The Nineteenth Amendment and women's equality.

• Author: Brown, Jennifer K.

A rising demand for women's equality took shape in the middle of the nineteenth Century and continues as a transformative force today. Early on, American feminists mobilized energetically to abolish outright discrimination that legally subordinated women to men and made a mockery of the nation's claim to be a community of equals.(1) Women rebelled particularly against their exclusion from the central mechanism of self-governance in a democracy: the right to vote. After winning a series of victories in the states, the suffrage campaign achieved its final success when the Nineteenth Amendment to the Constitution was ratified in 1920. Over time the right to vote became a reality for all women, as poll taxes and other racial restrictions were eliminated, and today women exercise the franchise on an equal footing with men. But in the years since women won the vote, Americans seem to have lost track of the Revolutionary potential suffrage held for those who labored long, hard years for its enactment. The struggle for women's legal rights has continued almost unabated through the decades since the suffrage victory, but rarely, if ever, has the monumental achievement of the Nineteenth Amendment been cited as a constitutional support for women's claim to full equality.

The goal of this Note is to resurrect the broader purposes of the heroic suffrage campaign by arguing that the Nineteenth Amendment can and should be recognized as an affirmation of women's constitutional equality. My project is necessarily limited to making a provocative suggestion rather than establishing a constitutional fact. Full exploration of the themes exposed here will require sustained scholarly attention to the rich historical record of the campaign for the Nineteenth Amendment and the state suffrage enactments that preceded it, and a willingness to interpret that record in light of today's deeper understanding of the dynamics and persistence of gender hierarchy. Contemporary feminists often try to fit women's interests into a constitutional framework that was built without women's active participation. My hope is to provoke consideration of how the Nineteenth Amendment--the only one to become part of our Constitution as a result of a mass movement for women's empowerment--might further promote women's equality.

The argument presented here was prompted by the contrasting interpretations of the significance of suffrage that emerged as state courts in the early twentieth Century considered whether women's new status as voters qualified them for jury service. This question arose most vividly in states where women's common-law disqualification from jury duty(2) clashed with state law provisions that drew jurors from "electors." My analysis of these cases uncovered two deeply divergent understandings of women's history that produced differing approaches to questions of women's rights.

Some courts espoused a narrow view of the suffrage right which led them to hold that female electors could not be jurors. This "incremental" interpretation of suffrage was grounded in the assumption that women's legal status was fundamentally different from that of men, and that women possessed only those specific rights, responsibilities, and protections that men chose to grant them. A decision to extend to women any new right, such as suffrage, had no general effect on women's legal status; the new right was carefully limited to its terms. The incremental understanding of suffrage is consistent with the narrow and orthodox meaning attributed to the Nineteenth Amendment today--the Amendment simply gives women the right to vote.

Other courts held that female electors were eligible to be jurors. These courts acknowledged that women's pRevious exclusion from the franchise had been based on their assumed natural inferiority to men, but they interpreted the extension of suffrage to women as amounting to a rejection of that assumption. In this "emancipatory" view, the grant of suffrage represented the symbolic and substantive assertion of women's rightful place as men's equals, and as such had ramifications beyond the franchise.

The reevaluation of the relationship between suffrage and equality presented in this Note draws on several sources. Part I describes the early feminist argument for suffrage as a fundamental right of equal citizens in a democracy. The suggestion made here is that the "original intent" of these citizen framers of the Nineteenth Amendment--that is, their goal of equality for women--should be considered when interpreting that enactment. Part II focuses on two cases discussing jury service as a citizen's right. These cases, Strauder v. West Virginia and Neal v. Delaware, were important precedents to the woman juror cases because they show how black men's jury rights were intertwined with their citizenship and suffrage rights under the Fourteenth and Fifteenth Amendments. Part III presents cases representative of the "incremental" and "emancipatory" conceptions of women's suffrage, and shows how the emancipatory interpretation made a surprise appearance in the Supreme Court's opinion in Adkins v. Children's Hospital,(5) a 1923 labor law case. Part IV argues that we can achieve a better understanding of the Nineteenth Amendment by evaluating the contrasting views of women's history that support the incremental and emancipatory interpretations of suffrage. This Part evaluates the relative merits of those views, and discusses the continuing movement for women's rights, to conclude that the Nineteenth Amendment is most appropriately comprehended as a statement about women's equality beyond the voting booth.

