Swamp Water Jurisprudence: When husbands ‘owned’ their wives


by Judge Dennis Challeen

If you told your daughter that when this country was founded, women were not allowed to vote, that they were considered property of their husband, couldn’t own property in their own right, and were considered second-class citizens — she wouldn’t believe you. In those days, the rights of citizens applied only to “white men who owned property.”

We had just gained our independence from Britain, ruled by a king and a parliament who treated Americans as a distant colony, with only the few rights they granted us. They taxed us but we had no right of representation to determine why, how much, or where this money went. British customs inspectors entered people’s homes and ransacked their belongings to collect these taxes.

Fifty-five “white propertied men,” from the 13 original colonies, met in Philadelphia in the summer of 1787 to create a new government. After much wrangling, arguing and compromising, they put together the Constitution of the United States. This document was remarkable as a totally new concept of self-government, but deeply flawed. It rightfully claimed what our government could do and it reserved all the remaining powers to the people; but it failed to specify what the government could not do. A Bill of Rights was discussed but wasn’t part of the original Constitution. These rights came later (1791).

Americans wanted freedoms of speech, press, religion and to be free from warrantless searches and seizures. The government should not tell its citizens how to live their lives.


The Constitution reflected the thinking of the times, omitting whole groups of people: women, slaves and Native Americans (who were considered alien in their own land). These omissions proved costly; we fought a bloody Civil War and lost almost a whole generation of young men in the fight to abolish slavery. (African American men gained the right to vote, but not women.) It took women almost 130 years to obtain the right to vote and to be considered equal to men. It took 135 years before Native Americans were finally granted citizenship.

Every day we read about our rights being questioned. When I was a judge I would often hear accused and litigants complaining that the police, the government, the ever present “they” were violating “their” constitutional rights. I often wondered to myself whether these people had the slightest idea how, when and where these rights came from, and whether they understood “their” rights came with limitations and responsibilities.

We have freedom of speech but we cannot stand on our porch and scream our opinions, or insult and annoy our neighbors (disorderly conduct). We cannot say untrue derogatory statements about people we don’t like (slander). We have the right to practice any religion we choose but we can’t interfere with what others choose to believe or not believe (freedom of — or from — religion.)

We have the right to write and publish what we think and try to persuade others how wise and intelligent we are and we can publish stupid things as long as they’re opinions; not untrue derogatory accusations about another (libel). We have the right to peacefully assemble and protest against our government as long as we don’t destroy property of others. We have the right to be safe and secure in our homes and not to be subject to search and seizures unless ordered by a search warrant from a court. We have the right of privacy to be left alone and the right to bear arms (originally meant for militia, now expanded to self-defense). We cannot be deprived of life, liberty, or property without due process (meaning a fair and impartial trial with all its safeguards). We cannot be tried twice for the same crime (double jeopardy) or compelled to be a witness against ourselves.

The founders understood that majority rule had its dangers, that minorities had rights that should not be trampled upon or taken away by the majority in a free democracy. And they created the Bill of Rights to guarantee certain individual liberties and place specific restrictions on the powers of government.

The handwritten Constitution and the Bill of Rights exist today in the National Archives in Washington, D.C., but they apply to all Americans, so the next time you drive by the county courthouse look up; that’s where your rights are protected. Every judge when sworn into office takes an oath to uphold our national and state constitutions.

It’s not always easy. Sometimes judges have to rule in favor of unpopular causes, or rule a defendant’s confession is inadmissible in a trial because it was obtained in violation of that person’s constitutional rights, meaning a jury would never hear the confession, and maybe a guilty person would go free. Our founders knew confessions are not always reliable if coerced, or if spoken by the mentally deficient.

The Innocence Project, using modern DNA testing, found 37 of 349 people who had pleaded guilty, for complex and varied reasons, to crimes they did not or could not have committed; 20 had served time on death row before being exonerated.


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