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Clara Shortridge Foltz: Constitution-maker


Publication Date: 
January 01, 1991
Journal Article
Bibliography: Barbara Allen Babcock, Clara Shortridge Foltz: Constitution-maker, 66 Indiana Law Journal 849-940 (1991)


Full Text of Publication

Indiana Law Journal Fall, 1991 CLARA SHORTRIDGE FOLTZ: CONSTITUTION-MAKER Barbara Allen Babcock * INTRODUCTION: THE PERSONAL IS HISTORICAL "Each life helps to make up the sum of all history . . . ." 1 J.J. Ayers, Delegate to the California Constitutional Convention of 1879 In 1971, I left my District of Columbia public defender's job once a week and flew to New Haven to teach a seminar called "Women and the Law." The switch in cities seemed minor compared to the shift in causes. Perhaps the sharp transition helped fix memory, because, twenty years later, I recall that on one of those short flights I read Sail'er Inn v. Kirby when it was a bold new case. An early triumph of the renewed women's rights movement, the decision struck down a law that prohibited most women from bartending. The California Supreme Court called for heightened scrutiny of gender classifications under the federal equal protection clause. But it relied as well on a provision from the 1879 California Constitution: No person shall on account of sex be disqualified from entering upon or pursuing any lawful business, vocation, or profession. 2 I remember that the presence of the old clause in the new case irritated me because it made the ground-breaking equal protection discussion largely superfluous. And, as I told my class, the clause itself was no doubt a sport, not likely to be replicated in other state constitutions. Within a year of Sail'er Inn, the women's movement swept me into fulltime teaching as the first woman on the regular faculty at Stanford Law School. Upon arriving in California, I asked some of the people involved in the case about the old constitutional section, but they knew nothing of its origins. Many years and cases passed: Sail'er Inn went from flagship to footnote case while our nascent field of "women and the law" evolved into sex discrimination, gender bias and feminist theory. More women than ever before came as students to law school (1970: 8.6%; 1990: 42%) necessitating the appointment of additional women to law faculties (1970: 3%; 1990: 24%). These changes relieved me, I felt, from front-line action, so while maintaining loyalty to the women's movement I turned to writing and teaching based in the criminal defense practice that had been my other cause back in 1971. 3 Then, a few years ago, by chance or fate, I learned that it was a woman who had first conceived and promoted the idea of a public defender for indigents accused of crime. This was the "Portia of the Pacific," Clara Shortridge Foltz (1849-1934), who in 1878 had become the first woman lawyer in California and one of the first in the country. Over a long career, she had many causes; among these public defending was important and women's rights, central. Drawn by this intersection of my own disparate interests with another life, I decided to write Clara Foltz's biography. But early on, I found that the biographer's chief instrument, the subject's own papers, had been lost or destroyed. One of the few surviving primary sources is a fragmentary memoir, entitled "Struggles and Triumphs of a Woman Lawyer," that appeared in a magazine Foltz published between 1916 and 1918. Reading through one of its installments, I was struck by a reference to the constitutional equal employment section I had first seen in Sail'er Inn: it was, she said, "Proposed by the writer"! 4 Initially this seemed a biographer's epiphany: the unsought answer to my long-forgotten question about how a modern women's rights section had appeared in the 1879 California Constitution. Like most biographers' epiphanies, though, this was more Delphic than revelatory. How did Clara Foltz "propose" the section? To whom? When? Why? There are no Foltz papers to supply the answers, nor has anyone else written on the subject. Setting yet another puzzle, Foltz also took credit for a section guaranteeing women access to education in all departments of the University of California, and called it a companion measure, though it appeared much earlier in the Constitution. 5 The annotations to these two sections showed their slight use in what seemed small matters. Sail'er Inn was the only modern case of any significance. Yet, as a biographer, I could not easily dismiss what Clara Foltz said: to her, the provisions were the "first streak of dawn" guiding woman into "larger fields of opportunity." I wondered whether their apparent insignificance in history might be one more instance of the failure to take women's claims seriously. 6 Reflecting, I realized that the two sections were actually the first guarantee of equal rights for women in the public arena ever to appear in any American constitution. In this sense, they were indeed the milestones that Foltz thought them: woman's "relation to the body politic" had changed from the "very hour of their adoption." In today's idiom, she might say that, with the passage of these sections, gender took its place beside class and race, the other great national divisions, in the American constitutional discourse.7 Thus, having defined an historical mission which could fortify my biographer's curiosity, I turned to the context that produced the unprecedented constitutional sections: California in the 1870s. It was a decade of crop, bank and moral failures; of unemployed workingmen, despised Asians, silver kings and railroad barons all on the edge of class and race war, fueled by an unrestrained press and flamboyantly manipulative politicians. By the end of the decade even Karl Marx was moved to say of California: "nowhere else has the upheaval most shamelessly caused by capitalist concentration taken place with such speed."8 In a situation ideal for the rise of a demagogue, Denis Kearney, an Irish drayman, formed the Workingmen's Party of California ("WPC"). Kearney joined denunciations of corporate privilege with rabid rhetoric directed against the Chinese, who had been brought to the state in large numbers to build the railroads and remained as racially despised competition for low-paying jobs. On the sandlots in front of city hall, Kearney spoke to thousands of unemployed men and marched at their head to build bonfires before the mansions of San Francisco's Nob Hill. In September 1877, the same month that Kearney founded the WPC, Californians voted to call a constitutional convention empowered to reform their organic law. With the election of Convention delegates approaching in June, the threat posed by Kearney's Workingmen drove the Democrats and Republicans into a coalition calling itself "the Non-Partisans." Despite this novel and desperate fusion of the major parties, the Workingmen still captured one-third of the delegates statewide and all of the seats from San Francisco. In late September 1878, the Constitutional Convention assembled in Sacramento. There it would stew and wrangle for nearly half a year, debating every issue of the day and finally producing a document said at the time to be the world's longest written constitution. After a campaign that renewed the apocalyptic themes raised in the delegate election, the new constitution was ratified by a narrow margin. If women appear at all in the historian's usual version of the years 1877 to 1879, they are mentioned as the objects of peripheral Convention debates about enfranchising them. Yet through my lens as Clara Foltz's biographer, women surface as major actors in the constitutional drama, launching their own significant movement in California politics, bringing the Convention within ten votes of a suffrage provision in 