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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