Document 24: Reva B. Siegel, "She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family," Harvard Law Review, 115:4 (February 2002), pp. 947-1046.
In this article, Reva Siegal, Professor at Yale Law School, explores issues surrounding women's equality and citizenship, legislation including equal protection laws and the Violence Against Women Act.
SHE THE PEOPLE: THE NINETEENTH AMENDMENT,
SEX EQUALITY, FEDERALISM, AND THE FAMILY[A]
Reva B. Siegel *
TABLE OF CONTENTS
INTRODUCTION I. THE SEX DISCRIMINATION PARADIGM II. TOWARD A SYNTHETIC READING OF THE FOURTEENTH AND NINETEENTH AMENDMENTS: A NEW HISTORICAL FOUNDATION FOR SEX DISCRIMINATION DOCTRINE III. VOTING AND THE FAMILY IV. OF FAMILIES, FEDERALISM, AND "LOCAL SELF-GOVERNMENT" V. READING THE NINETEENTH AMENDMENT: CONSTITUTIONAL NORM OR RULE? VI. REREADING THE FOURTEENTH AMENDMENT: FAMILIES, FEDERALISM, AND EQUAL PROTECTION CONCLUSION
SHE THE PEOPLE: THE NINETEENTH AMENDMENT,
SEX EQUALITY, FEDERALISM, AND THE FAMILY
* * *
Americans debated questions of women's citizenship for over a half century before adopting the Nineteenth Amendment, but neither the Amendment nor its history now plays any role in modern interpretations of the Constitution. Instead, the Supreme Court addresses questions of women's citizenship under the Fourteenth Amendment, reasoning about problems of sex discrimination by analogy to problems of race discrimination. This framework denies sex discrimination law a foundation in constitutional history, and in so doing, weakens its apprehension of issues affecting women's status and its authority to address them. The debates over woman suffrage that began with the drafting of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment are plainly relevant to understanding how the guarantee of equal citizenship applies to women. At the Founding and for generations thereafter, Americans believed women did not need the vote because they were represented in the state through male heads of household. By adopting the Nineteenth Amendment, Americans were breaking with traditional conceptions of the family that were rooted in coverture, as well as with understandings of federalism that placed family relations beyond the reach of the national government. The debates over the Nineteenth Amendment thus memorialize the nation's decision to repudiate traditional conceptions of the family that have shaped women's status in public as well as private law and that are inconsistent with equal citizenship in a democratic polity. If concepts of sex discrimination were informed by the experience and deliberative choices of past generations of Americans, equal protection doctrine would better recognize forms of discrimination historically directed at women; and the law of federalism would take a more critical approach to claims that the family is a local institution, beyond the reach of the national government. The Article closes by considering how this new, historically grounded approach to questions of sex discrimination under Sections One and Five of the Fourteenth Amendment would enable a different constitutional analysis of the portions of the Violence Against Women Act struck down in United States v. Morrison.
It has now been three decades since the Court first invalidated a law under the Fourteenth Amendment on the ground that it unconstitutionally discriminated against women, a quarter century since the Court first declared that questions of sex discrimination would receive special scrutiny under the Equal Protection Clause. This body of constitutional law has without a doubt induced important changes in the forms of state regulation in the modern era. There is far less open public ordering of institutions and activities along lines of sex than there once was; women have opportunities that they did not a quarter century ago.
But like the law of race discrimination, the law of sex discrimination is highly selective. Sex discrimination law identifies as wrongful only some of the practices and understandings that maintain inequality in the social position of women and men, and obscures -- or affirmatively vindicates -- many others.
During the 1970s, the Supreme Court developed the law of sex discrimination by means of an analogy between sex and race discrimination. Today, the sex discrimination paradigm remains limited, in constitutional legitimacy and critical acuity, by the ahistorical manner in which the Court derived it from the law of race discrimination. Both bodies of law remain overly and indiscriminately preoccupied with formal acts of classification. And it remains commonplace to rationalize compromises of sex equality by pointing to the secondary or peripheral status of sex discrimination under the Fourteenth Amendment. Most recently, I have heard this kind of explanation offered for the Supreme Court's holding in United States v. Morrison that Congress lacked power under the Fourteenth Amendment to enact the Violence Against Women Act.
This Article proposes, as an additional foundation for sex discrimination doctrine, a synthetic reading of the Fourteenth and Nineteenth Amendments that is grounded in the history of the woman suffrage campaign. Recovering this lost chapter of our constitutional history supplies sex discrimination doctrine with enactment history: a narrative of political struggle in which we can see women asserting rights claims that "We the People" steadfastly repudiated for over a half century until finally recognizing women as equal citizens in our constitutional order. At the same time, recovering this lost chapter of our constitutional history enables us to reason about equal citizenship for women in a manner that is sociohistorically grounded, as current sex discrimination doctrine is not. In short, recovering this chapter of our constitutional development alters our collective self-accountings as a nation and gives sociohistorical particularity to the master concept of "equal citizenship" for women.
Today, women's struggle for enfranchisement plays no role in the ways we understand or interpret the Constitution. Even though the quest for the vote spanned generations and provoked the most sustained dialogue about women's position in the constitutional community that the nation has ever conducted, the Nineteenth Amendment has been utterly excluded from the constitutional canon. I have elsewhere drawn on collective memory concepts to explore the cultural dynamics at work in the erasure of this struggle over "the woman question" from the ways we read the Constitution. This Article undertakes the project of doctrinal reconstruction, demonstrating how including this chapter of our constitutional development in our reasoning about the Constitution in turn alters how we understand questions of equal citizenship for women.
Women began seeking the right to vote under the federal Constitution during the drafting of the Fourteenth Amendment but did not secure recognition of this right until ratification of the Nineteenth Amendment over a half century later. If we reconstruct the understandings that made women's disfranchisement reasonable to the framers of the Reconstruction Amendments, we are in a better position to describe the constitutional significance of women's enfranchisement.
Americans who adopted the Reconstruction Amendments believed it was unnecessary to enfranchise women under the federal Constitution because women were represented in the state through male heads of household and because enfranchising women would harm the marriage relationship. Congresses of the late nineteenth and early twentieth centuries also opposed amending the Constitution to enfranchise women on grounds of federalism, explaining that matters concerning the franchise and family were for "local self-government." Women's quest for constitutional recognition of their right to vote directly challenged these conceptions of family life. When Americans finally voted to ratify the Nineteenth Amendment, they were breaking with understandings of the family that had organized public and private law and defined the position of the sexes since the founding of the republic.
The history of women's struggle for enfranchisement thus teaches that equal citizenship for women includes freedom from subordination in or through the family. Yet modern sex discrimination law, fashioned in the image of race discrimination law, does not treat laws concerning the family as warranting any form of special scrutiny. And in recent years, the Supreme Court has emphasized that the domain of the family might somehow be beyond the reach of federal law, even federal civil rights law.
This Article proposes a synthetic reading of the Fourteenth and Nineteenth Amendments that would bring to the interpretation of the Equal Protection Clause a knowledge of the family-based status order through which women were disfranchised for most of this nation's history and from which they were emancipated after over a half century of struggle. Interpreted from this sociohistoric standpoint, a core meaning of equal protection for women is freedom from historic forms of subordination in the family. Reconstructing sex discrimination doctrine in this way has consequences for both judicial and legislative enforcement of the Equal Protection Clause, as this Article illustrates using the recently invalidated Violence Against Women Act as a case study.
I develop my argument in three stages. The Article opens by offering a brief account of how the modern law of sex discrimination is limited, in constitutional authority and critical acuity, by the ahistorical manner in which the Court derived it from the law of race discrimination.
In Part II, I begin to explore the constitutional history that would support a different, sociohistorical approach to sex discrimination law. The argument for reading the Fourteenth and Nineteenth Amendments together starts with a demonstration that they are linked in the history of the Constitution's development: the beginning and end points in a struggle over women's status in our constitutional community that started with the drafting of the second section of the Fourteenth Amendment and concluded with the ratification of the Nineteenth Amendment. As I show, grounding sex discrimination doctrine in the developments that link the Fourteenth and Nineteenth Amendments orients doctrine to our constitutional and common law history in different ways than does the race/gender analogy on which sex discrimination doctrine presently rests.
In Parts III and IV, I examine the history of the suffrage campaign to demonstrate that, for the generations of Americans who debated the woman suffrage amendment, the question of women voting was a question concerning the family. As Part III recounts, antisuffragists opposed a woman suffrage amendment on the grounds that women were represented in the state through male heads of household and that conferring the right of self-representation on women would threaten the institution of marriage. And as Part IV recounts, opponents of the amendment asserted that federalism principles precluded enfranchising women under the United States Constitution, contending that doing so would impermissibly interfere with local control of the franchise and the family. Thus, when Americans adopted the Nineteenth Amendment, they were breaking with common law traditions that subordinated women to men in the family and were intervening in matters of domestic relations that many believed were reserved to state control.
In Part V, I trace the juridical erasure of this constitutional history. I demonstrate that, in the immediate aftermath of ratification, at least some courts understood the Nineteenth Amendment to have implications for practices other than voting, including matters concerning the law of marriage, but that soon thereafter the Amendment came to be interpreted as a nondiscrimination rule governing voting with no bearing on questions of women's citizenship outside the context of the franchise.
Part VI considers how this history might bear on the way we interpret the Constitution today. I begin by illustrating how erasure of the constitutional history recounted in this Article has weakened guarantees of equal citizenship for women, using litigation surrounding the Violence Against Women Act as a case study. I then consider how recovery of this constitutional history might alter our self-accountings as a nation, and so come to shape the ways we make claims about the Constitution's meaning. Finally, I consider how these changes in our self-accountings as a nation might make a practical difference in doctrines concerning federalism and sex equality, demonstrating, in particular, how the law governing the constitutionality of the Violence Against Women Act might differ if we read the Constitution with an understanding of the woman suffrage campaign, and thus, a sociohistorical understanding of the equal protection guarantee. On this view -- one that reads the Fourteenth Amendment's Equal Protection Clause in light of the Nineteenth Amendment -- a core meaning of equal citizenship for women is freedom from subordination in and through the family.
I. The Sex Discrimination Paradigm
The modern law of sex discrimination is built on the understanding that there is no constitutional history of relevance to the question of women's citizenship.
In the early 1970s, as women were beginning to campaign for an Equal Rights Amendment, the Court "suddenly" discovered a constitutional basis for interpreting the Equal Protection Clause of the Fourteenth Amendment to bar sex-based state action. It did so by recognizing that sex discrimination was like race discrimination. Justice Brennan made this argument in 1973 in a plurality opinion in Frontiero v. Richardson that would have applied strict scrutiny to sex-based state action, just as the Court was then applying strict scrutiny to race-based state action. But Justice Brennan failed to secure the votes needed to make this opinion law; some Justices thought the Court should wait to see the outcome of the ERA campaign. By 1976, however, Justice Brennan had persuaded a majority of the Court to apply heightened scrutiny to sex-based state action. Craig v. Boren adopted a new "intermediate" scrutiny standard that differed somewhat from the strict scrutiny standard applied in race discrimination cases. Henceforth, sex-based state action would have to be "substantially related to achievement of" "important governmental objectives" rather than "necessary to achieve a compelling end." The Court never explained why it had chosen to apply a different standard to sex and race discrimination cases.
The intermediate standard of scrutiny that emerges from Frontiero and Craig expresses the intuition that sex discrimination is just like race discrimination -- but, in the end, not exactly like race discrimination. Commentators commonly invoke several differences between sex and race discrimination to justify this difference in doctrinal standards. First, the framers of the Fourteenth Amendment were thinking about questions of race discrimination, not sex discrimination. Thus, it is appropriate for courts to apply a less rigorous standard of review to questions concerning equal citizenship for women; bluntly put, the nation never made a collective constitutional commitment to respect women as equals of men. Second, and very much related to this lack of constitutional history, the difference in standards reflects a pervasive intuition that the problem of sex discrimination is not as grave, harmful, or significant in American history as the problem of race discrimination. The case law presents sex discrimination as a problem involving old-fashioned ways of thinking -- ""archaic and overbroad' generalizations" about differences between the sexes. Sex discrimination, so understood, grows out of evolving customary norms, rather than a long trail of state-sponsored coercion. Third, underneath it all, there is a sense that sex discrimination is at root different from race discrimination. Sex distinctions are not always harmful (or based on animus) the way race distinctions are; it is not clear that we are prepared to embrace a model of sex blindness, in matters of love or war.
Thus, just beneath the faux precision of the "intermediate scrutiny" standard, we discover deep confusion about the positive and normative foundations of sex discrimination doctrine. Does intermediate scrutiny express a judgment about the gravity of sex discrimination and the depth of our collective commitment to its eradication, or does the standard instead express the inchoate intuition that the kinds of practices that count as race and sex discrimination differ?
Note how, from this vantage point, the central constitutional question about sex discrimination is whether it is really like race discrimination. Note further that this inquiry is premised on a historically particular conception of what race discrimination is. If we think about Washington v. Davis, Regents of the University of California v. Bakke, and other cases of the mid-1970s, race discrimination is group-based differentiation, a practice of regulatory classification or cognitive distinction, that is to be rectified by a countervailing practice of "race-blindness." Of course, race inequality in this country was sustained by a complex network of institutions, practices, stories, and reasons that involved both more and less than group-based classification. The concept of group classification hardly captures what is at stake in the institution of slavery and ignores the role played by facially neutral regulation (for example, vagrancy laws, poll taxes, literacy tests, zoning restrictions and the like) in maintaining the many institutional dimensions of Jim Crow.
But during the 1970s, the decade sex discrimination doctrine was born, the law of equal protection had begun to contract around segregation as the archetypal scene of racial harm, group classification as its technology, and blindness as its remedy. A particular -- and highly stylized -- memory of race discrimination thus supplied the legal template for constitutional debates about sex discrimination.
During the 1970s, constitutional debates over sex discrimination continually referred back to this historically particular conception of race discrimination. In debates over the ERA, a litmus test for commitment to the sex equality principle was willingness to treat sex like race, which in turn translated into the question, reiterated in debate after debate: but would you eliminate sex-segregated bathrooms? Inlike fashion, the emergent law of sex discrimination under the Fourteenth Amendment took as its central question courts' willingness to eliminate group-based classifications from law. Just as the law of race discrimination removed "white" and "colored" signs from schools and water fountains, so, too, the law of sex discrimination would remove "men" and "women" signs from a variety of social practices. In Craig v. Boren, the case announcing the intermediate scrutiny standard, for example, the Court liberated young men from the indignities of a regulatory regime that prohibited boys aged 18-21 from buying 3.2% beer when girls of the same age could.
Conversely, the Court was quite ready to dismiss practices that injured women but did not fit this model as simply "not sex discrimination." A law that discriminated "on the basis of sex" treated all women within its ambit differently than it treated all men within its ambit, the Court reasoned. And so, the Court announced, laws that penalize pregnant employees do not discriminate on the basis of sex because they harm some but not all women; laws that bestow civil service hiring preferences on veterans do not discriminate on the basis of sex because they advantage some but not all men.
Reasoning about equal protection as a problem concerning group-based classifications produced other intriguing anomalies in the emergent law of sex discrimination. If the state exempts from punishment men who rape or beat their wives, equal protection doctrine invites the state to cure the sex discrimination in the law by exempting from punishment women who rape or beat their husbands. Sex distinctions eliminated, spousal rape exemptions and spousal battery policies are immunized from equal protection challenge.
