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Under such a law, a wife who is left out of her husband's will can "elect" to inherit a fixed portion of his estate as though he had died intestate, thereby "forcing" him to provide posthumously for her support. As members of the press and photographers crowded around him, Roosevelt suspended a hearing in progress on another legislative matter to affix ceremoniously his signature to this so-called "new charter.
To understand how Roosevelt, Leach, and Kenyon all came to see the abolition of dower as a part of an emerging women's rights legislative agenda requires a foray into the history of the nineteenth-century woman's rights movement and its now-forgotten assault on dower and the common law of inheritance. In turn, the history of nineteenth-century woman's rights activists' critiques of dower frames the critical questions that we should ask of the twentieth-century legislation: What is the meaning of sex equality within marriage, and how do laws regulating the rights of women outside of formal marriage define legal notions of equality within the family, as well as the relationship between the family and the state?
Dower and the Suffrage Movement Surprisingly, social and legal historians of the American family have paid scant attention to dower and the ways in which inheritance law has governed women's lives, family choices, and relationships to marriage and the state.
But like laws regulating courtship, marriage, divorce, contraception, abortion, and child custody-all subjects that have received extensive attention in the last two decades from legally minded historians-dower and inheritance law have been critical legal sites for defining the institution of marriage, as well as women's social roles and legal rights within and outside the family. A revitalized account of dower and its demise thus must begin with the recognition that Blackstone and other like-minded legal commentators were not alone in critiquing the institution of dower; nineteenth-century woman's rights activists also offered their own distinct critiques of the common-law inheritance system.
The extent of these women reformers' critiques of dower and dower's role in the legal agenda of the nineteenth-century woman's rights movement should not be exaggerated. Dower hardly constituted the primary target of these reformers' efforts. As participants in the woman suffrage movement, these activists sought, first and foremost, women's formal political inclusion in public life through the franchise.
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As historians have documented, though, suffrage activists understood marital status laws and family law generally as key parts of the political and legal system that constituted them as less than full citizens. I offer these argument fragments not to prove that dower in and of itself constituted a core grievance of the nineteenth-century woman's rights movement, but rather as the conceptual and intellectual antecedents for the later debates over the abolition of dower in New York and, particularly, for later feminist efforts to reform dower and the underlying structure of inheritance law in the pursuit of sex equality.
Leaders of the woman's rights movement, of course, approad dower-as they approad all issues-from their position of relative class and race privilege. Recognizing their privilege and its attendant notions of entitlement and self-interest, however, should not obscure the perspicacity with which these reformers built a sex-equality agenda that included a critique of dower and inheritance law, marshaling evidence of widows' economic needs as support for their equal rights platform.
As their somewhat sporadic discussions of inheritance law reveal, nineteenth-century woman's rights activists offered two principal arguments against dower, both related to their larger critiques of marital status law, and both grounded in the recognition that inheritance law constructed the family and family roles.
First, woman's rights activists offered a formal sex-equality argument based on the doctrinal differences between dower and curtesy, and, second, they argued that the common law of inheritance functioned as an orstrated assault on the private family and, especially, on the family home. Read alongside one another, these arguments reveal a deep tension within woman's rights activists' reformist vision of the relationship between the law and the family, as well as a significant ambiguity in the meaning of equality within marriage.
Their critiques of dower suggest that these reformers at once envisioned a dramatic transformation of the family-in which principles of sex equality would be imported into the marriage relationship-and simultaneously clung to a traditional vision of the private family and of women's entitlements within a family shielded from the law's intrusion. As Part IV will demonstrate, this uneasy synthesis foreshadowed the tensions inherent in the approach that New York's lawmakers would eventually adopt in choosing the broad language of sex equality to abolish the formal inequality of dower and curtesy while simultaneously protecting the fundamental structure of the private family with its traditional, gendered understandings of dependency.
Understanding dower reform in New York, however-especially its feminist component-first requires a look back to the pre- "feminist" days of the second half of the nineteenth century when suffragists created the first organized American movement for sex equality and, in so doing, challenged basic understandings of the relationship among women, the family, and the state.
The Equality Argument Against Dower No nineteenth-century woman reformer offered a fiercer argument for sex equality within inheritance law than Marietta Stow, perhaps the lone woman's rights activist who focused more intently on inheritance law than on suffrage. Stow publicly shared her tale-or, as she called it, her "casus belli"-in print and in numerous spees across the country. Before his death, however, and in her absence, he was forced through undue influence to appoint as executors of his estate men who drove the estate into insolvency, thereby ating Stow of substantial amounts of money.
She grounded her critique of inheritance law, therefore, on the broader argument that "[w]omen should have the same protection in marriage as men. Like Stow, leading members of the nineteenth-century woman's rights movement-including, for example, such prominent suffrage activists as Lucy Stone and Elizabeth Cady Stanton-understood a critique of dower as integrally related to their larger critique of marriage's role in preserving women's unequal status. They understood, in other words, the reach and import of marriage's shadow, as well as the ways in which marriage's periphery defined its core: that the law's regrettable treatment of widows reflected the basic framework of marriage law and, moreover, that inheritance law reform had the potential to reform the institution of marriage itself.
When Lucy Stone and Henry Blackwell married infor example, they famously signed a contract denouncing the traditional male prerogatives and female disabilities that attad to legal marriage.
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Among the core offenses inherent in coverture, Stone and Blackwell decried the "laws which give to the widower so much larger and more permanent an interest in the property of his deceased wife, than they give to the widow in that of the deceased husband.
