Women's Rights: Unspeakable Issues in the Constitution

Why were groupings by sex, by race, by condition of slavery unwritten—or unspeakable—by and for the framers of the Constitution and the Bill of Rights? Only in the matter of slavery could one prove an answer to this question: here there is plenty of evidence of overt controversy on whether slavery should be a “constitutive” element in the United States. The very differing convictions of antislavery and proslavery factions among the framers seem to have converged on admitting only very subtle statements of the slavery question in the fundamental document.

With regard to why sex and race are unspeakable issues, I admit that my question is rhetorical: it would be near impossible to prove an answer. But reasonable answers would veer to one end or another of a spectrum of possibility. At the one end would be the contention that the limitations of “We, the People” by sex and race were so deeply imbedded in the framers’ minds—their worldview so completely assured that the nature of an individual joiner in this compact was to be free, white, male (and twenty-one)—that they found it unnecessary to articulate the limitation, although they fully “intended” it. Such a reading of the framers’ intentions has been brought forward many times in constitutional and legal history, usually to argue against extension of constitutional privileges to others than free white men. At the opposite end of the spectrum would be the contention the framers were so large-minded that their insight reached beyond their immediate prejudices, making them write the Constitution in flexibly inclusive language. This interpretation has also been used polemically. For instance, one woman suffrage advocate in 1919 declared that “it is the obvious intention Constitution that people shall not be so interpreted as to prohibit any class or sex from exercising the franchise.” Whichever of these two poles your own reason slides toward, the text of the Constitution itself allows both interpretations; this double-edgedness is the essential reason why the Constitution throughout its history has been the resort of both elite groups who wish to defend their privileges and newcomers or subordinated groups who need to assert their rights.

While we are on the subject of what the Constitution does not say concerning the kinds of persons or subgroups in the population, we might consider what it does not say about “rights.” The Bill of Rights expressly articulates “right” or “rights” in only six of the amendments: in the First, the Second, the Fourth, the Sixth, the Seventh, and the Ninth. The much-relied-upon Fifth Amendment and four of the six freedoms assured in the First Amendment are not phrased in terms of “rights.” Lest it seem that this is a scholastic exercise, let me make the point: exactly what the fundamental rights are, and whence they come (that is, whether they are “natural” or created by government), was no more a matter of firm and explicit consensus among the framers of the Constitution and Bill of Rights than among subsequent generations of Americans. Therefore most of the “rights” we have and feel we deserve as Americans, like the definitions of who are citizens and voters, are not written as such in the Constitution, but are matters of interpretation, subject to change by judicial interposition and by amendment.

While we are on the subject of what the Constitution does not say concerning the kinds of persons or subgroups in the population, we might consider what it does not say about “rights.” The Bill of Rights expressly articulates “right” or “rights” in only six of the amendments: in the First, the Second, the Fourth, the Sixth, the Seventh, and the Ninth. The much-relied-upon Fifth Amendment and four of the six freedoms assured in the First Amendment are not phrased in terms of “rights.” Lest it seem that this is a scholastic exercise, let me make the point: exactly what the fundamental rights are, and whence they come (that is, whether they are “natural” or created by government), was no more a matter of firm and explicit consensus among the framers of the Constitution and Bill of Rights than among subsequent generations of Americans. Therefore most of the “rights” we have and feel we deserve as Americans, like the definitions of who are citizens and voters, are not written as such in the Constitution, but are matters of interpretation, subject to change by judicial interposition and by amendment.

The framers’ reluctance to articulate specific rights in the Constitution has been carried forward through the years of amendment-making that followed. (Most recently, the stumbling block that the promise of “equality of rights” in the Equal rights Amendment has proved to be, I might suggest, owes as much to the problem that legislatures have in defining rights as they have in defining equality.) A sweeping reorientation did occur, however, just after the end of the Civil War, with the passage of the Thirteenth, Fourteenth, and Fifteenth amendments. Immediately after the Civil War the so-called “Radical Republicans”—the party of Lincoln—were at the crest of their power in the Congress. Many of them were former abolitionists, and men to whom a strong national government was a tenet of political faith as well as a party creed. The Constitution was to them the record and instrument of national sovereignty, and they brought that power to bear in passing the Thirteenth Amendment, which prohibits slavery. That amendment opened vistas to reformers: if an amendment could abolish the centuries-long enslavement of blacks, thereby changing thousands of lives and throwing into upheaval an entire social system and way of life, what could it not do? In less than a year after the Civil War ended, various proposers had put seventy amendments to the Constitution before Congress.

