This is part of a series I’m writing analyzing the Constitution of the United States. You can find the start of the series here.
Text of the 19th Amendment
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Congress shall have power to enforce this article by appropriate legislation.
Full disclaimer — my grandmother wasn’t a hugely vocal suffragette because waving a sign out on the prairie would have looked silly. However, she was a college-trained accountant and my grandfather’s business partner, and voted in the very first election in which women were allowed to vote in Montana where they lived at the time. During this section on the 19th Amendment, I’ll discuss voting patterns and the thought process that came down to me from my female forebears.
A Complex History
In the early days of the Republic, states typically limited the right to vote to “freeholders” who owned land worth a certain amount of money. Reasonably, the Founders thought individuals without property had little or no stake in the community or might be inclined to vote for profligate spending, since they weren’t subject to property taxes.
We see this today. My son was kind of a progressive until he learned how much property taxes are on the house he stands to inherit from me, and then he suddenly started sounding like a fiscal conservative.
The view of renters as being freeloaders on society who don’t care how much their landlords have to pay isn’t entirely wrong. Many of them object to high rents, but don’t understand that high rent is often the result of high property taxes, which is frequently a consequence of voters who demand services that cost government revenue. They don’t pay property taxes directly and they frequently don’t connect the dots to realize they are the ones driving up their own rent.
In our modern era, we object to only property owners being able to vote because we fail to understand the dymanics of the era we’re judging. Land was cheap in the 1790s and early 1800s, and the qualification for the franchise was usually set low, so a large majority of free, adult males could vote.
Not as Discriminatory as We Think
It is easy to slip into believing that if white men’s voting rights were limited, voting rights for women and racial minorities must have been unimaginable, but the situation was far more nuanced than that. Most blacks were slaves, owned by their masters, and couldn’t vote. Unfortunately, they were property and property can’t vote. I’m just stating what the facts were at the time.
Yes, they were human beings and slavery was evil. But we don’t let our cars, kitchen tables or pets vote, so the human property of the era wasn’t allowed to vote. It’s just an unfortunate truth of a bygone era.
Several states did allow otherwise-qualified free blacks to vote, especially if they were landowners (by the way, some black landowners also owned slaves—both black and white). Most women couldn’t vote, but in a significant number of locations, otherwise-qualified unmarried or widowed female landowners voted in local elections and sometimes even married women voted in town meetings.
The practice was not without some controversy.
The 1776 New Jersey constitution deemed “all inhabitants” of legal age who met the property and residency requirements entitled to vote. It is unclear whether this originally intended to include women, but a 1790 state election law used the phrase “he or she” to clarify the law.
What is it about New Jersy, now famous for the dead people vote?
New Jersey’s early experiment with women’s suffrage didn’t last. After a few hotly contested elections fraught with alleged rampant voter fraud, there were calls to tighten voter qualifications. In 1807, amid allegations that men dressed as women had been going to the polls to cast a second ballot, the State of New Jersey withdrew the right of women to vote. History doesn’t record significant opposition to this act of disfranchisement...as if perhaps it was true that men were cross-dressing to defraud the elections.
Imagine that!
Over the course of the next few decades, property qualifications for men were gradually eliminated, with the notable exception of Rhode Island, which didn’t eliminate property qualifications for foreign-born citizens until 1888. The country as a whole headed down the path toward universal male suffrage while women’s suffrage was rarely taken seriously.
The Movement Gets Underway
Except…supporters of women’s suffrage worked to get the franchise recognized. Elizabeth Cady Stanton proposed a resolution at the Seneca Falls Convention in 1848, stating, “Resolved, that it is the duty of the women of this country to secure to themselves their sacred right to the elective franchise.” Lucretia Mott counseled against it, telling her, “Why Lizzie, thee will make us ridiculous.”
That doesn’t mean women’s issues were wholly neglected in the first half of the 19th century. Reformers focused on securing the right of married women to own and control property independently of their husbands, to enter into contracts, and to sue and be sued—precious rights single women already had. Prior to Seneca Falls, the suffrage movement had achieved success in this endeavor in Mississippi, Maryland, Michigan, and Arkansas. The New York Married Women’s Property Act passed a few months before the convention.
Despite Mott’s misgivings, Stanton introduced her resolution at Seneca Falls, and it passed by a small majority. As Stanton put it, “I persisted, for I saw clearly that the power to make laws was the right through which all other rights could be secured.”
A Pause
The Civil War brought everything to a screeching halt as the country was occupied first with winning the war, then with the passage and ratification of the Reconstruction Amendments, which attempted to secure the rights of the recently-freed slaves, who were both male and female, but many of the men had fought in the Civil War to gain their freedom.
The first Presidential election since the ratification of the 15th Amendment (1872) acted as a call to action. Susan B. Anthony and others argued the recently-ratified 14th Amendment’s Privileges or Immunities Clause gave all women the right to vote, which reasonably made sense. Anthony pointed out women had always been citizens, so when the 14th Amendment asserted no citizen should be denied the privileges and immunities of citizenship, it also conferred on women the right to vote.
When Anthony tried to vote, she was permitted to do so. This victory proved short-lived, however, because she was arrested two weeks later for illegal voting. Despite her argument about the significance of the 14th Amendment, she was convicted. Meanwhile, in Missouri, Virginia Minor also attempted to register to vote, but her registration was refused. She launched a lawsuit citing the 14th Amendment. In Minor v Happersett (88 U.S. 162 (1875), the Supreme Court rejected the argument, holding that while women were citizens within the meaning of the 14th Amendment, citizenship alone didn’t confer the right to vote.
The Constitution Follows Changing Times
Down, but not out of the fight, the women’s suffrage movement changed its strategy and began to advocate a constitutional amendment specifically focused on women’s right to vote.
Out on the western frontier, the movement was already succeeding at the territorial level. The Wyoming Territory’s constitution was the first to guarantee women the right to vote. This caused Congress to balk at Wyoming’s statehood request, but the Wyoming legislature stood its ground and cabled back to Congressional leaders, “We will remain out of the Union one hundred years rather than come in without the women.” Out there on the frontier, women were an integral part of survival. They’d earned the right to vote. Congress eventually relented, and before the turn of the century, there were four women’s suffrage states—Wyoming, Utah, Colorado, and Idaho.
Members of Congress worried Wyoming’s example would be difficult for other states to resist. They were right. The 19th Amendment, with language modeled after the 15th Amendment, passed the U.S. House of Representatives on May 21, 1919, and the Senate two weeks later. Women’s suffrage was already winning at the state level where 15 states provided full voting rights to women and only seven states barred women from voting entirely.
Ratification proved a battle until a 49-47 squeaker vote in the Tennessee House of Representatives. Harry Burns, age 24, originally intended to vote against, but his mother wrote him urging him to “be a good boy” and vote for ratification.
Does anyone else find that message to be patronizing and infantalizing?
The 19th Amendment has been relatively non-controversial. There was a quixotic effort to nullify its ratification in Leser v Garnett (258 U.S. 130 (1922)), but for the most part, things have been tranquil. Not a lot of people seem to worry about how the 19th Amendment should be interpreted.
Maybe that shouldn’t surprise us. Adding women hugely expanded the electorate and politicians care about the views of new voters. When roughly half their constituents are women, they start caring immensely about their opinion.
Now we need to ask…is that a good thing?