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men dressed as women had been going to the polls to cast a second ballot, the right of women to vote in New Jersey was withdrawn.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.
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.” It then gives Congress the power to enforce that guarantee by “appropriate legislation.” Not surprisingly, the Amendment has generated little in the way of controversy in the courts.
Some scholars, like Yale law professor Reva Siegel, have suggested novel arguments as to how the Nineteenth Amendment can be used to influence the law beyond its text (and beyond the issue of voting). Novelty is considered a virtue in scholarly writing. But it is not usually a virtue when it comes to actual interpretations of the Constitution by the courts.
The United States is a federal republic. Its Constitution lays out the institutional framework by which decisions are to be made at the national and state levels. Particularly through its amendments, it protects individuals from government overreach by drawing lines beyond which its national and state governments may not go. But as a governing document, the Constitution derives its legitimacy from the fact that it has been agreed to by the nation’s citizens through their elected representatives. A truly “novel” interpretation—one that is neither embedded in the text as it was understood at the time nor logically deduced from the text—is thus illegitimate, because it was not agreed to. This is especially so when an interpretation reduces the power of voters to resolve issues by the processes of representative democracy and places that power in the hands of the courts instead.
Siegel’s argument is that the reasons the Nineteenth Amendment was passed should influence how we interpret the Fourteenth Amendment. In particular, Siegel points to two arguments sometimes advanced by the Amendment’s opponents: (1) that women’s suffrage was incompatible with the institution of the family as the most elemental unit of governance and hence an attack on it; and (2) that issues of suffrage should be left to the states. Siegel argues that the ratification of the Nineteenth Amendment was a rejection of those arguments and an acknowledgement that the family can and does work injustices on women that need to be addressed and that the federal government should have a broad role in addressing those concerns. Certainly not everyone will agree with her that the Nineteenth Amendment’s adoption implicitly acknowledged those points. But she goes further by arguing that this supposed acknowledgement has constitutional significance: The rest of the Constitution—in particular the Fourteenth Amendment’s Equal Protection Clause—should be read in light of it.
What does she mean by that? As I interpret Siegel, she means two things, one of which would probably be quite limited in its effect and the other of which could potentially be quite radical. First, Siegel believes that interpreting the Fourteenth Amendment’s Equal Protection Clause in light of the Nineteenth Amendment would put the Supreme Court’s already-existing case law on sex discrimination on a stronger historical footing than it would otherwise be. It is generally acknowledged that while the framers and ratifiers of the Fourteenth Amendment intentionally used very general language for the Equal Protection Clause, their primary concern was with race discrimination. Siegel argues that the Nineteenth Amendment can be seen as justifying the Supreme Court’s decision in cases like Craig v. Boren (1976) to make sex a special (though more limited) concern of the Equal Protection Clause.
This essay is part of a discussion about the Nineteenth Amendment with Nancy Gertner, Senior Lecturer on Law, Harvard Law School; and Former Judge on the U.S. District Court of Massachusetts. Read the full discussion here.
Second, Siegel contends that the arguments for the Nineteenth Amendment authorize the courts to go beyond formal equality under the law and instead allow the federal government (presumably by either Congress or the courts) to re-shape state law as it applies to family so as to make it more favorable to women. Put differently, Siegel’s approach would allow courts to do more than just strike down laws that are not “sex-neutral” laws. They could strike down laws that apply equally to men and women if women are somehow disadvantaged by them relative to men.
How far could this be taken? That is unclear. Consider, for example, the fact that mothers are more likely to be the custodial parent of a child than fathers. Could a federal court make itself the arbiter of whether the child support formula used by a state is sufficiently generous, even if the formula is formally sex-neutral? Could it make itself the arbiter of whether a state’s rules about the age of consent are fair?