At that time the party of Lincoln spoke the rhetoric of “fundamental rights” very frequently, in regard to the freed slaves, but they substantially disagreed among themselves on what those rights were. They disagreed most significantly on whether the right to vote was fundamental to citizenship. If we look at the Civil Rights Act that the Republican-controlled Congress passed in 1866 to deal with the status of former slaves, we find that “civil rights” then did not include all of what we might consider civil rights today, and it did not include the right to vote. What was guaranteed to citizens “of every race and color” were the rights necessary to a free labor system: the rights to make contracts, to own and convey property, to sue and be parties in court, and to be secure in person and property under the law. Right on the heels of the Civil Rights Act, the Fourteenth Amendment was created, not without struggle. Although this is little remarked in everyday practice, the form the Fourteenth Amendment took memorialized the contests of opinion within Congress in 1866 as to what the “fundamental rights” were, to whom (if not to every kind of inhabitant or citizen) these rights belonged, and which state entity had the power and obligation to enforce their observance. What is true of the Constitution itself is no less true of the Fourteenth Amendment: it was arrived at after much negotiation among participants with different views.

The first section of the Fourteenth Amendment gives eminent definition of national citizenship in the Constitution. It hews to tradition by speaking in neutral nouns: “All persons,” it says, “born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This first section also follows the tradition of much of the Bill of Rights in sidestepping the word rights: it preserves instead of rights “the privileges and immunities of citizens of the United States” against abridgement by any state, and it commands the states not to deprive any person of “life, liberty or property, without due process of law,” and to assure all persons the equal protection of the laws.”

In subsequent sections of the Fourteenth Amendment the right to vote is expressly mentioned; so is the word male; and so is the word slave. I would liken the Fourteenth Amendment to a constitutional “Fall” from the Edenic grace of the unstatedness of who “We, the People” are. It was a “fortunate Fall,” which brought in its train not only dangerous knowledge but also a means to (a kind of) salvation. As the Fourteenth Amendment constituted national citizenship, it also recognized the boundaries of sex, age, and servitude, as these had not earlier been named. By stating these, it unmasked the formerly the unstated. The Fourteenth Amendment, marked the point when the unspeakable had to be spoken, just as more of the silent came into voice. By naming some kinds of subgroups among “the people” it propelled further and future categorizations of groups by race, color, previous condition of servitude, sex, and age.

The kinds of entities the framers’ Constitution had dealt with were the individual (the elector, representative, inhabitant, and so on); the people as a whole; the United States; and the several states. No other stratifications, subdivisions, or entities were made explicit. The major relationship adumbrated in the original Constitution is the relationship between the United States and the individual states. The relationship between the United States and the individual person is there, and so, certainly, is the relationship between the United States and “the people,” but both in much more muted fashion. The relationship between the individual person and the individual state is barely touched upon, being left to the states themselves.

The Fourteenth Amendment declared a new set of relationships among the four entities originally demarcated. It established a direct, overt relationship between the United States and the individual citizen—and did so by asserting, and in order to assert, more power of the United States over the individual states. I want to emphasize here that the amendment also made unprecedentedly plain (whether intentionally or not) that there were forms of stratification or subdivision inherent among “the people” not created by the separate states or by the United States but nonetheless existing in civil society and requiring address by government. A great deal had changed in the eighty years since the framing of the Constitution, both in social and economic organization and in the composition of “the people.” Among a much larger and more heterogeneous population than the framers knew, the rhetoric of liberty and equality had fueled social movements which protested the oppression of the poor by the rich, the black by the white, the female by the male. A civil war had been fought by the proponents of one system of social order against the proponents of another. After such alterations, in a nation that again wanted to call itself a Union, it was no longer possible not to acknowledge sex, race, age, and servitude. At the same time, the Fourteenth Amendment marked a new constitutional swerve toward clarifying whose right to vote should not be denied. The framers’ Constitution and Bill of Rights barely mention popular voting. After the Fourteenth Amendment, however, four of the twelve subsequent amendments extend or protect the right to vote—preventing the state from denying that right by imposing poll taxes, or on account of race, color, previous condition of servitude, sex, or age.

