Kris Kobach on the 19th Amendment (original) (raw)
WOMAN SUFFRAGE AND THE NINETEENTH AMENDMENT
by Professor Kris Kobach (Univ. of Missouri-K. C.)
(The following is an excerpt from "Rethinking Article V: Term Limits and the Seventeenth and Nineteenth Amendments,"
103 Yale Law Journal (1994))
Just as the curtain was closing on the struggle for the Seventeenth Amendment, the suffragist movement was starting to gain momentum on the same path of transformation. Like the former, the latter campaign began many decades before the constitutional amendment was achieved. It originated at a meeting on July 19-20, 1848, in Seneca Falls, New York. The participants drafted a "Declaration of Sentiments" protesting the political, social, and economic inferiority of women. The Declaration also included the first public demand for extending the franchise to women. It was the first of many such conventions in the nascent women's rights movement, and virtually all of the activists in the cause were abolitionists as well. 39 The Civil War and the subsequent amendments to the Constitution brought an extended hiatus to the woman suffrage movement, as national attention was focused on the abolition of slavery and the extension of political rights to African-Americans. Suffragists were unable to tie their cause to the racial issue and failed in an attempt to prevent the enfranchisement of African-Americans without the granting of the same rights to women. However, the passage of the Civil War Amendments did further the suffragist cause in one sense: it defined an objective for the movement that had previously seemed unattainable-an amendment to the U.S. Constitution.40
Accordingly, in January 1878, suffragists persuaded Senator A.A. Sargent of California to introduce a suffrage amendment in Congress. However, the movement was soon presented with seemingly insuperable barriers preventing congressional proposition. As with the popular election of Senators, an inherent structural interest in Congress made the proposal of a constitutional amendment virtually impossible under the existing institutional framework-sitting Congressmen were unwilling to risk their seats by trying their luck with an electorate that included women. The amendment was buried in committee for nine years, and when the full Senate finally considered it in 1887, it was defeated by a vote of sixteen to thirty-four. It would not come to a vote again in the Senate until 1914 and was not voted on at all in the House during this period.41 Faced with unyielding congressional inaction, suffragists turned to the states and embarked on the same path of incremental amendment used by proponents of the popular election of senators. All along, their primary objective would remain a federal constitutional amendment.42
Shortly after the proposed amendment disappeared into the congressional morass in 1878, the leaders of the woman suffrage movement formulated their state-by-state strategy, commencing a series of state-level campaigns to win the ballot for women.43 In virtually every state, the extension of the franchise to women would require the passage of a constitutional amendment, which depended upon winning a majority of the male electorate in a referendum. Over the next fifty-two years, the suffragists would wage fifty-six referendum campaigns44 in twenty -nine different states and territories.45 Initially, the effort to win the states proceeded slowly and yielded few successes. The first referendum on the subject had already been held in Kansas in 1867, where the suffragists lost. However, this defeat had been balanced in 1869 and 1870 by minor victories in the territories of Wyoming and Utah. In each, the territorial legislature had voted to enfranchise women. Referendums were not required.46
The campaign to bring woman suffrage into existence state by state accelerated in the 1880's and 1890's. Between 1882 and 1898, the question was placed on eleven state referendum ballots in nine different states.47 However, it passed in only two--Colorado in 1893, and Idaho in 1896. Opponents of the suffrage movement found it easy to exploit the fact that many suffragists were also active in the prohibition movement, a connection which aroused the antagonism of the "wets."48
At the turn of the century, the state-by-state fight of the suffragists reached its nadir. During the eleven-year period of 1899-1909, proponents of woman suffrage were able to persuade the legislatures of only two states to place the issue on the ballot-once in New Hampshire (1902) and three times in Oregon (1900, 1906, 1908).49 In none of these referendums was suffrage approved. The overall strategy, however, was not abandoned. In 1908, Theodore Roosevelt counseled the movement to "Go, get another state."50 The aging Susan B. Anthony was of the same view:
I don't know the exact number of States we shall have to have.... but I do know that there will come a day when that number will automatically and resistlessly act on the Congress of the United States to compel the submission of a federal suffrage amendment. And we shall recognize that day when it comes."51
The tide was soon to turn in the suffragists' favor. In 1910, they pulled off a surprise victory in a state referendum in Washington. And in 1911, a California legislature under the sway of Progressives in both major parties agreed to submit a state woman suffrage amendment to the voters. It passed by a narrow margin of only 3587 votes.53
These two victories had a momentous impact on the rest of the nation. In November 1912, suffrage amendments went before voters in six states, winning in three.54 Soon, additional states fell into line. In total, during the period from 1910 to 1918, twenty-four states held a total of thirty-one referendums on the question. Of these, eleven states voted for woman suffrage. By the end of 1918, the movement had achieved referendum victories in thirteen states.55 In addition, the two territories to adopt suffrage had been admitted to the Union, making a total of fifteen states in which women could vote in elections at every level of government. Suffragists anticipated that their moment had come. Already in the 1916 election, women in eleven states had voted for presidential electors, allowing them to claim that Woodrow Wilson could not have won reelection without the women's vote. To these eleven were added states in which legislative action alone could empower women to vote for presidential electors (though not for members of Congress).56 By the time of the next presidential election, women would, be voting for president in thirty states.57 Congress was beginning to feel the pressure too in 1918, as the growing number of Senators and Representatives elected by women asserted the interests of their new constituents.
