Reid on “The Devil Comes to Kansas”

Professor Charles Reid (U. St. Thomas law) has posted a fun piece, The Devil Comes to Kansas: A Story of Free Love and the Law, which discusses one of the earliest American cases in which various notions of privacy and “freedom of choice” were first raised and which, as Professor Reid says, have become watchwords of modern constitutional law.  The abstract follows.  — MOD

State v. Walker (1887) is an important but hitherto neglected landmark case in the development of the right of privacy. The case involved the “autonomistic” or “free-love” marriage of Edwin C. Walker and Lillian Harman, daughter of Moses Harman, the radical newspaperman.

Edwin and Lillian, who rejected state control over marriage, proclaimed themselves married in the fall of 1887, although they declared that their union was neither permanent or exclusive. Prosecuted for illegal cohabitation because of their refusal to obtain a marriage license, they and their defenders developed a vocabulary that would profoundly influence the future path of American law.

Their supporters in the radical press began to speak of the right of women to control their own bodies, woman’s right to reproductive autonomy, and a right of sexual privacy. Indeed, it was in the midst of this controversy that the expression “freedom of choice” was used, probably for the first time, in its modern meaning by Lillian Harman writing from prison. Continue reading

Ashe on American Law, Religion, and Women

Marie Ashe (Suffolk University Law School) has posted Privacy and Prurience: An Essay on American Law, Religion, and Women. The abstract follows.—YAH

In my studying of American law – in its relation to religion and to privacy and to women – the current bookends of my readings consist of two sets of texts: the first, certain writings from the 17th-century Massachusetts Bay Colony; the second, certain writings from the United States Supreme Court of very recent years. The first set consists of reports and records generated in Massachusetts incident to the Antinomian Controversy of 1836-1838, particularly reports of the trials of Anne Hutchinson and Mary Dyer, and accounts of the “monstrous births” of each. The second set includes writings from year 2007: the United States Supreme Court’s opinion in Gonzales v. Carhart (its most recent abortion decision), and the amicus briefs filed therein.

Examining and juxtaposing those sets of writings, this essay discloses striking resonances between the 17th-century and the 21st-century texts. It documents in each: religio-judicial prurience in examinations and constructions of female bodies; and disappearance of “privacy” as a protector of women’s autonomy and women’s liberty.

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