In her very brief comments closing the woman's rights convention, Stone singled out only three quintessential examples of "distinctions which are made on account of sex [that] are so utterly without reason, that a mere statement of them ought to be sufficient to secure their immediate correction. Or why woman as a student, a wife, a mother, a widow, and a citizen, should be held at such a disadvantage? In so doing, she explicitly called into question the boundary between the so-called private world of the family and the so-called public world of politics and the state.
Women's second-class citizenship rights, she recognized, were rooted in their subordinate family roles, particularly their role within marriage. Similarly, Elizabeth Cady Stanton framed her critique of dower within a formal equality paradigm, recognizing that sex-differentiated inheritance rights were inextricably linked to larger structures of sex inequality and women's subordination. At an New York woman's rights convention, in a speech subsequently sent to the New York state legislature, Stanton offered a lengthy description of the plight of widows left only with dower.
Pointing to the formal sex-based differentiation as the core affront of the common-law system of inheritance rights, Stanton challenged her audience: "How, I ask you, can that be called justice, which makes such a distinction as this between man and woman? Men whose wives died, she argued, "ought to have the rental value of one-third of the woman's maiden property or real-estate, and it ought to be called the widower's dower. It would be just as fair for one as for the other. All that I want is equality.
In crafting sex-equality-based critiques, therefore, woman's rights activists dared to imagine a social and legal world different in kind from the common-law world of coverture. Coverture-even as modified by married women's property acts and, later, married women's earning statutes -sought to craft separate legal worlds for men and women with sex-specific privileges and responsibilities. In the imagined world of woman's rights activists, by contrast, even within the deeply hierarchical legal and social framework of the family, men and women-husbands and wives, fathers and mothers, and widows and widowers-would be entitled to the same legal status and rights.
A radical vision of equal rights within a reconstructed, nonhierarchical legal family thus lay at the core of the woman's rights movement's equality agenda and its equality-based critique of dower.
As Stanton argued, while many women said they possessed "all the rights I want," that was "entirely false.
Will she tell you she has "all the rights she wants," as she points you to our statute laws, which allow the childless widow to retain a life interest merely in "one-third the landed estate, and one-half the personal property of her husband? The Family Privacy Argument Against Dower This version of Stanton's rights argument points to the second dominant rationale that woman's rights activists used to attack dower.
Dower, they argued, initiated an invasive assault on the private family home. In addition to losing her husband, reformers observed, a widow's paltry legal rights under the common law meant that she usually lost her home as well. A widow had the right to remain in the family home for a short period of time after her husband's death; after that, however, her husband's heir had the right to evict her.
While it is hardly surprising that these elite women's imaginations remained somewhat bounded by the norms of their time, the conservative premises of their arguments based on the sanctity of women's place within the home contrast sharply with the prescient rhetoric of their equality platform.
Even as their equality agenda forced them to envision a radically restructured relationship between the sexes, woman's rights activists simultaneously marshaled arguments that reasoned from the existing normative model of the white, middle-class family: a model in which a particular man was responsible for a woman's financial support, even after his death, within the structure of marriage.
Working within this conventional idiom, women reformers argued that dower offended the fundamental social and legal tenets that the family existed as a sacred, private space shielded from the invasive reach of the state. Thus, while the sex-equality critique of dower attacked the most basic ideological and doctrinal elements of coverture, this second strand of attack actually fortified the basic structure of the private family and its traditional relationship to the state by denouncing dower's invasion of the private family home after a husband's death as destructive of the core of women's gender-specific place within the family.
Within the woman's rights movement's critique of dower, therefore, a vision of sex equality coexisted with a vision of the home as women's protected sphere and the proper site of their entitled dependency. Woman's rights activists combined equality arguments and privacy arguments in ways that ignored their conflicting underlying premises.
At an woman's rights convention in West ster, Pennsylvania, for example, Ann Preston framed her formal demand for "equality before the law" as follows: When a woman dies, leaving behind her a husband and children, no appraisers come into the desolated home to examine the effects; the father is - crossfityards.com of his offspring; the family relation is not invaded by law.
But when a man dies the case is entirely different; in the hour of the widow's deep distress strangers come into the house to take an inventory of the effects A woman, she posited, was entitled to retain her traditional family role even after her husband's death. Stanton likewise embraced this same combination of arguments, combining a vision of equality with a commitment to the private family and, thus, a reform agenda premised at once on radical change and the status quo.
While she demanded that the law erase sex-based distinctions in inheritance law, Stanton also offered a plea for the sanctity of the family and the family home, as well as the incompatibility of that sanctity with dower. Of the newly widowed, Stanton said: In this dark hour of grief, the coarse minions of the law gather round the widow's hearth-stone, and, in the name of justice, outrage all natural sense of right; mock at the sacredness of human love, and with cold familiarity proceed to place a moneyed value on the old arm-chair, in which, but a few brief hours since, she closed the eyes that had ever beamed on her with kindness and affection; on the solemn clock in the comer, that told the hour he passed away; on every garment with which his form and presence were associated, and on every article of comfort and convenience that the house contained, even down to the knives and forks and spoons-and the widow saw it all-and when the work was done, she gathered up what the law allowed her and went forth to seek another home!
This is the much-talked-of widow's dower Had she died first, the house and land would all have been the husband's still. No one would have dared to intrude upon the privacy of his home, or to molest him in his sacred retreat of sorrow.