When equal protection doctrine sees sex discrimination in a law that prevents boys from buying watered-down beer when girls of the same age can -- but does not see sex discrimination in a law that denies pregnant workers employment benefits or a law that criminalizes abortion or a law that allows rape or assault in marriage -- we can safely say that equal protection doctrine constrains only some of the forms of state action that regulate the social position of the sexes. The sex discrimination paradigm is thus a lens that makes visible certain features of social practice and utterly occludes others. The way we understand sex discrimination in turn shapes judgments about its gravity and about our collective commitment to its eradication.
In the remainder of this Article, I would like to consider a different approach to analyzing equal protection questions concerning sex discrimination -- one grounded in the history of constitutional struggle over women's citizenship, one that unfolds under the auspices of both the Fourteenth and Nineteenth Amendments. Grounding the law of sex discrimination in this history orients it to the institutional sites and social practices that have been central to disputes over women's status in our constitutional order.
II. TOWARD A SYNTHETIC READING OF THE FOURTEENTH AND NINETEENTH AMENDMENTS: A NEW HISTORICAL FOUNDATION FOR SEX DISCRIMINATION DOCTRINE
The body of sex discrimination doctrine the Court developed in the 1970s played a pivotal role in modernizing Fourteenth Amendment jurisprudence so that the Equal Protection Clause might speak to questions of gender justice in the twentieth century. Yet the manner in which the Court derived sex discrimination doctrine from the race discrimination paradigm produced foundational weaknesses in this body of law that continue to haunt it to the present day. Many of these weaknesses -- in constitutional authority and critical acuity -- flow from the ahistorical manner in which the case law reasons about questions of equal citizenship for women as it derives sex discrimination doctrine from race discrimination doctrine.
In arguing that equal protection doctrine concerning race discrimination ought be extended to cover the analogous case of sex discrimination, Justice Brennan's pathbreaking opinion in Frontiero emphasized commonalities between race and sex discrimination. This way of building the case for heightened scrutiny obscured the extent to which gender status regulation had its own constitutional and common law history and distinctive social forms. Doctrinal effacement of this history had two important consequences. By enjoining sex discrimination on the ground that it resembled race discrimination prohibited by the Fourteenth Amendment, the Court suggested that the new body of sex discrimination doctrine lacked independent grounding in our constitutional history. At the same time, the Court's effort to reason by analogy deflected attention from the ways that race and gender status regulation intersect and differ -- differences that a more historically grounded case for heightened scrutiny might have illuminated.
In the following sections, I examine briefly the peripheral role that history plays in the contemporary sex discrimination framework, and then begin to build the case for regrounding sex discrimination doctrine in constitutional history -- in the history of the Fourteenth and Nineteenth Amendments.
A. Frontiero's Use of History in Building the Race Analogy
Justice Brennan's plurality opinion in Frontiero discusses the history of women's treatment in the American legal system as it makes the argument for applying heightened scrutiny to sex-based state action. The opinion points to the nation's "long and unfortunate history of sex discrimination" in an effort to demonstrate that sex discrimination is sufficiently like race discrimination to warrant similar doctrinal treatment under the Equal Protection Clause. Justice Brennan completes the analogy by arguing that sex, like race, is "an immutable characteristic determined solely by accident of birth" and "frequently bears no relation to ability to perform or contribute to society."
To demonstrate that sex-based state action should trigger strict scrutiny just as race-based action does, Justice Brennan argues that the history of discrimination directed against women resembles the history of discrimination directed against blacks. Quoting separate-spheres discourse in the opinions of the Supreme Court ("The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." ), Justice Brennan's opinion in Frontiero then observes:
As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. . . . And although blacks were guaranteed the right to vote in 1870, women were denied even that right . . . until adoption of the Nineteenth Amendment half a century later.
In this passage, Justice Brennan depicts the nation's "long and unfortunate history of sex discrimination" as constitutionally significant because women's "position . . . was . . . comparable to that of blacks." It is the collective memory of race relations that makes women's experience in the American legal system intelligible as a "history of sex discrimination" and that invests that history with normative significance it otherwise presumptually lacks. Thus, as deployed in Frontiero, the race/gender analogy represents and effaces the history of women's treatment in the American legal system and obscures the historical experiences of women of color.
Precisely as analogies dramatize similar features of different practices, they work both to illuminate and occlude. The race/gender analogy no doubt helped the Court see features of sex discrimination which, to that point in history, it had not seen. But the Court relied upon the race/gender analogy in ways that ultimately worked to limit the critical acuity and constitutional legitimacy of the emergent law of sex discrimination.
Because Frontiero invokes the history of sex discrimination in terms that emphasize its similarity to the history of race discrimination, it situates equal protection doctrine in an analytical framework that is in some tension with historical evidence suggesting that forms of status regulation vary within and across groups. (We know, for example, that African-American men and women were subject to gender-differentiated treatment in slavery and during the Jim Crow era. ) If historical evidence were considered relevant in understanding sex discrimination, such differences might well emerge over time in the litigation of sex discrimination claims; this knowledge would in turn sharpen our judgments about the ways in which it is appropriate to rely on the race discrimination analogy. But the Frontiero opinion does not invite us to consider history in this fashion. There is no suggestion in Frontiero, or in subsequent opinions of the Court, that history might help identify the traditional sites or distinctive forms of discrimination directed against women.
After resolving the threshold question of whether to apply heightened scrutiny, the Court adopted an intermediate scrutiny framework for determining what forms of sex-based state action violate the Equal Protection Clause that is generally inattentive to history. This body of doctrine enjoins sex-based state action that is rooted in "archaic," "overbroad" generalizations about the roles of women, but apart from this general injunction against class-based regulation that is rooted in customary or "old-fashioned" ways of thinking, the modern law of sex discrimination does not take its warrant or its critical bearings from the past. Instead it asks whether the state's use of sex classification is substantially related to an important governmental end. In the two decades of cases decided after Frontiero, the Court never again revisited the nation's "long and unfortunate history of sex discrimination" or referred to the Nineteenth Amendment -- a pattern unbroken until decisions of the late 1990s, as I discuss below. Instead, development of the Court's sex discrimination jurisprudence proceeded without grounding in the nation's common law, statutory, or constitutional history.
The manner in which the Court derived sex discrimination doctrine from race discrimination doctrine thus deflected attention from the ways that the state has historically regulated the social position of men and women, and so obscured a body of regulatory practice that might have illustrated how race-based regulation resembles, diverges from, and intersects with sex-based regulation. Just as importantly, the Court's reliance on the analogy between race discrimination and sex discrimination to justify applying heightened scrutiny to sex-based state action produced a new body of equal protection law whose silences uneasily suggested that the nation had never before deliberated about women's status as citizens in the constitutional community.
The Court seems to have founded sex discrimination jurisprudence on the assumption that the framers of the Fourteenth Amendment were such "romantic paternalists" that they never thought about questions of women's citizenship in their otherwise noble deliberations over the Constitution. Simply put, the analogy between race and sex that founds sex discrimination jurisprudence would seem to be premised on the assumption that there is no constitutional history of relevance to sex discrimination law.
In the years since the Frontiero decision at least some constitutional lawyers have come better to appreciate that the question of women's enfranchisement was at issue in debates over the Fourteenth Amendment -- enough so that the Amendment's framers introduced gender distinctions into the Constitution for the first time in the Fourteenth Amendment's second section, which seems to authorize women's disfranchisement. Of course, this post hoc understanding now stands as something of an embarrassment for modern sex discrimination jurisprudence, as it suggests that the framers of the Fourteenth Amendment were not terribly interested in enfranchising women. And even if the Amendment's framers did contemplate that its provisions would apply to women, they did not discuss the question in terms that would suggest that they expected or intended the Equal Protection Clause to disturb settled forms of gender status regulation. Accordingly, casebooks regularly advise their readers that the framers of the Fourteenth Amendment had no intention of authorizing the body of constitutional law students are about to study. From this standpoint, the ratification history of the Fourteenth Amendment is either irrelevant to modern sex discrimination jurisprudence, or worse.
But this constitutional history is an embarrassment to sex discrimination jurisprudence only if we read the Constitution in a clause-bound way -- on the model of a Christmas advent calendar. If we reason about the Fourteenth Amendment this way, we learn that the framers of the Fourteenth Amendment did not intend to enfranchise women -- and we are left to reason about the meaning of the Fourteenth Amendment in a manner that takes no account of the fact that women persisted in seeking constitutional recognition of the right to vote, and after another half century, persuaded men to amend the Constitution and to repudiate the understandings of citizenship that made women's disfranchisement so reasonable to the Fourteenth Amendment's framers.
B. Analogical and Synthetic Interpretation: A New Role for History in Sex Discrimination Doctrine
How might the history of the woman suffrage campaign bear on the ways that we understand the Constitution today? Doctrine currently treats this history as constitutionally irrelevant because it occurred after ratification of the Fourteenth Amendment and concerns women's right to vote rather than the meaning of the Fourteenth Amendment's guarantee of equal protection of the laws. In the following sections, I develop an argument for basing sex discrimination doctrine on a reading of the Constitution that emphasizes connections between the Fourteenth and Nineteenth Amendments. This alternative basis for sex discrimination doctrine draws on history in different ways than does the argument by analogy elaborated by Justice Brennan's Frontiero opinion.
In Frontiero, as we have seen, Justice Brennan invoked the history of gender status regulation to demonstrate that women have suffered discrimination sufficiently like the discrimination directed at blacks to justify reviewing sex-based state action under the same strict scrutiny standards the Court applies to race-based state action. The analogy justifies enlarging the Fourteenth Amendment's sphere of concern to include questions of sex discrimination as well as race discrimination, even if questions of sex inequality were not the moving cause of the Amendment's adoption.
Sex discrimination doctrine presently depends on the race/gender analogy to deflect attention from deficiencies in the ratification history of the Fourteenth Amendment. By contrast, this Article proposes to strengthen the historical foundations of sex discrimination doctrine by grounding it in the constitutional developments that link the Fourteenth and Nineteenth Amendments. Sex discrimination doctrine could then take its critical and normative bearings from the debates over women's citizenship that began with the drafting of the Fourteenth Amendment and culminated over a half century later with the ratification of the Nineteenth Amendment. While interpretation that links provisions of the Constitution is less common than clause-bound interpretation, it has substantial precedent.
Synthetic interpretation of the Constitution endeavors to interpret one clause or provision in light of another -- attending especially to relations among different parts of the Constitution as they are interpreted or amended over time. For example, in Bolling v. Sharpe, the Court held that the interpretation of the Equal Protection Clause announced in Brown v. Board of Education not only bound states under the Fourteenth Amendment, but henceforth, would also bind the federal government under the Due Process Clause of the Fifth Amendment. Despite the fact that the Fifth Amendment has no Equal Protection Clause and was adopted nearly a century before the Fourteenth Amendment, the Court now maintains that "equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment."
Of course, styles of synthetic interpretation vary along with other elements of interpretive method. One might endeavor to read the Constitution as if it were written at one time by one author and to pay special attention to reconciling and integrating its various parts. Alternatively, one could approach the Constitution as a charter of government forged in history by successive generations of authors and emphasize the ways that they modified the Constitution's meaning by amending the document over time. Indeed, one could hold a very different view of the Constitution's authority as law -- emphasizing extratextual sources of constitutional meaning and pathways of constitutional change -- and nonetheless consider it crucial in making claims about the Constitution's meaning to relate and integrate the constitutional understandings of different generations.
The synthetic interpretation I develop in this Article brings the history of constitutional debates about women's citizenship status to bear on the way we understand the constitutional guarantee of equal protection for women. I argue for reading the Fourteenth and Nineteenth Amendments together because the two Amendments are linked in subject matter concern: each secures constitutional protection for values of equal citizenship. Even more importantly, as I show, the two Amendments are linked in the history of the Constitution's development. Disputes about the terms of women's citizenship in our constitutional order that began at the time of the Fourteenth Amendment's drafting continued for decades and across generations until women finally secured an amendment to the Constitution guaranteeing their right to vote. These debates, I argue, are plainly relevant to understanding how the Fourteenth Amendment's guarantee of equal citizenship applies to women. By reconstructing the debates that link the Fourteenth and Nineteenth Amendments, we can identify the institutions, practices and understandings that have played a key role in controversies about women's status in our constitutional order; with this knowledge, we can better appreciate the choices the nation made when it amended the Constitution to enfranchise women. Sex discrimination doctrine can thus take its critical and normative bearings from the history of struggle over women's citizenship in our constitutional community. Rooting sex discrimination doctrine in the experience and deliberative choices of past generations of Americans who struggled with questions of sex equality enables us to enrich and, in some respects, to modify the conceptual framework that doctrine currently draws from the race/gender analogy.
I begin the case for reading the Fourteenth and Nineteenth Amendments together by locating the roots of the woman suffrage amendment in conflicts over the drafting and early interpretation of the Fourteenth Amendment. After recounting the sequence of constitutional initiatives to enfranchise women that links the Fourteenth and Nineteenth Amendments, I examine congressional and popular argument about "the woman question" in this period to identify the gendered forms of constitutional reason at stake in the question of whether women should vote.
C. Historical Ties Between the Fourteenth and Nineteenth Amendments
The quest for the vote began in the antebellum era but did not focus on the federal Constitution until the Civil War. The roots of the Nineteenth Amendment can be traced to a conflict among longtime abolitionist allies over reconstructing the postwar Constitution. From the moment Robert Dale Owen tipped off Elizabeth Cady Stanton, Susan B. Anthony, and other officers of the Loyal League who had organized petition drives for the Thirteenth Amendment that early drafts of the Fourteenth Amendment's second section referred to "male" suffrage, the woman's rights movement began a campaign for the enfranchisement of women under the federal Constitution that did not abate until ratification of the Nineteenth Amendment over a half century later.
While Stanton and Anthony immediately responded to Owen's news by petitioning Congress for a constitutional amendment "that shall prohibit the several States from disfranchising any of their citizens on the ground of sex," they were not prepared to acquiesce in the apparent exclusion of women's right to vote from the terms of the Fourteenth Amendment -- an exclusion that would be especially provocative coming at the hands of abolitionist friends and allies in the Republican Party. After the movement failed to prevent the Republican Party from using gender as a measure of suffrage in Section Two of the Fourteenth Amendment, woman suffrage advocates then sought to persuade the party to adopt a universal suffrage framework for the Fifteenth Amendment, and divided over the question whether to support the Amendment when the Republican Party refused.
In early 1869, immediately after Congress sent the Fifteenth Amendment to the states for ratification, Stanton and Anthony secured the introduction of a bill for a sixteenth amendment that would have guaranteed women's right to vote. Outside Washington, however, movement activists remained focused on the text of the Fourteenth Amendment, drawn to the capacious language of its first section. Across the country, suffragists began a struggle to secure legal recognition of women's right to vote under Section One of the Fourteenth Amendment, using tactics that are remarkably bold even by today's standards.
In 1868, suffragists in Vineland, New Jersey, orchestrated a mock voting process for women near the site where the registrar was accepting male ballots. Soon thereafter, pursuing a strategy devised by Francis and Virginia Minor, which the movement called "the New Departure under the Fourteenth Amendment," hundreds of women began to assert a constitutional right to vote. "We no longer beat the air -- no longer assume merely the attitude of petitioners. We claim a right, based upon citizenship." The movement rested this claim principally on the Citizenship and the Privileges or Immunities Clauses of the newly ratified Fourteenth Amendment, as well as on a variety of other federal constitutional provisions, many of which abolitionists had invoked in challenging the institution of slavery.
As controversies precipitated by women's efforts to vote made their way into courthouses across the nation, Victoria Woodhull and others petitioned Congress to use its power under Section Five of the Fourteenth Amendment to enact a statute declaring that women had a right to vote under the newly amended Constitution. Again, the Privileges or Immunities Clause formed the principal ground of the constitutional claim. (Here and elsewhere, suffragists added a Fifteenth Amendment argument for good measure, emphasizing that at common law, marriage was a "condition of servitude." ) The 1872 Senate Judiciary Committee hearing at which Stanton, Anthony, and Isabella Beecher Hooker testified -- offering a dazzling fusion of constitutional theory and political oratory on behalf of the movement's claims -- was a dramatic event, overflowing with crowds convened by the National Woman Suffrage Association.
