The case everyone quotes and nobody reads. The sentence that is remembered is a concurrence three justices signed. The holding it hangs on is the one still operating, and it says something else.
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Myra Bradwell had passed the Illinois bar examination. The Supreme Court of Illinois recorded that she was of full age and possessed the requisite character and learning, and refused her a license anyway. She brought the refusal to the Supreme Court of the United States under the Fourteenth Amendment, and lost.
What the case is remembered for is a sentence about the law of the Creator. That sentence is not the judgment of the Court, it commanded three votes out of nine, and its author opened by saying he did not agree with the Court's reasons.
[See COVERTURE · DISQUALIFIED TESTIMONY · THE ESTABLISHMENT]
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WHAT THE COURT ACTUALLY HELD
Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873), Miller, J. Four propositions, from the reporter's own syllabus.
Illinois denied the license on the ground that females are not eligible under the laws of that State, and such a decision violates no provision of the Federal Constitution. The privileges and immunities clause of Article IV does not reach her, because she is a citizen of the State whose action she complains of. The right to practice law in the State courts is not a privilege or immunity of a citizen of the United States within the meaning of the Fourteenth Amendment. And the power of a State to prescribe the qualifications for admission to the bar of its own courts is unaffected by the Fourteenth Amendment, so that this court cannot inquire into the reasonableness or propriety of the rules it may prescribe.
Miller disposed of it in a paragraph, and named his authority:
> The opinion just delivered in the Slaughter-House Cases renders elaborate argument in the present case unnecessary; for, unless we are wholly and radically mistaken in the principles on which those cases are decided, the right to control and regulate the granting of license to practice law in the courts of a State is one of those powers which are not transferred for its protection to the Federal government, and its exercise is in no manner governed or controlled by citizenship of the United States in the party seeking such license. It is unnecessary to repeat the argument on which the judgment in those cases is founded. It is sufficient to say they are conclusive of the present case.
The Court did not decide that a woman may be kept from the bar. It decided that the Fourteenth Amendment does not reach the question, and it decided that by pointing at what it had said the day before. The same Justice wrote both.
[See THE SLAUGHTER-HOUSE CASES · ONE AFTERNOON · NATURAL RIGHTS · RIGHTS AND PRIVILEGES]
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THE ARGUMENT THAT WAS MADE, AND IT WAS NOT ABOUT WOMEN
Matthew Hale Carpenter argued for her, and narrowed the question himself:
> The question does not involve the right of a female to vote. It presents a narrow matter: Can a female citizen, duly qualified in respect of age, character, and learning, claim, under the fourteenth amendment, the privilege of earning a livelihood by practicing at the bar of a judicial court?
Then he set the trap the Court walked around. The only provision securing to Black male citizens the privilege of admission to the bar is the clause forbidding a State to abridge the privileges or immunities of a citizen.
> And if this provision does protect the colored citizen, then it protects every citizen, black or white, male or female.
Carpenter put the two exclusions on one clause on purpose, and the Court answered by emptying the clause for both. Slaughter-House had already read the privileges or immunities of national citizenship down to almost nothing. Bradwell is what that reading costs, collected the following day from the first person to present a bill.
[See DANGER OF ASSEMBLY · CHAINS OF WOMEN]
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THE ILLINOIS COURT SAID IT FIRST AND SAID IT PLAINLY
The theology in this case did not begin at the Supreme Court. The Illinois court had already put it in its own record:
> That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth.
And it drew the conclusion in the language of legislative intent:
> when the legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women.
A state court wrote the word God into its reason for the refusal, and the federal court that reviewed the refusal held that the reason was none of its business. The third and fourth propositions of the syllabus are that holding. The reasonableness of a State's rule is not open to inquiry, and the ground of the rule was that God designed the spheres.
[See GOD SAYS · CONQUEST THEOLOGY]
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BRADLEY CONCURRED, AND OPENED BY REFUSING THE COURT'S REASONS
> I concur in the judgment of the court in this case, by which the judgment of the Supreme Court of Illinois is affirmed, but not for the reasons specified in the opinion just read.
What follows is the passage the case is known by. The reporter heads those pages Opinion of Justices Bradley, Swayne, and Field.
> the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.
And then the sentence, with the concession that precedes it and is almost never quoted with it:
> It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator.
Bradley saw the unmarried woman standing outside his rule, named her, and disposed of her as an exception, which is the operation performed openly: the rule is not derived from the cases, the cases that do not fit are subtracted from the rule.
[See PUNISHMENT LOGIC · MINSTRELSY · KEPHALE]
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AND THE CHIEF JUSTICE DISSENTED FROM ALL OF IT
The last line of the report, after Swayne and Field are recorded as joining Bradley:
> The CHIEF JUSTICE dissented from the judgment of the court, and from all the opinions.
He wrote nothing. One member of that Court refused the judgment and refused every reason offered for it, in a single clause, without argument, and the refusal is the shortest thing in the volume. It is also the whole of the evidence that the theology was contested on the bench at the time, which forecloses the defense that no one could have known better.
[See THE STOOL OF PESTILENCE · THE TWO LAWS]
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THE CONCURRENCE IS WHAT SURVIVED
Three justices signed the separate-spheres passage. Five joined the opinion that never mentions it. One rejected both.
The half of the case that carried no majority is the half that is quoted, and the half that carried the Court is the half still operating. Slaughter-House and Bradwell together left the privileges or immunities clause without work to do for a century, and the rule that a State's qualifications for its own bar are unreviewable is not a dead letter. Bradley's paragraph is an exhibit. Miller's paragraph is law.
[See CONSTITUTIONAL CAPTURE · CORPORATE PERSONHOOD · REPRODUCTIVE CONTROL]
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The Supreme Court of the United States never revisited what it had held about Myra Bradwell, and did not need to, because it had held nothing about her at all.
It had held that the question was not federal, and the answer to a question that is not federal is whatever the state was already saying. What the state was already saying had been entered in its own record, and it began with the word God.
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RegenerativeLaw is a religion in the direct-encounter Protestant tradition, carrying a documented four-century lineage through Böhme, the Behmenists, the Friends, and Penn, and it diagnoses trespass theology as an establishment of religion. Its exercise consists substantially in refusal: it shelters the conscientious refusal of performed subordination as religious exercise. This entry states sincere religious belief concerning matters of ultimate concern, protected under the First Amendment and, as to federal action, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb.
