[We are postponing the Weekend Roundup until later today for this appreciation of Norma Basch, Professor Emerita Rutgers University-Newark, by Sarah Barringer Gordon, Arlin M. Adams Professor of Law and Professor of History, University of Pennsylvania. We're grateful to Professor Gordon for this very thoughtful post and for word of a memorial service for Professor Basch, which will be held at 2 p.m., Sunday, October 25, at the Village Temple, 33 E 12th St, New York. There will also be a book at the Studies in Legal History book table at the ASLH meeting, where those who wish to can include their remembrances of Norma and condolences for her family.]
Norma Basch, a founder of the modern field of legal history and professor of history at Rutgers University-Newark for 25 years, from 1979 to 2004, and a regular at the NYU Legal History Colloquium since the 1980s, died on September 29 at the age of 81. She was the author of field-defining work in legal history, including In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York (Ithaca: Cornell University Press, 1982) and Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999). She was also a fine essayist and reviewer, serving for many years on the Journal of American History editorial board, and contributing frequently to Reviews in American History, as well as publishing more than thirty articles, comments, and book reviews in leading peer-reviewed journals. Last but not least, Norma was a friend and mentor to many of us in the field of legal history. She was generous with her time, and had a wry wit that delighted her friends and interlocutors.
Basch began her academic career in 1979, with an article in Feminist Studies titled “Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America.” The law of marriage became her central focus, and in this first article she debuted the sharp and articulate style of writing that became her hallmark: “If the legal oneness of the husband and wife was a common law axiom, the legal invisibility of the wife was its corollary.” (p. 347). When In the Eyes of the Law was published three years later to great acclaim, it became clear that Basch understood how the common law rule of marital unity could survive the passage of New York’s 1848 Married Women’s Property Act. The essential conservatism of the law (and those who administered it) was to blame, as the law did not address directly core doctrines of the common law of coverture, and courts held those doctrines survived the legislation. Thus Basch successfully challenged Mary Beard’s 1946 classic Woman as a Force in History, showing that Beard’s emphasis on equity law as a refuge for married women elided the all important survival of marital unity, which sharply limited the scope and sweep of equity jurisprudence. And yet, as Basch shows, a shift did occur, even though the revolution was stopped at the courthouse door. In political culture, subtle changes shifted the conversation toward concepts of equality as a way of thinking about women and the state – the early woman’s rights movement, for example, marked the passage of the property act as a significant advance.
Basch’s second book, Framing American Divorce, was a pathbreaking vision of how to do legal history. In three separate sections (titled rules, mediations, and representations), Basch first explored the complex and fascinating ways that divorce in the first century of American national history was intimately linked to the Declaration of Independence, which "at once explained, decreed, and sanctified a divorce from the bonds of empire; and from the bonds of empire to the bonds of matrimony, it was but a short conceptual step." (p. 25) In careful case studies of the very different legal regimes in New York and Indiana, moreover, Basch showed how deeply divorce was tied to assertions of state power over marriage, in addition to the expression of traditional male as well as nascent female authority within marriage. The deep political and legal debates over divorce, in other words, did not fit neatly into a feminist or patriarchal mold. All too frequently, a wife initiated divorce proceedings not to protect themselves from their husbands, but to formalize her husband’s informal desertion of her. And finally, she explores popular culture, including trial pamphlets and fiction that pulled in different directions, respectively increasing the visibility and desirability of liberal divorce and raising the tone of shame and defeat associated with it. This creative and sophisticated exploration of divorce in multiple settings across time integrated in fresh and lasting ways the study of divorce as both a cultural and social matter, as well as a legal process.
One particularly notable outgrowth of this second project is a 1993 article in the Journal of American History on the complex divorce of President Andrew Jackson’s wife Rachel from her first husband, and the role that the story of the bungled divorce played in the bitter partisan politics of the 1828 presidential election. Desertion, seduction, and adultery, Basch showed, played well in an atmosphere of increased voter participation and the growth of party organizations, especially given the proliferation of newspapers. As Basch elegantly described the mix, the 1828 election was a “journalistic and political watershed,” combined with an early and powerful example of “organized manipulation of a sexual scandal.” (p. 892) As supporters of the two candidates fought over whether Rachel and Andrew Jackson were licentious and unprincipled (and thus Jackson was unfit for public office, per the Adamsites), or the “domestic peace” and privacy of the generous and genuine Old Hickory had been unduly invaded and his wife driven to an early grave (per the Jacksonites). The success of the hero of New Orleans, Basch cautions, should not be interpreted simply, but rather as a tale of the gradual erosion of the metaphorical association between household and polity, to note just one of several important insights Basch draws from the story.
Thus Basch leaves a powerful legacy of sharp prose, careful research, and keen analysis of women’s lives and legal experience in the nineteenth century. She will be greatly missed.
