Our Changing Constitution

by Charles W. Pierson

V

THE NINETEENTH AMENDMENT

A prudent man touches the question of woman suffrage gingerly. Many fingers have been burnt in that fire and its embers are not yet dead. Some mention of the Nineteenth Amendment seems necessary, however, in any discussion of federal encroachment on state power, and it may be possible to approach the suffrage movement from the standpoint of constitutional law without getting upon controversial ground.

The United States Constitution as originally adopted did not prescribe who should be entitled to vote. That matter was left entirely in the hands of the states. The Constitution provided[1] that, for the election of members of the House of Representatives, "the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature." It was further provided that Senators should be chosen by the legislatures of the states[2] and that the President and Vice-president should be chosen by presidential electors appointed in such manner as the state legislatures might direct.[3] These were the only elective federal officials.

[Footnote 1: Article I, Section 2.]

[Footnote 2: Article I, Section 3.]

[Footnote 3: Article II, Section 1.]

While the states were thus left in full control, it does not follow that the matter was deemed wholly outside the proper scope of national authority. No argument is necessary to demonstrate that the regulation of the suffrage in national elections is or may be a matter of national concern. The question of prescribing the qualifications of voters in such elections was much debated in the Convention which framed the Constitution.[1] Some members were in favor of prescribing a property qualification and limiting the suffrage to freeholders. It was finally decided, however, to accept the qualifications prescribed by state law. In adopting this plan the Convention followed the line of least resistance. The qualifications of voters in the various states differed.[2] Most states required a property qualification, but some did not. It was felt that to attempt to impose a uniform rule on all the states would arouse opposition and create one more obstacle to be overcome in the formidable task of getting the Constitution ratified.

[Footnote 1: See e.g., Farrand, "Records of the Federal Convention,"
Vol. II, p. 201 et seq.]

[Footnote 2: For a statement of the qualifications in the various states see Minor v. Happersett, 21 Wall., 162.]

There the matter rested, with suffrage qualifications regulated entirely by state law, until after the Civil War. Meanwhile, the states had been abolishing property tests, and universal male suffrage had been written into state constitutions. The cry for woman suffrage had begun, but as yet it was only a still small voice, inaudible to legislators.

After the Civil War the problem of protecting the emancipated slaves had to be dealt with, and three constitutional amendments (Nos. XIII, XIV, and XV) were adopted with that end primarily in view. Number XIII, ratified in 1865, formally abolished slavery. Number XIV, ratified in 1868, extended citizenship to all persons born in the United States and provided (among other things) that no state should abridge the privileges or immunities of citizens of the United States. Number XV, ratified in 1870, provided 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." Here was the entering wedge of federal interference. The amendments did not purport to deal with woman suffrage, but the pioneers of the suffrage movement thought they discovered in them a means of advancing their cause and lost no time in putting the matter to the test. Susan B. Anthony voted at Rochester, N.Y., in an election for a representative in Congress, claiming that the restriction of voting to males by the constitution and laws of New York was void as a violation of the Fourteenth Amendment providing that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." She was indicted for voting unlawfully, and on her trial before Justice Hunt of the United States Supreme Court, sitting at Circuit, the Court directed the jury to find a verdict of guilty and imposed a fine of $100 and costs.[1]

[Footnote 1: United States v. Anthony, 11 Blatchford, 200.]

Mrs. Virginia Minor raised a similar question in the courts of Missouri. The Missouri constitution limited the right to vote to male citizens. Mrs. Minor applied for registration as a voter, and on being refused brought suit against the Registrar of Voters on the ground that this clause of the Missouri constitution was in violation of the Fourteenth Amendment. The Missouri state courts decided against her, and the case was taken to the Supreme Court of the United States where the decision of the state courts was affirmed.[1] The Supreme Court held in effect that while Mrs. Minor was a citizen that fact alone did not make her a voter; that suffrage was not coextensive with citizenship, either when the Constitution was adopted or at the date of the Fourteenth Amendment, and was not one of the "privileges and immunities" guaranteed by that amendment.

[Footnote 1: Minor v. Happersett, 21 Wall., 162.]

A similar decision was rendered in the matter of Mrs. Myra Bradwell's application for a license to practise law in Illinois.[1] The Supreme Court held that the right to practise law in the state courts was not a privilege or immunity of a citizen of the United States within the meaning of the Fourteenth Amendment, and affirmed the decision of the Illinois Court denying Mrs. Bradwell's application.