While the Republican Party did not enact the declaratory statute the movement sought, it did give the woman suffrage cause prominence in the 1872 elections, and for the first time included a cautiously worded woman's rights plank in the party platform. It was while campaigning for the National Committee of the Republican Party that Susan B. Anthony registered to vote with the assistance of local party officials and was prosecuted under the Enforcement Act for voting unlawfully. Given the contemporary visibility of the woman suffrage cause, it is plain that the Supreme Court was already anticipating the claim that the Fourteenth Amendment enfranchised women when the Court narrowly interpreted the Privileges or Immunities Clause in its 1873 decisions in the Slaughter-House Cases and Bradwell v. Illinois. Two years later, the Court definitively rejected Virginia Minor's claim that she had a right to vote under the Fourteenth Amendment in Minor v. Happersett.
It was only after the Court definitively rejected the claim that women had a constitutionally protected right to vote under the Fourteenth Amendment that the suffrage movement began concertedly to pursue a new constitutional amendment as its principal strategy for enfranchising women. Even then, the text of the "Sixteenth Amendment" -- as it was then called -- still bore the impress of its origins in an argument about the reach of the Fourteenth Amendment:
The right of suffrage in the United States shall be based on citizenship, and shall be regulated by Congress, and all citizens of the United States, whether native or naturalized, shall enjoy this right equally, without any distinction or discrimination whatever founded on sex.
Thus, in the years before and immediately after the ratification of the Fourteenth Amendment, there was ongoing dispute over whether the Amendment protected women's right to vote. For this ten-year period -- from 1865, when Stanton and Anthony first learned of the gendered language of Section Two, to 1875, when the Supreme Court definitively ruled in Minor v. Happersett that the Fourteenth Amendment did not protect women's right to vote -- the question of woman suffrage was a Fourteenth Amendment question. Only with the Court's decision in Minor did woman suffrage assume settled form, alongside the Reconstruction Amendments, as a "Sixteenth Amendment" question, or as it was known simply, the "woman question." (Indeed, even then, advocates continued to advance Fourteenth Amendment arguments for a constitutional amendment recognizing women's right to vote. ) It was in this form that the "woman question" persisted as the civil rights question of the late nineteenth and early twentieth centuries. Carrie Chapman Catt, who led the movement to victory in 1920, famously described that journey:
To get the word male . . . out of the constitution cost the women of the country fifty-two years of pauseless campaign . . . . During that time they were forced to conduct fifty-six campaigns of referenda to male voters; 480 campaigns to urge Legislatures to submit suffrage amendments to voters; 47 campaigns to induce State constitutional conventions to write woman suffrage into State constitutions; 277 campaigns to persuade State party conventions to include woman suffrage planks; 30 campaigns to urge presidential party conventions to adopt woman suffrage planks in party platforms, and 19 campaigns with 19 successive Congresses.
D. Reading the Suffrage Debates: Some Preliminary Remarks
The fact that the Fourteenth and Nineteenth Amendments are tied in the history of the Constitution's development supports the case for interpreting these two amendments together. How might examining the debates that link the Fourteenth and Nineteenth Amendments alter how we understand questions of equal citizenship for women?
Whether we interpret the Nineteenth Amendment standing alone or in conjunction with the Fourteenth Amendment, it is critical to begin by reconstructing the universe in which restricting the vote to men made constitutional sense. If we identify the traditions of reasoning about the American Constitution that made it reasonable for the men who adopted the Reconstruction Amendments to oppose enfranchising women, then we can better understand the nature of the suffrage debate: the arguments suffragists made on behalf of women's right to vote, the grounds on which their opponents resisted them, and finally, the significance of the nation's decision to amend the Constitution in order to protect women's right to vote. This understanding of our constitutional history, I argue, provides a foundation for interpreting the citizenship guarantees of the Fourteenth and Nineteenth Amendments.
At the Founding and for most of our constitutional history, only men could vote and hold office. Unexamined and uncontested custom is generally assumed to explain this world, linked to, yet distant from, our own. But if custom explains the persistence of gender restrictions on voting in the early decades of the republic, by the decade before the Civil War, demands for woman suffrage were beginning to spread, and by the war's end, were vocally asserted as Americans debated the shape of the postwar Constitution. Once women began passionately, regularly, and cogently to demand the right to vote, on what grounds did men resist including women's rights in postwar constitutional reform? And what reasons did subsequent generations advance for continuing to refuse women's demands for self-representation in a nation that proudly considered itself a democracy?
As we shall see, opponents of the woman suffrage amendment commonly invoked two kinds of reasons for denying women's demands for the vote, reasons rooted in prevailing understandings of family and of federalism. Parts III and IV reconstruct the conceptual universe in which these objections to enfranchising women by constitutional amendment made sense, in order to make visible the gendered understandings that structured the American constitutional order in this period and that were directly at issue in the suffrage debate. This history offers a foundation for an interpretation of the Fourteenth and Nineteenth Amendments that is rooted in the choices the nation made in amending the Constitution to recognize women's right to vote and that interprets the Equal Protection Clause with some knowledge of the institutions, practices, and understandings that have played a central role in enforcing women's subordinate social status.
III. VOTING AND THE FAMILY
The question of women voting became "the woman question," as it was called, in mid-nineteenth-century America, an era when American law first claimed to enfranchise most men, as it did not at the Founding. As distribution of the vote came, in form at least, more perfectly to trace lines of gender, the practice of voting became a site in which to make and find meanings about the relations of men and women. Opposition to women voting was as much about preserving the arrangements that make men men and women women as it was about the deep pragmatic question of what women would do with the ballot if allowed to participate in matters of civic governance.
"What is this demand that is being made?" asked one representative to a California constitutional convention in 1879:
This fungus growth upon the body of modern civilization is no such modest thing as the mere privilege of voting, by any means. . . . The demand is for the abolition of all distinctions between men and women, proceeding upon the hypothesis that men and women are all the same. . . . Gentlemen ought to know what is the great and inevitable tendency of this modern heresy. . . . It attacks the integrity of the family; it attacks the eternal degrees [sic] of God Almighty; it denies and repudiates the obligations of motherhood.
In this same spirit, W.H. Smith, a Pennsylvania politician, objected to the "pernicious heresy" of woman suffrage because "my mother was a woman, and further, because my wife is a woman." If women were allowed to vote, "the family . . . would be utterly destroyed."
Family was the ground on which gender conflicts about women voting converged. As suffrage historian Aileen Kraditor puts it:
Close to the heart of all antisuffragist orators, particularly congressmen, was a sentimental vision of Home and Mother, equal in sanctity to God and the Constitution. Although all four entities regularly appeared in various combinations in antisuffragist propaganda, it was the link of woman to the home that underlay the entire ideology.
What supported this symbolic linkage between voting and families for nineteenth-century Americans -- a linkage so tight that the prospect of women voting meant the destruction of home life?
Opponents of woman suffrage frequently invoked the family as they described the ways that women voting would violate gender roles. Gender norms of the industrial era identified women with the family and men with the domains of market and politics. The prospect of women voting thus threatened feminity and the family both. Antisuffragists ("antis") routinely emphasized that women were specially suited and exclusively destined for the work of family maintenance; in their view, women lacked the capacity for managing public affairs, and the very effort would distract them from their obligations as wives and mothers. As the House Judiciary Committee explained in rejecting petitions for a sixteenth amendment in 1883: "To the husband, by natural allotment . . . , fall the duties which protect and provide for the household, and to the wife the more quiet and secluded but no less exalted duties of mother to their children and mistress of the domicile."
Such "separate spheres" arguments were commonplace in the antisuffragist case. But family also figured in the woman suffrage debate in ways that are less intuitively apparent to us today. If we approach voting and family from the vantage point of nineteenth-century Americans, it is possible to discern deep connections between family and franchise that are no longer "common sense" to Americans in the twenty-first century.
Today, we think of the vote as a basic right of citizenship in a constitutional democracy. But most nineteenth-century Americans understood voting differently, as a privilege of citizenship exercised by some members of the polity on behalf of others. As the founding generations commonly explained the distribution of the franchise, only citizens who had the requisite degree of independence to vote their own judgment, rather than the interests of those to whom they might be beholden, had the capacity to exercise the franchise responsibly. In the early years of the republic, property owners were thought to possess the requisite degree of independence to vote; by the Jacksonian era, so too were "free laborers" -- white men who were gainfully employed. Household headship was another common criterion of "independence," one that came to play a central role in debates over woman suffrage.
Opponents of enfranchising women commonly invoked two stock arguments about the household, which, alongside claims about preserving sex difference, were the mainstay of the antisuffrage case. The antis' foundational argument was the argument from virtual representation: women did not need the vote because they were already represented in the government by male heads of household. It was this claim of virtual representation that women's demand to vote most directly challenged. Every time woman suffragists invoked American traditions of individualism, "self-government," and "self-representation" in defense of the right to vote -- as when during the New Departure suffragists refused to pay taxes without representation -- they were challenging a centuries-old conception of the household that gave men authority to represent women in public and private law. Antis answered suffragists' claims for self-government by emphasizing how changing the distribution of the franchise would threaten the unity of the family: granting women the right to vote would introduce domestic discord into the marital relation and distract women from their primary duties as wives and mothers. Like the virtual representation argument, the marital unity argument linked public and private spheres. Examining the constitutional controversy over enfranchising women reveals that it was, from surface to core, an argument about the family.
A. Virtual Representation: Male Household Headship in Public and Private Law
The virtual representation argument invokes a model of the family with deep roots in the Western tradition and a much older lineage than the industrial-era discourse of separate spheres. Rather than depicting the domestic sphere as a feminine sphere separate from the male world of governance, these forms of antisuffrage discourse depict the family as a site of governance -- male governance. As one Congressman put it in 1915: "Faithful to the doctrine of the old Bible and true to the teachings of the new, our fathers founded this Government upon the family as the unit of political power, with the husband as the recognized and responsible head." Traditions of religion and republicanism supported this conception of the household, as did the common law of coverture.
The common law understood the family as a domain of law and governance, a kind of gendered jurisdiction. Describing the ways the common law preserved the political understandings of an earlier era, Robert Steinfeld has observed:
Household dependents were . . . understood to come under the "government" of the head of household. In fact, speaking of household government was just another way of talking about the domestic authority of heads of households. From the perspective of [seventeenth century] contemporaries, references to household government did not seem strange; the household was understood to be a polity like other polities, and the head of household was understood to be like those who governed other polities. Household and wider polity were homologous, organized according to the same fundamental principles and along similar lines.
The common law empowered the head of household to govern its dependent members and to represent them to third parties. This was no abstraction, but an ordinary part of everyday life: the law of marriage gave men control over women and the ability to represent and speak for their wives in dealings with other men.
It is often said that the married women's property acts abolished the common law of coverture in the nineteenth century -- a legal fiction if ever there was one. Even the briefest look at antisuffrage discourse reveals that core concepts of coverture were a vibrant part of American legal culture well into the twentieth century and shaped public as well as private law. More specifically, this understanding of the family as a form of government was a robust part of our constitutional culture, repeatedly expressed by the framers of the Fourteenth Amendment as the reason that a democracy did not need to enfranchise one-half of its adult members.
As one Republican congressman put it during the debates on Reconstruction:
To constitute the required form of government, therefore, it is necessary that every citizen may either exercise the right of suffrage himself, or have it exercised for his benefit by some one who by reason of domestic or social relations with him can be fairly said to represent his interests. In one of these cases he is directly represented in the government, and in the other indirectly. This indirect representation is that possessed by women, children, and all those under the legal control of others.
However desirable it may be that every free agent should have by law an equal voice in the common government, yet the fact that women do not vote is not in theory inconsistent with republicanism. The primary and natural division of human society is into families. All forms of religion, all systems of law, recognize this arrangement. By common consent or common submission, whether founded upon reason and justice or not, is not material to the argument, the adult males are supposed to represent the family, and the government is not bound to look further than this common consent or submission. It receives as representation of the family those whom the family sets up in that capacity.
In debates over expanding the franchise in the District of Columbia that occurred after ratification of the Fourteenth Amendment and that anticipated argument over terms of the Fifteenth Amendment, advocates of woman suffrage pressed the Republican Party to adopt a universal suffrage creed. One congressman after another reasoned from the family as he expressed his objections to enfranchising women.
Senator Morrill spoke for many when he contended that allowing women to vote "would contravene all our notions of the family; "put asunder' husband and wife, and subvert the fundamental principles of family government, in which the husband is, by all usage and law, human and divine, the representative head." Representative Boutwell echoed this understanding: "The creation of man . . . illustrates most conclusively two facts -- the existence of the family and the unity of the will of the family." From this he concluded, "but one voice is needed for the expression of the one will of the family."
Other congressmen discussed the "common sense" assumptions that made the family a reasonable unit of political representation as they explained why they were prepared to extend the franchise to blacks but not to women:
Ladies are a part of the family with most of us . . . . Inasmuch as the negro is not even of the white family is of a different race and so treated, . . . you have no right to strip him of every attribute of manhood . . . . You do not associate with him; you did not affiliate with him . . . you do not sympathize with him . . . . None of these causes operate in regard to the family.
Or, as another put it:
There is not the same pressing necessity for allowing females as there is for allowing the colored people to vote; because the ladies of the land are not under the ban of a hostile race grinding them to powder. They are in high fellowship with those that do govern, who, to a great extent, act as their agents, their friends, promoting their interests in every vote they give, and therefore communities get along very well without conferring this right upon the female.
In reasoning about whether women needed the vote, congressmen often seemed to describe the circumstances of women in their own families, making the female at the heart of the debate in this early period, at least, known and white. It was this reflexive imaginative structure that anchored arguments from virtual representation. As one congressman put it in 1866, "the women of America vote by faithful and true representatives, their husbands, their brothers, their sons; and no true man will go to the polls and deposit his ballot without remembering the true and loving constituency that he has at home." On this view, family relationships ensured that all women were enfranchised if all men were.
When Senator Pomeroy introduced an early draft of the Fifteenth Amendment that would have enfranchised women, it was this commonplace assumption that he sought to challenge:
Do not tell me that . . . the men will take care of the rights of the women. The rights of individuals allied to you may be or may not be safe, but of a class they never can be.
The property and character of your own wife and child may be safe in the hands of the husband and father; but would you trust the property and character of all other women and children in his hands?
Such objections notwithstanding, the virtual representation argument remained the core of the antisuffrage case, and the institution of marriage lay at its heart. Unmarried women were assumed to depend on male relatives for representation. As the House Judiciary Committee put it in 1883: "The exceptional cases of unmarried females are too rare to change the general policy, while expectancy and hope, constantly being realized in marriage, are happily extinguishing the exceptions and bringing all within the rule which governs wife and matron." In his tract, Women's Suffrage: Reform Against Nature, Horace Bushnell was more blunt: "What we have to say is, that all women alike are made to be married, whether they are or not."
In advocating the passage of a sixteenth amendment in 1886, the Senate Select Committee on Woman Suffrage tried presenting direct representation of women in government as logically compelled by simple facts of social structure:
Probably not more than five-eighths of the men of legal age, qualified to vote, are heads of families, and not more than that proportion of adult women are united with men in the legal merger of married life. It is therefore quite incorrect to speak of the state as an aggregate of families duly represented at the ballot-box by their male head. The relation between the government and the individual is direct; all rights are individual rights, all duties are individual duties.
