On March 29, 1875, in the case of Minor v. Happersett, the Supreme Court rejected to claim of Virginia Minor that under the 14th Amendment’s “Privileges or Immunities Clause,” she had the right to vote.
Minor was a women’s suffrage leader in Missouri, as she had been a leading member of St. Louis’s Ladies’ Union Aid Society during the Civil War and in 1867, co-founded and became president of the Women’s Suffrage Association of Missouri. She was married to Francis Minor, a lawyer and leading male ally of suffrage. As Susan B. Anthony put it upon his death in 1892, “No man has contributed to the woman suffrage movement so much valuable constitutional argument and proof as Mr. Minor.”
At the 1869 Women’s Suffrage Convention in St. Louis held shortly after the passage of the 14th amendment, Virginia Minor argued that "the Constitution of the United States gives me every right and privilege to which every other citizen is entitled." This was a reference to the “Privileges or Immunities Clause” of the amendment, which stated: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Francis and Virginia Minor subsequently drafted a pamphlet along with a set of resolutions asserting that section one of the 14th Amendment, which they said made no reference to sex or gender but only "citizens" and "persons," and thus granted women the right to vote nationally. They not only called on women to vote, but to oppose the passage of the 15th amendment, since it did not recognize women’s suffrage.
Three years later on October 15, 1872, as part of a national civil disobedience effort in which hundreds of women attempted to vote, Virginia Minor went to the Old Courthouse in St. Louis, where the Dred Scott case was argued in 1846 and 1850, to register to vote. After Reese Happersett, the register, refused to allow her to do so, Francis filed a lawsuit to test their understanding of the 14th amendment. His legal team included John Henderson, author of the 13th Amendment.
The Missouri Supreme Court dismissed Minor’s claim in a brief opinion, noting that, “That the different States of the Union had a right, previous to the adoption of what is known as the 14th Amendment to the Constitution of the United States, to limit the right to vote at election by their Constitutions and laws to the male sex, I think cannot at this day be questioned.” Thus, a conflict between the state law and Constitution did not exist. The clear intent of the 14th amendment was strictly to “compel the former slave States to give these freedmen the right of suffrage, and to give them all of the rights of other citizens of the respective States, and thus make them ‘equal with other citizens before the law.’” It did not affect state laws limiting the vote to male citizens.
The Supreme Court agreed. The unanimous opinion written by Chief Justice Morrison Waite rejected the argument that the right to vote was among the “Privileges or Immunities” of United States citizenship protected by the 14th Amendment. “Citizen,” he said, was interchangeable with “subject” and “inhabitant” but at the time of the founding, in state and the national constitution, “citizen” was usually employed. Thus, it merely referred to membership of the nation-state and “nothing more.”
Under Congressional naturalization acts going back to 1790 and 1804, alien women and minors could become naturalized citizens when the male head of the household became naturalized himself. This would not have been done, Waite suggested, unless native women and minors were already citizens themselves—the right to citizenship of women had long been assumed. It could not follow the Court reasoned that all citizens were presumptively voters. Further, the 14th Amendment could not have made Minor a voter as a result of her citizenship, since she had “always been a citizen from her birth and entitled to all the privileges and immunities of citizenship” and the 14th amendment merely prohibited the state of which she was a citizen from abridging any of her privileges and immunities as a citizen of the United States—it did not confer citizenship.
The Court, following from the Slaughterhouse Cases decision two years earlier, understood “Privileges or Immunities” to be a narrower set of rights of national citizenship that did not include suffrage. The 14th Amendment broadened citizenship, but not the meaning of “Privileges or Immunities.” Rather, the amendment “simply furnished an additional guaranty for the protection of such as (citizens) already had.” As evidence, Waite and the Court pointed to the history of early state constitutions and stated that no state constitutions drafted during the Revolution granted universal suffrage for all citizens. Finally, the Court suggested if suffrage was a “privilege or immunity,” then under Article IV’s “Privileges and Immunities” provision, citizens of each state must be entitled to vote in all states in the same capacity.
As a result of Minor, along with other cases of suffragists who attempted to vote like Susan B. Anthony, the suffragist movement turned away from the courts and began the push for a constitutional amendment recognizing the right of women to vote. Their efforts would not be realized until the ratification of the 19th Amendment in August 1920.
Further Reading:
Katherine T. Corbert, In Her Place: A Guide to St. Louis Women’s History (1999)
Monia Cook Morris, "The History of Woman Suffrage in Missouri, 1867-1901." v. 25, no. 1 (October 1930).
Angela G. Ray, “Inventing Citizens, Imagining Gender Justice: The Suffrage Rhetoric of Virginia and Francis Minor,” Quarterly Journal of Speech (2007) https://www.tandfonline.com/doi/abs/10.1080/00335630701449340
“Virginia Minor and Women's Right to Vote.” National Parks Service. U.S. Department of the Interior. Accessed March 30, 2020. https://www.nps.gov/jeff/learn/historyculture/the-virginia-minor-case.htm.
Nicholas Mosvick is a Senior Fellow for Constitutional Content at the National Constitution Center.