Dower violated that right in two ways: First, it provided insufficient economic means to preserve a woman as a dependent within the family structure, and, second, it allowed the state to intervene in the private sphere of the family. Thus, as the editors of History of Woman Suffrage bemoaned, dower and the common-law rules of inheritance set into motion a series of events "generally resulting in the breaking up of the home.
Synthesizing these potentially competing visions, they argued that the law ought to treat men and women in an equal manner, and that a woman was entitled to preserve her wifely, dependent role within the private home after her husband's death, just as a man retained his familial role as the head of the household when his wife predeceased him.
Women, in other words, had an equal right to maintain the traditional family and family home after their husbands' deaths.
The law of inheritance, these activists argued-intermingling their visions of equality and dependency-deprived widows of this right. Bad Laws and Bad Husbands Further complicating their ambivalent vision of the family and women's equality, woman's rights activists did not blame the impersonal structure of inheritance law alone for the woes of widows. To be sure, their account pointed primarily to lawmakers and judges as members of the heartless male establishment that continued to impose the cruel institution of dower on helpless widows.
Thus, "the cruel inequality of the laws" played a recurring role in woman's rights activists' critiques of dower, Often, however, evil wore a less disembodied face. As Matilda Joslyn Gage pointed out, the law did not act alone; rather, it "allow[ed] a husband As one report on woman suffrage concluded with respect to the plight of widows, "the will of the husband is sometimes even worse than the law itself.
Husbands, they pointed out, did not always act in "husbandly" ways, neglecting to offer their wives and, later, their widows financial support. Many widows thus needed protection not only from the impersonal rules of the law, but also from the very personal harms of their deceased husbands. Stanton, for example, reported: The cases are without number where women, who have lived in ease and elegance, at the death of their husbands have, by will, been reduced to the bare necessaries of life.
The man who leaves his wife the sole guardian of his property and children is an exception to the general rule. True, he can, if he will, but does he? The number is few. As Hendrik Hartog has observed, from the early nineteenth century through the mid-twentieth century, New York, "the most populous and most diverse state in the Union, played a crucial role-symbolically and practically-in the production of an American law of marriage.
Between an lawmakers abolished dower, common-law marriage, and heartbalm actions-that is, they rethought the basic parameters of marriage's shadow. The abolition of dower constituted the first step in this revisionary project. In this Part, I analyze the process of dower reform in New York as a multiparty conversation about the legal, social, and political meaning of marriage and the family. I argue that, like nineteenth-century woman's rights activists, early twentieth-century legislators and feminists approad dower reform with the dual goals of advancing sex equality and preserving the private family with its gender-specific markers of white, middle-class society.
Lawmakers and women activists thus embraced dower reform and sex-equality language as the means to reinforce a fundamentally traditional model of marriage structured around the male provider and the female dependent-a model whose practical power was being challenged by the proliferation of widows left financially unstable by dower's meager provisions.
Legislators and feminists, in other words, sought to return widows to their rightful place in the shadow of a reinvigorated form of marriage and, thus, sought to privatize successfully their economic dependency. Inheritance Law and the Meaning of Marriage Governor Roosevelt's public signing of New York's revised inheritance law marked the end of a lengthy investigative process spearheaded by Surrogate James A. Foley of the New York Surrogate's Court.
Three years prior to the law's passage, at a meeting of the New York City Bar Association, Foley had given a speech on the pressing need for New York to reform its decedent estate law. Dower, the report argued, "is, in most cases, an illusion and deception" Either a widow received an amount insufficient for her support or she received nothing if her husband held his real property-often, the Commission pointed out, even their home-in a corporate form.
In fact, dower simply allowed the law to "mock the widow with a mere polite phrase without any substantial benefit to her. Instead, it created a legal floor so low that stingy husbands could easily fail to provide for their wives' future needs. The Estates Commission thus expressed particular concern about women whose husbands deliberately sought to avoid providing for them by will.
The Commission's perception that a not insignificant number of husbands regularly disinherited their wives drove its understanding of the necessity for an alternative legal mechanism to protect widows. As the New York Times reported in an editorial praising the Commission's work, cases of men disinheriting their wives "are not uncommon That posthumous cruelty is to be stopped.
Underlying the Commission's report was the tacit understanding that marriage constituted the central institution for the accumulation and distribution of private property. Therefore, as the report explained in terms that would be repeated again and again in discussions of dower's detriments, "[t]here is a glaring inconsistency in our law which compels a man to support his wife during his lifetime and permits him to leave her practically penniless at his death.
Impoverished widows offered empirical evidence that dower constituted an offense against one of the most fundamental ideological tenets of the white, middle-class, private family: that independent men were to provide economic support to dependent women, thereby shielding the state from any potential responsibility for women's financial needs. The Estates Commission's report thus makes evident the strange legal and cultural path that dower traversed over the course of the nineteenth and early twentieth centuries.
Dower, after all, had its origins in the perpetuation of a marriage-based, provider-dependent framework beyond the husband's grave. In proposing an alternative to dower, then, the Estates Commission sought to replace dower with a more modern legal mechanism that would ensure that the law supported a more traditional conception of marriage and gender relations.
Dower's replacement, in other words, was meant to reinstate fixed notions of husbandly and wifely behavior that hearkened back to the days of coverture.
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Behind New York's dower reform lay a deeply traditional, gendered vision of men's and women's respective roles within marriage. A husband, in the Estates Commission's view, constituted a provider, a role that he had to play even after his death. A wife, by contrast, constituted a dependent, relying on a particular man to support her even once that man was dead. Moreover, that provider-dependent relationship entailed certain types of behavior.
