Kathleen S. Sullivan argues that the common law is a misunderstood and underappreciated aspect of the American legal and political tradition. According to the author, the English common law not only is the original, historical foundation for the U.S. legal system but also serves as a normative model for how law should be reformed. In her view, the common law provides a community-oriented and contextually sensitive approach to legal reform. As such, it can serve as a corrective to the abstract individualism of the liberal approach to legal reform that eventually came to dominate politics in the United States.

The common law approach, in Sullivan's view, provides a more practical and realistic approach to legal reform than its liberal alternative. She argues that while liberalism is blind to the reality of social status, the common law tradition accepts status as the starting point for legal inquiry and reform. (Although a formal definition of “status” is never supplied in the book, Sullivan's use of the term seems to fit Ronald H. Graveson's definition in Status in the Common Law [1953].) In the concluding words of the book, she states that “the common law opens up the opportunity for engagement in constitutional matters from the place of one's status so that one can be sure that reform acts upon that status rather than upon a fictionalized subject” (p. 152). The danger of the liberal approach to legal reform, for Sullivan, is that it obscures the reality of one's legally prescribed social status by promoting a fictional understanding of the self as a lone, independent, contract maker and rights bearer. She contends that legal reform should begin with a realistic understanding of the way that law shapes the status of individuals, rather than with an inflated sense of individuals' ability to make law to suit their interests or change their status.

Sullivan uses this normative framework to make a counterfactual argument about the nineteenth-century American women's rights movement: If it had employed a common law approach, rather than a liberal approach to the reform of women's subjugated status, it could have brought about women's rights in a more equitable, stable, sustainable, and even more democratic fashion. For example, she argues that “[m]arried women's gradual liberation from their common-law status could have occurred through the doctrine of equality or through the common law's companion, equity, which traditionally offered exceptions to the hardships of the common law” (p. 4, emphasis added).

It certainly is bold of Sullivan—a scholar of American political development (APD)—to put a counterfactual argument at the core of her first book. The standard methodology of APD is to begin with the history of a particular set of legal and political institutions. The APD scholar then uses this historical evidence to deductively and inductively develop an explanatory theory of why and how a set of institutions has evolved in a period of U.S. history. Sullivan's counterfactual approach to her topic does begin with a brief history of the common law and its rival, the legal codification movement, in America (pp. 21–44). She uses this “real” history merely as a starting point for her normative defense of the common law approach to the legal reform of women's status. Consequently, Constitutional Context begins in the field of APD but ends up in the field of normative, feminist political theory. Walking the line between the empirical analysis of political institutions and the normative critique of them, the author unfortunately fails to support either the historical or the normative claims of the book.

Sullivan's feminist defense of the common law approach is counterfactual because, as she acknowledges, this approach has not in fact served as a liberating force for women's rights, whether in the nineteenth century or any other period of U.S. history. Indeed, she states early in the book that certain common law practices (such as coverture) enforced “women's subjugation” to men (p. 15). Even equity—the only common law practice for which there is any evidence of its actual or potential relevance to the promotion of women's rights—was irrelevant to the vast majority of married women under coverture (p. 15). (Although Sullivan does not formally define “equity,” which would have been helpful given the concept's complex and contested history in Anglo-American law, she implies that it is the fair judicial amelioration of the severity of the common law [pp. 4, 14–15].) While judges in the colonial era sometimes used the concept of equity to extend limited property rights to a few rich, married women, equity never emerged in American legal practice as a means for the promotion of women's rights in general. Sullivan nonetheless paradoxically persists in asserting the power of the common law and equity to institutionalize women's rights, despite the historical record.

Even more paradoxically, given the counterfactual thesis at the heart of her book, Sullivan berates the nineteenth-century women suffragists for indulging in useful political fictions. The suffragists, in her view, crafted a false narrative of how the married women's property acts dealt a “deathblow” to coverture in the mid-nineteenth century (p. 70). According to the suffragists, these state-level legislative acts enabled some married women in the United States to own property and run businesses, which in turn illustrated women's desert of further civil and political rights (pp. 67–89). While this story helped paint the women's rights movement as an inevitable triumph and give credibility to the suffrage cause, it obscured the truth of the matter: The married women's property acts did not kill coverture. To paraphrase Mark Twain, rumors of its death were largely exaggerated. In a compelling yet unsatisfyingly brief section of her book, Sullivan reveals how various aspects of coverture—including married women's lack of a say in where their families lived—remained in force in most states throughout the nineteenth century (pp. 93–111). She argues that these aspects of coverture stayed in place due to judges' common law interpretations of state and federal legislation, as well as the collaboration of courts and legislatures in maintaining women's subjugated status.

