It happened again in this summer of woman suffrage: someone emailed me to ask, “Did either Susan B. Anthony or Elizabeth Cady Stanton write the 19th Amendment?” There are two possible answers to this query: first, “What’s to write?” and second, “Oh, they imagined something grander than the change American men made to the Constitution in 1920.” This birthday of the woman suffrage amendment presents an opportunity to examine its limitations and plan how to revive the early suffragists’ dream of universal suffrage, based on citizenship and protected by the federal government. No American citizen should be at the mercy of the states in the exercise of their political rights.
“What’s to write?” is a reasonable answer because the 19th Amendment simply mimics the 15th Amendment, ratified in 1870. Pick up your pocket Constitutions and compare the two texts. Where the one barred states from disfranchising citizens “on account of race, color, or previous condition of servitude,” the other dropped those terms and substituted “on account of sex.”
When Senator Aaron A. Sargent (R-California) introduced what was then to be numbered the 16th Amendment to the Senate on January 10, 1878, he chose the 15th as his model. In the absence of explanations from Sargent, one can only speculate that the amendment’s form appealed to him and his allies because it was familiar; it provided precedent for trying to balance the rights of states against a federal interest in the rights of citizens and it acknowledged the right of states to exclude citizens from the franchise. Though unusual in his consistent advocacy of woman suffrage in Congress–he was, after all, married to an officer of the National Woman Suffrage Association–Sargent was in other respects a Republican realist who stayed close to party practice.
It’s true that Elizabeth Cady Stanton was a guest at the home of Aaron and Ellen Sargent in Washington when the senator made his move, but we can be pretty sure that Sargent’s text was not cooked up over a brandy before bedtime or the first cup of morning coffee. Stanton made one of her most important speeches that week, one entitled “National Protection for National Citizens,” and in it, she offered a very different text for a 16th Amendment. Speaking on January 11 to the Senate Committee on Privileges and Elections (the committee to which most woman suffrage business was then routinely referred), she drew from a different tradition about voting rights in the United States.
Article 16. 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.
This was language proposed by Congressman George W. Julian (R-Indiana) ten years earlier, when Congress debated how to protect black voting rights and struggled with language for the 15th Amendment. On December 8, 1868, Julian introduced a possible 15th Amendment with that wording except for the final phrase: “without any distinction or discrimination whatever founded on race, color, or sex.”
Needless to say, universal suffrage, guaranteed by the Constitution for all citizens, did not prevail in 1868 and 1869. Congress adopted the wording of the 15th Amendment as we know it on February 28, and two weeks later George Julian tweaked his text and submitted it as a possible 16th Amendment: “without any distinction or discrimination whatever founded on sex.” Writing with what was, even for her, over-the-top enthusiasm, Elizabeth Cady Stanton proclaimed:
March the 15th, 1869, will be held memorable in all coming time as the day when the Hon. George W. Julian submitted a “Joint Resolution” to Congress to enfranchise the women of the republic . . . .
She went on to call for the start of suffrage societies across the country and waves of petitions urging Congress to adopt Julian’s proposal. Although the memorable date was forgotten, Julian resubmitted his proposal in 1870, and Stanton, speaking on January 11, revived it in 1878.
Julian and Stanton started from a conviction that voting rights were inseparable from U.S. citizenship and that states lacked authority to pick and choose which citizens to enfranchise. It was language that might resolve a number of contemporary puzzles about suffrage. In the states of the Confederacy, it promised federal protection for black male voters because they were citizens. In the North and West, it could nullify the language in state constitutions that limited suffrage to males. In Rhode Island, it promised to treat naturalized citizens, mostly immigrants from Ireland, as the equals of native-born citizens when qualifying to vote. And everywhere, it suggested that under federal protection, women, as citizens, would have the right to vote.
This tradition did not flow simply from Julian to Stanton. It crops up in the legal arguments of Francis Minor, for example, an attorney in St. Louis who represented his wife in a test case, Minor v. Happersett, decided by the Supreme Court in 1875. By 1869, he was educating woman suffragists in constitutional interpretation, and he stressed again and again that the Constitution nowhere gives a right to states to deprive any citizen of the right to vote.
The tradition informed Susan B. Anthony’s legal defense when she was indicted after the federal election of 1872 for the crime of voting while being “a person of the female sex.” Addressing the public and her future jurors, she argued for putting the rights of citizens ahead of the rights of states.
If we once establish the false principle that United States citizenship does not carry with it the right to vote in every state in this Union, there is no end to the petty freaks and cunning devices that will be resorted to to exclude one and another class of citizens from suffrage.
And it informed the argument of Elizabeth Cady Stanton’s speech in 1878.
Inasmuch as we are, first, citizens of the United States, and second, of the State wherein we reside, the primal rights of all citizens should be regulated by the national government, and complete equality in civil and political rights everywhere secured.
In seeking national protection against unjust state laws, her movement for woman suffrage occupied familiar ground, she explained, where Americans tested “the limit of State rights and Federal power.”
In 1879 and 1880, the National Woman Suffrage Association modified the text for a 16th Amendment circulated to its members and submitted to Congress, but its new language still rejected the model of the 15th Amendment and it retained the basic idea that voting rights flowed from national citizenship.
Sec. 1. 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, native and naturalized, shall enjoy this right equally, without any distinction founded on sex.
Later in 1880, they drafted a plank for the Republican party platform and delivered it to delegates at the national convention in Chicago.
Resolved, That the right of suffrage inheres in the citizen of the United States and we pledge ourselves to secure protection in the exercise of this right to all citizens, irrespective of sex, by an amendment to the National Constitution.
Pushing through an amendment that asserted “suffrage inheres in the citizen” would have been politically impossible in the final decades of the 19th and earliest decades of the 20th centuries. By 1880, Reconstruction was over, and the Republican party had, in the words of Susan B. Anthony dressing down the Republican presidential candidate,
show[n] a retrograde movement–(not only for woman, but for men of color) limiting the power of the National Government in the protection of United States Citizens against the injustice of the States, until what we gained by the sword is lost by political surrenders.
A decade later, Congress stood by while southern states, one after another, flaunted the 15th Amendment and robbed black men of their right of suffrage. In the 20th century, some southern suffragists found even the toothless 19th Amendment a little too much federal interference in the rights of states. The 15th and 19th Amendments left in place the anomaly of national citizens at the mercy of states for their political rights. It took no time at all, after ratification in 1920, for southern states to flex their muscles to exclude black women from the vote.
The continued need for protection for a citizen’s right to vote is in full view in 2016. States show remarkable inventiveness at crafting “petty freaks and cunning devices” that will reduce the number of men and women eligible to vote. Perhaps we could mark that looming centennial of the 19th Amendment by wielding our electoral and persuasive powers to achieve “national protection for national citizens” and constitutional protection for a citizen’s right to vote.