1879, and winning the unprecedented anti-discrimination sections on employment and education. In these same two years, Clara Foltz progressed from obscure housewife to famous lady lawyer. The convergence of her story and California's constitution-making is the subject of this article--the end of a journey I started, unsuspectingly, when I wondered so many years ago about the old clause that showed up in the new case. Let me summarize here, as a guide through the narrative, the events of Foltz's life that directly bear on the passage of the women's sections. In 1877, the year Denis Kearney started speaking on the sandlots and the people voted to call a constitutional convention, Clara Foltz lived in San Jose with her husband and five children under the age of eleven. She had eloped at 15, spent harsh years on an Iowa farm, and then followed Jeremiah Foltz west, arriving just in time for the "terrible seventies." Even with Clara Foltz's contributions from sewing and taking in boarders, the family was hard-pressed. Driven as much by economic necessity as by ideology, Clara Foltz acted on a long-deferred dream and determined to become a lawyer. The first obstacle was a California statute providing that only white males could join the profession. Foltz drafted the Woman Lawyer's Bill and spent days at the capital lobbying the legislature. In Sacramento, she joined with Laura DeForce Gordon, a sister-suffragist and newspaper publisher also planning to be a lawyer. After a struggle I have detailed elsewhere, the bill passed and the governor signed it in the waning hours of the session.9 Back in San Jose, Foltz read law, and in early September 1878 joined the bar--an event attended by nationwide publicity. Later that month, the Constitutional Convention opened in the Assembly chamber so familiar to the women from their lobbying efforts. The same legislature that had passed the Woman Lawyer's Bill and the Convention-Enabling Act had also accepted a gift from Serranus Clinton Hastings to establish a law school as part of the University of California. Clara Foltz thought that the state's first woman lawyer should have formal legal training at the state's first law school. With Laura Gordon (soon to become California's second woman lawyer), she registered and attended a few lectures before receiving an official rejection. After trying unsuccessfully to negotiate their admission, Foltz and Gordon, representing themselves, turned to the courts. The suit pitted two women without wealth, social connections, education or political power against the pillars of the San Francisco Bar who made up the Hastings Board of Directors and served as its counsel. Following every move in the case was an aggressive and alert press which sided with the underdogs. Foltz filed her suit on February 10. It was set for hearing five days later, but at the appointed hour, as reported by one paper, "an aged masculine attorney" asked for a continuance. February 15 was a Friday. On the following Monday, the Constitutional Convention adopted, without amendment or debate, Section 18 of Article 20: No person shall, on account of sex, be disqualified from entering upon or pursuing any lawful business, vocation or profession.10 The case was finally argued on February 24; the judge took it under advisement without promising a decision date. Many newspapers carried lengthy stories about the "Battle of Hastings" on the next day. On February 26, the Constitutional Convention passed this clause: No person should be debarred admission to any of the collegiate departments of the university on account of sex. One member objected that the University was already co-educational, but the section's sponsor responded: The gentleman intimates that there is no necessity for it. I think recent history points to the fact that there is a necessity for it. He was referring, of course, to the "recent history" in the previous day's newspapers.11 In ruling for the women in early March, the judge relied partly on the constitutional clauses, as well as on the Woman Lawyer's Bill. The Hastings Board decided to appeal the decision, and by the time the case was argued and decided in the California Supreme Court, the constitution had been ratified. Foltz v. Hoge et al., Directors of the Hastings College of the Law, was the first case decided under the access-to-employment section. As plaintiff's lawyer, Clara Foltz won that case.12 The biographer's perspective thus reveals the historic anti-discrimination sections as, at least in part, a side-effect of the Hastings case. Other connections also appear from a focus on Foltz's experience. The influence of the woman suffragists on the constitutional proceedings, for instance, is apparent for the first time. "There were many splendid women in those days" wrote Clara Foltz, "the peers of the men at the convention." Male allies, idealistic and instrumental, also emerge as characters central to the passage of the constitutional sections.13 As I search for Clara Foltz, constitution-maker, I know the biases a biographer brings to history, and the dangers of exaggerating a subject's role. Foltz herself warned against putting "dimmers on fourflushers, and mak[ing] minnows talk like whales." (For her own chronicler, though, she suggested no restraints: "Let wreaths of triumph my temples twine.").14 Clara Foltz's cautionary exhortation forces her biographer to recognize that the tale is not the unadulterated triumph that she (and I) might have wished. The biographer's method--making the subject the main historical witness-- also reveals the ignoble side of her success. The political support that gave Foltz and her colleagues their chance from 1877 to 1879 drew on an anti-Chinese racism of such virulence that the women's complicity in it is impossible to ignore. No rhetoric of historical relativism can justify their failure to recognize the common humanity they shared with the Chinese immigrants. The complicated part that pervasive racism played in the relationships among the Workingmen, the women and the former Copperhead Democrats at the Convention is a major part of the story. It, too, has not been told previously. The late 1870s in California is an under-chronicled period even though its events provide a remarkable preview of the race, class and gender politics that have since dominated the history of American constitutionalism. The Workingmen's agitation did arouse nationwide, even worldwide, interest. Yet the few contemporary accounts of its constitutional impact were tendentious, most of them bent on stifling its significance. And in the twentieth century, not many historians have responded to Carl Swisher's 1930 effort to open a dialogue on Motivation and Technique in the California Constitutional Convention. The constitution's centennial year passed quietly.15 Among the possible explanations for this inattention are the eastern and national bias of the American historical profession, the unpromising sprawl of the actual text of the 1879 Constitution, and the disregard until very recently of the politics of nineteenth-century state constitution-making. Kearney has quite naturally been judged a mere demagogue; the WPC does not fit neatly into the established categories of labor history; the open racism of the California Workingmen renders them inapt heroic precursors for later populist movements.16 The process of historical denial, which began very soon after the events of 1877 to 1879, has made the story difficult to unearth, further contributing to its neglect. In 1881, James Bryce journeyed to California especially to investigate Kearneyism and its relation to the new constitution as part of the research for his celebrated book, The American Commonwealth. He found the educated and established San Franciscans to whom he spoke both dismissive and evasive