Carefully studying the decision, Susan tried to fathom its reasoning, so foreign to her own ideas of justice. "Sex," she read, "has never been made of one of the elements of citizenship in the United States.... The XIV Amendment did not affect the citizenship of women any more than it did of men.... The direct question is, therefore, presented whether all citizens are necessarily voters."[312]
She read on: "The Constitution does not define the privileges and immunities of citizens.... In this case we need not determine what they are, but only whether suffrage is necessarily one of them. It certainly is nowhere made so in express terms....
"When the Constitution of the United States was adopted, all the several States, with the exception of Rhode Island, had Constitutions of their own.... We find in no State were all citizens permitted to vote.... Women were excluded from suffrage in nearly all the States by the express provision of their constitutions and laws ... No new State has ever been admitted to the Union which has conferred the right of suffrage upon women, and this has never been considered valid objection to her admission. On the contrary ... the right of suffrage was withdrawn from women as early as 1807 in the State of New Jersey, without any attempt to obtain the interference of the United States to prevent it. Since then the governments of the insurgent States have been reorganized under a requirement that, before their Representatives could be admitted to seats in Congress, they must have adopted new Constitutions, republican in form. In no one of these Constitutions was suffrage conferred upon women, and yet the States have all been restored to their original position as States in the Union ... Certainly if the courts can consider any question settled, this is one....
"Our province," concluded Chief Justice Waite, "is to decide what the law is, not to declare what it should be.... Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon any one, and that the Constitutions and laws of the several States which commit that important trust to men alone are not necessarily void, we affirm the judgment of the Court below."
"A states-rights document," Susan called this decision and she scored it as inconsistent with the policies of a Republican administration which, through the Civil War amendments, had established federal control over the rights and privileges of citizens. If the Constitution does not confer the right of suffrage, she asked herself, why does it define the qualifications of those voting for members of the House of Representatives? How about the enfranchisement of Negroes by federal amendment or the enfranchisement of foreigners? Why did the federal government interfere in her case, instead of leaving it in the hands of the state of New York?
Like most abolitionists, Susan had always regarded the principles of the Declaration of Independence as underlying the Constitution and as the essence of constitutional law. In her opinion, the interpretation of the Constitution in the Virginia Minor case was not only out of harmony with the spirit of the Declaration of Independence, but also contrary to the wise counsel of the great English jurist, Sir Edward Coke, who said, "Whenever the question of liberty runs doubtful, the decision must be given in favor of liberty."[313]
In the face of such a ruling by the highest court in the land, she was helpless. Women were shut out of the Constitution and denied its protection. From here on there was only one course to follow, to press again for a Sixteenth Amendment to enfranchise women.