Thus, for instance, the Commission stressed that only "the faithful wife" deserved her husband's continued posthumous support. The Commission likewise constructed a husbandly role that synthesized faithfulness and support. Accordingly, a husband who "neglected or refused to provide for his wife, or Marriage and Sex Equality Like members of the nineteenth-century woman's rights movement, however, the Estates Commission embraced a radical vision of the family and of relations between men and women even as it aspired to bolster the traditional, gendered, provider-dependent model of marriage.
In terms reminiscent of the language used by Stanton and Stone, the Commission advocated using dower reform as a way to reconstruct marriage within a boldly generalized sex-equality paradigm. Looking beyond the specific problems confronting widows, the Estates Commission concluded that New York needed inheritance law reform in order to avoid "unfair discrimination.
The Estates Commission's language, however, suggests an even deeper commitment to the disruption of entrend gender norms. In crafting its statement of sex equality, the Estates Commission implicitly advocated a dramatic rethinking not only of the common law of inheritance, but also of the basic common-law structure of marriage. Since the Founding, after all, the American law of the family had been deeply antithetical to any generalized notion of sex equality, premised as it was on differentiated understandings of men's and women's familial roles.
The Estates Commission's broad label, "equality between men and women"-not between "widowers and widows" or even "husbands and wives"-suggested that general legal norms of sex equality could be forged within the family.
As Surrogate George A. Slater, a member of the Estates Commission, argued before the New York State Bar Association in in a speech that the Commission subsequently submitted to the legislatureNew York's reform approach and its commitment to sex equality reflected changing times and, in particular, the changing social and legal position of women.
It has been the process of evolution of law. Thus, foreshadowing Roosevelt's remarks at the law's passage, Slater declared that "[t]he sme of the law is entirely new in this State and will be a new charter for woman. The mere fact that Slater understood such a line of attack as politically useful strongly signals women's altered social and legal position in the postsuffrage era. People opposed to the Commission's approach, Slater argued, included [t]hose who believe womankind belong to an age that is past and should have little or no rights and privileges, and that the daughter should be bequeathed "the four-poster bed and quilts, with the use of the northeast bedroom," and the son be given the major inheritance; [and] those who are unwilling to trust their wives to preserve the estate, after perhaps having had a hand in its accumulation.
In fact, some opponents of the Fearon Bill challenged the view that sex-neutral language constituted the best route to equal rights for women. Mirroring contemporaneous feminist debates about whether women should be granted special legal protections different from those granted men, and foreshadowing late-twentieth-century feminist debates over whether sex-neutral language benefits or harms women, some observers of the New York reform process argued that the Commission's approach would actually disadvantage widows by ignoring the ways in which women were positioned differently than men around questions of inheritance law and, generally, economic dependency inside and outside of marriage.
Critics of the Commission's adoption of a sex-neutral approach reasoned that inheritance law reform would not alter, in and of itself, the gendered nature of the family and, thus, that sex-neutral language would only mask women's sex-specific needs.
Dower, in this view, offered women the sex-specific protections that they needed in their sex-specific roles as mothers, as wives, and, ultimately, as widows.
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As one observer noted, "The economic dependence of married women on the whole renders indispensable the security of the right of dower. Reform in the Postsuffrage Decade Although scattered commentators criticized the Commission's approach and its understanding of what constituted an advancement for women's rights, feminist activists from different parts of the organized movement for women's rights embraced the New York reform project.
Like Slater, feminist activists understood that dower reform in New York was unfolding in a critical postsuffrage moment, during which women were exerting and defining their new powers of full political citizenship. Strikingly, unlike their nineteenth-century predecessors in the woman's rights movement, s feminists and women activists entered the legal debates about dower reform newly armed with the vote and lobbied vigorously for the equality agenda ultimately embraced by the Estates Commission.
Despite their relatively new formal political powers, however, the postsuffrage decade was also a precarious time for women's rights advocates, who struggled to define their social and legal agendas in the absence of the organizing force of the right for the vote. In fact, as others have analyzed, in the wake of the Nineteenth Amendment's passage-and presaging later divides between "equality" and "difference" feminists-a fundamental split emerged between two factions of women activists over the goals of future women's rights activism.
One camp, represented most prominently by the National Woman's Party NWPadvocated a quest for absolute, formal sex equality. In the two most prominent areas of contentious feminist debate, therefore, the NWP campaigned actively for an Equal Rights Amendment and opposed all sex-based forms of protective labor legislation. By contrast, a competing feminist wing, represented most prominently by the League of Women Voters LWVargued that women needed different forms of protection than men in order to achieve equal status.
The LWV thus opposed a blanket Equal Rights Amendment, and fought for the passage of protective labor legislation for women workers. Feminist activists formally intervened in the New York reform effort in different ways. For example, in DecemberJane Norman Smith, the chairperson of the NWP's National Council, testified before the Estates Commission and urged its members to craft a law that applied equally to men and women.
Dorothy Kenyon's Agenda: Sex Equality and the Reconstruction of the Traditional Private Family Dorothy Kenyon, who would later stand alongside Governor Roosevelt as he signed the New York bill into law, emerged as one of the most visible feminist champions of the new law, and as a key feminist voice for inheritance law reform generally.
But Kenyon understood inheritance law to be a critical site for negotiating women's equal legal rights, and, thus, she embraced dower reform as an important part of her feminist agenda. In particular, Kenyon targeted dower as creating a host of legal problems for both men and women.