The Fourteenth Amendment was designed to address the dismantling of one form of hierarchy and group subordination—that is, the system of black slavery. That intent, perhaps not surprisingly, simultaneously made explicit and called into question another form of hierarchy and group subordination, that is, women to men. (In an epitome of this connection, the rhetorical defender of equal rights for all, Senator Charles Sumner of Massachusetts, said that he had used up over nineteen pages of foolscap trying to write a version of the Fourteenth Amendment which would keep the word male out and still “keep negro suffrage as a party measure intact, but it could not be done.”) Like so many Northern Republicans at that time, the small but determined group of women's rights advocates were inspired with constitutional imagination, fully intending that the instrument that had abolished the bondage of blacks should also remove women's civil and political incapacities. Women's rights advocates took the Radical Republicans at their word-which linked national sovereignty and equality before the law, and maximized the importance of the ballot—and went them one better. As soon as the Fourteenth Amendment was proposed, Susan B. Anthony and Elizabeth Cady Stanton sent around to members of Congress a petition asking for woman suffrage. They shrewdly justified it on the same constitutional ground on which the Radical Republicans stood their own assertion of national sovereignty: Article IV, Section 4, which said, “The United States shall guarantee to every State in this Union a republican form of government.” Stanton and Anthony contended that it was the “constitutional obligation” of the Congress to extend the right of suffrage to women, for no government could be considered republican which disfranchised half of its citizens. Just as Radical Republicans argued on behalf of the freedmen, moreover, Stanton and Anthony argued that the ballot was the most basic weapon of self-protection, the fundamental right which enabled citizen to grasp all other rights for himself or herself.

Or herself? That was the question. Were women citizens? The framers' Constitution used the word citizen but did not define who is one. On the question of women’s citizenship it revealed only a double negative: it did not make it clear that women were not citizens. Since the framers had computed the population base for representation in Congress without excluding women or making them count as less than one person—in this way clearly distinguishing them from slaves—one might reason that they considered women citizens and even potential voters. The Fourteenth Amendment intended to clarify citizenship in the nation by proclaiming in its first section that “all persons” are citizens. Its second section, however, pulled back to stipulate that it was twenty-one-year-old male citizens whose right to vote must not be abridged, under threat of a state's being deprived of representation. For those pursuing woman suffrage the Fourteenth Amendment thus linked the question, Were women citizens? with another: Did citizens, by the fact of being citizens, have the right to vote?

There were three ways possible to answer these linked questions. First, there was the position that women were not citizens. Women’s rights activists—and, I would hazard, most Americans—rejected that analysis. They could rely, for one thing, on the compelling republican logic that women were taxed as citizens. Since the Revolutionary period, women had called themselves citizens of their states and of the United States in their petitions to legislatures, governors, and courts on political and social issues. Women had never been explicitly excluded from citizenship, whether by law or by the Constitution (although a satirically-minded women's rights advocate might carp, as Charles Brockden Brown’s 1798 character Mrs. Carter did, that “Lawmakers thought as little of comprehending us in their code of liberty as if we were pigs or sheep.”)

A second alternative was that women were citizens but citizenship as such did not confer the right to vote. This argument was unbelievable and reprehensible to women’s rights activists of the late 1860s, who shared the Radical Republican ideology that the vote was a fundamental right. Within a few years, however, it proved to be more than palatable to the Supreme Court. A third view (and the one that women’s rights advocates found most appealing) was that women, as citizens under the Constitution, ought, like all citizens—including newly freed blacks—to vote. This stance was made more inviting with the passage of the Fifteenth Amendment, which said that “the right of citizens of the United States to vote shall not be denied or abridged…on account of race, color or previous condition of servitude.” A small number of women adopted this logic; proper understanding of the Constitution, they contended, showed that women as citizens possessed the right to vote and needed only to exercise it. Between 1870 and 1875, in what suffragists called a “New Departure,” women in several states went to polling places and attempted to vote or did so, were sometimes arrested (as was Susan B. Anthony, for instance), and brought their cases to court.

