The Suffrage 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.

—Judge Edith H. Jones & Jacob R. Weaver

Introduction

The Nineteenth Amendment very precisely models the Fifteenth Amendment by stating simply that the right to vote shall not be denied or abridged on account of sex and that Congress is empowered to enforce it. Ratification of the Nineteenth Amendment culminated a seven-decade effort to enfranchise American women. Yet the speed with which the amendment moved through Congress to a three-fourths affirmative vote of state legislatures belies the complex and prolonged political struggle behind it.

Early History

The Constitution never impeded women’s suffrage or any other rights of women. As adopted in 1788, it embraced “We the People” and was written in gender-neutral language, using such terms as “persons” and “citizens.” The word “he,” when sparsely used, generically encompassed both sexes.¹ By contrast, the Northwest Ordinance enacted in 1787 authorized one representative per 500 “male inhabitants” in territorial assemblies,² and the New York State Constitution referred to the state legislature as consisting of “two separate and distinct bodies of men.”³ Contemporary legislators knew how to specify males.

A principal support of the federalist framework lay in the requirement that “electors” for the House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”⁴ Madison explained this provision in Federalist Nos. 52 and 57: The states retained exclusive authority to define who could vote for House members, subject to Congress’s ability to determine the times, places, and manner of federal elections, in order to ensure members’ dependence on their local constituents and curb their appetite to usurp power over the states. The U.S. Supreme Court has routinely acknowledged the rights of states to determine the qualifications of voters.⁵

All but one of the original thirteen states limited the franchise to (usually white) men who also satisfied requirements as to age, residency, and often property ownership.⁶ New Jersey, the exception, allowed “adult inhabitants” who owned a certain amount of property to vote between 1776 and 1807, and as a result, thousands of unmarried women voted.⁷ (Married women were not eligible to vote due to coverture; because they could not own property, they were not eligible to be electors.) The state’s 1790 election law expressly denominated voters as “he or she.”⁸ However, political maneuvering ahead of the 1808 federal elections led the legislature to extend the franchise to any white male taxpayer but also to withdraw it from women and black men.⁹

Suffrage During the Antebellum and Reconstruction Periods

The start of the broad movement for women’s rights is generally pegged to the 1848 conference in Seneca Falls, New York.¹⁰ But as the New Jersey experience shows, this was not the first discussion about women’s access to the ballot. In Virginia, the debate over women’s place in the polity cropped up during the convention of 1829;¹¹ in 1838, Kentucky became the first state to allow women to vote in school board elections;¹² and in 1846, a group of women petitioned the New York convention for suffrage.¹³ But credit is due to Seneca Falls hosts Elizabeth Cady Stanton and Lucretia Mott, who were originally associated with the emancipation movement.¹⁴ Frederick Douglass and several black women attended the Seneca Falls meeting and supported the ladies’ work.¹⁵ The conference ultimately called for women’s suffrage as well as other, more radical reforms.¹⁶ After Seneca Falls, the women’s movement spread nationally, often in conjunction with the emancipation movement.¹⁷

During the Civil War, leaders of the movement, including Stanton and Susan B. Anthony, supported the Union cause.¹⁸ Afterward, they lobbied the Reconstruction Congress to include women’s suffrage in the Fourteenth Amendment. Instead, the women were shocked when Section 2 was drafted to reduce the congressional delegation of any state that denied “male inhabitants” the right to vote according to a formula based on “male citizens.”¹⁹ Although the leaders obtained ten thousand signatures on a petition to strike the word “male,”²⁰ their advocacy failed. They then sought to include women’s suffrage in the Fifteenth Amendment, but its scope was ultimately limited to “race, color or previous condition of servitude.”²¹ At this point, a bitter rift developed between the women’s movement leaders who were determined to oppose the Fifteenth Amendment, often with ugly racist rhetoric, and those who supported the amendment.²² The rift would last for more than twenty years.²³

Starting in 1874, suffragists persuaded members of Congress repeatedly to introduce a proposed sixteenth amendment that would enfranchise women.²⁴ The suffragists also undertook to secure eligibility to vote in court cases founded principally on the Citizenship and Privileges or Immunities Clauses in Section 1 of the Fourteenth Amendment.²⁵ The Supreme Court rejected their arguments in Minor v. Happersett (1874).²⁶ The Court settled that women are “citizens” of the United States,²⁷ but Chief Justice Morrison Waite’s majority opinion held that because the regulation of suffrage is constitutionally reserved to the states, it is not among the privileges or immunities of national citizenship.²⁸