concerning their famous radicals.17 Bryce's informants said, for instance, that he could learn what really happened ("the facts in detail") only by laboriously reading three years worth of newspaper backfiles. Not surprisingly, Bryce relied instead on what he could "pick up in conversation" and on Henry George's essay, "The Kearney Agitation in California." George's essay was insightful, but as we shall see, he was a player in the events and not entirely objective. None of Bryce's sources seem to have drawn his attention to the women's constitutional sections, or to have put the Workingmen's Party in any favorable light.18 Foltz once promised to "place in conspicuous honor the names of those noble and gallant Californians who long years before suffrage for women had been won, voted to extend many privileges." She never got around to it--nor has anyone else until now documented the passage of the employment and education sections, or the near-achievement of woman suffrage. Neglect of California constitution-formation and inattention to women's history are not the only reasons. It would be hard for a general political historian to proceed from the few clues in the constitutional text and debates to the women's unprecedented victories. Yet for a biographer travelling in the opposite direction--from Foltz toward the events of her time--the story of the women's sections and their full significance emerge plainly.19 Consider, for just one example, this little newspaper item tucked away among stories unrelated to the Convention: Those who have charge of the law school at the University may be ungenerous and narrow enough in their views to wish to limit the sphere of women, but a majority of the members of the Constitutional Convention are not. An amendment offered yesterday by Delegate Ayers to a section of the educational article providing that no person shall be debarred from any of the collegiate departments of the University on account of sex was adopted by a vote of 103 to 20. The story does not even mention Foltz or her case against Hastings. There was no need--contemporary newspaper readers already knew the connection. Since her bar admission in September, Clara Foltz had been before the public. ("My name was on every tongue; the daily papers . . . filled with flattering mention of my exploits," she recalled later.) Only the day before, most newspapers carried the Hastings argument as front page news. Once that biographical fact is recognized, the little press item fills an important gap in the narrative.20 One of the main lessons a biographer learns is to follow the thread of chronology. In the order of events lie most of the answers to the questions that Clara Foltz's fragmentary memoir first posed for me: why, how, and to whom did she propose the women's rights clauses more than a hundred years ago? This article's contents, as summarized below, follow the temporal order of events; a more detailed chronology of the Convention itself appears at the head of Part IV. Table of Contents I. FEARFUL TIMES A. The 1870s in Allegory and Rhetoric B. The 1870s in Clara Foltz's Experience C. A Speaker for Woman Suffrage D. Denis Kearney and the Suffrage E. Citizens for a New Constitution II. THE 1878 LEGISLATURE A. The Foltz-Gordon Team B. Passage of the Woman Lawyer's Bill III. CHOOSING DELEGATES A. The Women B. The Non-Partisans C. The Workingmen D. The Election E. Foltz and Gordon in the Post-Election Period IV. THE CONVENTION: WOMEN LOSE SUFFRAGE AND GAIN ANTI-DISCRIMINATION CLAUSES A. Initial Suffrage Skirmishes in Fall 1878: Lobbying; Petitioning; First Floor Debate 1. Petitions in October 2. The Committee on Suffrage: November 3. Laura Gordon's Friends Offer Support 4. Woman Suffrage on the Convention Floor in December B. Winter 1879: The Causes Converge 1. The Second Suffrage Debate 2. The Debate Shifts from Spheres to Choice 3. The Women Turn to Litigation 4. The Origins of the Women's Employment Section C. Triumph of the Women's Constitutional Sections 1. The Last Suffrage Debate 2. The Convention Acts on the Women's Anti-Discrimination Sections V. RATIFICATION A. The Hastings Victory B. The Constitution Before the People C. Courting the Women D. The Interregnum Between Constitutions: May 1879 - January 1880 CONCLUSION: WOMEN AS CONSTITUTIONAL LAWYERS NOTE ON DOCUMENTATION I. FEARFUL TIMES "The times are fearful; never so hard in California within the memory of the oldest inhabitant. If it were not for the financial stress, I think it would be comparatively easy to arouse the sleeping . . . sentiment in favor of equal rights." Clara Foltz, 187721 A. The 1870s in Allegory and Rhetoric Diners in a splendid hall consume a sumptuous feast while in the streets below people starve; newspaper columns first framed this allegory for the 1870s when accounts of Nob Hill dinner parties appeared next to the latest crop failures in the San Joaquin valley. But the California novelist, Frank Norris, took the comparison to its limits when he juxtaposed descriptions of a railroad baron's banquet with the last famished hours of a fictional "Mrs. Hooven," widowed and homeless because of the railroad's rapacity. Following the "Londonberry pheasants, escallops of duck, and rissolettes a la pompadour," as well as the asparagus for which the train made a special stop, the scene shifts: "Mrs. Hooven fell. Luckily she was leading Hilda by the hand and the little girl was not hurt." After "the dessert of alternate layers of biscuit glaces, ice cream, and candied chestnuts," Hilda "repeatedly tried to raise the inert eyelids with the point of her finger." Finally a glass of the finest Madeira is raised in the mansion, and the doctor bending over Mrs. Hooven pronounces her "dead . . . from exhaustion and starvation."22 J.J. Ayers, a newspaper publisher, told of experiencing a real life version of the allegory one night in the fall of 1877, when he dined with Leland Stanford, who showed him the rare and costly works of art in "the India room, the Pompeii room, etc." The tour concluded with "an immense Sevres vase that stood under a great illuminated candelabra" --a bargain Stanford boasted at $100,000. Ayers related that he had just read the vase's gold inscription De Marie Antoinette au dernier Marquis de Villette when "a great howl went up in the street nearby. To my look of inquiry, [Stanford] answered: 'Oh, that's nothing unusual. It is Kearney and his crowd, [giving us] a taste of their peculiar oratory."'23 Impressed by such coolness, Ayers nevertheless wondered whether "the mutterings that reached us" portended a bloody class war, "the legitimate offspring of the abuse of power." Well he might have thought so. The mob outside were unemployed workers, who numbered in the thousands in San Francisco. Denis Kearney was a drayman who had risen to their leadership within a few months through his inflammatory speeches on the sandlots in front of city hall. Denouncing the "shoddy aristocrats" and "bloated bondholders," Kearney demanded justice from "Judge Lynch" to which the crowd roared in refrain: "Hemp, Hemp, Hemp."24 But the outcome was not to be a new-world reign of terror with the gallows replacing the guillotine. Rather, agents of the mob in the street assembled with representatives of the mansion owners, and others (including James J. Ayers himself) in a convention which wrote a new constitution for the state. Enabling this uniquely American resolution of class struggle was a unifying surrogate for the social ills of the terrible seventies: the Other, the Chinese immigrant, the "indispensable enemy."25 As the climax of every speech, Kearney shouted not: "Off with the Capitalists," but "The Chinese Must Go." The Chinese, even more than their importers and employers, became the organizing focus for the Workingmen's Party. The tactic of blaming "the yellow peril" for all of California's ills was one both regular parties had used throughout the decade. But Kearney turned up the volume and the vituperation.26 The attacks sounded ostensibly in economics: in the effects on labor markets of the uncontrolled importation of workers accustomed to a low living standard. Some Chinese arrived under contract in a system of indentured labor, and all were denied the chance to become naturalized citizens. Thus, they looked toward returning home and lived in great privation while here. "They have no families, build no houses; live on rats . . . and even transport their bones to the celestial empire for burial," cried Denis Kearney in a passage whose denigration of the Chinese for conditions imposed on them is typical of the twisted racism that lurked just below the arguable economic case.27 Henry George, whose historic persona is one of gentle reformer, provides another example of how economics and racism combined for Californians of all stripes on the issue of Chinese immigration. In 1869, when the completion of the transcontinental railroad released ten thousand Chinese laborers into the market, George wrote of the impending takeover of all American industry by these "servile and debased workers." Their "inexhaustible supply," he said, would drive wages down and in the process replace American values with "cruelty and cowardliness" and other "unnameable vices."28 George predicted that the rich and their alien "serfs" together would "crush" the white working class. Later rhetoricians abandoned any attempted economic analysis and simply spoke in the same breath of the Chinese and "the smug highbrows, men and women, who terrorized the State with their lavish, vulgar show of wealth." These last in fact are the words of Clara Foltz, who summarized the history of the period as a background to her own story in the March 1917 installment of Struggles and Triumphs of a Woman Lawyer. Although written many years after the events, Foltz's words track the rhetoric of the 1870s; she wrote in the same language as the newspaperman J.J. Ayers, the reformer Henry George and the Workingman Denis Kearney when she recalled the "terrorizing" effects of great wealth in a context where "Chinese were everywhere fattening upon our soil, consuming our industries, while American labor went hungry."29 The rhetoric of the 1870s insisted as well on the contrast between fair California and the foul deeds done there. Like her contemporaries, Foltz found things worse because California deserved better. She infused the landscape with moral qualities--it was an "Eden of loveliness"--and extolled "the cosmopolitan character of the people . . . the incomparable variety of its climate, the marvelous products of its soil, . . . exceeding in beauty the farfamed valley of the Nile!"--all defiled by "corruption in high places, malfeasance in office, immorality everywhere." Looking back, Clara Foltz blamed the hard times on local villains: swindlers, land grabbers, the vulgar rich and their Chinese slaves. She omitted the nationwide aspects of the depression, which had started in the East in 1873 and moved west by mid-decade bringing bank failures and unemployed workers in its wake. Neglected as well in her later explanations were the ruinous gambling in silver mining stocks and natural causes like drought and crop failure. But sketchy as her causal theories were, her life experience of the hard times was thoroughly frightening.30 B. The 1870s in Clara Foltz's Experience When Clara Foltz described the times as "fearful," she was twenty-eight years old and no novice to hardship. Since her marriage thirteen years earlier she had borne five children and helped her unreliable husband support them, mostly through demanding physical labor on a farm. The last relatively carefree days she had known were as a young girl in Mt. Pleasant, Iowa, where the Shortridges had settled from 1860 to 1863. Elias Shortridge was a charismatic preacher of the Campbellite (Disciples of Christ) sect. For this brief period, he had stopped travelling circuit and ministered to an established church. He sent his only daughter to Howe's Academy, a progressive school whose founder believed in coeducation (with the same rigorous curriculum for both sexes), in women's rights, and in the abolition of slavery. "Carrie" Shortridge thrived in this setting, and her teachers remembered her many years later as a "bright, ambitious, hardtoiling" girl. She loved learning partly because it afforded her first chance to excel. In later years, she would often tell how she had mastered the first two books of Latin by the age of twelve.31 Elias Shortridge lost the Mt. Pleasant post because of his doctrinal unorthodoxy. The demotion meant the family's departure from the area; Elias returned to the circuit, and Clara became, at fourteen, a teacher in Keithsburg, Illinois, and the next year a wife and mother.32 She taught for only one term before she eloped with Jeremiah Foltz, a handsome Union soldier. They settled on an Iowa farm where she bore her first three children and helped to plant and plow, developing strongly muscled hands that later no silk fringe or lace cuff could quite conceal. In the early 1870s Jeremiah Foltz left for Oregon and his wife soon followed, crossing the Rockies in the winter with the three children and a baby of nine weeks. She found her husband working at starvation wages, and immediately she began taking in sewing and boarders so the family could live. Several years later, they moved to San Jose, California, where Jeremiah found work as a sales clerk, and Clara bore a fifth child. But the fresh start did not take; Jeremiah returned frequently to Oregon and a certain Katie, destined to become his second wife.33 Realizing that she must soon support herself and her five children alone, Clara Foltz reached back to Mt. Pleasant times, when her dreams had been of "oratory, fame, political recognition." In those days, her father had often said that only her sex prevented her from becoming "a great lawyer." To which her mother rejoined: "Elias, you should not tell that girl that . . . for [someday] she will take it into her head to study law, and if she does, nobody on earth can stop her." Driven now by sharpest necessity, Clara Foltz took it into her head to read law and attempt to join the bar. At the same time she resolved to try public lecturing for money.34 Even to the desperately courageous, the obstacles looked insuperable. "[W]ithout education or learning, burdened with the cares of a large family, and against the prejudice of sex," Foltz attempted "to step from cradleside into the ranks of one of the profoundest professions," so a contemporary described the difficulties she faced. Yet Clara Shortridge Foltz brought great resources to the task.35 Physically she was strong, energetic and good-looking. Tall, and still graceful after five full-term pregnancies, she had beautiful skin and hair. Mentally, she was exceptionally quick and free from neurotic blocks to the use of what she knew. She also had immense charm and capacity for friendship and fun--all driven by ebullient optimism that, even when unjustified, was still overpowering. The Shortridge family was another important asset as she stepped into the public sphere. Although her parents disapproved her precipitate marriage, they were never estranged from her. In fact, Elias and Talitha, along with Clara's four brothers, moved first from the Midwest, and then from Oregon to San Jose in tandem with the Foltzes. The Shortridges vaunted the "mental and physical vigor" of the lawyers, judges and preachers from whom they descended, and drew upon a connection with Daniel Boone to confirm their "heroic stock." They believed, moreover, that they inherited a special oratorical genius--which