Week 3: Documenting Race, Rights, and Family Ties


Excerpt from the Constitution of Haiti
The 14th article of the Constitution of Haiti states “All meaning of color among the children of one and the same family, of whom the chief magistrate is the father, being necessarily to cease, the Haytians shall henceforth be known by the generic appellation of blacks” (source: Constitution d’Haiti, 1805, Article 14. Courtesy of the American Philosophical Society).


“The modern Western subject articulated by Locke and others emerged in the ages of conquest and empire. The patriarch was created through three juridical forms: sovereignty, property, and personhood. Major philosophers disagreed on the details of the authority granted by these rules of law but not on their fact.”
– Imani Perry, Vexy Thing: On Gender and Liberation, 2018


Even the revolutionary Haitian Constitution, which declared all Haitians to be Black, employed the power of patriarchs to set the boundaries of political inclusion and exclusion. Women used written technologies to operate within and across colonial structures, even as those documents made it harder for women to assert legal personhood outside of those structures. Some women had to reimagine polities.


Secondary Readings

Dore, Elizabeth. “One Step Forward, Two Steps Back: Gender and the State in the Long Nineteenth Century.” In Hidden Histories of Gender and the State in Latin America, edited by Elizabeth Dore and Maxine Molyneux, 3-32. Durham: Duke University Press, 2000.

Dore examines reforms in property, marriage, and family laws in 19th-century Latin America to demonstrate that patriarchal power was reinforced by state policies and that secularization led to increased regulation of marriage and sexuality. Working against a narrative of progress advanced by historians who see the secularization of Latin American countries as a crucial step in securing women’s rights, Dore argues instead for a pattern of advances and setbacks. While state policies during the 19th century represented gains for women, they nevertheless solidified the powers of elite men and bolstered regressive gender ideals.

Jones, Martha S. Birthright Citizens: A History of Race and Rights in Antebellum America. New York: Cambridge University Press, 2018.

A study of antebellum Baltimore, this book argues that free Black Americans claimed rights as citizens through law, through legal conventions, and in court in the decades prior to the establishment of birthright provisions in the 14th Amendment to the U.S. Constitution. While the legal status of Black Americans’ freedom was always under threat, particularly after the U.S. Supreme Court decision in Dred Scott v. Sandford (1857), formerly enslaved people studied law, found white allies, and conducted themselves as citizens in everyday exchanges. Paternalism and patronage could also replace formal contractual arrangements. For a free woman like Charity Govan, securing white male allies versed in the law was critical for gaining a permit to travel outside of the state for work and family. Enslaved women and their families successfully navigated the Maryland courts to secure emancipation for themselves and their children. Mary Treakle, for instance, gained her freedom in the courts when her free husband successfully sued the estate of Mary’s enslavers on the basis of his freedom to contract and patriarchal rights as a freeman.

Yarbrough, Fay. “Legislating Women’s Sexuality: Cherokee Marriage Laws in the Nineteenth Century.” Journal of Social History 38, no. 2 (Winter 2004): 385–406.

Yarborough explores how the Cherokee nation regulated marriage and sex as it transformed its legal and political institutions in the 19th century. The Cherokee legislature sought to control women’s reproduction as part of solidifying a common identity. However, women’s “ability to create new, legitimate members of Cherokee society” posed a problem when a Cherokee woman chose to marry a white or Black man. The Cherokee laws that racialized African Americans, restricted the rights of their children, and forbade their marriage to Cherokees reflected the nation’s racial thinking and the ways it reproduced the racial hierarchy of the U.S. South. Cherokee officials saw women’s marital and sexual decisions as more than a matter of individual choice; rather, they were political actions with national consequences. Through racial marriage laws, these officials sought to redefine the racial identity of Cherokees.

Lewis, Jan Ellen. “Rethinking Women’s Suffrage in New Jersey, 1776-1807.” Rutgers Law Review 63, no. 3 (Spring 2011): 1017–35.

In order to trace suffrage as a process of defining boundaries of state membership, Lewis examines the case of the women who voted legally in early New Jersey. The evolving process responded to internal and external forces, including radical republicanism and its logical extension. Lawmakers who looked to revolutionary France saw that radicalism as “going too far” in opening political participation and overturning hierarchies.

Scott, Rebecca, and Jean Hébrard. Freedom Papers: An Atlantic Odyssey in the Age of Emancipation. Cambridge: Harvard University Press, 2014.

This book follows the transatlantic story of five generations of the Tinchant family, beginning with Rosalie, a Senegambian woman trafficked and enslaved in Saint Domingue. In 1803, during the Haitian Revolution, Rosalie and her daughter Elisabeth claimed their freedom by migrating to Cuba. Each successive generation of Tinchants traveled across borders for freedom, which included arguing for equal rights at Louisiana’s state constitutional convention, creating a successful tobacco business through networks that their Creole family connections traversed, and fighting for the Union in the Civil War. Crucially, legal documents provided the Tinchants the power to successfully navigate their claims to citizenship through imperial, national, and religious institutions using bills of sale, recognitions of paternity, and marriage certificates to secure their freedom.