Dower, she understood, constituted a problem not just for property-holding men, but also for women, and the postsuffrage moment presented an opportune time for this ct of the problem to come to the fore. Kenyon expressed conflicted views on the relative responsibilities of the law and of husbands for insufficient support afforded to widows.
On the one hand, Kenyon sought to attribute the best motives to most husbands. While she recognized that a man could disinherit his wife through his will, leaving her with no more than her meager dower rights, she posited that "[s]eldom, nowadays, do men or women use wills as spite-weapons.
Speaking on February 14,Kenyon noted that a man could totally disinherit his children by will, and could disinherit his wife of everything but her dower rights. Beyond the particular effects of New York's reform law, however, Kenyon recognized that inheritance law worked to define the meaning of marriage and the family. Like nineteenth-century woman's rights activists, then, Kenyon's vision of inheritance law reform was at once profoundly radical and deeply conservative.
Kenyon simultaneously embraced the goal of gender equality within the family and also sought to strengthen the traditional private family model as the basic infrastructure for privatized female financial support.
Along with New York's lawmakers, she hoped to strengthen widows' legal position in the shadow of a renewed model of marriage. In fact, Kenyon understood the passage of New York's revised decedent estate law as confirmation of her belief that inheritance law could fortify the traditional private family as a social and legal institution. The new law, she opined-making clear her own priorities through her interpretation of the Commission's work-"is based on the premise that it is important to society to have the home held together after the death of the principal breadwinner.
The emphasis is on the home rather than on the individual. One particular, and relatively controversial, part of the New York law offered Kenyon a novel argument concerning the revised law's reconstruction of the traditional family. As early commentators on the New York law including Kenyon herself observed, the Estates Commission's approach failed to remedy a particular shortcoming in the state's inheritance law: Even under the new law, critics observed, a parent could disinherit his or her children entirely, and no equivalent to the elective share guaranteed children any legal protection in such instances.
The spousal right of election, therefore, created a revitalized system for "the protection of dependents and the preservation of the home. The Forced Share Goes to the Supreme Court In order to protect dependents and preserve the traditional home, New York's elective share created a substantial legal ck on a husband's ability to dispose of his property-real and personal-as he saw fit. As discussed above, dower had also constituted a formal legal ck on men's testamentary freedom, albeit a far more modest one.
It merely enlarges the scope of the rule and gives to it for the first time genuine force and effectiveness. As even Kenyon had to concede, despite her best efforts to downplay the law's radical nature, the new forced-share provision in section 18 of the revised decedent estate law went far beyond dower in the protections it offered widows and, thus, in the limits it set on men's testamentary freedom.
In fact, as Irving Trust Co. Day wended its way to the Supreme Court, the question of whether Helena Day Snyder could claim her elective share of John Joseph McGlone's estate provided an opportunity for four different courts to puzzle over the fundamental questions addressed by the Estates Commission: the meaning of widowhood, the meaning of equality within marriage, and the balance between male freedom and female dependency.
Ultimately, the Supreme Court, like the Estates Commission before it, privileged female dependency over male freedom, thereby granting a powerful legal imprimatur to widows' position in marriage's social and economic shadow.
McGlone, in London, England, on February 4,wish to record, of my free will, that, as I already possess, in my own right, ample of this world's goods in the way of a fortune of my own, as a compliment to my aforesaid husband, and for other good and sufficient masons, I hereby, voluntarily and irrevocably, renounce all right, title and interest I might, legally or otherwise, have in any estate, real or personal, of which my said husband to be, John J.
McGlone, might die seized. In the document, he recognized in writing that his "dear wife On July 6,McGlone added a codicil to his will, which left untoud his testament to his wife.
They contended that, in light of Snyder's signed statement renouncing her inheritance rights, the application of section 18 to invalidate McGlone's will would constitute an unconstitutional impairment of the Contracts Clause. Wingate held that the note signed by Snyder did not constitute a valid contract, and, thus, that there was no constitutional question at all. Wingate noted that, under New York law, no per se presumption of inequality arises when a married couple contracts with one another; however, "'when it appears prima facie that the parties have been dealing with each other under circumstances of inequality, then a presumption arises as against the husband, especially if the transaction has resulted in detriment to the wife.
The opinion presumes that traditional marriage-and the traditional gender roles within marriage-constituted likely sites of gender inequality.
Legal reform and vigilant judicial enforcement of that reform were therefore necessary if principles of equality were to enter the marriage relationship. Moreover, consistent with his understanding of the gendered inequality of marriage, Wingate exhibited a fundamental distrust of men's motives within marriage or upon entering marriage.
A man constituted his imagined "designing spouse," sming to "induce" a woman, his prospective wife, to compromise her legal rights. Legal reforms thus constituted critical cks on male power and freedom, as well as critical forms of protection for women.
While Wingate's opinion reflected the spirit of New York's legal reform-as well as Roosevelt's view that the revised law constituted a smashing victory for women's rights-a completely opposite understanding of marriage and gender relations guided the opinion of New York's intermediate appellate court.
In reversing Wingate and holding the relevant part of section 18 unconstitutional, the court subscribed to a model of gender relations within which women-as prospective wives and widows-were to be distrusted, and men were the likely victims of women's marriage smes.
Snyder and McGlone's relationship, the court suggested, unfolded within a world of feminine deceit and male innocence. Unlike Surrogate Wingate, the appellate court exhibited no sympathy for Snyder, only condemnation.