Suffrage in the States and Territories

Through the next several decades, the cause of women’s suffrage made slow progress. Even as a constitutional suffrage amendment stalled, the states and territories began to extend the franchise to women. The territories of Wyoming and Utah adopted full women’s suffrage in 1869 and 1870, respectively.²⁹ The 1872 national Republican Party platform mildly endorsed women’s rights.³⁰ Some states and localities enfranchised women in school board and municipal elections.³¹ However, adverse state supreme court decisions stymied such efforts.³² For example, the New Jersey Supreme Court held that only male citizens were entitled to vote for elected officers under the New Jersey constitution,³³ and the Michigan Supreme Court ruled that the Michigan constitution did not give the legislature the authority to create a new class of voters in women.³⁴ Colorado and Idaho enacted full women’s suffrage in the 1890s.³⁵

Then, by about 1910, the tide began to turn. Five additional states established full women’s suffrage by the end of 1912.³⁶ That year, the Progressive Party platform became the first to endorse full suffrage for women.³⁷ A half-dozen other states enacted “presidential suffrage,” enabling women to vote for presidential electors.³⁸ By 1916, both the Democratic and Republican Party platforms supported states’ enlarging the franchise to women.³⁹ President Woodrow Wilson initially supported the states’ rights position, which was perceived as critical to the party’s Southern electoral base.⁴⁰ A few years later, however, he switched to advocate for a constitutional amendment supporting women’s suffrage.⁴¹

Adoption of the Nineteenth Amendment

In 1918, a close congressional vote for the Nineteenth Amendment failed,⁴² but political and social forces had aligned for final passage the following year. The public recognized women’s valiant service during World War I in employment outside the home and in foreign fields.⁴³ Ongoing economic and industrial changes were vastly increasing the opportunities for women to join the workforce. The liquor industry, which initially feared that women’s suffrage would bring about Prohibition, retreated from funding opposition to the movement after the Eighteenth Amendment was ratified in early 1919.⁴⁴ Suffragists had mounted widely publicized parades and large demonstrations,⁴⁵ and public sympathy was engendered by Washington, D.C., jailers’ horrific mistreatment of women suffragists who were arrested for regularly picketing in front of the White House.⁴⁶ Nevertheless, a vigorous debate centered on the propriety of a constitutional amendment versus states’ exclusive right to determine voter eligibility, on broader social consequences, and on whether women’s enfranchisement would encourage divisive social legislation.⁴⁷ Congress enacted the amendment by June 1919, and three-fourths of the states ratified by August 1920.⁴⁸

Litigation After the Nineteenth Amendment

Ratification was followed by a quick series of constitutional challenges. Petitioners argued that the amendment was too significant to be enforced without a particular state’s consent, that the ratifying state’s legislature lacked the power to do so, or that they violated legislative procedure in the process.⁴⁹ The Supreme Court made short work of these constitutional challenges to the amendment, which the Court interpreted simply to prevent denial or abridgment of the right to vote on account of sex.⁵⁰

However, Adkins v. Children’s Hospital of the District of Columbia (1923) overturned a minimum wage law for women.⁵¹ Justice George Sutherland, who in his private law practice advised suffragist Alice Paul, wrote the majority opinion.⁵² He reasoned that the Nineteenth Amendment culminated revolutionary changes in women’s status such that legislative protections of their ability to contract must be viewed with skepticism.⁵³ The Court later rejected a male voter’s challenges to a Georgia poll tax that exempted women who chose not to register to vote.⁵⁴ Regarding the Nineteenth Amendment, the Court dryly observed that the poll tax exemption was not intended to “deny” men the right to vote “on account of” their sex.⁵⁵

At the state and federal levels, courts wrestled with whether the amendment implicitly compelled women’s eligibility to serve on juries.⁵⁶ On the other hand, there was no doubt that women voters could serve in elective offices as a result of the amendment.⁵⁷

Open Questions

• Recent scholars have criticized the Court’s “thin,” textualist interpretation of the Nineteenth Amendment.⁵⁸ One prominent scholar lauds instead the Adkins Court’s reasoning about the scope of post-Nineteenth Amendment women’s rights, although that decision has long been criticized for its roots in the “Lochner era.”⁵⁹ The question is whether proponents of a “thick,” or purposivist, approach to the Nineteenth Amendment can find affirmation in the courts—something they have yet to do.⁶⁰