On January 10, 1918, the House of Representatives proposed a federal constitutional amendment with the required two-thirds majority. However, the resistance of Southern Democrats in the Senate delayed a vote in the second chamber until October 1, when the amendment failed by two votes. After falling short again on February 10, 1919, the suffrage amendment was finally approved by the Senate on June 4, 1919. As with the Seventeenth Amendment, the ratification of the Nineteenth Amendment proceeded astonishingly quickly. The real debates were already over; most of the states had deliberated extensively on the issue long before Congress had even come close to formally proposing the amendment. Within one month, eleven states had ratified the amendment. Within six months, twenty-two states had done so.58 On August 24, 1920, Tennessee became the thirty-sixth and final state to ratify. The Nineteenth Amendment became part of the U.S. Constitution. 59
In winning ratification of the Nineteenth Amendment, the suffragists successfully completed the same route of constitutional transformation that had been traveled by advocates of the popular election of Senators a few years earlier. Both amendments posed an inherent and direct threat to the reelection of sitting members of Congress; accordingly, there was little chance that Congress would exercise its proposing function unless compelled to do so. Consequently, proponents of reform used the states to usurp this function. Effectively, individual states were proposing and ratifying an incremental transformation in the structure of Congress.
FOOTNOTES
38. See id. at 509. Connecticut ratified on April 8, 1913. The ratification of 36 states was required after Arizona and New Mexico entered the Union in 1912. Id.
39. See AILEEN S. KRADITOR, THE IDEAS OF THE WOMAN SUFFRAGE MOVEMENT, 1890-1920, at 1-2 (W.W. Norton & Co. 1981) (1965).
40. CARRIE C. CATR & NETTIE R. SHULER, WOMAN SUFFRAGE AND POLINCS 228 (1926).
41. Id. at 229-34. The most adamant opposition came from Southern Democrats. Id. at 229-33.
42. Id. at 230-3 1.
43. At this point, there were two national organizations behind the movement, the National Woman Suffrage Association and the American Woman Suffrage Association. They united in 1890 to become the National American Woman Suffrage Association. KRADITOR, supra note 39, at 3-4. Interestingly, although the suffragists did not realize their ultimate goal until seven years after adoption of the Seventeenth Amendment, they actually settled upon the same strategy of constitutional transformation well before advocates of popular senatorial election did so.
44. See CATT & SHULER, supra note 40, at 107; KRADITOR, supra note 39, at 5.
45. See CATT & SHULER, supra note 40, at 110-342.
46. In Wyoming, the presence of a few politicians who argued fervently for woman suffrage had a major impact in the small territorial legislature, as did the expectation that such a step would dramatically advertise the territories to the rest of the nation. Id. at 75-78. In Utah, the bill was urged by opponents of polygamy, who assumed incorrectly that the enfranchisement of women would lead to its elimination. Seventeen years later, in 1887, opponents of polygamy in Congress voted to disenfranchise women in Utah, thinking that the blow would persuade advocates of polygamy to capitulate. Nevertheless, the territory later included woman suffrage in its proposed state constitution; when Utah was finally granted statehood in 1896, women were again allowed to vote. See id. at 127-28.
47. California, Colorado, Idaho, Kansas, Nebraska, Oregon, Rhode Island, South (twice), and Washington (twice). Id. at 108-20.
48. Id. at 133-59.
49. Id. at 124-26.
50. Id. at 227.
51. As paraphrased by Carrie Chapman Catt and Nettie Rogers Shuler. Id. at 227.
52. Id. at 174.
53. Yes-125,037; No--121,450. Id. at 176.
54. Woman suffrage won in Arizona, Kansas, and Oregon and lost in Michigan, Ohio, and Wisconsin. In Arizona and Oregon, the issue came before the electorate as a popular initiative. In Ohio, it was submitted to the electorate by a constitutional convention held in 1912. In the other three states, the issue was placed on the ballot by the legislatures. Id. at 176-88, 196-201.
55. The record of state referendums on woman suffrage is as follows. Y" indicates that voters adopted woman suffrage; "N" indicates that it was rejected. Arizona 1912-Y, California 1896-N, 191 1 -Y, Colorado 1877-N, 1893-Y, Idaho 1896-Y; Iowa 1916-N; Kansas 1867-N, 1894-N, 1912-Y-, Louisiana 1918-N; Maine 1917-N; Massachusetts 1915-N; Michigan 1874-N, 1912-N, 1918-Y, Missouri 1914-N; Montana 1914-Y-, Nebraska 1882-N, 1914-N; Nevada 1914-Y, New Hampshire 1902-N; New Jersey 1915-N; New York 1915-N, 1917-Y, North Dakota 1914-N; Ohio 1912-N, 1914-N; Oklahoma 1910-N, 1918-Y-, Oregon 1884-N, 1900-N, 1906-N, 1908-N, 1910-N, 1912-Y, Pennsylvania 1915-N; Rhode Island 1887-N; South Dakota 1890-N, 1898-N, 1914-N, 1916-N, 1918-Y; Texas 1919-N; Washington 1889-N, 1898-N, 1910-Y-, Wisconsin 1912-N; West Virginia 1916-N. Id. at 54-58, 107-226, 292-315.
56. Illinois was the first to do so, in 1913, after which other states followed. Id. at 189-95.
57. JOHN S. BASSET-r, EXPANSION AND REFORM: 1889-1926, at 322 (1926).
58. Id. at 350, 371.
59. Nine Southern states remained adamantly opposed to the amendment to the very end, and woman suffrage stood no realistic chance of approval in these states. Thus, the fact that ratification occurred in 36 states, out of a total available pool of 39 non-Southern states, in only 14 months is particularly noteworthy. This entrenched resistance to woman suffrage in the South meant that incremental, state-by-state amendment probably would not have extended the franchise in Southern states for years. In this respect, the completion of stages three and four, resulting in a formal amendment to the U.S. Constitution, had an important effect: it compelled the Southern states to make reforms which brought them into step with the rest of the country-reforms that they otherwise would not have adopted for years.