As the court damningly observed: She gave her age as forty-five, when the fact is that she was sixty-two years of age when she married McGlone, who was then forty-seven years of age.
This fact, and the further fact that it was her third marriage, give rise to implications that she was not lacking in experience or suffering from inequality. These facts also carry the further implication that the instrument was signed to induce the marriage. If anything, the court suggested, marriage was an institution that allowed women to get the better of men by luring them into permanent relationships of support.
Thus, the court concluded with respect to the couple's alleged agreement that Snyder "dealt with McGlone under circumstances that were free from inequality and unfairness. In the view of the appellate court, in fact, no larger universe of sex inequality was relevant to understanding Snyder's alleged prewedding renunciation. The New York Court of Appeals reversed.
Section 18, Chief Judge Lehman reasoned, could not violate McGlone's contract tights because "[w]hatever be the extent of those contractual tights they did not include the right of the husband to bequeath his estate to such persons in such amounts as he chose and thus to exclude his wife from any share of his estate. Since tights of descent and distribution of a decedent's estate are created by the law of the State, the State may change or take away such rights. Men had no natural tight to control the disposition of their property after their death.
In fact, in the Court's view, the legislation served a critical purpose in defining a husband's rights and responsibilities: The effect of section 18, the Supreme Court concluded, praising the law, "was to continue as obligations of [the husband's] estate social responsibilities which he had assumed during life.
If dower had embodied the similar goal of extending the basic ideological framework of coverture beyond the formal end of a marriage, the prevalence of impoverished widows testified to the doctrine's failure.
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With the arrival of the forced share, however, lawmakers and judges perceived themselves to have fixed the problem of female poverty-at least insofar as it manifested itself in the plights of poor widows-by fixing the institution of marriage. Marriage, they posited, would thereafter function as a truly effective means to privatize female dependency by forcing men to provide for women even after their deaths.
Framing the Problem of Poor Widows While dower reform used the self-consciously modern language of sex equality, it took as its core goal the reconstruction of a traditional model of marriage and the family with their corresponding gender roles-the very model of marriage with a male provider and a female dependent that dower was supposed to preserve, but, in fact, was failing to protect.
In this respect, the project of replacing dower, even if deliberately implemented in gender-neutral terms, implicitly proceeded from the gender-specific first principle that women-in their roles as wives or widows-were entitled to private support from particular men within the framework of marriage.
Thus, the logic ran, if the legal mechanism intended to guarantee that support had ceased to function-as dower clearly had as a practical matter-a new mechanism needed to be created. In other words, critics of dower sought to create a system that would better compel men posthumously to support their wives within the framework of the traditional family.
Such a bolstered system, they reasoned, would ck the problematic proliferation of impoverished widows by strengthening marriage; it would return widows, in other words, to the protective shadow of marriage.
Faced with evidence of widows in dire financial straits, in other words, no one engaged in the project of dower reform questioned the basic family model of support with marriage as its core.
They sought to fix that model, not to replace it. The very parameters of their respective projects point to the generally bounded imagination with which both feminist and legal actors approad the questions posed by dower's clear failure.
Perhaps this is not surprising. Most women's rights activists, after all, sought not utopian solutions, but rather practical ways to better women's lived experiences within an existing set of social relations. If, empirically, women depended on men for support, improving those support channels constituted a plausible and credible reform agenda.
The Estates Commission, for instance, was charged with the task of remedying certain specific defects in inheritance law, not with overhauling the whole of domestic relations or family structures.
It is hardly shocking, therefore, that they framed their project in narrow terms; they simply performed the task they were asked to complete.
Lest we assume that the historical context within which early-twentieth-century activists and politicians framed their reform agendas necessarily limited their vision, however, we should note that others before them, faced with other forms of female poverty, had experimented with broader solutions and thus had acknowledged at least implicitly the possibility of alternative models of the family, as well as alternative relationships among women, the family, and the state.
As a rich body of scholarship has documented, reformers in the s pushed almost every state, including New York, to enact mothers' pension statutes to respond to the problem of poor, widowed mothers. Instead, thinking across public- and private-law categories, I argue that the history of mothers' pensions should be understood as conceptually intertwined not only with the later public-law history of the welfare state, but also with the private-law history of dower reform.
In this respect, the story of mothers' pensions offers a cautionary tale to those who would assume that no one in the early twentieth century could have possibly reasoned about female poverty outside of the framework of the traditional family's gender-specific model of support and dependence embraced by reformers of dower. Although both mothers' pensions and dower reform constituted legislative responses to the needs of widows, the two approas focused on vastly different groups of women.
These profound differences should be neither overlooked nor minimized. Reformers advocating mothers' pensions responded to the needs and deprivations of poor women with few, if any, financial resources.
As Linda Gordon has analyzed, the female reformers who crafted state mothers' pension programs approad these poor women with a maternalistic sense of pity, advocating public support for only the worthy among them-that is, impoverished, white mothers whose husbands had died. No doubt, the radically different social and class positions of these two groups of widows account for why historians and legal scholars have never seen the history of mothers' pensions as usefully related to the history of dower.
The former, it is thought, constitutes the prehistory of the welfare state-that is, the story of the second-class status and government control associated with state provisions for the poorest of women. The latter, by contrast, takes its place in the history of middle-class property succession-that is, in a world in which relatively privileged women are supported by their husbands' earnings and resources.
Although these distinctions between mothers' pensions and dower reform are critical markers of the class-salient manner in which our political and legal systems have allocated entitlements and resources, it is nonetheless a mistake to overlook the ways in which these different legislative approas also share a common feature.