[Footnote 1: Bradwell v. Illinois, 16 Wall., 130.]

The failure of these attempts to turn the Fourteenth Amendment to the advantage of the woman suffrage movement in no wise checked the movement or discouraged its leaders. They redoubled their efforts among the separate states, and worked to such good purpose that the opposition presently began to take on the aspect of a forlorn hope. "Votes for Women" became an accomplished fact in many states, and appeared on the verge of accomplishment in most of the others. Some states, however, were still holding out when the leaders of the movement, impatient of further delay and determined to coerce the recalcitrants, took the matter into the national arena and procured the proposal and ratification of an amendment to the Federal Constitution. The amendment provides:

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.

In other words, it adopts verbatim the phraseology of the Fifteenth Amendment, merely substituting the word "sex" for the words "race, color, or previous condition of servitude."

So much for the historical background of the so-called Susan B. Anthony Amendment. It remains to consider just how far the amendment constitutes an encroachment by the Federal Government on the powers of the states.

In so far as it affects the qualifications of voters at national elections (i.e., for president, senators, representatives) the encroachment is more apparent than real. As has already been pointed out, this is essentially a national question, and the Constitution adopted the suffrage qualifications prescribed by state law, not as a matter of principle, but for reasons of expediency and convenience.

In so far, however, as the amendment imposes woman suffrage on the states in elections of state and local officials the situation is entirely different. That staunch advocate of national power, Alexander Hamilton, said in the Federalist:[1]

Suppose an article had been introduced into the Constitution, empowering the United States to regulate the elections for the particular states, would any man have hesitated to condemn it, both as an unwarrantable transposition of power, and as a premeditated engine for the destruction of the state governments?

[Footnote 1: Federalist LIX.]

What Hamilton scouted as impossible has been accomplished in the Nineteenth Amendment. It in effect strikes out the word "male" from the suffrage provisions of state constitutions. It overrides state policy and interferes with the right of states to manage their own affairs. From the theoretical standpoint a more serious inroad on state prerogatives would be hard to find. Control of the suffrage is one of the fundamental rights of a free state. It belonged to the North American states before their union, and was not surrendered to the National Government when the union was effected. Moreover, the encroachment has a very practical side. To confer the suffrage on the educated women of Connecticut was one thing; to confer it on the Negro women of Alabama was quite a different matter, involving different considerations. The amendment took no heed of such differences but imposed a uniform rule on all the states, regardless of local prejudices or conditions.

It is true that a somewhat similar encroachment on state power had been made by the Fifteenth Amendment, designed to enfranchise the Negroes. That amendment, however, had its origin in conditions growing out of the Civil War, and claimed its justification in the necessity for protecting the freed slaves against hostile state action. It was avowedly an emergency measure, and the success with which it has been nullified in some quarters testifies to the unwisdom of forcing such measures upon reluctant states.

The conditions surrounding the adoption of the Nineteenth Amendment were altogether different. Few people take seriously the alleged analogy between the women and the slaves. The constitutional method—action through the separate states—was being pursued with signal success. The states were rapidly falling in line. Most of them had already granted woman suffrage or were ready to grant it. There was no overmastering need for coercing the states that were not yet ready. An impartial student of the period will be apt to conclude that the Nineteenth Amendment was the product of impatience rather than necessity.

Someone may ask, "What effect will the granting of votes to women have on the problem of preserving the constitutional equilibrium?" The ultimate power lies with the voters, and the women with votes now equal or outnumber the men. What is the reaction of women voters likely to be toward questions of political theory?

Ours is a governmental scheme of extreme complexity. As with animal organisms so with political systems, the higher they rise in the scale of development the more complicated they tend to become. An absolute monarchy is simplicity itself compared with our dual system. To maintain the proper adjustment of such a machine requires intelligence of a high order. The machine will not run itself and male tinkers have abundantly demonstrated that it is not fool-proof. But something more is required than mere intelligence. There must be, at least among the leaders, an instinct for governmental problems as distinguished from those of a merely social or personal character; an ability to recognize and a willingness to conform to underlying principles.

How will the women voters meet this test? Granting (what few will dispute) that their intelligence at least equals that of the men, will they be as likely as men to look beyond the immediate social welfare problem to the governmental principle at stake? Will an abstract proposition hold its own in their minds against a concrete appeal?

We do not attempt to answer these questions, but they contain food for thought.