But the dispute was irreducibly normative. The claim that women were individual citizens with interests and agency independent of men was a challenge to male authority and to historic understandings of the marriage relationship, as both sides of the debate deeply appreciated.
B. "Self-Government": The Woman Suffrage Rejoinder
In claiming the right to vote, suffragists repudiated men's authority to represent women and rejected the republican conception of the state as an aggregation of households. As Mary Putnam Jacobi defined the revolutionary core of woman suffrage, the movement understood the state as based on "individual cells," not households:
Confessedly, in embracing in this conception women, we do introduce a change; a change in which, though in itself purely ideal, underlies all the practical issues now in dispute. In this essentially modern conception, women also are brought into direct relations with the State, independent of their "mates" or their "brood."
The demand for the vote was, in short, a challenge to the order of coverture. Suffragists argued that women had a right to "direct relations with the state, independent of their "mate' or "brood,'" in terms at once conservative and explosive. At every turn, suffragists justified women's right to self-representation by appeal to the nation's revolutionary heritage. The movement first employed this strategy in the antebellum period, when it used the Declaration of Independence as a model for its inaugural Declaration of Sentiments. From this first enumeration of women's grievances against men, suffragists invoked memories of the Revolution to challenge women's disfranchisement. Suffragists drew upon memories of the Revolution to dignify their claim and defend it from ridicule and, perhaps most importantly, to counter the familial discourse through which women's disfranchisement was justified.
In challenging the order of family government, women self-consciously positioned themselves as colonists. Suffragists recalled the relations of colonists and king as they demanded "self-government" and "no taxation without representation" and as they demonstrated how virtual representation provided women no effective representation at all.
The movement found in the nation's revolutionary heritage a powerful way to refute men's claim to represent women in the state. And yet, in so doing, suffragists were advancing a provocative -- and in some respects quite radical -- reinterpretation of gender relations in the family and in the state. Male superordination was not benign, but tyrannical and fundamentally unjust.
In asserting the right to self-representation, suffragists thus turned the logic and language of individualism into a challenge to male authority, in the family and elsewhere. As Stanton put it in her testimony before the House Judiciary Committee in 1892:
The point I wish plainly to bring before you on this occasion is the individuality of each human soul: our Protestant idea, the right of individual conscience and judgment -- our republican idea, individual citizenship. . . . In discussing the sphere of man we do not decide his rights as an individual, as a citizen, as a man by his duties as a father, a husband, a brother, or a son, relations some of which he may never fill. . . . Just so with woman.
In place of male protection, Stanton argued, women sought "self-sovereignty" or "self-government." "Even the preamble of the Constitution," she emphasized, "is an argument for self-government."
In using the language of "self-sovereignty" and "self-government," the woman's rights movement quite consciously employed American traditions of individualism to challenge relations of gender status. But suffragists also attacked status inequality directly and, following the traditions of the antislavery movement, often used the language of the American Constitution to do so. Male suffrage, Susan B. Anthony bluntly explained to the House Judiciary Committee in 1880, "establishes between the sexes that hateful thing of inequality; . . . it makes all men sovereigns and all women subjects; . . . it makes all men, politically, superiors and all women inferiors" and inflicts "not only political degradation, but . . . also social, moral, and industrial degradation" on women. Or as Elizabeth Cady Stanton put it:
"No bill of attainder shall be passed." "No title of nobility granted." So says the Constitution; and yet you have passed bills of attainder in every State of the Union making sex a disqualification for citizenship. You have granted titles of nobility to every male voter, making all men rulers, governors, sovereigns, over all women.
Whether suffragists argued their case in the language of individualism or in the language of status hierarchy, one message was clear: men could not and did not represent women. Suffragists drove this point home by pointing to women's subordination in the family and the market, and asserting that the record uniformly demonstrated men's incapacity to represent fully and fairly women's interests. This theme played a central part in appeals to women to join the suffrage movement.
As the movement contested claims of virtual representation and undertook to demonstrate why women needed the vote, advocates offered an account of women's subordination that ranged well beyond the fact of disfranchisement. Especially when recruiting women to the suffrage cause, suffragists refuted the virtual representation claim with examples drawn from women's daily lives:
As a mother, a woman goes through the tragedy of giving birth to her son, watches over and cares for his helpless infancy, brings him through all the diseases incident to childhood, is his nurse, physician, seamstress, washerwoman, teacher, friend, and guide, spending the cream of her days to bring him up to be a voter with no provision in law for her own support in the mean time, with not so much as "I thank you." Then he leaves home and marries a wife, whom it took some other mother twenty-one years to raise, educate, and teach to cook his meals, to make and wash his clothes, to furnish him with a bed, and to fill the house with comforts, of which he has the larger share, at her own expense. And all this done for him up to this period of his life without any cost to himself. Then he votes to help make a law to disfranchise his wife and these two mothers, who have unitedly spent forty-two years of the prime of their days for his benefit, without any compensation. And then he makes another law to compel his wife to do all the same kind of drudgery whieh [sic] his mother had done, with the addition of giving birth to as many children as in his good pleasure he sees fit to force upon her. And all her earnings and the fruit of her labor are his, his wife being the third woman who spends her life to support him. It takes three, and sometimes four women to get a man through from the cradle to the grave, and sometimes a pretty busy time they have of it, too. It is time we stated facts and called things by their right names, and handled this subject without kid gloves.
To counter the argument that women could rely on men to represent them and to demonstrate why women needed the vote, suffragists provided a detailed indictment of male privilege in the family and elsewhere. Suffragists protested the sex-based restrictions on employment and compensation that impoverished women and drove them into marriage. They challenged women's legally enforced dependency in marriage, particularly property rules that vested in the husband a right to his wife's earnings and to the value of his wife's household labor. They denounced the law's failure to protect women from physical coercion in marriage, including domestic violence, marital rape, and "forced motherhood." Suffragists objected to conventions that held men and women to inconsistent standards of sexual propriety, and they protested women's exclusion from juries, especially in cases involving women accused of committing crimes.
Over the decades, arguments for the vote changed, to a degree, in focus and character. By the turn of the century, the movement was arguing that women needed the vote for purposes of "social housekeeping," to enable women to participate in decisions about new ways government might provide for the health and welfare of families living in America's growing cities. As the movement broadened its class base, it began to devote more attention to discussing reforms that would serve the needs of working-class women.
At the same time that suffragists challenged traditional conceptions of the family, they undertook to show how enfranchising women would not harm the family and could well strengthen and support it. The vision of family life that suffragists defended was not, of course, that of the common law: the movement was seeking to reform the common law of marital status at the same time it sought the vote. The two initiatives sprang from a common vision. The suffrage movement was exploring new, more egalitarian conceptions of the family that contemplated a far more prominent role for women in the nation's economic and political institutions.
C. The Surrejoinder: Marital Unity Arguments Against Woman Suffrage
With an understanding of the kind of arguments women were making on behalf of their claim to vote, it is easy enough to appreciate how antis viewed woman suffrage as a threat to traditional understandings of marriage. In the practical as well as the symbolic sense, enfranchising women was an affront to male household headship. Antis expressed this sense of threat in a second cluster of arguments contending that it would harm the family to enfranchise women. In the common locution, enfranchising women threatened the unity of the marriage relation, in which there could be only one will -- that of the male head of household.
Antis who argued that woman suffrage threatened marital unity were quite explicit in discussing how the prospect of women voting challenged male household authority. Either women would continue to submit to male governance, or their self-assertion would produce conflicts in marriage. Discussion of this question was quite open, as this 1884 report of the House Judiciary Committee, rejecting petitions for a sixteenth amendment, reveals:
To permit the entrance of political contention into such a home would be either useless or pernicious -- useless if man and wife agree, and pernicious if they differ. In the former event the volume of ballots alone would be increased without changing results. In the latter, the peace and contentment of the home would be exchanged for the bedlam of political debate and become the scene of base and demoralizing intrigue.
While the virtual representation argument confidently supposes that men can speak for women, the marital unity argument expresses the fear that if women are allowed to speak for themselves, conflict will erupt in marriage. The virtual representation argument describes the family in ways that presume male and female interests converge; by contrast, marital unity arguments more openly acknowledge that male and female interests diverge. Deployed in tandem, as they generally were, the virtual representation and the marital unity arguments moved the antis' argument seamlessly from the register of paternalism to the register of power.
Antis were remarkably direct about how men would respond to wives who voted differently than their husbands did.
Should women vote in opposition to the men to whom they are bound . . . unpleasant consequences would sooner or later arise. No man would view with equanimity the spectacle of his wife or daughters nullifying his vote at the polls, or contributing their influence to sustain a policy of government which he should think injurious to his own well-being or that of the community.
One anti wondered, "what remedy would be found for the inflictions no law could reach or define, and which [women] would suffer at home for that exercise of their right which was opposed to the interests or prejudices of their male relations?"
Along similar lines, members of the Senate Woman Suffrage Committee who opposed the sixteenth amendment insisted that enfranchising women would not protect them from domestic violence and would only aggravate marital conflict. They argued that it was better to preserve a husband's marital authority than to undermine it by enfranchising women:
If the husband is brutal, arbitrary, or tyrannical, and tyrannizes over her at home, the ballot in her hands would be no protection against such injustice, but the husband who compelled her to conform to his wishes in other respects would also compel her to use the ballot if she possessed it as he might please to dictate. The ballot could therefore be of no assistance to the wife in such case, nor could it heal family strifes or dissensions. On the contrary, one of the gravest objections to placing the ballot in the hands of the female sex is that it would promote unhappiness and dissensions in the family circle. There should be unity in the family.
At present the man represents the family in meeting the demands of the law and of society upon the family. So far as the rougher, coarser duties are concerned, the man represents the family, and the individuality of the woman is not brought into prominence, but when the ballot is placed in the hands of the woman her individuality is enlarged and she is expected to answer for herself the demands of the law and of society on her individual account, and not as the weaker member of the family to answer by her husband. . . . This will introduce into the family circle new elements of disagreement and discord, which will frequently end in unhappy divisions, if not in separation or divorce.
Here objections to the reform of coverture in public and private law converged. Just as state courts -- and the United States Supreme Court -- thought it reasonable to prevent wives from bringing tort claims against their husbands under the new married women's property acts in order to preserve the harmony of the marriage relationship, so too did members of Congress think it reasonable to deny women the vote in order to preserve marital harmony. Of course, those who invoked marital harmony as grounds for denying women the vote or the right to sue a battering husband reasoned from a particular conception of marriage. Using law to inhibit women's capacity for self-assertion does not promote the unity, harmony, or well-being of any form of marital relationship except the male-headed household historically enforced by public and private law.
It is from this same standpoint that opponents of woman suffrage depicted the prospect of women voting as an expression of female egoism incompatible with the family's welfare -- a misplaced individualism that betrayed a selfish disregard for a woman's responsibilities in sustaining family life. Women's assertion of individuality appeared socially problematic, in ways that men's did not, precisely because it called into question the traditional distribution of authority and division of labor in the family. "If . . . women vote as they see fit, without regarding their husbands, then unhappy marriages will be multiplied and divorces redoubled."
Along with arguments about the importance of preserving sex differences, the virtual representation and marital unity arguments were the common reasons antis gave for denying women the vote. It is important to observe what counts as common sense in this story: American constitutional culture followed the common law of coverture in reasoning about the family as an institution of governance in which men have authority over women and the authority to represent women in public and in private dealings with other men.
IV. OF FAMILIES, FEDERALISM, AND "LOCAL SELF-GOVERNMENT"
There was another objection to women voting that was unique to suffrage claims based on the Constitution. Women who sought enfranchisement under federal rather than state law regularly encountered federalism objections to their constitutional claims.
Federalism arguments against enfranchising women by constitutional amendment developed in two phases. For the half century during which Americans debated whether women's right to vote should be protected under the federal Constitution, those who opposed enfranchising women by constitutional amendment invoked federalism values to argue that the question should be resolved by state law. By the end of the campaign, with ratification of the Nineteenth Amendment imminent, antis began to argue that the Nineteenth Amendment itself was unconstitutional on federalism grounds, a claim they litigated all the way to the Supreme Court.
The federalism objection to enfranchising women by constitutional amendment was in theory normatively independent of the objection to enfranchising women, but as we will see, there were deep ties between them. Throughout the campaign, the woman suffrage question was seen as a question concerning the family; and it was as a question concerning the family that federalism objections to a woman suffrage amendment were often articulated.
While woman suffragists invoked values of "self-government" as they petitioned for a constitutional amendment protecting the right to vote, antis invoked values of "local self-government" to oppose suffragist demands. Divergent conceptions of the family drove this struggle over the meaning of "self-government." As I show, states' rights proponents who invoked values of local self-government to defend the family from the reach of federal citizenship laws reasoned from the traditional understanding of the household that women's claim to vote challenged. Recovering this lost chapter in the history of federalism thus sheds new light on the gender understandings that have informed arguments for maintaining local control of family law over the course of American history.
A. Federalism and the Family in the Debate over the Woman Suffrage Amendment
Antis most commonly argued that protecting women's right to vote under the federal Constitution would violate states' rights because the states controlled suffrage qualifications under the federal constitutional scheme. An 1884 report of the House Judiciary Committee explained:
By the original Constitution of 1789 . . . what class or portion of the whole people of any State should be admitted to suffrage, and should, by virtue of such admission, exert the active and potential control in the direction of its affairs, was a question reserved exclusively for the determination of the State.
For some, this objection to enfranchising women by amending the federal Constitution was sufficient. But it left unanswered an important question: why couldn't the procedures for constitutional amendment set forth in Article V be used to alter this feature of the federal constitutional scheme -- as indeed they had been used in ratifying the Fifteenth Amendment? To answer this question, it was necessary to identify some reason why the genius of the federal system required preserving state control over questions of woman suffrage from alteration by constitutional amendment.
In answering this question, many "states' rights" proponents offered federalism arguments for restricting the use of Article V that incorporated the gendered premises of the antisuffrage argument itself. For example, the 1884 Judiciary Committee report, quoted above, continued explaining its objections to enfranchising women by constitutional amendment by emphasizing that the proposed reform involved questions of marital status law beyond the reach of federal power:
In respect to married women, it may well be doubted whether the influences which result from the laws of property between man and wife would not make it improbable that the woman should exercise her suffrage with freedom and independence. This, too, in despite of the fact that the dependence of woman under the common law has been almost entirely obliterated by statutory enactments. At all events, the power proposed to pass laws to carry woman suffrage into effect would be held to give Congress the power to intrude upon the marital relations in the States and the rights of property incident thereto, and as to which your committee see great objection.
This objection was explored at some length in the Minority Report of the Senate Committee on Woman Suffrage in 1882 -- a document committee members reprinted on at least three occasions in ensuing decades as a statement of the objection to enfranchising women. The report explained:
Great organic changes in government, especially when they involve, as this proposed change does, a revolution in the modes of life, longstanding habits, and the most sacred domestic relations of the people, should result only upon the demand of the people, who are to be affected by them. Such changes should originate with, and be molded and guided in their operation and extent by, the people themselves.
The question of women voting, the report reasoned:
Involves considerations so intimately pertaining to all the relations of social and private life -- the family circle -- the status of women as wives, mothers, daughters, and companions to the functions in private and public life which they ought to perform, and their ability and willingness to perform them -- the harmony and stability of marriage, and the division of the labors and cares of that union -- that we are convinced that the proper and safe discussion and weighing of them would be best secured by deliberations in the separate communities which have so deep an interest in the rightful solution of this grave question.