must have comforted Clara Foltz when she first stepped forth on a public platform. She had seen her father preach many times and had observed the power of his oratory in numbers baptized on the spot. Elias Shortridge had also been an exceptional political speaker, twice stumping Illinois and Indiana for Abraham Lincoln. He raised his children on the Biblical and Shakespearean diet that fed his oratory, and passed on to his daughter his own passion for reading.36 In addition to her own extraordinary person and family, Clara Foltz brought to public life the consciousness of a great cause. Woman suffrage provided the text for her lectures and the framework for her experience. Spiritually, Foltz found inspiration in the sense of acting from motives grander than personal necessity. Practically, her suffrage friends helped support her children and fill her lecture halls. Later they sent her cases; always they gave purpose to her life. C. A Speaker for Woman Suffrage Foltz came early to the movement. As a girl, she heard Lucy Stone speak on woman suffrage; in school, she learned that women's oppression and negro slavery were political and moral evils. By the time she moved west, she was a "ready advocate for suffrage" and in both Oregon and California soon made connections with others of like mind.37 In San Jose some of the leading citizens were woman suffragists, including the editor of the main newspaper and Sarah Knox (later Knox-Goodrich), a wealthy widow who admired Foltz and aided her early career. Among the disinterested majority, there was at least good will and tolerance--something not always true in San Francisco, where the press particularly was hostile to suffrage. In many other towns, notably Sacramento, it would take the ferment of the Constitutional Convention to start the women's movement.38 Foltz opened her public lecturing career in San Jose where she could find an audience of family, friends and suffrage supporters. For her maiden lecture, she spoke on "The Political Emancipation of Women." Over the next two years in dozens of California and Oregon towns, Foltz honed her reasoning and heightened her rhetoric. The words she wrote, emended, polished and memorized, appeared in lectures she delivered under many titles. She used the same words in petitions and pamphlets, arguing and lobbying not only for suffrage, but also for the right to practice law. The carry-over was easy because the arguments on the other side were always essentially the same.39 At the outset, she faced the issue of constituency. Ideally, she spoke for all women when, echoing images of slavery, she cried: "We are weary of sitting in the cellar of the temple of liberty and listening to the . . . feet of our brothers overhead." Yet she faced the response that most women did not see themselves as shackled in some basement, but rather as the inhabitants of a higher sphere. To these Foltz responded in words "hard as rocks." Those who cared more for privileges than rights were labelled "daughters of fashion and frivolity," outside the body of "earnest, thinking men and women" who could hear the appeal of the suffrage movement.40 Beyond the thinking minority, she pleaded for "the toiling millions of working women who cannot and dare not speak for themselves." "It is said," she continued, "that men support women and women's sphere is the home. We claim that nine-tenths of women support themselves." Speaking from within a shared assumption that armed with the ballot women would change their lives, Foltz specified no social platform, but referred to women as a "purifying power" and the "great reformatory force of every age," and left her audience to fill in the blanks. For self-supporting women, a better life would mean employment in a wider field and in better paying occupations, the same wage as a man for the same work, earning enough to live in a clean place and send the children to school. For all, Foltz proclaimed the good day coming when "men and women meet upon the level and part upon the square."41 D. Denis Kearney and the Suffrage Clara Foltz was not the only California orator urging the efficacy of the ballot in 1877. Denis Kearney's Manifesto was built on this peroration: What then is left to us? Our votes! We can vote our friends into all the offices of the state. We can send our representatives to Washington . . . . We call upon our fellow workingmen to show their hands, to cast their ballots aright, and to elect the men of their choice. Now it is true that Kearney went on to say that if ballots failed, the dispossessed must turn to bullets. (It is also true that "ballots" sounds like "bullets" just as "mud" is similar to "blood"--facts assuming significance in Kearney's trial for making incendiary remarks.) Nevertheless, Kearney's overriding message was that votes were the preferred instrument for revolution.42 Denis Kearney first delivered his Manifesto in September 1877, on the sandlots in front of city hall, a peculiarly appropriate space for agitation because public construction on a grand design was mired in bribe-taking and boodling. The previous summer had seen the rough plaza become a public forum, often with speakers from the radical socialist Workingmen's Party of the United States ("WPUS"). But in late July the great national labor strike led by the WPUS degenerated in San Francisco into anti-Chinese rioting. When the WPUS urged its followers to "direct their struggles against the ruling class, not against their victims, the Chinese," its days were numbered as a viable organization on the sandlots.43 By the time of the Workingmen's visitation to Nob Hill in October 1877 (when J.J. Ayers wrote that he visited Leland Stanford), Kearney had ousted the socialists from the sandlots, and ensconced instead his own Workingmen's Party of California ("WPC"), also known as Kearneyites and Sandlotters. The WPC took some of the pro-labor rhetoric of its predecessor and added calls for destroying land monopoly, taxing the rich out of existence and using the money to provide decently for the poor and unfortunate. But most of all, the WPC proposed to "rid the country of cheap Chinese labor," as its first official platform put it in phrasing more decorous than Kearney used on the sandlots.44 Very soon, Kearney's message reached beyond the unemployed on the sandlots. By early 1878 the WPC had expanded its platform into ward clubs and lecture halls where "Judge Lynch" was seldom mentioned. Rather, the incitement was to elect "their friends" who would, in the increasingly broad-based formulations, control corporations, regulate railroads, guarantee the eight- hour day, provide free public education, as well as drive the Chinese from California. White-collar and skilled blue-collar workingmen, lawyers, teachers and doctors joined the party. At an organizational meeting for the WPC in San Jose, a former Campbellite minister, Elias Shortridge, was on the platform with Denis Kearney.45 Clara Foltz, in her description of the period, remembered Denis Kearney as the "[s]elf-appointed, intrepid representative of the weak as against the mighty," who within months had brought about "a new order" and prevented "a result most awful to contemplate [that] would certainly have transpired." Writing in 1917, Foltz surely knew history's verdict on Denis Kearney: guilty of demagoguery; guilty of brutish racism; guilty of failure. Yet she made no effort to balance her portrait, which may show how certainly she experienced the events at the time in the way she later portrayed them.46 Denis Kearney and Clara Foltz began public speaking in the same year, driven by fearful times, drawn to the same solution--the ballot. Foltz had no rhetorical or analytical problem in urging the vote as the very source of power and respect for women. Kearney, on the other hand, faced the