Friday, April 1, 2022

The Purpose and Powers of the Senate, Part XXXIV: “Liable to All its Obligations, or to None”

    Notwithstanding its rather ignominious conclusion – free news coverage aside – United States v. Susan B. Anthony was not where the New Departure strategy ultimately met its end. In fact, it was Virginia Minor herself, the originator of the plan, who ended up seeing it through to its conclusion. Like Anthony had done in New York, Minor set out to vote in her home state of Missouri in the forthcoming Election of 1872. But whereas Anthony got as far convincing the attending officials to allow her to register and then doing so again when it came time to vote, Minor ran up against the expected roadblock at only the first step in the process. When she tried to register to vote on October 15th, the presiding officer – a man named Reese Happersett – denied her the privilege based on the fact that she was a woman. Keeping to the plan, Minor and her husband then proceeded to sue Happersett on the grounds that his actions – and, in turn, the relevant provisions of the state constitution – stood in direct violation of the 14th Amendment of the United States Constitution. Citizenship, the Minors asserted, was meaningless without a concomitant right to the franchise. And since the 14th Amendment guaranteed citizenship to, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof [,]” then it stood to reason that any women who were also citizens must likewise be possessed of the right to vote. The resulting case was eventually added to the docket of the Supreme Court of Missouri and was finally heard in March of 1873.

    The issue at hand, alleged Francis Minor and his associates in their brief to the court, was that, notwithstanding the relevant clause of the Missouri Constitution which explicitly restricted the franchise to, “Every free white male citizen of the United States, who shall have attained to the age of twenty-one years, and who shall have resided in this state one year before an election,” the right to vote, “Is a privilege of citizenship, within the meaning of the Constitution of the United States.” Expanding upon this initial declaration, Minor went on to question the implications of Happersett’s refusal to register his wife Virginia, particularly in the context of the legal relationship between the federal government and those of the various states. “A limitation not found [in the Constitution,]” he wrote,

Nor authorized by that instrument, cannot be legally exercised by any lesser or inferior jurisdiction. The subject of suffrage, (or the qualifications of electors, as-the Constitution terms it) is simply remitted to the States by the Constitution, to be regulated by them; not to limit or restrict the right of suffrage, but to carry the same fully into effect. There can be no division of citizenship, either of its rights or its duties. There can be no half-way citizenship. Woman, as a citizen of the United States, is entitled to all the benefits of that position, and liable to all its obligations, or to none.

The validity of such an argument, of course, turned very much upon the truth of Minor’s initial assertion. Namely, that the franchise, “Is a privilege of citizenship, within the meaning of the Constitution of the United States.” If it was, then fact that the Missouri Constitution seemed to take that same right away from one half of its citizen population was indeed extremely troubling. Was the Show Me State purporting to create different classes of citizenship in defiance of the 14th Amendment? Francis and Virginia Minor would most definitely have answered in the affirmative, but this would only have been natural. Having placed their confidence in the regenerative power of the 14th Amendment, they were confident that the United States Constitution was the true wellspring from which female suffrage might at length be made to flow.

    There was, of course, another side to the argument in question. That being, predictably, the side adopted by the court itself. In common with the defendant’s unadorned defense that the 14th Amendment did not apply to the case that was at that moment being tried, Justice Henry M. Vories (1810-1876) ruled that the formal connection which the Minors claimed existed between legal citizenship and the electoral franchise under the terms of the Constitution quite simply did not exist. “That the different States of the Union had a right,” he declared,

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. The (I may say) universal construction of the Constitution of the United States on this subject, and the almost universal practice of all of the States in reference to this subject, from the adoption of the Constitution to the present time, ought to be sufficient to prevent the necessity of an investigation of this subject now. There are certainly some questions that the courts of the country have a right to consider as settled, and that question I think is one of them.

As to the 14th Amendment in specific, Vories was similarly circumspect. “When we take into consideration the history of the times, in which this amendment was originated,” he continued,

And the circumstances, which in the view of its originators, produced its necessity, we will have but little trouble it seems to me to give it its proper interpretation […] It was to compel the former slave States to give […] 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.” There could have been no other intention to abridge the power of the States to limit the right of suffrage to the male inhabitants […] it was not intended that females, or persons under the age of twenty-one years, should have the right of suffrage conferred on them.

That, as far as the state of Missouri was concerned, was evidently that.

    Naturally, the Minor’s then appealed their case again, this time to the Supreme Court of the United States. When the case was finally argued on February 9th, 1875, Francis Minor and his compatriots made the same arguments as they had in Missouri. The Constitution guaranteed citizens the right to vote, they asserted, which entitlement no state had the authority to permanently restrict. And once again, when the case was decided on March 29th, the court sided decisively with the State of Missouri. Minor, of course, was undoubtedly a citizen. As Chief Justice Morrison Waite (1816-1888) affirmed, there could be no doubt of this fact under even the narrowest definition. But as to the inclusion of the franchise within the “privileges or immunities of citizens” guaranteed by the 14th Amendment, the Court was not nearly so generous. Since the ratification of the Constitution in 1788, Waite asserted, the various states had been made chiefly responsible for defining and regulating the franchise within their respective jurisdictions. And in the course of the nearly two centuries that had elapsed since that time, different states had applied different qualifications at different times to the essential privilege of the ballot.