The report explained that because the question of women voting implicated the structure of the family, the question was properly reserved within the federal constitutional scheme to "local self-government." The report described the essence of "local self-government":
Recent events, though tending strongly to centralization, have not destroyed nor impaired in the public mind the inestimable value of local self-government. Among the powers which have hitherto been esteemed as most essential to the public welfare, is the power of the States to regulate, each for itself, their domestic institutions in their own way; and among those institutions none have been preserved by the States with greater jealousy than their absolute control over marriage and the relation between the sexes.
Note how the federalism argument against enfranchising women by constitutional amendment self-consciously deploys the concept of "domestic" institutions to refer to both the internal jurisdictional relations of the state and the family relations of the household. The phrase "local self-government" performs the same double function, referring at once to state governance of "domestic" affairs within its jurisdiction and to private governance exercised by the master of a household over its dependent members. It is clear enough that, in the suffrage debates, the phrase "local self-governance" presumes a traditional, common law understanding of the family: the "self" that governs must refer to a male head of household and his dependents; otherwise, the phrase "local self-governance" would not make sense as a rallying cry against women's demands for political self-representation.
Finally, note how the federalism arguments describe jurisdiction over domestic affairs in the language of jealousy -- insisting upon "the power of the States to regulate, each for itself, their domestic institutions in their own way; and [contending that] among those institutions none have been preserved by the States with greater jealousy than their absolute control over marriage and the relation between the sexes." On this account, the structure of federal jurisdiction is sexualized, with each of the several states retaining local control over its own women through local control of family law.
What kind of imaginative dynamics produce this sexualized talk about jurisdiction? As a general matter, citizens can either identify with the national government and experience it as expressing the collective identity, values, and will of the citizenry, or disidentify with the national government and experience it as an outside force that is imposing its identity, values, and will upon the citizenry. When federal law divests men of forms of traditional authority in the family long protected by the common law, the jurisdictional conflict can thus assume imaginative form as a conflict among men for control over women and children.
This view of the matter was directly expressed in 1881 by a senator from Alabama who objected to the formation of the Senate's first Select Committee on Woman Suffrage. Senator Morgan imagined the federal government enfranchising women in the form of a man meddling in another's marital business. Morgan condemned any proposal that would ask the federal government "to draw a line of political demarkation [sic] through a man's household, through his fireside, and to open to the intrusion of politics and politicians that sacred circle of the family," and drove this point home by depicting federal intrusion as a dirty old man coming between a husband and his wife:
What picture could be more disagreeable or more disgusting than to have a pothouse politician introduce himself into a gentleman's family, with his wife seated at one side of the fireplace and himself at the other, and this man coming between to urge arguments why the wife should oppose the policy that the husband advocates, or that the husband should oppose the policy that the wife advocates? Sir, it would be unseemly and disgraceful to allow the families of this country to be intruded upon by any such evil and vile influence as must necessarily attend such intrusions upon the domestic circles of the land.
In the Senator's view, the federal government no more had jurisdiction over woman suffrage than it had jurisdiction over married women's "separate estates." He reminded the Senate that its jurisdiction in matters of suffrage and the family was restricted to "the Territories and . . . the District of Columbia," observing:
If you expect to proceed into the States you must have the Constitution of the United States amended so as to put our wives and our daughters upon the footing of those who are provided for in the fourteenth and fifteenth amendments. Your jurisdiction is limited to the Territories and to the District of Columbia.
Note the Senator's curious suggestion that proponents of a woman suffrage amendment would have to amend the federal Constitution before they could enfranchise women by amending the federal Constitution. We might read the Senator's remarks simply as one of many efforts to differentiate federal involvement in matters of race and gender so as to undercut the constitutional precedent of the Fifteenth Amendment. Yet when the Senator argues, "If you expect to proceed into the States you must have the Constitution of the United States amended so as to put our wives and our daughters upon the footing of those who are provided for in the fourteenth and fifteenth amendments," we can also read this jurisdictional claim as continuing the sexualized argument for local control of family life -- this time in an overtly racialized register. In the Senator's view, the federal government had no business involving itself in matters concerning woman suffrage because the question concerned the family, that is, the wives and daughters of white men. On this view, the prospect of the Senate taking jurisdiction of the woman suffrage question was especially noxious as it would involve men interfering in the household governance prerogatives -- or, more colloquially, the "sexual business" -- of their peers.
The argument that enfranchising women by constitutional amendment would impermissibly involve the federal government in domestic concerns persisted in the closing decades of the campaign. For example, in 1916 Congressman Henry St. George Tucker gave a Storrs Lecture at Yale Law School entitled "Local Self-Government," in which he argued that enfranchising women by constitutional amendment violated a system of federalism premised on "local self government" -- defined as "the recognition of the trusteeship of man as the defender of the home and the guardian of its sacred precincts." But in the closing years of the suffrage campaign, the focus of federalism arguments often shifted from the family to race, as southern states assumed centrality in federalism debates over the Nineteenth Amendment. As one Senator put it succinctly in 1919: "Here is exactly the identical same amendment applied to the other half of the Negro race. The southern man who votes for the Susan B. Anthony amendment votes to ratify the fifteenth amendment."
B. Challenging the Constitutionality of the Nineteenth Amendment: Leser v. Garnett
As passage of the Nineteenth Amendment began to appear imminent, a group of its most passionate opponents, including the National Association Opposed to Woman Suffrage and its affiliates and allies across the country, began to employ referendum elections and litigation as strategies to prevent ratification. Of the several lawyers who featured prominently in the litigation campaign, William Marbury played a central part in organizing the suit that led the Supreme Court to decide a federalism challenge to the Nineteenth Amendment itself.
Marbury, a longtime foe of the Fifteenth Amendment, brought to the task of challenging the Nineteenth Amendment a new cluster of federalism arguments that were, unlike their nineteenth-century precursors, based on the text of Article V itself. Marbury first presented these arguments in 1920, in a Virginia Law Review article that opened with ominous predictions about the gender and racial consequences of women voting. Observing that Article V expressly prohibits using the amending power to deprive any state of its equal suffrage in the Senate without that state's consent, Marbury then reasoned:
If by an amendment of this kind women may be given the right to vote, the right to vote might be given to women only, or even to a special class of women only, as to such women as owned no property -- the "proletariat". In that case the original State which had been guaranteed perpetual equal representation in the Senate would have been destroyed and an entirely new State substituted.
In short, Marbury argued that changing the gender composition of the electorate changed the fundamental identity of the state: using federal power to alter the gender composition of the state's electorate was to "substitute" "an entirely new State" in place of the original. A state with a female electorate was entirely different from a state with a male electorate -- just as a state that restricted the franchise to women without property was organized in the mirror image of the United States at its founding, when the franchise was restricted to men with property. From this, Marbury reasoned that the Article V amendment process could not be used to change the gender composition of the electorate without destroying the states whose votes in the Senate Article V protected.
Of the several cases that antisuffragists brought challenging the constitutionality of the Nineteenth Amendment, it was Marbury's case, Leser v. Garnett, that the Supreme Court decided on the merits. Marbury's brief in Leser advanced a new rendition of the argument that changing the gender composition of the electorate unconstitutionally changed the identity of the several states:
The right of suffrage previously possessed only by qualified male citizens has been diluted to half strength.
. . . The amendment . . . re-makes -- re-constitutes -- every State in the Union, that has not already by voluntary internal act re-made itself, into a state governed equally by male and female votes. It abolishes a distinction in political power that has been since the world began.
The brief devoted considerable energy to the task of distinguishing the Fifteenth and Nineteenth Amendments, and it is here that Marbury presented the traditional structural arguments that the woman suffrage amendment interfered with local control over matters concerning the family. There was a fundamental difference between race and sex discrimination, the brief argued. Race discrimination involved class discrimination of national concern, whereas the gender discrimination addressed by the Nineteenth Amendment involved matters concerning the family that the Constitution reserved to local control:
The Nineteenth Amendment invades a totally new sphere from the constitutional point of view, -- a sphere essentially belonging to municipal law and therefore to the States. It has no relation whatever to any national problem, past, present, or future. Women are not the "wards of the Nation." The family is, however, the foundation of the State and if an arbitrary rule of suffrage is imposed upon the State that may break into and overthrow its whole domestic law it is plain that the State has lost "in a general sense the power over suffrage which has belonged to it from the beginning and without the possession of which power . . . both the authority of the Nation and the State would fall to the ground."
Prohibiting race discrimination is a vitally different matter from imposing sexual equality. If any State can be coerced into rewriting its law of property or domestic relations so as to eliminate sex distinctions it has no independence in regard to legislation left.
Justice Brandeis's opinion for the Court rejected the plaintiff's arguments in a passage remarkable for its terseness:
This Amendment is in character and phraseology precisely similar to the Fifteenth. For each the same method of adoption was pursued. One cannot be valid and the other invalid. That the Fifteenth is valid . . . has been recognized and acted on for half a century. . . . The suggestion that the Fifteenth was incorporated in the Constitution, not in accordance with law, but practically as a war measure which has been validated by acquiescence, cannot be entertained.
With that abrupt assertion, the Court disposed of the states' rights argument against the woman suffrage amendment that had flourished for decades. It offered not a word affirming or negating the claims about the gendered structure of the federal system that opponents of the woman suffrage amendment had been advancing for decades.
V. READING THE NINETEENTH AMENDMENT: CONSTITUTIONAL NORM OR RULE?
The campaign for woman suffrage dramatically altered the conceptual framework within which Americans reasoned about the question of women voting. By the end of the campaign, the Nineteenth Amendment's supporters could appeal to forms of "common sense" that simply did not exist in the aftermath of the Civil War. In floor debate, congressmen argued, "Is it possible that any question could be more distinctly Federal than this? Is it possible that any question could go more directly to the source of the public welfare than the right of one-half of its population to vote?" "There can be no logical objection to universal suffrage in a democracy. Indeed, a democracy is inconceivable without universal suffrage." As one congressman observed in the final debates over the Nineteenth Amendment, dramatic changes in the ways Americans understood women's position in the family in turn produced changes in the common sense application of democratic principles to the question of their voting:
In the past the restriction of the right of suffrage to the male population was not contrary to democratic philosophy, because under the old order of civilization women derived their social status from their men and were economically dependent upon them. For the past half century a change in this regard has been taking place in the social structure, particularly in the last generation. The old conception of the place of woman in the scheme of existence was that she was the member of a household, which was ruled by a male head; that her place in the world was determined by the place held by this head; and that he was responsible for her economically. Among many this conception still obtains as a theory, and is still to an extent recognized in the law, but in reality has been substantially modified.
Once inconceivable, women's enfranchisement was now understood by many as inevitable, reflecting and affirming important changes in the relations of the sexes and the role of the family in American life.
Of course, no major social change is experienced the same way by all who participate in it, and the ratification of the Nineteenth Amendment was no exception. Americans inside and outside the suffrage movement understood the Nineteenth Amendment to augur a shift in sex roles and family structure, but they understood and responded to this change in different ways.
This range of response is visible in the leadership of the women's movement itself. In the immediate aftermath of ratification, women activists turned to Congress for support in their campaign for progressive social reforms such as a federal maternal and infant health act, a child labor amendment, and the creation of federal agencies, including a Women's Bureau in the Department of Labor and a new Department of Education. Creation of the Women's Bureau in 1920 and the enactment of the Sheppard-Towner infant health act in 1921 and the child labor amendment in 1924 thus represented early and highly visible political successes for newly enfranchised women. Meanwhile, the National Woman's Party and the League of Women Voters identified sexually discriminatory legislation in states across the nation and targeted surviving elements of coverture in every jurisdiction for immediate statutory reform. The National Woman's Party circulated early drafts of a proposed equal rights amendment, while other organizations renewed proposals for a constitutional amendment that would give the federal government authority to enact uniform marriage and divorce legislation. In the early 1920s, an expanded electorate was inviting government to play a new role in shaping the lives of women, children, and the family itself.
But, as is often the case, moments of major social reform precipitate diverse forms of containment and backlash. In the immediate aftermath of ratification, conservative groups, business associations, and politicians -- including some who had actively campaigned against female suffrage -- organized to oppose and, in some cases, to defeat social reforms supported by the women's movement. Opponents of reforms sponsored by the women's movement again presented themselves as defenders of traditional family values and states' rights. Their efforts derailed the child labor amendment, which fell victim in the ratification phase to a conservative network including the Sentinels of the Republic, the Woman Patriots, the National Association of Manufacturers, the American Farm Bureau Federation, and a small number of prominent religious leaders. Opposition to the Sheppard-Towner Act also temporarily united groups such as the Sentinels of the Republic, the Woman Patriots, and the American Medical Association. Conservatives stimulated anxieties about the federal government's growing role in shaping family life in order to encourage Americans to reject the child labor amendment and the new federal maternal infant health care program.
While the story of women's struggle to gain entry into politics and the party system during the 1920s is beyond the scope of this Article, it is important to appreciate the ways that conflict over "the woman question" continued in the aftermath of the Nineteenth Amendment's ratification in order to understand the forces that shaped reception of the Nineteenth Amendment itself. For like the Fourteenth Amendment, the Nineteenth Amendment was initially interpreted in ways that bore the impress of the conflicts that had given rise to constitutional reform.
In the immediate wake of its adoption, there were signs that courts -- including the United States Supreme Court -- interpreted ratification of the Nineteenth Amendment as changing the foundational understandings of the American legal system. These courts viewed the Nineteenth Amendment as a constitutional amendment with normative implications for diverse bodies of law, including the law of marital status.
Yet judicial acknowledgment of women's enfranchisement as a break with traditional understandings of the family was short-lived. Soon after ratification, the judiciary moved to repress the structural significance of women's enfranchisement, by reading the Nineteenth Amendment as a rule concerning voting that had no normative significance for matters other than the franchise.
Within years of its adoption, one can see the Nineteenth Amendment progressively dissociated from questions concerning the family that governed the debate over woman suffrage from the antebellum period to ratification. And as courts proceeded to dissociate the Nineteenth Amendment from the concerns that dominated the debates over its ratification, they domesticated the woman suffrage amendment, erasing the deep structural and symbolic significance that for generations had been imputed to this constitutional reform. With interpretive construction of the Nineteenth Amendment as a rule dissociated from any larger normative concerns, one can see the containment of the Amendment's potential significance -- its transformation from a systemically explosive reform to a systemically unremarkable, normatively insignificant, fragment of constitutional text.
This process of domestication was not inevitable, as early cases such as Adkins v. Children's Hospital illustrate. In Adkins we can see an alternative path of reception -- one that views women's enfranchisement as a constitutional change of deep systemic significance, one that understands the ties between the constitutional law of suffrage and the common law of marital status.
A. Cases Reading the Nineteenth Amendment as Signaling a Shift in Understandings of Marriage: Adkins v. Children's Hospital
While Brandeis's terse opinion in Leser v. Garnett was silent concerning the gendered significance of the Nineteenth Amendment's ratification, a year later the Supreme Court issued an opinion in that treated ratification of the Amendment very differently. The Court's opinion in Adkins approached the Nineteenth Amendment as embodying a sex equality norm that had implications for constitutional questions other than voting. Further, the Adkins opinion discussed equality for women in the framework of the suffrage debates: as emancipation from the traditions of reasoning about gender embodied in the common law of marital status. But these aspects of the Adkins opinion have generally been forgotten because the Court offered its reading of the Nineteenth Amendment in the course of analyzing questions of substantive due process doctrine that the Court repudiated in the 1930s.
In the opening decades of the twentieth century, the Court restricted state regulation of the employment relationship to protect employees' freedom of contract. But the Court reasoned about the contractual liberties of male and female employees differently. In Lochner, the Court struck down legislation restricting the number of hours a week employees could work, while in Muller, the Court held that states could validly impose such restrictions on female employees. To explain why states were constitutionally justified in regulating women's work as they could not regulate men's work, Muller pointed to women's role in bearing and rearing children. Muller presented this physiological justification for gender-differentiated treatment of women's contracts as carrying forward the traditions of coverture. The Court reasoned that even if the old coverture rules that restricted wives' capacity to contract were then being repealed, states were still justified in imposing special restrictions on women's employment because of women's childbearing role.