dilemma of disproportion between means and ends. He worked the crowd into a revolutionary frenzy and then told them "to cast their ballots aright"--obviously an inadequate response to a system half as corrupt as the one he excoriated. Votes were, as everyone knew, bought and sold, both before elections, and after. But in 1877, social unrest was so widespread that a revolution through the ballot box seemed possible. In September 1877, as Kearney began his sandlot agitation, the people by referendum voted to call a constitutional convention. There was to be a momentous statewide election in which Workingmen could use their votes to reconstitute California.47 E. Citizens for a New Constitution The Workingmen's Party did not originate the call for a new constitution, yet many of the same impulses supported the referendum vote and the rise of the WPC. First was resentment of the rich, who in a decade of hard times flaunted their wealth in what Foltz called "vulgar, lavish shows." Moreover, as Bryce observed, California millionaires "excited irritation" because (even more than elsewhere) their wealth did not seem to flow from unusual talents, nor did they tend to give thanks for their good luck by bestowing largesse on "useful public objects." Feeding the prevalent unrest was a peculiarly Californian sense of loss--of grand objects grown dim--that gave the move for a new constitution the tone of a moral crusade. Reform was not enough; the people wanted rebirth. Lord Bryce summarized the classic American arguments for a constitutional convention as the voice of direct democracy: Delegates "go straight from the election to their work, have not time to forget or to devise means of evading their pledges, are less liable to be 'got at' by the capitalists . . . . The rarity and importance of the occasion fixes public attention." He also wrote that "good citizens" had failed to see "the danger of framing a new Constitution at a time of such excitement." But in this, unlike his other observations, Bryce was mistaken.48 Good citizens were part of the excitement, joining in the call for a "new departure." Added to the "decent working people" (whose existence Bryce acknowledged, distinguishing them from the Kearneyites), were good citizens among the farmers some organized in the Grange, who also saw constitution- making as a means to restrain (or "cinch") capital and the railroads. Democrat good citizens, including some who had supported the Confederacy, cheered the Constitutional Convention as a potential path back to the power they had lost when California backed the Union. Suffragists, whose case ultimately rested on women's claims to good citizenship, sensed a main chance in the Constitutional Convention. Almost a decade had passed since the fifteenth amendment guaranteed the vote to "citizens"--not "men," or "male citizens"--without regard to "race, color, or previous condition of servitude." In California, the force of women's just claims as citizens was joined to the fear that the amendment's wording might also someday enfranchise races other than blacks--as it already had a few Chinese born in America. White women's votes could be needed as an offset.49 Many forces of mixed moral and political complexions were rising in 1877-- the Workingmen, the women suffragists and other social reformers, the Grangers, the resurgent Democrats. Before they converged for more than 150 days of constitution-making, the last legislature met under the 1849 Constitution. This session passed the enabling legislation for the Convention. It also set the scene for the women's constitutional sections by enacting the Woman Lawyer's Bill, which provided that any person of good character could practice law. Clara Foltz was in Sacramento often during the session, and there met an older suffragist, Laura Gordon; the two joined in the struggle to enable men and women to "meet upon the level and part upon the square" in the body politic and in the legal profession. II. THE 1878 LEGISLATURE "A great deal of intemperate abuse has been heaped upon the legislature this winter and much of it has been undeserved. Many bad bills have been introduced but most have failed and important measures were enacted." Sacramento Union, April 1878 "[W]hile [Mrs. Foltz was] in attendance as a lobbyist upon the Legislature, neither home nor children were at all neglected." New York World, September 1878 As the last legislature under California's original constitution, the 120 men assembled in December 1877 may have felt the weight of history. They certainly were pressed by the lobbyists who came to Sacramento to reach the levers of power while they still knew the location. Whatever the cause, the 1878 legislature was the busiest in history with over 1,500 bills introduced by adjournment at the end of March.50 Among the lobbyists was a little band of determined women who had been there seeking suffrage for the last few sessions. Their only palpable success so far had been passage of a bill in 1874 that allowed women to serve on elected school boards. For the 1878 session Clara Foltz joined them seeking another kind of office: admission to the bar. This extension was a natural one because access to the professions was an early goal of the women's movement, and the arguments for opening the vote and the practice of law were often congruent.51 Foltz added a sense of personal urgency to the women's pleas for recognition. The California Code provided that only white males could be lawyers and because of the intervening Constitutional Convention, the legislature would not meet again until 1880. Unless there was action at this session, she would have to give her children to others to raise; they could not continue to live as a family on her lecture fees and the charity of friends and relatives. She drafted a Woman Lawyer's Bill and persuaded her local Senator to introduce it. But Foltz feared leaving its passage to his kindly intentions. Travelling to Sacramento more than once "in the caboose of a cattle train, without a dollar in her pocket," she watched over the bill "with maternal solicitude." In later years, Foltz sounded incredulous herself when she spoke of the "toil, hardship, poverty, and even hunger" involved in the struggle.52 She had behind her the support of the suffragists. Among them was Laura DeForce Gordon, who Foltz referred to alternatively as "the noblest Roman of them all" and "my beloved friend." In 1871, Gordon had been the first woman to appear in Sacramento on behalf of suffrage, and at this session she was also a newspaper correspondent, with a desk assigned in the Assembly chamber. [53] A. The Foltz-Gordon Team Laura Gordon provided Clara Foltz a model in the art of lobbying, and later of political oratory. But her greatest gift was near perfect understanding, enhanced by the extraordinary events that joined their lives. There were few women anywhere like these two, while they were very like each other. Without fully appreciating their good fortune in meeting, they became friends immediately. Both wanted to be lawyers. In the mid-seventies, Gordon had been the publisher of a newspaper and had enjoyed local celebrity as the first "female newspaper editor in the world." But she had found the business a constant "hassle for money," and believed that the legal profession would offer a better living, a freer schedule and a more impressive platform from which to urge women's rights, and perhaps even to run for elective office.54 Both were talented orators. Gordon initiated her lecturing career on the Spiritualist circuit in the East, especially Pennsylvania which was her home. But since moving west in 1865, she had taken woman suffrage as her life's work. In 1868, she delivered the first public lecture in California on the subject.55 Both had recently failed marriages