Chambers, Sarah. “‘Drying their Tears’: Women’s Petitions, National Reconciliation, and Commemoration in Post-Independence Chile.” In Gender, War, and Politics: Transatlantic Perspectives, 1775-1780, edited by K. Hagemann, G. Mettele, and J. Rendall, 58-70. New York: Palgrave MacMillan, 2010.

Chambers argues that the Chilean Revolution was followed by a state-sponsored silencing of women’s memories to create a single national origins story. During the war, male patriots depicted women’s proper role as passive to husbands and self-sacrificing to the nation, and denounced royalist wives for their Spanish ties and loyalty to the king. But when it came to postwar national reconciliation, the Chilean government treated royalist wives, left widowed or abandoned by their husbands, with sympathy. Women’s petitions to the new Chilean government about their suffering and the government’s responses expose a national project of reconciliation seen in the efforts of the state to transform suspicion of royalist wives into compassion for their passive victimhood. The new government used widows’ and orphans’ pensions to silence the conflicting histories of women’s political activism and wartime suffering in post-independence Chile.

Townsend, Camilla. “Half My Body Free, the Other Half Enslaved: The Politics of the Slaves of Guayaquil at the End of the Colonial Era.” Colonial Latin American Review 7, no. 1 (1998): 105–128.

Townsend uses Angela Batallas’s freedom suit against her enslaver, Ildefonso Coronel, as an example of enslaved women’s political consciousness in revolutionary Guayaquil in the 1820s. Ildefonso promised Angela her freedom in return for a sexual relationship, but he revoked the agreement after Angela gave birth. With her daughter’s birth certificate, five female witnesses, and an endorsement of her freedom she obtained by trekking to Simόn Bolίvar, Angela deployed the rhetoric of independence and liberal democracy to argue that her union with Ildefonoso made her free. The court upheld Angela’s case on the basis of the notion that a liberated body politic required the freedom of all members. Angela’s case also represents the difference between the freedom suits of men and of women. Enslaved men routinely based their cases on their physical risks for the patriot cause, while enslaved women relied on arguments about honorable agreements to tap into a larger revolutionary discourse of liberty in court.

Colwill, Elizabeth. “Freedwomen’s Familial Politics: Marriage, War and Rites of Registry in Post-Emancipation Saint-Domingue.” In Gender, War, and Politics: Transatlantic Perspectives, 1775-1780, edited by K. Hagemann, G. Mettele, and J. Rendall, 71-92. New York: Palgrave MacMillan, 2010.

Colwill looks at freedwomen’s familial politics through two interwoven forms of activism: documentation of their children’s births and arguments on the value of their labor. Regulation of marriage was linked to the implementation of labor codes under various government regimes. Women resisted labor codes in 1794, and claimed an extra day to work their family plots; their labor resistance was fought in the name of family time. After emancipation, freedwomen worked to define families through extra-legal conjugal unions and relationships of choice. The freedwomen undertook political action on behalf of their children after witnessing their children’s registration on state records, thereby making claims on the polity.

Kerber, Linda. “No Political Relation to the State: Conflicting Obligations in the Revolutionary Era.” Chapter 1 of No Constitutional Right to be Ladies. New York: Hill and Wang, 1999.

Kerber explores the contradictions in 18h-century republican ideology, pointing out that American revolutionaries’ rejection of monarchical hierarchy did not translate to a critique of gender hierarchies. Wives, mothers, and daughters remained without a civic identity separate from that of their husbands or fathers. The law of domestic relations deemed a married woman to have no obligations to the state; subsumed under her husband’s civic identity, she was shielded from them. In upholding men’s privileged and dominant position over women, “republican ideology did not eliminate the political father immediately and completely. It was simultaneously patriarchal and antipatriarchal, holding a liberal ideology of individualism in ambivalent tension with the old ideology of patriarchy.” Yet women pointed out the contradictions embedded within republican ideology, questioning why they were deprived of the vote and criticizing the lawfully sanctioned domestic relations that kept them subordinate.

Primary Sources

This website allows users to read and compare constitutions from around the world, as well as to trace the timeline of written constitutions. The collection of constitutions is searchable by time, region, and specific topics, including those relative to women and gender.

Cherokee Constitution of 1827 (English text or Cherokee and English side by side)

The Cherokee Constitution established the territorial boundaries of the nation and the structure of the representative government. It also defined inclusion within the polity, excluding people of “negro or mulatto parentage” from holding office, and restricted voting to free male citizens who were not Black or the sons of Black women.

This state constitution, created at the opening of the Revolutionary War, permitted “all Inhabitants...of full Age” who met property requirements to vote. Its gender-neutral phrasing supported free unmarried women’s voting, a right affirmed in subsequent legislative debates and laws, until a revision in 1807 redefined voting rights by race and gender.

Sáenz, Manuela. “Invoking Constitutional Rights: A Letter to the Colombian Consul in Lima, Feb. 1827.” In Women and Gender in Modern Latin America, edited by Pamela S. Murray, 19–20. New York: Routledge, 2014.

Manuela Sáenz pleads for the protection of her rights as a citizen of Columbia. She argues that her treatment by Peru denied her the universal rights of all persons imprisoned, fundamentally attacking her personal liberty, and according to her, offering the legal framework for her release.

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