Adkins involved a challenge to the gendered framework of substantive due process law. Did a law requiring employers to pay their female employees a minimum wage interfere with the employees' liberty of contract, or was it a valid exercise of the police power recognized in Muller? The question divided the women's movement. Many in the suffrage movement had supported protective labor legislation for women as the only form of protective labor legislation viable under prevailing constitutional doctrine; but in the immediate aftermath of the Nineteenth Amendment's ratification, some in the movement were beginning to question the wisdom of supporting sex-differentiated legislation and to call for a general prohibition on sex distinctions in law. The critics of protective labor legislation who challenged the minimum wage law in Adkins drew on feminist criticism of sex-based legislation to attack the gendered assumptions on which substantive due process law rested. The lower court found their objections persuasive and tied the need for doctrinal reform to ratification of the Nineteenth Amendment, as did the Supreme Court.
Justice Sutherland, who had recently joined the Court, wrote the opinion in Adkins that struck down the sex-based minimum wage law on sex equality grounds. Before his appointment, Sutherland had counseled Alice Paul of the National Woman's Party on the suffrage amendment and, after its ratification, advised Paul about drafting an equal rights amendment. The opinion he wrote for the Court in Adkins pointed to the changes in women's status culminating in the ratification of the Nineteenth Amendment as a reason for distinguishing Muller and for analyzing the regulation of women's employment in the same constitutional framework the Court used to analyze the regulation of men's employment:
But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller case . . . , has continued "with diminishing intensity." In view of the great -- not to say revolutionary -- changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from that old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.
The Adkins opinion is historically significant, not simply because it reads the Nineteenth Amendment as conferring equality on women, but because the opinion understands sex equality as freedom from traditions of reasoning about gender rooted in the common law of marital status: the Court describes the changes culminating in ratification of the Nineteenth Amendment as according woman "emancipation from that old doctrine" that subjects her to "special protection or . . . restraint in her contractual and civil relationships." Because Adkins views the gender-differentiated framework of substantive due process law as carrying forward the traditions of coverture and understands the Nineteenth Amendment as repudiating those same traditions, the opinion concludes that substantive due process law should be modified to reflect the changes in women's status expressed in the new constitutional amendment. With ratification of the Nineteenth Amendment, Muller's reasoning no longer controls, and women may not be "subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances."
Many criticized the Court's reasoning in Adkins. Dissenters argued that the gender-differentiated framework of substantive due process law reflected differences in the physical and social roles of the sexes that were not eliminated by ratification of the Nineteenth Amendment. But Adkins remains historically significant, however one judges substantive due process law or the gender distinctions within it. The opinion demonstrates that in the immediate aftermath of ratification, the Court interpreted the Amendment in light of the woman suffrage debates. In this period, the Court understood the Amendment to confer equality on women by breaking with traditional ways of reasoning about women's roles rooted in the family relationship.
Reasoning from this standpoint, Adkins interpreted the Amendment as a change in the Constitution with significance for other bodies of constitutional doctrine. The Adkins opinion pointed to shifts "in the contractual, political and civil status of women culminating in the Nineteenth Amendment," and treated this positive account of the ratification campaign normatively -- as a reason for similarly transformative interpretation of the due process jurisprudence of the Fifth and Fourteenth Amendments. Adkins thus offers the first synthetic interpretation of the Nineteenth Amendment. The opinion understands the suffrage amendment as bringing about a major change in the terms of women's citizenship, a change having implications for the way the Court interprets diverse bodies of constitutional law.
The Supreme Court was not the only court to read the Nineteenth Amendment as embodying a sex equality norm that had implications for practices other than voting, or to suggest that the Amendment's ratification marked a break with the common law's marital status norms. For example, two years after the Adkins decision, a federal district court interpreted the suffrage amendment as abrogating coverture principles in federal law. Asked to apply the common law doctrine relieving a wife of liability for criminal conduct undertaken with her husband, the judge refused, observing that "since the adoption of the Nineteenth Amendment to the Constitution, it seems to me that the rule of common law has no application to crimes committed against the United States." This same understanding of the Nineteenth Amendment moved a judge concurring in a federal tax case to reject the government's claim that, by marriage, a wife's tax domicile was her husband's. Citing Adkins for the proposition that "woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships," the judge asserted that the Nineteenth Amendment "covers the right of woman to select and establish a residence wherever she chooses to vote." Other courts deciding questions concerning coverture law invoked the suffrage amendment to authorize liberalizing interpretations of the common law. In these cases, courts invoked the Nineteenth Amendment as a reason for exercising their discretion in interpreting the common law so as to restrict the authority of traditional coverture concepts.
But these decisions were not common. More often, courts treated constitutional and common law regimes as juridically independent. One federal court objected: "In this age of the Nineteenth Amendment, rights of women, feminism, women office holders, and general emancipation of the sex, it is almost shocking to learn that in one form of conveyancing, "the husband and wife are as one person in law' . . . ." The court understood the Nineteenth Amendment as repudiating the gender understandings of coverture but observed the conflict without treating ratification of the suffrage amendment as a reason for adopting a liberalizing interpretation of the common law. In this respect, the opinion reflects what was shortly to emerge as the "common sense" view of the Amendment: that it had no direct bearing on marital status law. Indeed, soon after the Supreme Court invoked ratification of the Nineteenth Amendment as a reason for striking down the sex-based minimum wage law in Adkins, the Court upheld a law that prohibited women from working in restaurants at night, distinguishing Adkins and once again invoking the reasoning of Muller.
Legislatures responded to ratification of the Nineteenth Amendment in similar terms. In the wake of the Amendment's ratification, the women's movement persuaded Congress to enact the Cable Act, which allowed women who married certain foreign nationals to retain their American citizenship. In providing that husband and wife could be citizens of different nations, the statute broke with coverture domicile rules, a departure justified by reference to the Nineteenth Amendment. As one congressman put it, "there was no particular force in the demand for this bill until the nineteenth amendment became part of the organic law of the land. . . . At that moment the doctrine of dependent or derived citizenship became as archaic as the doctrine of ordeal by fire." But the Cable Act abolished dependent citizenship for only some women. Congress retained the old common law domicile rules for women who married men of disfavored races or nationalities, compelling them to forfeit their American citizenship. A number of states also reformed common law domicile rules in the wake of the Nineteenth Amendment's ratification, but like the Cable Act, the new state laws only partly abrogated the common law rule. They allowed married women to choose their own domiciles for voting purposes only, leaving the common law rule otherwise intact.
Thus, in the immediate aftermath of ratification, both the Supreme Court and Congress understood the Nineteenth Amendment to redefine citizenship for women in ways that broke with the marital status traditions of the common law. But neither the Court nor Congress acted consistently on this understanding. Some federal and state courts viewed ratification of the suffrage amendment as a reason to repudiate, or interpret restrictively, coverture concepts in various private law settings. But this understanding of constitutional reform never gathered significant momentum.
B. From Norm to Rule: Cases Applying the Nineteenth Amendment to Office Holding and Jury Service
If, however, one changes context -- moving away from matters concerning marriage law to matters concerning "political" rights, such as the right to hold office and to serve on juries -- one encounters new evidence of conflict about the meaning and scope of the Amendment in the immediate aftermath of its ratification.
At least some states viewed the Nineteenth Amendment as conferring upon women full citizenship status in the political sphere. Consider the case of Maine. While that state's courts had interpreted its constitution to prohibit women from holding office, the legislature responded to the ratification of the Nineteenth Amendment by enacting a statute declaring that the right to hold state office could not be denied on account of sex. The state's highest court then ruled that its governor could appoint a woman as justice of the peace. In upholding the appointment under the statute, the Supreme Judicial Court of Maine declared that the Nineteenth Amendment nullified the earlier interpretation of the state constitution: "Every political distinction based upon the consideration of sex was eliminated from the Constitution by the ratification of the amendment. Males and females were thenceforth, when citizens of the United States, privileged to take equal hand in the conduct of government." Other state courts joined Maine in ruling that the Nineteenth Amendment eliminated state-law restrictions on women holding office.
Jury service was another arena in which legislatures and courts wrestled with the implications of the Ninteenth Amendment's ratification. The common law barred women from serving on juries -- an exclusion long protested by the suffrage movement. Ties between suffrage and eligibility for jury service were tight enough that in some states legislatures responded to ratification of the Nineteenth Amendment by enacting statutes that enabled women to serve as jurors. But in states where no such legislation was enacted, courts disagreed about whether the Nineteenth Amendment made women eligible for jury service. Did women's enfranchisement signal that women were entitled to participate as citizens on the same terms as men, or did the Amendment address questions of voting only?
Courts divided. In some states where statutes provided that jurors were to be drawn from the pool of electors, courts reasoned that, after the Nineteenth Amendment enfranchised women, women were entitled to serve as jurors -- even if the statutes discussed eligible jurors as "men." But courts in other states read the Amendment more narrowly. Interpreting a juror qualification statute that designated male residents as jurors, the Louisiana Supreme Court reasoned that the Nineteenth Amendment enfranchised women without making the new electors jurors, emphasizing that "[a] trial by jury, at common law, and as guaranteed by the Constitution, has been universally declared to mean a trial by a jury of men, not women, nor men and women." Illinois courts read the Nineteenth Amendment in this same narrow fashion. Even though Illinois law provided that electors would serve as jurors without referring to sex, the state's highest court read a sex restriction into the statute: "The word "electors,' in the statute here in question, meant male persons, only, to the legislators who used it." Ratification of the Nineteenth Amendment might have made women electors, but it did not make the new electors jurors: "The Nineteenth Amendment to the Constitution of the United States makes no provision whatever with reference to the qualifications of jurors." As a Massachusetts court explained: "The change in the legal status of women wrought by the Nineteenth Amendment was radical, drastic, and unprecedented. While it is to be given full effect in its field, it is not to be extended by implication." This narrow understanding of the Nineteenth Amendment, as a rule governing voting only, emerged as the dominant understanding of the Amendment. The Supreme Court never mentioned the Nineteenth Amendment in its cases upholding, and then striking down, statutes providing women automatic exemptions from jury service.
VI. Rereading the Fourteenth Amendment: Families, Federalism, and Equal Protection
Modern sex discrimination doctrine is built on this "thin" conception of the Nineteenth Amendment -- on the assumption that the Nineteenth Amendment is a nondiscrimination rule governing voting that has no bearing on questions of equal citizenship for women outside the franchise. In developing sex discrimination doctrine under the Fourteenth Amendment, the Court seems to have proceeded from the understanding that there is no constitutional history that would support a constitutional commitment to equal citizenship for women -- that such a commitment is to be derived, to the extent it can be derived at all, by analogizing race and sex discrimination. These assumptions have given rise to a body of sex discrimination doctrine that is limited in legitimacy and acuity by the ahistorical manner in which it was derived from the law of race discrimination.
Erasure of the Nineteenth Amendment from our collective memory and constitutional canon has helped produce a body of sex discrimination law that lacks foundation in our constitutional history and that defines equal protection formalistically, as a constraint on state action that draws group-based distinctions between men and women. The Court's failure to ground sex discrimination jurisprudence in anything approximating constitutional or social history gives us a law of sex discrimination that begins by according heightened scrutiny to a statute regulating the sale of watered-down beer.
Of the twenty-nine equal protection cases involving sex discrimination that the Court has decided since Reed v. Reed, nineteen have involved laws that in some way regulated family relationships, but the sole question that the Court addressed in these cases was whether the state could distribute entitlements or obligations in a manner that employed group-based classifications. This question is not insignificant, but it is hardly the only question we might ask when considering whether a given state practice, especially one regulating family relations, accords women the equal protection of the law.
These omissions in equal protection law in turn have consequences in the law of federalism. Because sex discrimination doctrine does not identify the family as a historic site of status inequality for women, it exerts no constraints on federalism doctrines that identify the family as the paradigmatic site of state, rather than federal, jurisdiction. The interplay of equal protection and federalism doctrines can thus insulate state regulation of family life from Fourteenth Amendment scrutiny, thereby perpetuating traditional forms of status inequality between the sexes.
To illustrate how completely, and consequentially, prevailing understandings of the Constitution erase the constitutional history of the Nineteenth Amendment, I offer as a brief case study the litigation that produced and attended the provisions of the Violence Against Women Act (VAWA) that were recently invalidated by the Court in United States v. Morrison. I then reflect on some of the ways that knowledge of the history recounted in this Article might alter our understanding of the Constitution. Finally, I examine some doctrinal pathways by which this new understanding of our constitutional history might manifest itself, considering in particular how the analytical framework of sex discrimination doctrine might vary if it were based on a synthetic interpretation of the Fourteenth and Nineteenth Amendments and a sociohistoric understanding of sex equality grounded in the history of the woman suffrage campaign.
A. The Violence Against Women Act -- and the Failures of Sex Discrimination Doctrine
Congress enacted the provisions of VAWA that the Court struck down in United States v. Morrison to remedy deficiencies in the protections afforded women by sex discrimination doctrine under the Equal Protection Clause. As we have seen, during the 1970s the Supreme Court adopted a regime of heightened scrutiny under the Equal Protection Clause that prompted most states to remove sex distinctions from laws regulating family life, including policies governing sexual assault and assault between intimates. From the standpoint of equal protection doctrine, this change in policy amounted to the elimination of "sex discrimination" from the law. Yet, too often, the change was of little consequence because the sex distinctions in the policy were merely descriptive of the parties who engaged in the regulated conduct and had little other directive or distributive force. Making the exemption for husbands who rape their wives gender-neutral gives equal treatment to wives who rape their husbands, but does nothing for women who are raped in marriage.
Sex discrimination doctrine does not recognize the regulation of family relations as a site of special equal protection concern for women. Fashioned in the image of race discrimination doctrine, the law of sex discrimination sees status harm in state action that segregates or classifies citizens on the basis of group membership. It does not recognize the forms of status harm that may be inflicted in relations of intimacy, nor does it understand how the state enforces status relations through the regulation of practices that are primarily or exclusively performed by members of one group. Sex discrimination doctrine may have prompted state actors to adopt gender-neutral terminology in regulating family relations, but too often this change has been cosmetic, exerting little or no effect on the regulatory incidence of the law. A constitutional regime that insists that the state regulate gender-specific conduct in gender-neutral language (for example, "spousal rape") may do little more than mask the gender-specificity of the regulated conduct.
In determining the kinds of state action that are "sex-based" and so warrant heightened scrutiny, the Court reasons formalistically, without reference to the history of women's treatment in the American legal system. Thus, the Court ignores the fact that many nineteenth-century doctrines of marital status law were couched in facially neutral terms (for example, the doctrine of interspousal tort immunity that precluded "spouses" from suing each other for battery). And the Court ignores the fact that, under the pressure of heightened scrutiny, many of the most infamous marital status doctrines of the common law have recently been redefined in gender-neutral terms. A rule that exempts spouses from criminal prohibitions on rape, treats spousal battery more leniently than other forms of assault, values "homemaker" services, or defines child support will not trigger heightened scrutiny, no matter how closely its history may be tied to the marital status rules of the common law. The Court defers to legislative judgments so long as there is no evidence that the facially neutral policy is motivated by a discriminatory purpose, a concept that the Court has defined as tantamount to malice: state action is discriminatory only if undertaken "at least in part "because of,' [and] not merely "in spite of,' its adverse effects" on women.