and were seeking to support themselves and their dependents. Gordon had no children, but was devoted to her parents whom she maintained at her farm in Lodi, where her sister and other family members also lived. She had divorced her husband, after twenty years of marriage, on the grounds of adultery, "realizing what anguish the heart can endure from the loss of those nearer and dearer than life."56 Partly because they were unprotected women, heads of their households, Clara Foltz and Laura Gordon were ambiguously connected to that ideal world of nurturance and tender feeling that nineteenth-century women were supposed to inhabit. Thus, although both tried to display the virtues associated with hearth and home, their male audience often treated them as pretenders to the domestic sphere: No women these such as our hearts enfold, Held of all men desirable and sweet . . . Rather such are meet To herd with them whose love is bought and sold, Whose passionless pulses to no purpose beat: For these have hearts as empty and as cold, And all their lives are like them; incomplete, Unfruitful and unbeautiful and bold. Except for its verse form, this was a quite standard denunciation of women activists--those who tell a "shallow tale of fancied wrongs." The poem appeared in a popular magazine at the moment that Foltz and Gordon were in Sacramento seeking admission to the bar and access to the ballot box.57 "Bold," whose meanings shade from brave through brazen, is the operative, final, most telling indictment. By any definition, it was bold to propose that women be lawyers and thus necessarily associate with men in an unprecedented way. Clara Foltz always tried to smooth the boldness over by arguing that knowledge of the law would enable women to be "the helpmeets of men," to meet on "a plane of common sympathy and thought," and would in fact make them "better wives and better mothers."58 In the 1870s, especially among women, she had few converts. Most hastened to dissociate themselves from a charge of boldness. "Everyone in those days seemed to 'hate a woman with a career,"' Foltz wrote, adding wistfully: "I wanted to be loved by women--and men too for that matter. At least, I craved their approval."59 The social disapproval Foltz and Gordon experienced was partly founded in class prejudice. Generally, it was still unusual to find suffragists among the cultured and well-educated women, or the wives of professional men, and certainly there were none among the rich ladies of fashion, the "smug highbrows" against whom Clara Foltz railed. Nor did these two women, in particular, have the connections to counter snobbery. Neither had married well. Gordon's husband practiced medicine but without much success, and in his later years there was a constant rumor that he was a quack. She was, moreover, from a working class family, one of nine children, and had attended only a few years of public school.60 Foltz wrote that her career caused her to be ostracized despite the fact that her "father's family had always moved with the best people." But this was back in Indiana, where Shortridges are prominent to this day. In 1878, the clan was not established in California. Her desire for social standing partially accounts for one of Clara Foltz's most characteristic statements: They called me the "lady lawyer", a pretty soubriquet which did much for me, for . . . I was bound to maintain a dainty manner as I browbeat my way through the marshes of ignorance and prejudice . . . Daintily browbeating her way was Clara Foltz's modus operandi.61 Laura Gordon more closely united mien and method. She was earnest and relentless, and spoke in a mode others found "Websterian." The comparison may have meant only that Gordon was impressive, rather than unusually plain and powerful in style. But no one described Foltz in similar terms. Her manner was decidedly not that of any man. Rather, reviewers stressed her feminine public persona, her warmth, her profound womanliness. One even declared, "there is nothing of the strong-minded woman about her." Foltz cloaked her force and ambition beneath graceful and disarming gestures.62 One revealing instance--in 1877, she tried to join a legal club for aspiring practitioners. Several members objected and she sat in the back, humiliated, while the men debated women's capacities and limitations. At the end she felt "actually afraid of those law students who had contemptuously ignored me." She contemplated slipping away, but instead stepped forward and congratulated an elected leader of the club, presenting him with a bouquet of roses she wore at her waist. Others then gathered around, and thus she conquered "their prejudices by pleasing compliment and tact."63 At the 1878 legislature, Foltz applied the full force of her personal magnetism to the countless individual appeals that lobbying involved. "I never knew," wrote one legislator, "how . . . a woman could plead for the privilege of making the battle of life . . . [so] gently and eloquently." The gentle Clara gave no inkling at the time of how outrageous she found the need for such persuasion: "Think of it! I had to beg . . . to be allowed to earn a living-- had to beg it as a privilege."64 In Lawyers, one of her most popular later lectures, Foltz ridiculed her opponents: Narrow-gauge statesmen grew as red as turkey gobblers . . . staid old grangers . . . delivered themselves of maiden speeches pregnant with eloquent nonsense. . . . Home and mother and prattling babes, and cooing doves and women's sphere . . . were dished up . . . as arguments against the rights of women!65 Appearing for women's rights was the team of Clara Foltz and Laura Gordon, who though no longer young, brought to the field youth's eagerness, idealism and righteousness. B. Passage of the Woman Lawyer's Bill Given that Foltz and Gordon were in no sense representative of many women burning to be lawyers, why was there enormous opposition to the bill? Why in this legislature especially, so hard pressed by the times and the approach of the Constitutional Convention, were precious hours spent debating whether these two odd women should have a chance to practice law? Today's reader might think that the opposition sprang from the wording of Foltz's bill, which simply replaced "white male" with "person" in the existing legislation, thus allowing Blacks, Mexicans and even Chinese to join the bar if they met the other qualifications of character, citizenship and residency. But in 1878 this was apparently not a realistic threat to the status quo. The debates referred only to the "Woman Lawyer's Bill."66 It was not a multi-racial bar that the legislators feared, but women's full participation in public life for which bar admission was a potent symbol and toward which it seemed a certain first step. Thus, in the foreground of the debate over the Woman Lawyer's Bill were the arguments against women voting, sometimes invoked regardless of fit. For instance, a powerful anti-suffrage image was the unwilling woman voter: most good women did not want to vote, but as exemplary citizens would feel compelled to do so. Obviously, the unwilling woman voter has no counterpart reluctant woman lawyer. Yet Foltz reported that legislators made much "of the great wrong to the women of California who did not desire to enter upon the law as a profession to thrust such a duty upon them." How many times did Clara Foltz explain to Captain M. or Colonel S. that his wife or daughter, so handsomely provided for, would not have to be a lawyer?67 On the other side, the best arguments for suffrage--those based on simple justice, such as no taxation without representation, and the entitlement of citizens--did not resonate so clearly as reasons for admitting women to law practice. Similarly unavailable to Foltz and Gordon was the promise that