One woman, Virginia Minor, took a direct path to court by suing the registrar of voters in her home state of Missouri, a man named Francis Happersett, for failing to allow her to register to vote in the fall of 1872. Minor, like other women who took the New Departure, rested her case principally on the Fourteenth Amendment. Her lawyer (who also was her husband) argued that the Fourteenth Amendment had made national citizenship paramount; that the vote was a privilege of citizens necessary to preserve all other privileges and immunities; that the amendment protected the privileges and immunities of all the citizens from abridgment by the states; and that therefore Missouri’s exclusion of women violated the Constitution. There was no such thing as “half-way citizenship,” they contended: “Woman, as a citizen of the United States, is entitled to all the benefits of that position and liable to all its obligations, or to none.”

When Virginia Minor’s case reached the United States Supreme Court, where it was decided in 1875, the answer was concise: the right to vote did not automatically accompany national citizenship. Chief Justice Waite vigorously affirmed that women were indeed, and had been since the beginning of the Republic, citizens; but he insisted that the framers of the Constitution could not have imagined all citizens necessarily to be voters, or they would have made so important a point explicit. Nor could the recent Congress have meant the Fourteenth Amendment to include the vote among the privileges and immunities of citizenship, or else the Fifteenth Amendment would have been unnecessary and redundant. In short, the Fourteenth Amendment did not call into being new privileges or immunities but only protected those already in existence, and women's right to vote was not one of those.

There were several cases before the Supreme Court in the early 1870s which tested the meaning of the Fourteenth Amendment. Minor v. Happersett was one of the most important of these because in it the Court so succinctly stated that “citizens” and “voters” were not entirely congruent categories: therefore, despite the Fourteenth Amendment's broad definition of citizenship, voting remained a privilege which the states could legitimately regulate. The Court's narrow construction of the “privileges and immunities” of national citizenship in Minor v. Happersett was presaged and seemingly predetermined by a decision of two years before, one that is much more often marked in the history of constitutional law: the Slaughterhouse cases. This significant decision was improbably brought on by butchers attempting to undo the state of Louisiana’s licensing and mandating the use of only one slaughterhouse in a district. The butchers argued that the Fourteenth Amendment protected their “privileges” as citizens to pursue their occupations without the encumbrance of such unreasonable state restriction. The United States Supreme Court (by a narrow majority) disagreed and upheld the Louisiana state regulation, on the grounds that the Fourteenth Amendment's protection did not cover such basic civil rights as freedom of enterprise and occupational choice, but only the rights instituted by the federal government and Constitution.

The Slaughterhouse cases are themselves linked, by timing and implications, to another women’s rights case, Bradwell v. Illinois. The two were argued a week apart early in 1872 and the decisions were handed down within a day of one another fourteen months later. Myra Bradwell, the person named in this third case, had trained in the office of her lawyer husband and—after establishing a weekly legal newspaper which quickly became the most important such publication in the Midwest—applied for admission to the bar of Illinois. Refused by Illinois only on the basis of her sex, she took the case through the state courts to the United States Supreme Court. There she claimed (as did the butchers in Louisiana) that free pursuit of an occupation or profession was among the privileges and immunities of citizens of the United States, not to be abridged by unreasonable state restriction such as the state of Illinois had imposed on her because of her sex. The majority opinion of the Court said that the reasoning of the Slaughterhouse cases held against Myra Bradwell’s plea; despite the Fourteenth Amendment, the state of Illinois had the right to control and limit admission to the bar, for the right to practice law was not dependent on national citizenship.

In deciding all three cases—the Slaughterhouse cases, Bradwell v. Illinois, and Minor v. Happersett—the Supreme Court refused to find an expansive concept of national citizenship in the Fourteenth Amendment and instead affirmed the separate states’ right to regulate individual and group behavior (both voting and economic behavior). A tension between national and state sovereignty in the ordering of individual rights pervades all three cases. Yet one cannot help but find another tension in the two of the three cases that involve women’s demands for access to men’s prerogatives. An interesting paradox to consider here is the reasoning of Supreme Court Justice Bradley in the Slaughterhouse and Bradwell cases. Dissenting from the Slaughterhouse decision, Justice Bradley vigorously contended that the Fourteenth Amendment should protect the butchers’ free exercise of their livelihood: he stated that national citizenship should be broadly construed to include the liberty to follow an occupation, and that the state of Louisiana, by licensing a slaughterhouse monopoly, had deprived the plaintiffs of their liberty and their property without due process of law and also denied them the equal protection of the laws.

