The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
The Nineteenth AmendmentBy Nancy Gertner and Gail Heriot
In the early days of the Republic, states typically limited the right to vote to “freeholders”—defined as persons who owned land worth a certain amount of money. It was thought that, among other things, property-less individuals had no stake in the community or might be inclined to vote for profligate spending, since they were not subject to property taxes. Still, land was cheap, and the qualification level was usually set low, so a large majority of free, adult males could vote.
It is easy to slip into believing that if white men’s voting rights were limited, voting rights for women and racial minorities must have been utterly unthinkable. But the truth is more complex. Most blacks were slaves, owned by their white masters, and could not vote. Several states, however, allowed otherwise-qualified, free blacks to vote. Most women couldn’t vote. But in a significant number of locations, otherwise-qualified women voted in local elections and town meetings. New Jersey was perhaps the most interesting case for women. The 1776 New Jersey constitution provided that “all inhabitants” of legal age who met the property and residency requirements were entitled to vote. It is unclear whether this was originally intended to include women. But a 1790 state election law used the phrase “he or she,” thus clarifying the law.
Alas, New Jersey’s early experiment with women’s suffrage didn’t last.After a few hotly contested elections in which rampant voter fraud was alleged, there were calls to tighten voter qualifications. In 1807, amid allegations that men dressed as women had been going to the polls to cast a second ballot, the right of women to vote in New Jersey was withdrawn. If there was much opposition to this act of disfranchisement, history has failed to record it.
Over the course of the next few decades, property qualifications for men were gradually eliminated, with the notable exception of Rhode Island, which did not eliminate property qualifications for foreign-born citizens until 1888. The country as a whole was on the path toward universal manhood suffrage. In contrast, women’s suffrage was rarely taken seriously. An exception was Elizabeth Cady Stanton who, at the historic Seneca Falls Convention in 1848, sought to propose a resolution stating, “Resolved, that it is the duty of the women of this country to secure to themselves their sacred right to the elective franchise.” Lucretia Mott counseled against it, telling her, “Why Lizzie, thee will make us ridiculous.”
That does not mean that women’s issues were wholly neglected in the first half of the nineteenth century. Instead, reformers focused on securing for married women the right to own and control property independently of their husbands, to enter into contracts and to sue and be sued—precious rights single women already had. Prior to Seneca Falls, the movement had achieved success in Mississippi, Maryland, Michigan, and Arkansas. The celebrated New York Married Women’s Property Act had passed a few months before the convention.
Despite Mott’s misgivings, Stanton introduced her resolution at Seneca Falls, and it passed (albeit by only a small majority). As Stanton put it, “I persisted, for I saw clearly that the power to make laws was the right through which all other rights could be secured.”
Not much progress was made during the years immediately before and after the Civil War. The country was occupied with other things— including the passage and ratification of the Reconstruction Amendments, which attempted to secure the rights of the recently-freed slaves. But the election of 1872—the first Presidential election since the ratification of the Fifteenth Amendment—was a call to action for some. Susan B. Anthony among others argued that the recently-ratified Fourteenth Amendment’s Privileges or Immunities Clause gave all women the right to vote. Women had always been citizens; when the Fourteenth Amendment made it clear that no citizen should be denied the privileges and immunities of citizenship, that conferred on women the right to vote, she argued.
When Anthony tried to vote, to her surprise, she was permitted to do so. Her victory was, however, short-lived. Two weeks after the election she was arrested for illegal voting. Despite her argument about the significance of the Fourteenth Amendment, she was convicted. Meanwhile, in Missouri, Virginia Minor had also attempted to register to vote, but had been refused. She launched her own lawsuit also citing the Fourteenth Amendment. In Minor v. Happersett, 88 U.S. 162 (1875), the Supreme Court rejected the argument, holding that while women were citizens within the meaning of the Fourteenth Amendment, citizenship alone did not confer the right to vote.
At that point, the women’s suffrage movement changed its strategy and began to advocate a constitutional amendment specifically focused on a woman’s right to vote.
Out on the western frontier, however, the movement was succeeding at the territorial level. The Wyoming Territory’s constitution was the first to guarantee women the right to vote.
When Wyoming applied for statehood, Congress initially balked. But the Wyoming legislature stood its ground and cabled back to Congressional leaders, “We will remain out of the Union one hundred years rather than come in without the women.” Congress eventually relented, and before the turn of the century, there were four women’s suffrage states—Wyoming, Utah, Colorado, and Idaho.
Members of Congress who worried Wyoming’s example would be difficult for other states to resist were right. After a number of false starts, the Nineteenth Amendment, with language modeled after the Fifteenth Amendment, passed the U.S. House of Representatives on May 21, 1919, and the Senate two weeks later. By then, fifteen states provided full voting rights to women, including New York and Michigan. Another group gave them partial voting rights (such as the right to vote in municipal elections or primaries). Only seven states barred women from voting entirely.
Ratification was nevertheless hard fought. Tennessee was the state that put the Amendment over the top in a 49-47 nail-biter vote in the Tennessee House of Representatives. The decisive vote was cast by 24-year old Harry Burn, who had intended to vote against, until he received his mother’s letter urging him to “be a good boy” and vote for ratification.
The individually-authored essays in this series are supposed to point out the disagreements in interpretation. But perhaps the most remarkable thing about the Nineteenth Amendment is how relatively non-controversial it has been. Apart from the quixotic effort to nullify its ratification in Leser v. Garnett, 258 U.S. 130 (1922), things have been quite tranquil. We revere those who worked hard to make it possible, but little time is spent worrying about how it should be interpreted.
Perhaps that shouldn’t be surprising. Adding women hugely expanded the electorate. A funny thing happens when new voters come along: Politicians start caring about their views. When politicians see that roughly half their constituents are women, they start caring immensely.
Matters of Debate
Nancy Gertner Senior Lecturer on Law, Harvard Law School; and Former Judge on the U.S. District Court of Massachusetts
What the Fourteenth and Nineteenth Amendments Changed for Women
There has been little disagreement about the meaning of the Nineteenth Amendment itself. But some scholars have argued that the history surrounding the passage of the Nineteenth Amendment should be applied to the interpretation of equal protection in the Fourteenth.Full Text
Gail Heriot Professor of Law, University of San Diego School of Law
Did the Nineteenth Amendment Modify the Fourteenth?
The Nineteenth Amendment is relatively straightforward. It states that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”Full Text