allowing women to be lawyers would gain added votes for farsighted legislators. But in larger terms, the two debates covered the same terrain and converged on the question of spheres. Here is where the "cooing doves" that so aggravated Folts played their part among the "preconceived ideas of the male superiority . . . beginning with the barnyard and from there to the forests and the wild beasts therein, all, all." Though Foltz wrote these lines thirty-two years after she won the right to practice law, they still echo her irritation at the rote, stylized quality of anti-women's rights polemic.68 As applied to the practicing of law, the discourse of spheres sounded like this in the California legislature of 1878: Pro: Some women never marry or lose their husbands (impliedly to death rather than to divorce; Foltz and Gordon both called themselves widows). They should be allowed to work in a noble, well-paying profession. Anti: These are peculiar, unnatural women. We should not legislate for or encourage their types. True women, even if unmarried, would not even want to leave the higher and finer sphere they by nature inhabit. Pro: God alone designates women's sphere and God surely intended that they be more than "hewers of wood and drawers of water." (This Biblical reference to slaves, often cropped up to demonstrate that women's sphere included hard labor.) In a free country women should be able to do whatever they have the God-given talents to do. Anti: The lawyer must be bold and aggressive and often deals with sordid human dramas and life's basest motivations. Women would be un-sexed by practicing law. Pro: Women are the experts on life and death, naturally equipped to deal with the harshest realities. The fact is that some women will be better suited than some men to the profession. It is unmanly to oppose women because of fear of competition. The Woman Lawyer's Bill passed the Senate easily, but in the Assembly it won only when five votes shifted upon a motion for reconsideration. But the reconsideration came at the end of the session, and bills more important to the men who passed them vied for the governor's signature. Foltz and Gordon made dramatic last-minute appeals, and according to suffragist lore, it was only in the closing moments of this historic legislature that women were empowered to practice law.69 Today the Woman Lawyer's Bill stands as a landmark in the history of women's professional progress. As one of the earliest statutes of its kind, and probably the first to emerge entirely from the legislative process (rather than being a response to a court refusal of bar admission), the California bill arguably involved a liberal recognition of women's capabilities.70 On the other hand, most of the impetus for its passage was a simple human response to the supplications of two earnest women and their allies: an uncomplicated act of courtesy, rising perhaps to "gallantry" as one newspaper put the motive for Senate passage. Yet within a year this personal triumph would gain constitutional dimensions. An unbroken chain of events stretched from the passage of the Woman Lawyer's Bill to the enactment of the sections guaranteeing women access to education and employment. The strongest of its links is the friendship forged between Clara Foltz and Laura Gordon at the 1878 legislature. III. CHOOSING DELEGATES "A political campaign in this luminous age without the dipping of an oar by the women would be a very uninteresting affair . . . ." Clara Foltz, July 187871 Despite arguments that the times were too agitated for creating organic law, that his own Democratic party would suffer against the Kearneyites in any election, and that only the federal government could set Chinese immigration policy, the Governor approved the bill implementing a constitutional convention. He waited until March 30, the very end of the historic 1878 legislature. The election of delegates was set for mid-June. "I tell you the good God, Majority, means mischief," warned the state's chief curmudgeon Ambrose Bierce; it was an irresistible moment for anyone with political hopes.72 A. The Women From San Jose, Clara Foltz wrote in early May to Laura Gordon in phrases bristling with ungrammatical optimism and energy: I am confident we can get some action . . . in the Convention. . . . You and my humble self will make a good team . . . . If the Cal Suffragists will give us money enough and let you and I stump the state we will carry the question beyond the possibility of a defeat.73 Several weeks later she wrote to her suffrage friends in Oregon that the Convention was a great opportunity, if only women and "liberal minded men" would "see and improve it." One of her plans was a speaking tour after the election to impress the delegates as they left for Sacramento; already letters were out to "raise means to stump the state."74 Before there had been any real response to the fund-raising pleas, Laura Gordon had a different idea for promoting the cause. With about ten days left before the election, she decided to run for Convention delegate from San Joaquin County. No woman could vote for her, but no law explicitly prevented Gordon from standing for or serving in the office.75 She telegraphed for help to Clara Foltz, who took the next morning's train for "the scene of the conflict." Alacrity aside, Foltz had not envisioned actual campaigning when she talked of "stump speaking." She had seen her father canvass for Abraham Lincoln and knew the peculiar intensity of political crowds when votes were at stake. It both attracted and unnerved her.76 Her fears quickly faded, however, and after the election (but before the returns were in), she wrote again to her Oregon friends. Reporting triumphantly that Gordon and she had met "large," "delighted" and "respectful" audiences throughout the county, she concluded that "great good and no harm has been done in the agitation of woman's inherent right to assist in framing the organic law . . . . [W]e will not despair, even should we be defeated." With her perpetual optimism fed by large attentive audiences, Foltz treated the certain defeat hypothetically. But victory had never been an incentive; they set out, as Gordon said from the first, to "scare the politicians and have some fun." And Clara Foltz added "we have admirably succeeded in both."77 In a somewhat anxious tone, Foltz maintained throughout the letter that they had done no harm to the cause and repeatedly intimated that the campaign had been dignified. Yet in the public eye it was not just dignity, but virtue that was at stake when women stepped into the "filthy pool" of politics. Opponents argued that active participation in public life--such as campaigning for their own election or even voting--would corrupt and unsex women. Over time, Foltz had developed a number of stock answers to the "filthy pool" argument in her lectures. She often contended that women would purify politics, rather than politics defiling women, and sometimes she added with a hint of mockery that if men were unfit for women's companionship in the political domain, they were unfit elsewhere also. But even the best-crafted arguments could not reach the visceral objections to women campaigning. These were based in the special relation between speaker and audience--in the politician's supplications and manipulations. Many people found this kind of speech simply improper for women; others feared that women would be so naturally good at it that they would corrupt the process.78 But Gordon's late entry into this special election did not allow time for such animosity to gather. Instead of fostering objections, the irregularity of the whole process only added to its novelty and interest, which held through the brief campaign. Audiences already primed by weeks of political oratory were ready for va