<< aslh

 

The Asymmetrical Obligations of Citizenship

Linda Kerber


The language of equality in American law and tradition is wholesomely generic: "All persons, born or naturalized in the United States, are citizens..." But the practices of equality have been problematic. One of the axes along which it has been problematic is gender as inflected by race.

As I have recently argued at some length in NO CONSTITUTIONAL RIGHT TO BE LADIES, deep in American legal tradition and practice has been the assumption that married women's obligations to their husbands trumps their civic obligations to the state. (The corollary, of course, is that therefore married men and married women are not equal. In theory the civic infirmities of married women should have no impact on single women--never married, divorced, or widowed, who make up at any moment a substantial proportion of the population, even at times when divorce was rare--but in practice all women were generally treated AS IF they were married.

This has meant in practice that the obligations of citizenship have been differently invoked for men and for women; the practices of naturalization and what counts as birthright citizenship have [with variations over centuries] been taken into account the status of the father and the status of the mother asymmetically; the practices of taxation ignored the large numbers of people excluded from suffrage (which have included most African Americans for long periods of time, most white women until 1920, Asians ineligible for citizenship, etc) despite the principle of "no taxation without representation." Black women have had heightened obligation to be seen to be working and a simultaneously heightened risk of being charged with vagrancy; for most of U.S. history women's inclusion in the pool of jurors was much more erratic than it was for men.

I have argued that the genealogy of inequality can be traced not only in the history of unequal rights [well known] but quite as deeply in the history of asymmetical obligations. I have insisted that asymmetical obligations has NOT meant that women were excused from civic obligation but rather that it has burdened them in different forms than it has burdened men. Because these inequalities have occurred in the various categories of specific obligations [to which historically analysts have paid little attention] rather than the generic category of rights [to which we have paid a great deal of attention, a range of important inequalities has gone understudied until recently.

Several recent cases--MILLER V ALBRIGHT (1998) and others now being litigated--raise questions about the gendered dimensions of claims of birthright citizenship. In my comments on the panel I will address what I will know of the recent cases, as well as try to set the issues in long historical context.

 
explicitly argued for or actually recognized rights in something they called identity. This paper begins by examining the emergence of the tort of appropriation of identity during the first third of this century as a dignitary tort grounded in genteel bourgeois ideals of civility and honor. It then focuses in particular on the 1930s, a time when the tort of invasion of privacy had finally gained widespread acceptance. At this historical moment, we see the emergence of a new tort, "intentional infliction of mental distress," most famously articulated by William Prosser in a 1939 law review article. This new tort soon become conflated with certain aspects of invasion of privacy. Whereas the original tort of invasion of privacy assessed the harm of such acts as appropriation of identity by reference to local community norms of civility (often defined implicitly by local elites), the new psychologized version of the tort called upon a newly emerging community of professional medical experts to use supposedly transcendant norms of science to identify any specific mental harm to a particular individual. Under the old privacy regime, a jury could find an objectively perceived breach of civility as sufficient to establish a cause of action. Under Prosser's new tort of intentional infliction of mental distress, the plaintiff would additionally have to establish individual subjective psychological harm according to expert criteria. This move from objective, community-based, normative perceptions of injury to subjective, individual, expertly evaluated harms marks a significant shift both in the emergence of new forms of authoritative discourse and in the characterization of privacy as a purely individual concern that often implicated medical issues. In this, we see also the seeds for later constitutional assessments of privacy in the realm of reproductive autonomy as a matter for expert medical determination rather than as a product of local community norms.

Comment: Arthur F. McEvoy, University of Wisconsin Law School
Norman L. Rosenberg, Department of History, Macalester College