Thus, when women challenged policies that provided victims of domestic violence less protection than victims of other violent crimes, they had great difficulty proving that the policies discriminated on the basis of sex -- despite the fact that it is women who are overwhelmingly the targets of assaults between intimates. Federal courts have repeatedly ruled that facially neutral spousal assault policies do not trigger heightened review under the Equal Protection Clause. Judicial interpretation of the Equal Protection Clause thus has played virtually no role in the campaign to reform the law of rape, to abolish the marital rape exemption, and to alter domestic violence policies, which for the most part has been conducted in legislatures, administrative agencies, and on the streets.
With the courts silent, women asked Congress to exercise its powers under the Commerce Clause and Section Five of the Fourteenth Amendment to enact a statute recognizing women's civil right to freedom from gender-motivated violence. Advocates made the case for the civil rights remedy -- whose terms did not reference the family -- by emphasizing the States' historic failure to enforce laws against rape and assault in marriage. Precisely because advocates raised these concerns, the proposed civil rights statute met with a wave of federalism objections.
As soon as the civil rights remedy was proposed, the Conference of Chief Justices announced its opposition to the bill on the ground that "the federal cause of action . . . would impair the ability of state courts to manage criminal and family law matters traditionally entrusted to the states." Speaking for the Judicial Conference of the United States, Chief Justice Rehnquist also objected to the civil rights remedy, complaining that the "new private right of action [is] so sweeping, that the legislation could involve the federal courts in a whole host of domestic relations disputes." Facing objections such as these, the bill's scope was reduced over several years of hearings and negotiations before it was finally enacted.
While most federal courts upheld the civil rights remedy on Commerce Clause grounds, the courts that declared the statute beyond Congress's power emphasized that it intruded on areas of traditional state jurisdiction -- criminal law and domestic relations law. The Fourth Circuit's lengthy opinion striking down the statute elaborated federalism objections to the civil rights remedy on a variety of doctrinal grounds; but at the heart of the court's constitutional objection was the claim that the federal statute intruded on the regulation of the family, a jurisdictional prerogative traditionally reserved to the states:
It is undisputed that a primary focus of section 13981 is domestic violence, a type of violence that, perhaps more than any other, has traditionally been regulated not by Congress, but by the several States. See, e.g., infra at 849-50 (discussing congressional findings on the extent and effects of domestic violence). Though such violence is not itself an object of family law -- an area of law that clearly rests at the heart of the traditional authority of the States, see Lopez -- issues of domestic violence frequently arise from the same facts that give rise to issues such as divorce and child custody, which lie at the very core of family law. Although section 13981 explicitly precludes the federal courts from exercising the supplemental jurisdiction that might otherwise extend to such matters . . . , the fact that Congress found it necessary to include such a jurisdictional disclaimer confirms both the close factual proximity of the conduct regulated by section 13981 to the traditional objects of family law . . . and the extent of section 13981's arrogation to the federal judiciary of jurisdiction over controversies that have always been resolved by the courts of the several States. In the words of the Chief Justice of the United States, section 13981 creates a "new private right of action so sweeping, that the legislation could involve the federal courts in a whole host of domestic relations disputes."
The Fourth Circuit thus concluded that a federal law allowing women to bring a civil action against assailants with whom they were or had been in intimate relation interfered with the states' traditional prerogative to regulate the family.
In the 1999 Term, the Supreme Court agreed and struck down VAWA's civil rights remedy. Congress could not employ its commerce power to enact the civil rights remedy, the Court reasoned, because the statute did not regulate an economic activity having a substantial effect on interstate commerce, and so intruded upon traditional areas of state regulatory concern -- specifically, the regulation of violence and family life:
Petitioners' reasoning, moreover, will not limit Congress to regulating violence but may, as we suggested in Lopez, be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant. Congress may have recognized this specter when it expressly precluded 13981 from being used in the family law context. . . . Under our written Constitution, however, the limitation of congressional authority is not solely a matter of legislative grace.
The Court urged Congress to discriminate in its use of the commerce power: "The Constitution requires a distinction between what is truly national and what is truly local." Further, the Court held that Congress could not enact the civil rights remedy by exercise of its power to enforce the Fourteenth Amendment, because, even if the statute did redress gender bias in criminal law enforcement, Congress could not remedy that discrimination by means of a statute that interfered with the states' authority to regulate the conduct of private actors.
What is wrong with this picture? The Court's analysis of the Commerce Clause invokes separate spheres discourse to identify markets as a matter of "national concern" and families as a matter of "local concern"; its analysis of the Fourteenth Amendment discusses violence against women as occurring in a "private" realm beyond the proper reach of federal law; and the opinion as a whole concludes by sounding the familiar protectionist theme that any civilized society would protect its women against sexual assault:
Petitioner Brzonkala's complaint alleges that she was the victim of a brutal assault. But Congress' effort in 13981 to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under 5 of the Fourteenth Amendment. If the allegations here are true, no civilized system of justice could fail to provide her a remedy for the conduct of respondent Morrison. But under our federal system that remedy must be provided by the Commonwealth of Virginia, and not by the United States.
Morrison reiterates federalism arguments that we saw expressed in struggles over the Nineteenth Amendment. But it does so rather bloodlessly, without all the picaresque talk about federal politicians stirring up discord between husband and wife. The Court struck down a federal civil rights statute that allowed persons to bring a civil action against assailants, including assailants with whom they were or had been in intimate relation, and the Court did so on the ground that the civil rights statute interfered with the states' traditional prerogative to regulate the family. There is gender here, and gendered power here, but it is perfectly invisible when viewed through the lens of the sex discrimination paradigm -- which quite remarkably treats the family as an institution devoid of gender and the regulation of family relationships as a practice devoid of equal protection concern for women, unless the state employs a practice the Court characterizes as a "sex-based classification."
B. Regrounding Sex Discrimination Doctrine in the History of the Woman Suffrage Campaign
The Fourth Circuit struck down VAWA's civil rights remedy in an opinion that opened:
We the People, distrustful of power, and believing that government limited and dispersed protects freedom best, provided that our federal government would be one of enumerated powers, and that all power unenumerated would be reserved to the several States and to ourselves.
A collective memory of nation formation gives shape to traditions of federalism. Collective memory gives shape to race discrimination law. But the law of sex discrimination lacks such foundations, and constitutional commitments to equal citizenship for women are weaker because of it.
What would it mean to interpret the Nineteenth Amendment in terms that recollect, rather than repress, the history of the suffrage campaign? At present, we read the woman suffrage amendment as a text shorn of the semantically informing context that an understanding of the struggles over its ratification might supply. If instead we read the Nineteenth Amendment in light of the half century of arguments that attended its adoption, we might understand the woman suffrage amendment as having emancipated women from historic forms of subordination in the family.
This is how the Supreme Court approached the Amendment three years after its ratification in Adkins. In Adkins, the Court interpreted the Amendment as emancipating women from the common law of coverture, describing the Amendment as an integral part of "the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships." Marriage was the ground of struggle over which "the woman question" was fought, with antis invoking the common law tradition of male household headship and marital unity to oppose the suffrage amendment, while suffragists challenged the common law of marital status at every step of their quest for "self government." This understanding of the controversy shaped federalism disputes over the Amendment, with opponents arguing that enfranchising women by constitutional amendment would involve the federal government in domestic relations matters properly reserved to local self-government. Thus, when Americans adopted the Nineteenth Amendment, they were breaking with common law traditions that subordinated women to men in the family and intervening in domestic relations matters traditionally reserved to state control. Americans made these choices in order to secure equal citizenship for women.
If we understood the nature of the choice that We the People made in amending the Constitution to recognize women's right to vote, and if we continued to affirm that choice and integrated it into our self-accountings as a nation, then the appeal to We the People that opens Judge Luttig's opinion striking down the Violence Against Women Act would make considerably less sense.
This is because incorporating the story of the Nineteenth Amendment into our collective identity as a constitution-making people transforms our identity as a constitution-making people. We are a people who, in guaranteeing women's right to vote, emancipated women from historic forms of subordination in the family that traditions of federalism once protected in the name of "local self-government." Knowing this constitutional history does not compel a particular outcome in the Morrison case, but it surely ought to inform the way we reason about the constitutional questions Morrison presents.
Such appeals to history are a familiar part of our ordinary interpretive practice. We invoke the aspirations, values, choices, commitments, obligations, struggles, errors, injuries, wrongs, and wisdom of past generations of Americans as we make claims about the Constitution, and this appeal to the experience and concerns of past generations of Americans shapes the claims we make on each other about the Constitution's meaning in the present. It is through the past that we make pragmatic judgments about the ways we can best realize constitutional commitments and values in the present, and by appeal to the past that we know ourselves as a collective subject acting in history, united imaginatively and ethically across generations as well as communities. Collective memory thus plays a central role in constitutional reason.
Past episodes of our constitutional development shape the ways we understand the Constitution's meaning; yet the actions of past generations of Americans who made or lived under the Constitution do not bind us in any simple sense. "While historical interpretation seemingly presents itself as self-denying submission to the identity of past ratifiers," Robert Post has observed, "closer analysis reveals that identity is authoritative only insofar as we can be persuaded to adopt it as our own." History is a field in which we deliberate about the nature of the collective subject -- We the People -- realized through the ongoing process of constitutional interpretation. Our history as a people living under a constitution supplies the narrative resources through which we can make claims on each other's normative and practical judgment as we identify, or disidentify, with Americans who have struggled with constitutional questions in the past.
To take one prominent example, modern race discrimination jurisprudence draws conceptual and moral orientation from our understanding that the nation adopted the Fourteenth Amendment to prohibit practices that perpetuated forms of race inequality associated with the institution of chattel slavery. The history of the Fourteenth Amendment thus shapes interpretation of the Equal Protection Clause today, but at a high level of generality. In the years since Brown, the Court has not looked to the ratification debates over the Fourteenth Amendment for decision rules to use in determining the constitutionality of particular practices under the Equal Protection Clause, such as the miscegenation law at issue in Loving v. Virginia or the affirmative action program in City of Richmond v. J. A. Croson Co. Not only is it often impossible to ascertain how the Constitution's framers intended to resolve particular controversies, but we are as a nation no longer willing to tie the Constitution to the racial mores of white Americans in the immediate aftermath of slavery. Indeed, disidentifying with the racial mores of the white Americans who organized and authorized segregation now plays an important role in shaping modern interpretations of the Equal Protection Clause. As the Justices testified in Casey, "we think Plessy was wrong the day it was decided." Arguably, the post-ratification history of the Fourteenth Amendment -- the history of Brown and the civil rights movement -- now plays a more important role in shaping interpretations of the Fourteenth Amendment's Equal Protection Clause than does anything in the debates attending its adoption.
Our relation to past acts of constitution-making is thus irreducibly normative. Even if past generations of Americans have shaped the constitutional order we inherit, we continually make judgments about the ways in which we are prepared to adopt their choices and actions as our own. At the same time, our orientation toward the past has a deeply pragmatic cast. As we confront a changing array of constitutional questions, we look to the experiences of past generations living under the Constitution for practical insights concerning the ways we might best realize constitutional values in the present. As the Fourteenth Amendment illustrates, we forge these normative and pragmatic understandings in response to chapters of our constitutional development that occurred before and after the ratification of the Constitution and its amendments.
The authority of the past is thus continually unfolding, assuming new forms as we wrestle with the changing array of constitutional questions to which the collective deliberations and experience of prior generations might speak. With this understanding of the authority of the past, I consolidate the history recounted in this Article into a series of descriptive claims about the Nineteenth Amendment, whose contemporary doctrinal significance in resolving the Morrison case I then consider:
1. The Nineteenth Amendment was the product of a wide-ranging, multigenerational debate over the terms of women's citizenship in a democratic constitutional order. Debates over "the woman question" are part of the ratification history of the Nineteenth Amendment; at the same time, they are part of the post-ratification history of the Fourteenth Amendment, akin to the civil rights movement of the Second Reconstruction. Like the gains won by the civil rights movement, constitutional protections for women's right to vote grew out of decades of social movement activity; but unlike the gains the civil rights movement won, constitutional protections for women's right to vote were secured through Article V lawmaking. In neither case did the beneficiaries of constitutional reform have a full opportunity to speak; yet despite their widespread disfranchisement, women and minorities were able to make themselves heard through a variety of protest techniques to which the American legal system ultimately responded.
2. Americans who ratified the Nineteenth Amendment broke with understandings of coverture that had long structured public as well as private law. The Nineteenth Amendment's proponents persuaded Americans that a family-based order of virtual representation was no more just for women than was the regime of colonial power that provoked American men to rebel against the British Crown. They made this case by demonstrating all the ways that laws enacted by men enforced a status order that harmed women.
3. Americans who ratified the Nineteenth Amendment intervened in matters concerning the franchise and family life, despite longstanding objections that such matters were properly a matter for "local self-government." In ratifying the Nineteenth Amendment, Americans decided that the national government would intervene in domestic relations regulated by the several states to secure for women equal citizenship with men.
4. Constitutional debate over the Nineteenth Amendment tied the justice of gender restrictions on the franchise to many other gender-organized institutions and practices, the male-headed household first among them. Both suffragists and antisuffragists linked the idea of women voting to the prospect of women's emancipation from laws and customs that restricted women's roles in marriage and the market, and to the prospect of women's participation in new forms of "social housekeeping." It was because the question of women voting was understood to symbolize and to facilitate a fundamental change in social structure that the debate over the Constitution lasted as long as it did.
There are a number of ways in which the history of the woman suffrage campaign might shape current constitutional understandings, as I now demonstrate.
C. Morrison Reconsidered
In this section, I consider how the history we have examined alters our analysis of the constitutionality of the Violence Against Women Act. The following sections identify several strands of constitutional doctrine in Morrison that might well differ if we built our understanding of constitutional guarantees of equal citizenship for women on the history of the woman suffrage campaign.
1. Federalism and the Family. -- In Morrison, the Court invoked the nation's history and traditions of federalism to limit Congress's powers under the Commerce Clause. But once we include the struggles over enfranchising women in the history and traditions of "our federalism," that history no longer has the same power to shape interpretation of the Commerce Clause as the Supreme Court and the Fourth Circuit claimed in Morrison. The nation has intervened in matters concerning domestic relations, over claims that the family is a sphere of local self-government, to vindicate norms of equality among citizens. This was a long-considered and fully deliberated decision in which nationalist values decisively prevailed over claims of localism.
In debates over the suffrage amendment, Americans were asked to respect state regulation of the family rooted in traditions of coverture, but chose instead to protect values of equality among the nation's citizens. When this choice is included in the history and traditions of "our federalism," fidelity to tradition does not support invalidating VAWA, as the Fourth Circuit and the Supreme Court claimed. Indeed, if we continue to identify with the choice the nation made in ratifying the Nineteenth Amendment, we find in the history and traditions of federalism a basis for upholding VAWA and other federal laws that vindicate constitutional norms of sex equality -- even, and perhaps especially, when they implicate matters of family life.
The Nineteenth Amendment is thus powerful precedent for federal regulation that enforces equal citizenship norms in matters concerning family life. At the same time, the Nineteenth Amendment demonstrates that the nation has not always adhered to a tradition of localism in matters concerning the family. In fact, history suggests that the nation has at best selectively adhered to such traditions; federal law has played a significant role in shaping family relations in the past and continues to do so in the present.
Despite, or perhaps because of, the federal government's role in shaping family life, the nation might still wish to preserve traditions of localism in matters concerning the family. Should it seek to do so, the history of the Nineteenth Amendment demonstrates that there are compelling constitutional reasons to exercise caution about the contexts in which the nation vindicates values of localism in matters concerning the family.
