Part 3 (1/2)

The change, however much students of our inst.i.tutions may deplore it, is not difficult to explain. The earlier solicitude for state rights was in a sense accidental. It was based on sentiment and mutual jealousies among the colonies rather than on any fundamental differences in race, beliefs, or material interests. The traditions behind it, while strong, were of comparatively recent growth. When they entered the Union the colonies were still new and undeveloped. As men died and their sons succeeded them prejudices gradually yielded and sentiment changed. Moreover, various other forces-immigration, free trade among the states, the growth of railways and other nationwide industries, foreign wars-have been at work to obliterate state lines.

Advocates of the old order see in the change a breaking down of the principle of local self-government. To their minds the danger of majority tyranny, made possible by a centralization of power in a republic of such vast extent and varied interests, outweighs all the advantages of national uniformity and efficiency. Advocates of the new order think otherwise. They argue, moreover, that the states have become too great and populous to serve as units for purposes of home rule; that their boundaries are for the most part artificial and correspond to no real distinctions in the ordinary life of men. They a.s.sert that the instinct for local self-government remains as strong as it ever was, and instance the resentment of New York City over interference from Albany.

The average man gives little thought to the const.i.tutional aspect of the controversy. His interest in the prohibition movement is focused on other features which seem to him of more immediate concern. And yet, did he but realize it, the const.i.tutional aspect transcends all the others in its importance for the future welfare and happiness of himself, his children, and his country.

V

THE NINETEENTH AMENDMENT

A prudent man touches the question of woman suffrage gingerly. Many fingers have been burnt in that fire and its embers are not yet dead. Some mention of the Nineteenth Amendment seems necessary, however, in any discussion of federal encroachment on state power, and it may be possible to approach the suffrage movement from the standpoint of const.i.tutional law without getting upon controversial ground.

The United States Const.i.tution as originally adopted did not prescribe who should be ent.i.tled to vote. That matter was left entirely in the hands of the states. The Const.i.tution provided[1] that, for the election of members of the House of Representatives, ”the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.” It was further provided that Senators should be chosen by the legislatures of the states[2] and that the President and Vice-president should be chosen by presidential electors appointed in such manner as the state legislatures might direct.[3] These were the only elective federal officials.

[Footnote 1: Article I, Section 2.]

[Footnote 2: Article I, Section 3.]

[Footnote 3: Article II, Section 1.]

While the states were thus left in full control, it does not follow that the matter was deemed wholly outside the proper scope of national authority. No argument is necessary to demonstrate that the regulation of the suffrage in national elections is or may be a matter of national concern. The question of prescribing the qualifications of voters in such elections was much debated in the Convention which framed the Const.i.tution.[1] Some members were in favor of prescribing a property qualification and limiting the suffrage to freeholders. It was finally decided, however, to accept the qualifications prescribed by state law. In adopting this plan the Convention followed the line of least resistance. The qualifications of voters in the various states differed.[2] Most states required a property qualification, but some did not. It was felt that to attempt to impose a uniform rule on all the states would arouse opposition and create one more obstacle to be overcome in the formidable task of getting the Const.i.tution ratified.

[Footnote 1: See e.g., Farrand, ”Records of the Federal Convention,”

Vol. II, p. 201 et seq.]

[Footnote 2: For a statement of the qualifications in the various states see Minor v. Happersett, 21 Wall., 162.]

There the matter rested, with suffrage qualifications regulated entirely by state law, until after the Civil War. Meanwhile, the states had been abolis.h.i.+ng property tests, and universal male suffrage had been written into state const.i.tutions. The cry for woman suffrage had begun, but as yet it was only a still small voice, inaudible to legislators.

After the Civil War the problem of protecting the emanc.i.p.ated slaves had to be dealt with, and three const.i.tutional amendments (Nos. XIII, XIV, and XV) were adopted with that end primarily in view. Number XIII, ratified in 1865, formally abolished slavery. Number XIV, ratified in 1868, extended citizens.h.i.+p to all persons born in the United States and provided (among other things) that no state should abridge the privileges or immunities of citizens of the United States. Number XV, ratified in 1870, provided that ”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 race, color, or previous condition of servitude.” Here was the entering wedge of federal interference. The amendments did not purport to deal with woman suffrage, but the pioneers of the suffrage movement thought they discovered in them a means of advancing their cause and lost no time in putting the matter to the test. Susan B. Anthony voted at Rochester, N.Y., in an election for a representative in Congress, claiming that the restriction of voting to males by the const.i.tution and laws of New York was void as a violation of the Fourteenth Amendment providing that ”no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” She was indicted for voting unlawfully, and on her trial before Justice Hunt of the United States Supreme Court, sitting at Circuit, the Court directed the jury to find a verdict of guilty and imposed a fine of $100 and costs.[1]

[Footnote 1: United States v. Anthony, 11 Blatchford, 200.]

Mrs. Virginia Minor raised a similar question in the courts of Missouri. The Missouri const.i.tution limited the right to vote to male citizens. Mrs. Minor applied for registration as a voter, and on being refused brought suit against the Registrar of Voters on the ground that this clause of the Missouri const.i.tution was in violation of the Fourteenth Amendment. The Missouri state courts decided against her, and the case was taken to the Supreme Court of the United States where the decision of the state courts was affirmed.[1] The Supreme Court held in effect that while Mrs. Minor was a citizen that fact alone did not make her a voter; that suffrage was not coextensive with citizens.h.i.+p, either when the Const.i.tution was adopted or at the date of the Fourteenth Amendment, and was not one of the ”privileges and immunities” guaranteed by that amendment.

[Footnote 1: Minor v. Happersett, 21 Wall., 162.]

A similar decision was rendered in the matter of Mrs. Myra Bradwell's application for a license to practise law in Illinois.[1] The Supreme Court held that the right to practise law in the state courts was not a privilege or immunity of a citizen of the United States within the meaning of the Fourteenth Amendment, and affirmed the decision of the Illinois Court denying Mrs. Bradwell's application.

[Footnote 1: Bradwell v. Illinois, 16 Wall., 130.]

The failure of these attempts to turn the Fourteenth Amendment to the advantage of the woman suffrage movement in no wise checked the movement or discouraged its leaders. They redoubled their efforts among the separate states, and worked to such good purpose that the opposition presently began to take on the aspect of a forlorn hope. ”Votes for Women” became an accomplished fact in many states, and appeared on the verge of accomplishment in most of the others. Some states, however, were still holding out when the leaders of the movement, impatient of further delay and determined to coerce the recalcitrants, took the matter into the national arena and procured the proposal and ratification of an amendment to the Federal Const.i.tution. The amendment provides:

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 s.e.x.

In other words, it adopts verbatim the phraseology of the Fifteenth Amendment, merely subst.i.tuting the word ”s.e.x” for the words ”race, color, or previous condition of servitude.”

So much for the historical background of the so-called Susan B. Anthony Amendment. It remains to consider just how far the amendment const.i.tutes an encroachment by the Federal Government on the powers of the states.

In so far as it affects the qualifications of voters at national elections (i.e., for president, senators, representatives) the encroachment is more apparent than real. As has already been pointed out, this is essentially a national question, and the Const.i.tution adopted the suffrage qualifications prescribed by state law, not as a matter of principle, but for reasons of expediency and convenience.

In so far, however, as the amendment imposes woman suffrage on the states in elections of state and local officials the situation is entirely different. That staunch advocate of national power, Alexander Hamilton, said in the Federalist:[1]