The crux of my argument is that early interpretations of the meaning of suffrage to women's equality offer clues about the constitutional significance of the Nineteenth Amendment, clues we should evaluate in light of their conceptual underpinnings. From this angle, we can see that the expansive, "emancipatory" reading of the Suffrage Amendment is consistent not only with the egalitarian impetus that drove the suffrage movement, but also with the view of women's history that is embodied by our national experience in the decades since women's suffrage was won. The vision of emancipation from the legacy of sex discrimination continues to animate the women's movement in the United States and all over the world. The durable vitality of this broad vision argues for continued recourse to it as we seek a deeper understanding of what the Nineteenth Amendment means for women's equality.

1. VOTING AND EQUALITY

   The Declaration of Sentiments adopted at the founding event of the American movement for women's equality, the 1848 Woman's Rights Convention in Seneca Falls, New York, shows that from the start, a belief in sex equality drove the feminist campaign to win the vote. The Declaration, which paraphrased the Declaration of Independence, proclaimed, "We hold these truths to be self-evident: that all men and women are created equal," and listed as the first proof of men's "tyranny" over women, "He has never permitted her to exercise her inalienable right to the elective franchise."(6) To feminist minds, women's inability to vote was a central feature of their oppression by men: "Having deprived her of this first right of a citizen, the elective franchise, thereby leaving her without representation in the halls of legislation, he has oppressed her on all sides."(7)

   Women's advocates pressed for the vote not only as a means to improve women's lives, but also because it would symbolize recognition of women's "equal personal rights and equal political privileges with all other citizens."(8) As the first right of a citizen, suffrage meant citizenship;(9) it was the very substance of self-government.(10) Suffragists thus responded eagerly when Francis Minor, a St. Louis lawyer and husband of Virginia Minor, a Missouri suffrage leader, suggested in 1869 that the newly ratified Fourteenth Amendment's guarantee of citizenship(11) offered women a new basis for asserting the right to vote.(12) The appeal of this idea was evident. In Francis Minor's words, "We no longer beat the air--no longer assume merely the attitude of petitioners. We claim a right, based on citizenship."(13)

   This equal citizenship claim to the vote was put to the test when Virginia Minor's suit against the voting registrar of St. Louis for refusing her registration reached the Supreme Court in 1875. The result, Minor v. Happersett,(14) was devastating. A unanimous Court declared that voting had nothing to do with the rights of national citizenship protected by the Fourteenth Amendment. The Court cited state law limitations on voting rights(15) to hold that voting could not derive from national citizenship because states, not the nation, created voters.(16) According to the Justices, the Fourteenth Amendment itself argued against Virginia Minor. Section 2 of the Amendment penalizes states that deny male inhabitants the right to vote,(17) and the Court asked, "[Ilf suffrage was necessarily one of the absolute rights of citizenship, why confine the operation of the limitation to male inhabitants?"(18)

   In an earlier time, when the national government was conceived as the creature of the states that constituted it,(19) the Court's reliance on states as the sole source of the suffrage right might have had some merit. The Fourteenth Amendment, however, created a new relationship between the people and their national government. It made them "citizens of the United States" with "privileges and immunities" that flowed from that citizenship, and guaranteed to them "equal protection of the laws."(20) With national citizenship established by Section 1, and a penalty against states that abridged males' "right to vote" in Section 2, the Fourteenth Amendment as a whole undermined the Court's position that national citizenship and suffrage were wholly unrelated. Instead, the structure of the Amendment...