Mothers' pensions and dower reform constituted two possible solutions-the former, a public-law solution, the latter, a private-law solution-to the problem of impoverished widows-that is, to one version of the problem of female dependency. These two divergent approas, moreover, embodied two different notions of the meaning of marriage, as well as of the relationship between marriage and the state.
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Moreover, it defined the parent-child relationship, not the husband-wife relationship, as the key family unit. In so doing, the Commission explicitly defined its subject-children and their economic needs-as a public, not a private, problem.
Private charity, these reformers concluded, was both insufficient and inappropriate. Thus, work within the home, work outside the home, the commitment of children to other families' homes, and private charities' placement of aids in widows' homes all offered a widow minimal assistance at the further expense of her children's well-being. The Commission spoke of these widows' deceased husbands with a tone of committed resignation, rather than condemnation.
With an air of deliberate descriptive neutrality, the Commission pointed to the inevitability of a certain impoverished population. Its report observed that [a]lthough workmen's compensation, and the like, will do much to prolong the life of the worker and protect the interests of those dependent upon him, there will always be until the millennium a class of men who, through inefficiency, illness or depravity, will be unable to leave at their death enough for the proper maintenance of their family.
Moreover, the Commission's brief discussion of the deceased husbands of widows played another important role in framing the widow problem. Implicitly, the Commission suggested that these husbands-a particular "class of men"-were exceptional, deviating, through no fault of their own, from the norms of husbandly behavior.
Most men, the report implied, provided for their widowed wives and, thus, kept them from positions of abject poverty. Only an unfortunate subgroup of men-those afflicted with particularly unfortunate social disabilities-would be "unable to leave at their death enough for the proper maintenance of their families. Rather, the widow problem pointed to a subcategory of families whose husbands failed, for one reason or another, to play their proper roles within marriage and the family, thereby leaving a certain category of women without the material resources necessary to support themselves and their children.
Mothers' Pensions and Dower Reform: Two Models of Marriage and the State The New York Widowed Mothers Commission's view of widows comported with a national discourse in the s on female poverty and, thus, was part of a national state-by-state movement for mothers' pensions.
For most women, they posited, marriage constituted a guarantee of economic security, both while their husbands were alive and after their deaths. Nonetheless, even as the Widowed Mothers Commission clung to this model of marriage and the family, it simultaneously focused on children as a justification for public intervention into the private family.
Focusing on a particular class of worthy, white, poor widows, in other words, the Commission fashioned an alternative vision of the relationship between the family and the state: one in which the government played an active role in providing some women with economic support when their husbands and families had failed to do so. Analyzing this particular moment in the history of welfare policy, Linda Gordon has noted that "[t]he social concern with single mothers dwindled after the Progressive Era.
In fact, the Metropolitan Life Insurance Company reported in that based on "mortality tables relating to the white population as a whole, Children no longer inhabited the heart of the legislature's imagined family.
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In fact, under the Estates Commission's proposal-much to the dismay of many social reformers-children gained no legal protection from disinheritance at all. Moreover, confronted with the financial problems of middle- and upper-class women, the Estates Commission's report implicitly suggested that any woman could find herself a poor widow by virtue of the law's outdated commitment to dower or by virtue of her husband's cruelty.
The problem, then, was not-as the Widowed Mothers Commission's report suggested-the inevitable social failing of a particular, discrete, unfortunate class of men; rather, the problem resided within the very structure of marriage, and the role the family was supposed to play in the economy.
The Estates Commission's report thus tacitly pointed to a much larger problem with the fundamental relationship between the family and the state than the Widowed Mothers Commission's report. Furthermore, the problem suggested by the Estates Commission had much broader implications for the viability of marriage-or, at least, the form of marriage confronting the Commission-as a general strategy for the containment of female dependency.
After all, if the Widowed Mothers Commission's report suggested a class problem-that is, that poor widows could not subsist on resources left to them by their deceased husbands-the Estates Commission's report suggested a problem with the marriage model generally: Many widows, from different classes and with all kinds of deceased husbands, could not subsist on resources left to them by will. Framed in this manner, the "widow problem" threatened to expose the basic instability of the longstanding relationship between the family and the state, as well as the ineffectiveness of the traditional, gendered provider-dependent model of marriage.
In fact, as feminist activist Alice Beal Parsons argued just a year before the Estates Commission was convened, the provider-dependent model of marriage was doomed even for families with a living husband and wife by the insufficiency of men's wages and, thus, their inadequacy as a "family wage.
No doubt, among other factors, this reflected a host of class biases that facilitated state intervention in poor families and prohibited state intervention in middle- and upper-class families, the focus of dower reform.
The more marriage seemed to be systematically failing to privatize female dependency, in other words, the more lawmakers clung to the normative ideal of marriage's power to do so. After Dower In the aftermath of dower's demise, husbands in New York continued to demonstrate the difficulty of legislating the privatization of women's economic dependency through marriage.
Faced with a new legal regime, the greater threat of losing control over a lifetime's wealth again prompted ingenuity: Just as wealthy men had found ways to skirt the burdens imposed by dower, so too savvy men faced with New York's revised inheritance law found legal loopholes that allowed them to carry their property rights beyond their graves-rights to which they felt entitled even if the Supreme Court would not recognize them.
Thus, a decade after the Estates Commission's reforms went into effect, two New York lawyers bemoaned that, particularly with respect to the problem of disinheritance, "[u]nfortunately, the results of these still recent enactments have not come up to all expectations. Differing patterns of colonization account for different patterns of responses, from outright hatred to peaceful co-existence.
