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.
Introduction
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
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.
INTRODUCTION 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[1] 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.[2] 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.[3] 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.[4] 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.[5] 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."[6] 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,[7] even federal civil rights law.[8]
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[9] 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.[10] 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.[11] By 1976, however, Justice Brennan had persuaded a majority of the Court to apply heightened scrutiny to sex-based state action. Craig v. Boren[12] 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"[13] 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.[14] 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.[15] The case law presents sex discrimination as a problem involving old-fashioned ways of thinking -- ""archaic and overbroad' generalizations" about differences between the sexes.[16] Sex discrimination, so understood, grows out of evolving customary norms, rather than a long trail of state-sponsored coercion.[17] 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;[18] it is not clear that we are prepared to embrace a model of sex blindness, in matters of love or war.[19]
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.[20] Note further that this inquiry is premised on a historically particular conception of what race discrimination is. If we think about Washington v. Davis,[21] Regents of the University of California v. Bakke,[22] 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."[23] 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.[24] 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.[25]
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?[26] 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,[27] 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.[28]
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;[29] 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.[30]
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.[31]
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.[32] 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"[33] 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."[34]
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."[35] ), 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.[36]
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.[37]
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.[38] (We know, for example, that African-American men and women were subject to gender-differentiated treatment in slavery and during the Jim Crow era.[39] ) 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,[40] 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.[41] 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.[42] 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"[43] 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.[44]
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.[45] 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.[46] 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.[47] 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,[48] 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,[49] the Court held that the interpretation of the Equal Protection Clause announced in Brown v. Board of Education[50] 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.[51] 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."[52]
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.[53] 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.[54] 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.[55]
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,[56] 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,"[57] 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,[58] woman suffrage advocates then sought to persuade the party to adopt a universal suffrage framework for the Fifteenth Amendment,[59] and divided over the question whether to support the Amendment when the Republican Party refused.[60]
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.[61] 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.[62] 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.[63] "We no longer beat the air -- no longer assume merely the attitude of petitioners. We claim a right, based upon citizenship."[64] The movement rested this claim principally on the Citizenship and the Privileges or Immunities Clauses of the newly ratified Fourteenth Amendment,[65] as well as on a variety of other federal constitutional provisions, many of which abolitionists had invoked in challenging the institution of slavery.[66]
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.[67] Again, the Privileges or Immunities Clause formed the principal ground of the constitutional claim.[68] (Here and elsewhere, suffragists added a Fifteenth Amendment argument for good measure, emphasizing that at common law, marriage was a "condition of servitude."[69] ) 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.[70]
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.[71] 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.[72] 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[73] and Bradwell v. Illinois.[74] 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.[75]
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.[76]
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.[77] ) 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.[78]
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.[79] 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.[80] 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.
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[81] 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.[82]
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."[83]
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.[84]
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.[85] 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.[86] 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."[87]
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.[88] 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.[89] Household headship was another common criterion of "independence,"[90] 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.[91] 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[92] -- they were challenging a centuries-old conception of the household that gave men authority to represent women in public and private law.[93] 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.[94] 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."[95] Traditions of religion[96] and republicanism[97] 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.[98] 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.[99]
The common law empowered the head of household to govern its dependent members and to represent them to third parties.[100] 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.[101]
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.[102] 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.[103]
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,[104] 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."[105] 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."[106] From this he concluded, "but one voice is needed for the expression of the one will of the family."[107]
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.[108]
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.[109]
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.[110] 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."[111] On this view, family relationships ensured that all women were enfranchised if all men were.[112]
When Senator Pomeroy introduced an early draft of the Fifteenth Amendment that would have enfranchised women,[113] 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?[114]
Such objections notwithstanding, the virtual representation argument remained the core of the antisuffrage case, and the institution of marriage lay at its heart.[115] 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."[116] 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."[117]
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.[118]
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."[119]
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.[120] 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.[121]
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.[122]
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.[123] Male superordination was not benign, but tyrannical[124] and fundamentally unjust.[125]
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.[126]
In place of male protection, Stanton argued, women sought "self-sovereignty"[127] or "self-government." "Even the preamble of the Constitution," she emphasized, "is an argument for self-government."[128]
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.[129] But suffragists also attacked status inequality directly and, following the traditions of the antislavery movement,[130] 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.[131] 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.[132]
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.[133] This theme played a central part in appeals to women to join the suffrage movement.[134]
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.[135]
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.[136] 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.[137] They denounced the law's failure to protect women from physical coercion in marriage, including domestic violence, marital rape, and "forced motherhood."[138] Suffragists objected to conventions that held men and women to inconsistent standards of sexual propriety,[139] and they protested women's exclusion from juries, especially in cases involving women accused of committing crimes.[140]
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.[141] 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.[142]
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.[143]
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.[144]
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,[145] 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.[146]
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.[147]
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?"[148]
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.[149]
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,[150] 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.[151] "If . . . women vote as they see fit, without regarding their husbands, then unhappy marriages will be multiplied and divorces redoubled."[152]
Along with arguments about the importance of preserving sex differences,[153] 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.[154]
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.[155]
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.[156] 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.[157]
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, an