Thursday, September 29, 2011

Reid, The Devil Comes to Kansas: A Story of Free Love and the Law

The Devil Comes to Kansas: A Story of Free Love and the Law has been posted by Charles J. Reid Jr., University of St. Thomas School of Law (Minnesota).  Here's the abstract:
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.

The Kansas Supreme Court, which ruled on the appeal of their convictions, was, in contrast, a deeply conservative and Christian group of men who were publicly known for their religious fidelity and who brought their religious feelings to bear in the case.

Thanks to the survival of both a substantial body of newspapers and the personal papers of the three justices who ruled on the appeal, it is possible to reconstruct a vivid account of this first skirmish in the American culture wars.

2 comments:

zanet said...

May I translate and reproduce in my blog with reference to the author and links parts of the paper?

Mary L. Dudziak said...

Hi, Zanet. Blogs often post SSRN abstracts with links to the paper. If you want to go beyond that and translate and post anything from the paper itself, contact the author to ask permission. To get an author email, click on the article title to get to the abstract on SSRN. Then click on the author's name. That will get you to a page with author contact info.