What is clear is that the state legislators who ratified the Nineteenth Amendment had no reason to believe that they were modifying the meaning Fourteenth Amendment in any way. They thought they were guaranteeing citizens the right to vote regardless of sex and giving Congress the tools it needed to make good on that guarantee. That’s a big deal. And it’s the only deal that was agreed to.
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. The theory is that the Fourteenth and the Nineteenth Amendments, read in tandem, serves to broaden the application of the Fourteenth Amendment to gender-based rights not otherwise included in case law.
The language of the Nineteenth Amendment is specific—“the right of citizens . . . to vote shall not be abridged . . . on account of sex”—but the context in which that debate about suffrage took place went beyond the suffrage. Opponents claimed that giving women the vote would harm the institution of marriage. The family was the unit of governance in the public sphere, within which the man was the undisputed head. The structure of that unit was enforced through coverture laws—prohibiting women from owning property on their own. Since women were already represented through their husbands they didn’t need an independent voice. These arguments had succeeded in blocking women’s suffrage as part of the Fourteenth Amendment; indeed, the Amendment included the only reference in the Constitution to “male citizens.” But the success of the Nineteenth Amendment represented a change in the way women were viewed in both the public and private spheres, a change which some would argue, affects how the guarantee of the equal protection of the laws should be interpreted.
The Fourteenth Amendment raises a different challenge—general language but a history focused only on African Americans. Unlike the Nineteenth Amendment, its language is inclusive—“all persons born or naturalized in the U.S.” are citizens, and no state shall deprive any “person” of the equal protection of the laws. The debate surrounding its passage was focused on the rights of the formerly enslaved, not the rights of women. Nevertheless, by the 1970s courts interpreted the Fourteenth Amendment to include a ban against gender discrimination. In Frontiero v. Richardson (1973), Justice Brennan (delivering the plurality’s opinion) reasoned that gender discrimination was analogous to racial discrimination—both sex and race are immutable characteristics, independent of ability, as a result of which, both women and African Americans have suffered discriminatory treatment.
It is surely not unusual for courts to try to interpret the Constitution’s language, particularly given its very general language. The words don’t interpret themselves; judges have to give content to the provisions, looking at the language together with their context and history. There are obviously limits to this exercise; a judge can’t choose any interpretation he or she wants. But those limits derive from precedent, from legal history, from the traditions of the common law.
This essay is part of a discussion about the Nineteenth Amendment with Gail Heriot, Professor of Law, University of San Diego School of Law. Read the full discussion here.
In this case, the limitations in the Court’s deriving women’s civil and political rights from the general language of the Fourteenth Amendment soon became clear. Comparing race and gender discrimination, Justice Powell, in Regents of the University of California v. Bakke (1978) stated that “the perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share.” That analysis led the Court to use different tests to evaluate race and sex discrimination. While government acts that discriminate on the basis of race are subject to searching inquiry—“strict scrutiny”—acts that discriminate on the basis of gender are subject to “intermediate scrutiny”; some gendered laws may pass constitutional muster, some may not. And a framework that looked only at formal equality—treating women equally with men when they are similarly situated—had difficulty in evaluating differences, even when those differences played a role in discrimination—when men and women were not similarly situated because of familial roles, pregnancy, or domestic violence.
Some scholars, notably Reva Siegel of Yale Law School, have argued that the general language of the Fourteenth Amendment should be read alongside the debates surrounding the Nineteenth. She argues that together these Amendments address more than formal equality, but apply to a range of practices that contribute to women’s subordination. Her approach, however, would require reexamining decades of sex discrimination law.
A second approach to address gender equality is to campaign for separate constitutional reform that would explicitly recognize gender rights, an Equal Rights amendment. Such an approach recognizes that the United States Government has never made an express commitment to ensure gender equality beyond suffrage and advocate in favor of constitutional amendment to fill this lacuna. This approach is championed by feminist groups, prominently including the National Organization for Women. The goal of such an amendment would be to reconfigure our nation’s commitment to eliminating gender discrimination beyond the framework of the existing law.