Sullivan uses this too-short historical account of the legal evolution of women's rights within marriage to criticize the liberal ideology of the women suffragists as ahistorical and disconnected from the law and politics of the era. She writes: “Both legislatures and courts in the late nineteenth century operated with a view of rights and status that cannot be captured, or hardly recognized, by the woman suffragist version of liberalism” (p. 95). It is puzzling from any feminist perspective that she thinks the “woman suffragist version of liberalism” was flawed because it challenged the worldview and political institutions of the male judges and legislators who kept the patriarchal status regime in place. I would argue that the “woman suffragist version of liberalism” was successful at reform precisely because it was visionary—it aimed to transcend the current limitations of law in order to establish a more egalitarian society through the law. If indeed “[c]ommon-law liberty provided a model for deriving rights affixed to status and adapting to circumstances … and for ameliorating conditions through the equitable adjustment of common-law rules” (p. 95), then why did not the common law approach actually bring about women's rights more effectively than the liberal, suffragist approach? The remarkable political success of the suffrage movement at the turn of twentieth century cannot be ignored; 76 self-governing countries gave women the vote at the national level between 1893 and 1948. While the achievement of women's suffrage has not proven to be the deathblow to patriarchy, it has paved the way for women in democracies to enjoy and exercise more rights and freedoms. In contrast, what did the common law do for women—beyond erase their legal identity within marriage for nearly 300 years of American history?

It is not surprising that Nancy Isenberg (“Constitutional Context: Women and Rights Discourse in Nineteenth-Century America,” Law and History Review 28 [Summer 2008]: 446–48) and Ann D. Gordon (“Constitutional Context: Women and Rights Discourse in Nineteenth-Century America,” Journal of American History 94 [December 2007]: 927–28)—two of the leading historians of women in the nineteenth-century United States—have found Sullivan's book problematic, given the counterfactual nature of its core thesis. They concur that the book's argument lacks adequate support from primary sources, and thus is prone to overgeneralization. For example, the American women's suffrage movement is consistently reduced to a handful of writings by Elizabeth Cady Stanton. In particular, Sullivan overrelies on the History of Woman Suffrage (coedited by Stanton, Susan B. Anthony, and Matilda Joslyn Gage between 1881 and 1922) and Stanton's 1892 speech “The Solitude of Self” as authoritative sources for generalizing about the liberal ideology of the women's suffrage cause (e.g., pp. 70, 73, 145–47). She does not address the textual complexity of the five-volume, multiauthored History of Woman Suffrage; rather, she treats it as a univocal source for what she presents as Stanton's and the other women suffragists' monolithic critique of coverture (pp. 81–82).

Sullivan's tendency to rely on one or two authors or texts to represent wide-ranging and diverse schools of thought also led her to overstate the political influence of these authors or texts, while understating the importance of others. In her discussion of the Grimké sisters as representatives of the broader abolition movement, Sullivan contends that the “theories of human dignity and agency that they developed are those on which today's civil-libertarian doctrine depends” (p. 59). While the recognition of the philosophical impact of the Grimkés on subsequent liberal rights discourse is welcome, what is lacking is any note of the impact of Enlightenment rights discourse and radical Christian political theology on the Grimkés and other abolitionists of the period. In defending the foundational place of the common law in American politics, the book downplays the impact of Enlightenment rights discourse on the evolution of American liberal democracy. Citing a 1978 book by J. R. Pole, Sullivan argues that revolutionary-era Americans would have interpreted the Declaration of Independence in terms of the common law more so than natural rights discourse (p. 74). No primary sources are cited to support this claim; even a cursory look at the major revolutionary writings and speeches of the period—by Abigail, John, and Samuel Adams, Mercy Otis Warren, Thomas Paine, Patrick Henry, or Jefferson himself—at least suggest the salience, if not the saturation, of natural rights discourse in this era.

Constitutional Context has rich and important historical subject matter: The legal and political story of how married women came to have contract rights in the United States alongside their husbands, and how the development of such rights affected the broader American movement for women's rights and suffrage. Because she chose to focus on critiquing the women suffragists for not utilizing the common law as a resource for their reformist activism, Sullivan unfortunately missed the real scholarly opportunity that lay before her: The authorship of a detailed history of the case law and politics surrounding the gradual dismantling of coverture and related civil disabilities for women in the United States. Such a book needs to be written so that we better understand the historical development of women's rights in American politics.