The Supreme Court’s 150‐​year Mistake

Anastasia P. Boden and Matthew D. Mitchell

On April 15th, Americans should be thinking about Myra Bradwell. On this day 150 years ago, the U.S. Supreme Court shut Mrs. Bradwell out of a job when eight justices ruled that she, as a woman, lacked a constitutional right to earn a living in the profession of her choice.

Though the Supreme Court has come a long way in protecting equality before the law, it still refuses to protect the right to earn a living—and the Bradwell case has never been overturned. The opinion illustrates the value of economic freedom, the often-discriminatory way it is denied, and the tragic consequences of ignoring the Constitution’s guarantees.

Like many lawyers at the time, Bradwell learned law as an apprentice—conducting legal research and writing for her husband, Judge James Bradwell.

She later became a successful legal entrepreneur. In 1868, Myra became the first woman to edit a nationally circulated legal publication, the Chicago Legal News. To run it, she had to ask the state legislature for a special charter that allowed her to own and operate a business as a married woman—something Illinois did not normally permit.

The Legal News published court opinions and legislation and offered witty commentary. Ever critical of inequalities in the law, Myra acerbically noted in one article that if courts were to be bound by outmoded practices, then all American lawyers should wear wigs to court.

In 1869, she became the first woman to pass the Illinois bar exam. A federal judge examined her legal abilities, pronounced her qualified, and recommended that she be granted a license to practice. The state’s high court, however, denied her application. Not one of the justices questioned her abilities. The court simply believed her gender was disqualifying, because “God,” purportedly, “designed the sexes to occupy different spheres of action.”

Myra took her case to the Supreme Court, arguing the Fourteenth Amendment guaranteed her a right to earn a living in the profession of her choice. She should’ve won.

To understand why, one must dig into the historical meaning of rights. Most Americans know the Constitution safeguards rights specifically mentioned in the Constitution, like the right to a trial by one’s peers and the right to bear arms. The Founders understood that it also guaranteed countless other rights, like the right to travel, to marry, and to make contracts.

Economic rights were understood to be a part of this package. As Madison put it in his widely read 1792 pamphlet On Property: Government is unjust when “arbitrary restrictions, exemptions, and monopolies deny to part of its citizens… free use of their faculties, and free choice of their occupations.”

The framers knew it would be impossible to name all of these unenumerated rights in our governing document. So they drafted the Ninth Amendment, which makes clear that the listing of some rights in the Constitution “shall not be construed to deny or disparage others retained by the people.”

Unfortunately, as demonstrated by the nearly four million men and women in bondage, the Constitution initially guaranteed peoples’ rights only against encroachment by the federal government. States routinely deprived black Americans of their rights, or of their freedom altogether.

Even after the Thirteenth Amendment banned slavery, southern states continued to target freedmen, passing laws that limited their ability to own land, to conduct business, to practice the professions of their choosing, and to negotiate contracts. With these deprivations, the racists ironically demonstrated that economic rights are among the most fundamental freedoms we have, and are central to equality before the law and people’s ability to thrive.

After the Civil War, the 39th Congress sought to change all of this. First, they enacted the Civil Rights Act of 1866, which ensured the “full and equal benefit of all laws and proceedings for the security of person and property” and specifically protected the economic freedoms that the Black Codes had abridged.

The legislature then ensured the constitutionality of the Act with the Fourteenth Amendment, which proclaimed that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

In her lawsuit before the Supreme Court, Mrs. Bradwell seized on this clause, arguing the Illinois high court had abridged her privileges and immunities when it denied her the ability to enter her chosen occupation. But all justices except the ailing Chief Justice Salmon P. Chase—who was too weak to write a dissent—disagreed with her.

Today we should honor Myra Bradwell by recognizing the importance of economic freedom and its place in our constitutional structure. The ability to earn a living is not just central to the American Dream, it is a fundamental constitutional right.

This post was co-authored with Matthew Mitchell, a Senior Research Fellow at the Knee Center at West Virginia University.