1. Noah Webster, American Dictionary of the English Language (1828); Thomas G. West, Vindicating the Founders: Race, Sex, Class, and Justice in the Origins of America 75 (1997). ↩︎
2. Act of Aug. 7, 1789, 1 Stat. 51, n.(a) (reproducing the Northwest Ordinance of 1787 enacted by the Confederation Congress). ↩︎
3. Robert Natelson, A Woman as President? The Gender-Neutral Constitution, Volokh Conspiracy (Oct. 28, 2015), https://perma.cc/S87P-V8EJ. ↩︎
4. Art. I, § 2, cl. 1; Art. II, § 1; Act of Jul. 9, 1778, 1 Stat. 4, Art. II. ↩︎
5. Shelby Cnty. v. Holder, 570 U.S. 529, 543 (2013) (citing Carrington v. Rash, 380 U.S. 89, 91 (1965)). ↩︎
6. Hayley N. Lawrence, The Untold History of Women’s Suffrage: Voting Rights Pre-Ratification, 52 Int’l Soc’y Barristers Q. 1, 4–10 (2021). ↩︎
7. Judith Apter Klinghoffer & Lois Elkis, “The Petticoat Electors”: Women’s Suffrage in New Jersey, 1776–1807, 12 J. Early Rep. 159 (1992). ↩︎
8. Id. at 172. ↩︎
9. Id. at 186–89. ↩︎
10. Tracy Thomas, Reclaiming the Long History of the “Irrelevant” Nineteenth Amendment for Gender Equality, 105 Minn. L. Rev. 2623, 2627–28 (2021); Joellen Lind, Dominance and Democracy: The Legacy of Woman Suffrage for the Voting Right, 5 UCLA Women’s L.J. 103, 145–148 (1994). ↩︎
11. Proceedings and Debates of the Virginia State Convention of 1829–30, at 55, 66–70, 227, 351 (1830). ↩︎
12. Lawrence, supra at 19. ↩︎
13. Thomas, supra at 2628; Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of New York 646 (1846). ↩︎
14. Thomas, supra at 2627–30. ↩︎
15. Id. at 2630. ↩︎
16. 1 History of Woman Suffrage 67–74 (Susan B. Anthony, Matilda Joslyn Gage, Elizabeth Cady Stanton eds., 2d ed. 1889). ↩︎
17. Thomas, supra at 2631–32. ↩︎
18. Lind, supra at 150. ↩︎
19. Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947, 968–69 (2002). ↩︎
20. Id. at 969. ↩︎
21. Amend. XV, § 1; Siegel, supra at 969 & n.59. ↩︎
22. Thomas, supra at 2634–36. ↩︎
23. Id. at 2638. ↩︎
24. Siegel, supra at 970, 974–76. ↩︎
25. Id. at 971–72. ↩︎
26. 88 U.S. 162 (1874). ↩︎
27. Id. at 165. ↩︎
28. Id. at 178. ↩︎
29. Lawrence, supra at 24. ↩︎
30. Siegel, supra at 973 & n.71. ↩︎
31. Lawrence, supra at 17–22. ↩︎
32. Id. at 15. ↩︎
33. Kimball v. Hendee, 30 A. 984 (N.J. 1894). ↩︎
34. Coffin v. Bd. of Election Comm’rs, 56 N.W. 567 (Mich. 1893). ↩︎
35. Lawrence, supra at 25–26. ↩︎
36. Id. at 26 n.144. ↩︎
37. Richard L. Hasen & Leah M. Litman, Thin and Thick Conceptions of the Nineteenth Amendment Right to Vote and Congress’s Power to Enforce It, 108 Geo. L.J. 27, 43 (2020). ↩︎
38. Lawrence, supra at 22–24. ↩︎
39. Hasen & Litman, supra at 43. ↩︎
40. Thomas, supra at 2644–46. ↩︎
41. Id. ↩︎
42. Sandra Day O’Connor, The History of the Women’s Suffrage Movement, 49 Vand. L. Rev. 657, 667 (1996). ↩︎
43. Lind, supra at 191. ↩︎
44. Thomas, supra at 2642. ↩︎
45. Id. at 2643–44. ↩︎
46. Id. at 2644. ↩︎
47. Id. at 2642. ↩︎
48. Id. at 2646–47. ↩︎
49. Lesser v. Garnett, 258 U.S. 130 (1922). ↩︎
50. Id. ↩︎
51. 261 U.S. 525 (1923). ↩︎
52. Thomas, supra at 2653. ↩︎
53. Adkins, 261 U.S. at 553. ↩︎
54. Breedlove v. Suttles, 302 U.S. 277 (1937). ↩︎
55. Id. at 284. ↩︎
56. J.E.B. v. Alabama, 511 U.S. 127, 131–42 (1994); Siegel, supra at 1019–22. ↩︎
57. O’Connor, supra at 670; Nathaniel Moak, Are Women Legally Eligible in New York as Notaries Public?, 41 Alb. L.J. 244 (1890). ↩︎
58. Siegel, supra; Hasen & Litman, supra. ↩︎
59. Siegel, supra at 1012–19. ↩︎
60. Hasen & Litman, supra at 63–71. ↩︎