    In New Hampshire, for example, at the time that the Constitution was adopted, only, “Every male inhabitant of each town and parish with town privileges, and places unincorporated in the State, of twenty-one years of age and upwards, excepting paupers and persons excused from paying taxes at their own request” was qualified to vote. Just so, at this same time in Pennsylvania, the franchise was restricted to only those, “Freeman of the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a State or county tax which shall have been assessed at least six months before the election [,]” while in Maryland, “All freemen above twenty-one years of age having a freehold of fifty acres of land in the county in which they offer to vote and residing therein, and all freemen having property in the State above the value of thirty pounds current money, and having resided in the county in which they offer to vote one whole year next preceding the election” were similarly entitled. As the Supreme Court had never been given cause to call into question the validity of any such restrictions – some of which, when active, denied the franchise to the majority of the citizen inhabitants of the relevant state – it accordingly seemed obvious to Justice Waite that the states were well within their rights to deny the franchise to whomever they wished and for whatever reason, the Constitution of the United States having little to say on the matter. “In this condition of the law in respect to suffrage in the several States [,]” he concluded accordingly,

It cannot for a moment be doubted that if it had been intended to make all citizens of the United States voters, the framers of the Constitution would not have left it to implication. So important a change in the condition of citizenship as it actually existed, if intended, would have been expressly declared.

    Furthermore, Waite went on to say, there was the very existence of the 15th Amendment to consider. Said amendment, as previously discussed, affirmed 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 race, color, or previous condition of servitude.” If the right to vote, as the Minors avowed, was a privilege inherent to citizenship, and if the 14th Amendment guaranteed citizenship to all those, “Born or naturalized in the United States, and subject to the jurisdiction thereof [,]” then what purpose was the 15th Amendment intended to serve? Why should Congress have gone to the trouble of drafting, debating, and approving it – and the states have gone to the troubling of ratifying it – if the thing that it was expressly created to protect had but recently been affirmed? “Nothing is more evident than that the greater must include the less,” Waite observed of the apparent fallacy, “And if all were already protected why go through with the form of amending the Constitution to protect a part?” No, the justice continued, the ability to vote was indeed far from an inextricable quality of citizenship. Not only, in the past, had many states chosen to restrict the franchise based on the possession of personal property or the payment of taxes without in any way calling into question the citizenship of those affected, but a number of states, as of 1875, went so far as to extend the vote to those who had thus far only declared their intention to become citizens. Such was the case in Minor’s home state of Missouri, he noted, as well as in Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas. If some citizens could thus be barred from exercising the franchise, and some non-citizens could be granted the right to the same, all without invoking the scrutiny of the courts, then what more was there to say? “Certainly,” Waite concluded, “If the courts can consider any question settled, this is one.”

    Thus was the New Departure strategy definitively laid to rest. Anthony, Stanton, and the NWSA thereafter abandoned the idea that the text of the Constitution already held the key to women’s suffrage and rededicated themselves to the eventual ratification of a female suffrage amendment. To that end, Anthony waisted little time in enlisting the aid of California Republican Senator Aaron A. Sargent (1827-1887), husband of NWSA member Ellen Clark Sargent (1826-1911), in introducing a twenty-eight-word proposal on the floor of Congress in January of 1878. It read, in full – and in conscious emulation of the 15th Amendment – 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.” Nothing became of this initiative in the near term, of course. Sargent retired the following year without the measure gaining any momentum. But every year thereafter for the next four decades, the leadership of the women’s rights movement would find someone in Congress to reintroduce the proposal. The intention, to be sure, was not simply to wear down the opposition by way of patience and persistence. Unless the likes of the NWSA also committed itself to pursuing other projects in other areas, the continued presence in Congress of a proposed amendment for women’s suffrage would mean very little more than that the cause for which it was fighting was not completely and utterly hopeless. But by always pursuing and obtaining the cooperation of some handful of Congressmen and Senators, the partisans of the women’s rights movement in America ensured that they were always possessed of certain useful resources. The late 1870s may not have been the moment for an amendment to the Constitution guaranteeing women the right to vote, but as long as organizations like the NWSA kept up the practice of soliciting support for just that, they would always be prepared when the momentous day finally came. And in the meantime, while Anthony, Stanton, and their allies continued to cherish their formal independence from the necessarily male-dominated arena of partisan politics, it certainly didn’t hurt for their organization to maintain good relations with members of the dominant political parties.

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