The European colonial project left indelible marks on the economy, social relations, geography, and the political order in areas that it dominated, challenging an Islamic way of life and identity in the Middle East, Africa and Asia. The emergence of Muslim states began about ; by the mids, most Muslim territories, from Sub-Saharan Africa to Southeast Asia, had gained independence from colonial forces and became Muslim states. Muslim political discourse on the West is uneven. A major concern of many Muslims today is how to respond to Western ideas and economies, cultural influences and religious and ethnic plurality given a history marked by significant periods of social, economic, religious, and political strength later undermined by colonizing forces.
Part of the critique runs like this: The notion of the secular state originated in the West. Western colonialism was imperialistic, imposing itself on the economic, political, religious and cultural life of the Muslim world. The West continues to support Israel and its policies, and it enforces an economic open market that is devastating for many developing countries. However, the West supports freedom of consciousness and religion, and many Muslims admire the developments of technology and science that originated in the West.
So the discourse is uneven and covers views of the secular order, politics, spiritual themes and nation-making. The traditionalists are some of the earliest voices responding to colonization, including Islamic forces that colonized other Islamic regions. Common to these voices is a nativistic return to the original sources of Islam, the Quran and Hadith.
Traditionalists can be highly puritanical and respond differently according to the context.
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Another group of Muslim intellectuals influenced Islamic thought by shaping Muslim responses to modernism in the late 19th century. Known generally as the modernists, they seek to interpret Islam to meet the changing conditions of modern life, and differ from the traditionalists because they permit some flexibility in the interpretation of Islam itself. Although Islamic modernism is not a systematic movement, a common element is their argument that Islam is compatible with reason, science and technology.
The crucial interpretive question for Islamic modernists, as well as for traditionalists, hinges on a question of Quranic exegesis. How do Muslims properly interpret the Quran? A critical debate among Quranic exegetes occurs between those who emphasize ijtihad independent reasoning or independent decision not necessarily based on a traditional school of Islamic jurisprudence and those who adhere to strict taqlid imitation; following past decisions and interpretations by Islamic jurisprudence.
That is, ijtihad inherently assumes a degree of openness, freedom of thought and rational thinking in the pursuit of truth, whereas Quranic exegetes who advocate taqlid tend toward a closed exegetical approach, affirming that many interpretive decisions have been made by earlier exegetes. Thus, ijtihad is more open, whereas taqlid tends to be more closed to interpretive innovation.
A third Muslim group has been variously called radical, Islamist Islamiyyafundamentalist, or advocates of political Islam. Whatever the nomenclature, the Islamists have not sought to interpret Islam in terms of dominant Western values. Here they differ from modernists, who maintain that some good in fact, many goods can be adopted selectively by faithful Muslims. Rather Islamists seek to assert the control of Islam by interpreting modernity according to Islamic values.
For Islamists, the tension between Islam and the West is essentially a conflict between Islam and the secular order that emerged out of the West. Many Islamists struggle to replace Western values with Islamic ones, repudiating the Baywatch culture of a morally degenerate West.
Islamist perspectives are among the most radical, anti-Western viewpoints within Islam. Finally, there are several voices that can be described as moderate or liberal. Prominent among them is Abdurrahman Wahid who served as the president of Indonesia from to Wahid is neither modernist nor traditionalist and exhibits a surprisingly open honesty about his own struggle with important Quranic injunctions.
He suggests that Islam should not be the state religion, at least of Indonesia, and that Islam should be inclusive, democratic and a pluralistic force rather than a state ideology. Indonesia, however, has the opportunity to show that politics based on confession - as it is in Algeria and Iran - is not the only way.
Not only can modernity and open politics exist in a Muslim-majority society, as it can here in Indonesia, but it can be nurtured so that democracy can flourish well in Islam. Islam is not monolithic and exhibits significant tension and variety within itself and among its interpreters.
Religious people are embedded in social, cultural and political systems that complicate attempts to construct an overly simplistic view of a religious tradition as a single entity. Given that understanding, what is the relationship between Islam and territory? Mecca is off-limits to non-Muslims because it is considered sacred territory. The pattern of historical development of Islam began in Mecca and was linked with a desire for world empire.
Islam is a missionary religion that calls its followers to prayer toward Mecca i. The pilgrimage to Mecca hajj is an obligation of all faithful Muslims with the financial resources to make the trip, raising Mecca above all other domains. Islamic expansion moved out from Mecca, spreading out in wider and wider circles, pointing the faithful back to Mecca, the epicenter, for spiritual sustenance and corporate identity. The history of Christianity, by contrast, is marked by accession and recession at the place of its origins; no geographic location is more holy than any other.
The territoriality principle is so embedded within Islam that Olivier Roy, research director at the French National Center for Scientific Research and scholar of Islam, argues for deterritorialism as a root cause for current tensions between some Muslims and the West.
Roy contends that Muslim immigrants to the West struggle in part because of the disjunction they experience between their religion and the space nation they inhabit where the principle of territoriality has broken down.
Do Muslims have endless rights on claimed territory? How painful is the deterritorialization of Islam in the West? As Islam continues to grow rapidly in the United States, how will Muslims continue to interpret and engage civil society, local neighborhoods and participate in national politics? Second, what are the implications of the valorization of Arabic as the language of Allah and the sacred text Quran over all other languages? Yale historian and mission scholar Lamin Sanneh raises this issue throughout much of his work.