Justice Bradley did not bring the same conception of freedom of livelihood to bear upon Myra Bradwell’s right to enter the bar. Here Justice Bradley stepped aside from Fourteenth Amendment grounds and justified Illinois’s exclusion of Myra Bradwell on the rationale that “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman.” He wrote a separate and elaborate opinion, a quintessential example of the law's inscription of the ideology of the “separate spheres of men and women.” In it he looked beyond the United States Constitution to “the constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things”; this, he wrote, indicated “the domestic sphere as that which properly belongs to the domain and functions of womanhood.” Where the butchers’ freedom of occupation was their natural right, which Justice Bradley had argued the Fourteenth Amendment did protect, the very same natural right did not pertain to Myra Bradwell: her natural right, in “the nature of things,” was to remain in the domestic arena. In both of his decisions, in other words, he proposed that the government uphold natural rights—but the natural rights of men and women were not the same rights. Only at this level of understanding are these two of Bradley's judgments—and he is called a “great justice” by constitutional scholars—consistent rather than contradictory.

In a second notable invocation of constitutionalism in the Bradwell case, Justice Bradley declared that “the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.” Here, in a nutshell, was the likely result when the Constitution of the United States left women's rights unspoken; although interpretive room for women’s rights might be called for, the “constitution of family organization” or “the general constitution of things” ruled. The answer to the question why women were halfway citizens (despite Virginia Minor's contention showing the absurdity of this) lay less in the Constitution itself than in judicial interpretation of civil “rights.” What these “rights” were would match what judges could see as “right”—that is, in accord with “the general constitution of things.” Nineteenth-century legislators and jurists believed, on the whole, that the “women’s rights” claimed by Stanton and Anthony were civil wrongs: political equality for women countered the principle that the wife was subordinate to and represented by her husband, and thus threatened male domination in the family and in the state. One member of Congress decried the specter of woman suffrage during the Fourteenth Amendment debates by asserting 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.”

Thus dissuaded by the conservative Supreme Court from relying upon the Fourteenth Amendment, woman suffragists began to concentrate on writing women’s rights anew into the Constitution. The Nineteenth Amendment, finally ratified in 1920, shows its Civil War-era bloodlines: its wording follows exactly that of the Fifteenth Amendment, only substituting the word sex for the phrase race, color, or previous condition of servitude. It required a constitutional amendment, the Nineteenth Amendment, to overrule Minor v. Happersett and declare that women's citizenship included the right to vote, just as it required the Fourteenth and Fifteenth amendments to overrule the Dred Scott decision. The Nineteenth Amendment, besides enabling women to vote, also led to the Fourteenth Amendment’s provisions being applied more fully to women—immediately in the 1920s, and more constructively the 1960s and 1970s. In the past two decades, more constitutional prohibition of sex discrimination has been found in the Fourteenth Amendment than was ever dreamed—in their worst nightmares—by the men who wrote it.

The Nineteenth Amendment should have made women equal citizens but it didn’t, any more than the Fifteenth Amendment succeeded in doing so for black men. Feminists recognized this immediately after they gained the vote, and set about designing and then introducing into Congress a more inclusive equal rights amendment as early as 1923. It took just about half a century before Congress would pass the Equal Rights Amendment (ERA), and ten years for the states to kill it. (I might mention here that the only other constitutional amendment that failed to be ratified after being passed by both houses of Congress was another that impinged on family organization: the amendment proposed in the early 1920s to prohibit child labor.) Our failure so far to reach equal citizenship is broader than the absence of the ERA, and it could even be argued that the ERA would no insure women's rights any better than the Fifth and Fourteenth amendments, properly construed, already do. Equal citizenship for women and men has not yet been reached, in part because constitutional provision, by definition, is limited to equality before the law and can never produce equality in its subtle aspects, and in part because all “rights” to be assured by law, a I mentioned earlier, are subject to social perception and judicial construction of what is “right” and “wrong.” On questions of both sex and race equality, as Justice Bradley said prescriptively—but we might say merely descriptively—the rules of civil society are as much decided by “the general constitution of things” as by the revered text of the Constitution.