Current federalism doctrines presume that deference to state regulation of the family is an unalloyed good. But as the history of the suffrage campaign demonstrates, the states long enforced women's subordinate status through the law of the family, and a tradition of federal deference to state law grew up at least in part to preserve the status order that state law enforced. So considered, the problem changes constitutional complexion. Before courts restrict exercise of an enumerated power, like the Commerce Clause, to preserve traditional allocations of federal and state regulatory authority, courts need to ascertain that this is an appropriate context in which to preserve traditions of local control, given our evolving constitutional understandings and commitments.
When courts invalidate a federal law that is intended to secure equal citizenship for women on the ground that the federal law interferes with state control over domestic relations law, courts may well be perpetuating old common law understandings of marriage as the basis of citizenship in our constitutional order. The Fourth Circuit was quite explicit that it struck down VAWA's civil rights remedy to protect the states' traditional prerogative to regulate domestic relations:
Section 13981 also sharply curtails the States' responsibility for regulating the relationships between family members by abrogating interspousal and intrafamily tort immunity, the marital rape exemption, and other defenses that may exist under state law by virtue of the relationship that exists between the violent actor and victim. See 13981(d)(2)(B); cf. Br. of Intervenor United States at 12 (noting that, "as of 1990, seven states still did not include marital rape as a prosecutable offense, and an additional 26 states allowed prosecutions only under restricted circumstances"). Although Congress may well be correct in its judgment that such defenses represent regrettable public policy, the fact remains that these policy choices have traditionally been made not by Congress, but by the States. By entering into this most traditional area of state concern, Congress has not only substantially reduced the States' ability to calibrate the extent of judicial supervision of intrafamily violence, see Lopez, 115 S. Ct. 1624 (Kennedy, J., concurring), but has also substantially obscured the boundaries of political responsibility, freeing those States that would deny a remedy in such circumstances from accountability for the policy choices they have made, see id [at] 1624.
We might translate the Fourth Circuit's reasoning as follows:
States are traditionally responsible for regulating relationships among family members. One way states exercise this responsibility is by immunizing men who beat or rape their wives or girlfriends from any criminal or civil consequences. Congress could well be correct that allowing men who rape or beat their wives and girlfriends to escape without legal consequence is "regrettable public policy" -- but the fact remains that in our nation it is traditional to allow states to administer the criminal law in this way. In our constitutional tradition, it is for the states to calibrate the extent of judicial supervision of intrafamily violence, and Congress has no business interfering in this policy choice, however "regrettable" it may be. Indeed, so deep and defining a part of our national constitutional tradition is this state prerogative to shield men from accountability for violence they inflict on family members that Congress's decision to create a private right of action vindicating women's right to be free of violence itself violates our national Constitution and is a threat to our most basic and cherished constitutional liberties.
Is deference to historic allocations of federal and state power consistent with our present constitutional commitments? Is such deference consistent with the federal Constitution as amended by the Fourteenth and Nineteenth Amendments? If we consider this problem with full understanding of the constitutional choices We the People made in enfranchising women, we might come to a different conclusion than did the judges of the Supreme Court and the Fourth Circuit in Morrison.
Keeping faith with our constitutional traditions is an ongoing and self-conscious process. After all, slavery was once denominated a "domestic relation" beyond the reach of federal law, as was the labor relationship as the Court reminded us in Carter Coal. Domestic relations may traditionally be a matter for local self-government in our federal system, but, as history reveals, the particular relationships this tradition insulates from federal regulation are constantly in flux. Arguments for local control of domestic relations once shielded chattel slavery, gender restrictions on voting, and child labor from federal regulation, but none of these matters is thought beyond the reach of federal power today. As the nation's understanding of equal citizenship norms changed, the federal government intervened in state regulation of the family to vindicate those new understandings of its foundational commitments. In short, preserving a tradition of local control in matters concerning the family does not relieve the nation of responsibility for making normative judgments about the particular contexts in which it is appropriate to maintain that tradition.
Before restricting federal civil rights legislation enacted under the Commerce Clause on the ground that it intrudes upon the states' historic powers to regulate domestic relations, courts must determine whether protecting state control over domestic relations in this particular context preserves the legacy of coverture or carries forward traditions of federalism in a manner consistent with the nation's current constitutional commitments. This is the question the nation faced when it ratified the Nineteenth Amendment, and it remains no less significant today.
2. Gender Status Inequality and the Family: A New Fourteenth Amendment Framework. -- Congress enacted the civil rights remedy in an exercise of its power to enforce the Fourteenth Amendment, as well as its power to regulate commerce. The question we now consider is how reading the Fourteenth Amendment in light of the Nineteenth Amendment and the history of debates about women's citizenship in our constitutional order might alter the way we understand Congress's powers to enforce the Equal Protection Clause under Section Five of the Fourteenth Amendment.
What shift in constitutional understanding would support this approach to interpreting the Equal Protection Clause? Today we pay no attention to the Nineteenth Amendment when interpreting the Equal Protection Clause because we read the Nineteenth Amendment as a nondiscrimination rule concerning voting with which we fully comply. We read the Nineteenth Amendment as a simple rule because we read the Amendment without any knowledge of the concerns and conflicts from which it sprang. But if we read the Nineteenth Amendment in light of the normative concerns that prompted its passage -- for example, as the Court now reads the Eleventh Amendment -- we would recognize that the Nineteenth Amendment has implications for practices other than voting.
We could give effect to these concerns directly under the Nineteenth Amendment as the amendment that emancipated women from traditional understandings of family life inconsistent with equal citizenship in a democratic order. In applying the Nineteenth Amendment to practices other than voting, we would be reading the language of the Amendment to identify, without exhausting, the practical contexts in which the constitutional values it embodies are to be vindicated -- as the Court does when it applies the Eleventh Amendment to suits brought by citizens against their own states, or applies the First Amendment to the President or state governments.
But we need not read the Nineteenth Amendment standing alone. Instead, we might ask whether the Amendment has implications for rights and powers enumerated elsewhere in the Constitution. The Court reasoned in this fashion in Adkins, when it decided that substantive due process doctrine under the Fifth and Fourteenth Amendments was altered by the Nineteenth Amendment's ratification. Today we are no longer interested in understanding how ratification of the Nineteenth Amendment affects implementation of the Lochner decision. The question that now concerns us is how the Nineteenth Amendment might bear on our understanding of the Fourteenth Amendment's Equal Protection Clause.
The debates culminating in ratification of the Nineteenth Amendment are plainly relevant to the ways we understand the Constitution's prohibition on sex discrimination, involving matters that today we would readily characterize as "equal protection" questions. Enlarging the historical foundations of sex discrimination doctrine to include the suffrage debates enables us to develop an understanding of the Fourteenth Amendment's equal protection guarantee that is directly informed by the history of struggles over equal citizenship for women -- rather than taking shape solely by reference to the history of social movement struggles against racial segregation.
Drawing on the history of the suffrage campaign, we can understand sex discrimination from a different vantage point than the race analogy allows. The suffrage campaign demonstrates that there are distinctive ways this nation has reasoned about gender relations over the course of its history. These modes of reasoning resemble, diverge from, and intersect with ways the nation has reasoned about race relations. If we interpret the equal protection guarantee with knowledge of the institutions, practices, and understandings that have played a special role in enforcing women's social status, then we would enforce the equal protection guarantee with special attention to the ways that the state has regulated women's social position in and through the family. So understood, constitutional guarantees of equal citizenship would protect women against regulation that perpetuates traditional understandings of the family that are inconsistent with citizenship in a democratic polity.
This approach grounds interpretation of the Equal Protection Clause in the experience and deliberative choices of past generations of Americans, drawing on the ratification history of the Nineteenth Amendment much as the Court presently draws on the ratification history of the Fourteenth Amendment. The constitutional decisions of past generations form a crucial part of our collective identity as a nation and so shape the manner in which we decide constitutional questions in the present. It is important to keep in mind, however, that the deliberations of past generations do not control our own constitutional choices in any mechanical way. The Court reads the Fourteenth Amendment in cases like Brown and Loving in ways that recall and honor the efforts of white Americans to repudiate the institution of slavery; yet it does not do so by endeavoring to build the constitutional order we now inhabit on the racial understandings of white Americans at the point that they first disavowed a deeply entrenched system of racial hierarchy. Similarly, we should interpret the Constitution so as to honor the decision of the Nineteenth Amendment's framers to disavow traditional understandings of the family supporting women's disfranchisement; yet we need not, and ought not, do so by endeavoring to build the constitutional order we now inhabit on the gender understandings of men who had just concluded that gender restrictions on the franchise offended the first principles of our constitutional democracy. We honor these foundational acts of lawmaking by reading them as foundations, whose significance to us today is legible through the subsequent constitutional struggle that they inaugurated and enabled.
Like the Reconstruction Amendments, the Nineteenth Amendment embraced principles that would fundamentally alter the constitutional community that adopted it. The meaning of these Amendments is thus to be uncovered in the fullness of time, in the nation's experience of living with its new constitutional commitments.
Thus, incorporating the history of the woman suffrage campaign into our interpretation of the Fourteenth Amendment reorients normative and practical judgment concerning the meaning of equal citizenship for women. But this history should not serve as the exclusive reference point in such deliberations. Rather, debates over the vote are significant because they represent the nation's first formal decision to repudiate gender-hierarchical institutions and practices in our constitutional tradition. Debates over the vote memorialize the collective deliberations of We the People about whether to include women as equal participants in the political process; they illuminate the centrality of family to questions of equal citizenship for women; they demonstrate the complex ways in which racial attitudes shape understandings about gender, and much more. The signficance of this history is to be uncovered in the crucible of current constitutional conflicts and in light of subsequent constitutional mobilizations seeking equal citizenship for women -- much as we now read the constitutional history of the Fourteenth Amendment in light of subsequent efforts, inside and outside the courts, to give meaning to its terms.
What would it mean to reorient equal protection doctrine in this fashion? We might begin with United States v. Virginia, a relatively recent sex discrimination decision authored by Justice Ginsburg. Unlike prior sex discrimination opinions, Virginia situates constitutional guarantees of equal protection for women in national and constitutional history, revisiting that history through a narrative of wrong and rectification:
Today's skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, "our Nation has had a long and unfortunate history of sex discrimination." Frontiero v. Richardson. Through a century plus three decades and more of that history, women did not count among voters composing "We the People"; not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any "basis in reason" could be conceived for the discrimination.
Reasoning from this foundation in constitutional history, the opinion defines the purpose of heightened scrutiny under the Equal Protection Clause as ensuring women freedom from sex-based state action that denies "full citizenship stature" or that perpetuates the "legal, social, and economic inferiority of women":
In 1971, for the first time in our Nation's history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature -- equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities. . . .
. . . .
"Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered," to "promote equal employment opportunity," to advance full development of the talent and capacities of our Nation's people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.
Virginia addresses sex-based state action under the Equal Protection Clause. But the analytical framework the Court brings to the question could extend beyond state action that is "sex-based" within the meaning of current equal protection doctrine. Specifically, sex discrimination doctrine grounded in a synthetic interpretation of the Fourteenth and Nineteenth Amendments, and in an understanding of the history of the woman suffrage campaign, might accord heightened scrutiny to state action regulating the family that denies women "full citizenship stature" or that perpetuates the "legal, social, and economic inferiority of women."
This revised framework for interpreting the equal protection guarantee in Section One of the Fourteenth Amendment has consequences for Congress's power to enforce the Equal Protection Clause under Section Five. Under Section Five of the Fourteenth Amendment, Congress would have the authority to enact federal laws that redress state regulation of the family that denies women "full citizenship stature" or that perpetuates the "legal, social, and economic inferiority of women." Considered from this standpoint, much of the state conduct that prompted enactment of the Civil Rights Remedy might have been understood to violate the Equal Protection Clause, and so would have been within Congress's powers to remedy under Section Five of the Fourteenth Amendment -- a conclusion rejected on various grounds by the Fourth Circuit and Supreme Court in Morrison.
What difference does it make to criticize a Supreme Court decision by the lights of a constitutional amendment so rarely cited that reference to it prompts many, if not most, constitutional law scholars to ask: "Which one is that?"
In the short run, quite plainly, it makes no practical difference at all. But the exercise may prompt us to wonder about the conventions of reasoning that regulate the Constitution's meaning, both as a narrative and as a constellation of decision-rules that guide our social practice. And if we take such questions seriously, we may ask whether we are well served by the conventions of reasoning that shape the Constitution as we presently understand it.
The Nineteenth Amendment grew out of struggles over the Fourteenth Amendment and was a long-resisted, fully deliberated, collective commitment to include women as equal members of the constitutional community. At a minimum, we might honor this commitment by reading the Amendment to answer unequivocally questions about women's citizenship that the legislative history of the Fourteenth Amendment is sometimes said to express. We might abandon the habit of selectively invoking the legislative history of the Fourteenth Amendment whenever we want "principled" reasons to equivocate about the Constitution's commitment to sex equality. The Nineteenth Amendment may "only" concern voting, but that is hardly responsive to the historicist's objection. For nineteenth-century Americans, voting was the central question of women's citizenship -- "the woman question." Nineteenth-century Americans knew what woman suffrage signified, even if its full significance to them is no longer legible to us today.
The generations of Americans who debated "the woman question" understood woman suffrage as a question concerning the family. As proponents and opponents of the Nineteenth Amendment well appreciated, the decision to enfranchise women under the federal Constitution involved breaking with common law traditions that subordinated women to men in the family and intervening in domestic matters traditionally reserved to state control. After more than a half century of debate, suffragists ultimately prevailed, persuading the nation to amend the Constitution to secure for women equal citizenship with men.
How might understanding the debates over the woman suffrage amendment change how we read the Constitution? Altering our self-accountings as a constitution-making people has effects on the ways we appeal to each other in disputes over the Constitution's meaning. Over time, these differences in our self-understanding as a people might well come to reshape the doctrines that supply decision-rules in constitutional cases. If we understood the decision to enfranchise women as having fundamentally changed our constitutional order, we might, and as I argue, ought to, understand the traditions comprising "our federalism" differently and focus on different paradigm cases in arguing about the meaning of the Fourteenth Amendment's equal protection guarantee. So understood, the Constitution would protect women against regulation that perpetuates traditional understandings of the family that are inconsistent with equal citizenship in a democratic polity. Viewed from the standpoint of this constitutional history, our understanding of the rights protected by the Fourteenth Amendment might differ, as would our understanding of Congress's power.
But these differences in the meaning of the Constitution will occur, if they occur at all, because we understand the nature of the choices that past generations of Americans made in recognizing women's right to vote and because we choose to constitute ourselves as a nation in a way that keeps faith with those choices. In this sense, the history recounted in this Article will only truly become constitutional history as it begins to shape the choices through which we know ourselves as a nation and a people -- as a collective subject acting in history, the collective subject of the Constitution's preamble.
A. For a full set of citations please see Reva Siegal's original article in the Harvard Law Review.
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* Nicholas deB. Katzenbach Professor, Yale Law School. I am indebted to friends and colleagues who discussed this Article in draft, including Bruce Ackerman, Akhil Amar, Jack Balkin, Nancy Cott, Michael Dorf, Ariela Dubler, William Forbath, Jill Hasday, Laura Kalman, Neal Katyal, Linda Kerber, Michael Klarman, Larry Kramer, Pnina Lahav, Sandy Levinson, Serena Mayeri, Robert Post, Judith Resnik, and Seana Shiffrin, as well as the participants in faculty workshops at Columbia, Fordham, NYU, and Yale Law Schools. I would particularly like to thank the students who, at various points in the life of this project, helped me explore the legislative history of the Nineteenth Amendment: Kristin Collins, Shoshana Gillers, Janna Hansen, Charles Lansing, Amanda Pustilnik, Rebecca Rix, Mathew Segal, and Sarah Song.
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