deprived of good food and privacy. Of course these terrible conditions provoked resistance. Living in separate families widiout much contact with others in their position, indentured servants had one primary path of resistance open to them: passive resistance, trying to do as little work as possible and to create difficulties for their masters and mistresses. Of course the masters and mistresses did not interpret it that way, but saw the difficult behavior of their servants as sullenness, laziness, malevolence and stupidity.
For instance, the General Court of Connecticut in 1645 ordered that a certain "Susan C., for her rebellious carriage toward her mistress, to be sent to the house of correction and be kept to hard labor and coarse diet, to be brought forth the next lecture day to be publicly corrected, and so to be corrected weekly, until order be given to the contrary."
Sexual abuse of masters against servant girls became commonplace. The court records of Virginia and other colonies show masters brought into court for this, so we can assume that these were especially flagrant cases; there must have been many more instances never brought to public light.
In 1756, Elizabeth Sprigs wrote to her father about her servitude:
What we unfortunate English People suffer here is beyond the probability of you in England to Conceive, let it suffice that I one of the unhappy Number, am toiling almost Day and Night, and very often in the Horses druggery, with only this comfort that you Bitch you do not halfe enough, and then tied up and whipp'd to that Degree that you'd not serve an Annimal, scarce any thing but Indian Corn and Salt to eat and that even begrudged nay many Negroes are better used, almost naked no shoes nor stockings to wear ... what rest we can get is to rap ourselves up in a Blanket and ly upon die Ground. ...
Whatever horrors can be imagined in the transport of black slaves to America must be multiplied for black women, who were often one-third of the cargo. Slave traders reported:
I saw pregnant women give birth to bahies while chained to corpses which our drunken overseers had not removed... . packed spoon-fashion they often gave birdi to children in the scalding perspiration from the human cargo. ... On board the ship was a young negro woman chained to the deck, who had lost her senses soon after she was purchased and taken on board.
io6
A PEOPLE'S HISTORY OF THF UNITED STATES
A woman named Linda Brent who escaped from slavery told of another burden:
But 1 now entered on my fifteenth year—a sad epoch in the life of a slave girl. My master began to whisper foul words in my ear. Young as 1 was, I could not remain ignorant of their import. . .. My master met me at every turn, reminding me that I belonged to him, and swearing by heaven and earth that he would compel me to submit to him. Tf I went out for a breath of fresh air, after a day of unwearied toil, his footsteps dogged me. If I knelt by my mother's grave, his dark shadow fell on me even there. The light heart which nature had given me became heavy with sad forebodings. .. .
Even free white women, not brought as servants or slaves but as wives of the early settlers, faced special hardships. Eighteen married women came over on the Mayflower. Three were pregnant, and one of them gave birth to a dead child before they landed. Childbirth and sickness plagued the women; by the spring, only four of those eighteen women were still alive.
Those who lived, sharing the work of building a life in the wilderness with their men, were often given a special respect because they were so hadly needed. And when men died, women often took tip the men's work as well. All through the first century and more, women on the American frontier seemed close to equality with their men.
But all women were burdened with ideas carried over from England with the colonists, influenced by Christian teachings. English law was summarized in a document of 1632 entitled "The Lawes Resolutions of Womens Rights":
In this consolidation which we call wedlock is a locking together. It is true, that man and wife arc one person, but understand in what manner. When a small brooke or little river incorporateth with Rhodanus, Humber, or the Thames, the poor rivulet looseth her name.... A woman as soon as she is marriedj is called covert ... that is, "veiled"; as it were, clouded and overshadowed; she hath lost her strcame. I may more truly, farre away, say to a married woman, Her new self is her superior; her companion, her master. . ..
Julia Spruill describes the woman's legal situation in the colonial period: ''The husband's control over the wife's person extended to the right of giving her chastisement. . .. But he was not entitled to inflict permanent injury or death on his wife. . . ."
THE INTIMATELY OPPRESSED
1VJ
As for property: "Besides absolute possession of his wife's personal property and a life estate in her lands, the husband took any other income that might be hers. He collected wages earned by her labor. . . . Naturally it followed that the proceeds of the joint labor of husband and wife belonged to the husband."
For a woman to have a child out of wedlock was a crime, and colonial court records are full of" cases of women being arraigned for "bastardy"—the father of the child untouched by the law and on the loose. A colonial periodical of 1747 reproduced a speech "of Miss Polly Baker before a Court of Judicature, at Connecticut near Boston in New England; where she was prosecuted the fifth time for having a Bastard Child." (The speech was Benjamin Franklin's ironic invention.)
May it please the honourable bench to indulge me in a few words: i am a poor, unhappy woman, who have no money to fee lawyers to plead for me.. .. This is die fifth time, gentlemen, that I have been dragg'd before your court on the same account; twice I have paid heavy fines, and twice have been brought to publick punishment, for want of money to pay those fines. This may have been agreeable to the laws, and I don't dispute it; but since laws arc sometimes unreasonable in themselves, and therefore repealed; and others bear too hard on the subject in particular circumstances ... I take the liberty to say, that I think this law, by which I am punished, both unreasonable in itself, and particularly severe with regard to me... . Abstracted from the law, I cannot conceive ... what the nature of my offense is. T have brought five fine children into die world, at the risque of my life; I have maintained them well by my own industry, without
burthen-ing the township, and would have done it better, if it had not been for the heavy charges and fines I have paid.. . . nor has anyone the least cause of complaint against me, unless, perhaps, the ministers of justice, because T have had children without being married, by which they missed a wedding fee. But can this be a fault of mine? .. .
What must poor young women do, whom customs and nature forbid to solicit the men, and who cannot force themselves upon husbands, when the laws take no care to provide them any, and yet severely punish them if they do their duty without them; the duty of the first and great command of nature and nature's Cod, encrease and multiply; a duty from the steady performance of which nothing has been able to deter me, but for its sake I have hazarded the loss of the publick esteem, and have frequently endured pub-lick disgrace and punishment; and therefore ought, in my humble opinion, instead of a whipping, to have a statue erected to my memory.
io8
A PEOPLE'S HISTORY OF THE UNITED STATES
The father's position in the family was expressed in The Spectator, an influential periodical in Ameriea and England: "Nothing is more gratifying to the mind of man than power or dominion; and ... as I am the father of a family ... I am perpetually taken up in giving out orders, in prescribing duties, in hearing parties, in administering justice, and in distributing rewards and punishments.... In short, sir, I look upon my family as a patriarchal sovereignty in which I am myself both king and
priest."
No wonder that Puritan New England carried over this subjection of women. At a trial of a woman for daring to complain about the work a carpenter had done for her, one of the powerful church fathers of Boston, the Reverend John Cotton, said: ". . . that the husband should obey his wife, and not the wife the husband, that is a false principle. For God hath put another law upon women: wives, be subject to your husbands in all things."