She The People: The Nineteenth Amendment,
Sex Equality, Federalism and the Family
Footnotes
1. 120 S. Ct. 1740 (2000).
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2. For decades after its ratification, the Nineteenth Amendment was not discussed in casebooks or law reviews. In 1970, just prior to the Equal Rights Amendment campaign and the rise of modern sex discrimination jurisprudence, William Hodes, a student of Ruth Bader Ginsburg, wrote an article arguing that the Nineteenth Amendment supplied the textual basis of a constitutional sex-equality norm. W. William Hodes, Women and the Constitution: Some Legal History and a New Approach to the Nineteenth Amendment, 25 RUTGERS L. REV. 26 (1970). No other articles on the Nineteenth Amendment were published in a law review over the next quarter century, during the rise of sex discrimination doctrine under the Fourteenth Amendment.
In recent years, a small but growing number of notes and articles on the Nineteenth Amendment have appeared in law reviews, primarily authored by students. see, E.g., JoEllen Lind, Dominance and Democracy: The Legacy of Woman Suffrage for the Voting Right, 5 UCLA WOMEN'S L.J. 103 (1994); Ronnie L. Podolefsky, The Illusion of Suffrage: Female Voting Rights and the Women's Poll Tax Repeal Movement After the Nineteenth Amendment, 7 COLUM. J. GENDER & L. 185 (1998); Jennifer K. Brown, Note, The Nineteenth Amendment and Women's Equality, 102 YALE L. J. 2175 (1993); Sarah B. Lawsky, Note, A Nineteenth Amendment Defense of the Violence Against Women Act, 109 YALE L. J. 783 (2000).
Apart from these pieces, there are only several pages of commentary on the Nineteenth Amendment in the law review literature. Reasoning from the standpoint of common law constitutionalism, David Strauss has recently endeavored to show that the Nineteenth Amendment, along with all other constitutional amendments, is "irrelevant." David A. Strauss, The Irrelevance of Constitutional Amendments, 114 HARV. L. REV. 1457, 1466-68, 1489 (2001); Id. at 1500 (stating that there is "less to the Nineteenth Amendment than meets the eye"). The only other commentary is by Akhil Amar and Vik Amar, who for some years now have offered brief readings of the Amendment with an interest in giving effect to all elements of the Constitution's text. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L. J. 1131, 1201-03 (1991) [hereinafter Amar, The Bill of Rights as a Constitution] (suggesting that the Nineteenth Amendment's sex-equality principle should apply to political rights including militia and jury service); Akhil Reed Amar, The Supreme Court, 1999 Term - Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 51-52 (2000) [hereinafter Amar, The Document and the Doctrine]; Akhil Reed Amar, Women and the Constitution, 18 HARV. J.L. & PUB. POL'Y 465, 471-73 (1995) [hereinafter Amar, Women and the Constitution] (arguing that the Nineteenth Amendment stands not only for voting rights, but also for "full rights of political participation" for women); Vikram David Amar, Jury Service as Political Participation Akin to Voting, 80 CORNELL L. REV. 203, 241-42 (1995) (elaborating this theory with respect to the Nineteenth Amendment); Vikram David Amar & Alan Brownstein, The Hybrid Nature of Political Rights, 50 STAN. L. REV. 915, 956-72 (1998) (arguing that the women's suffrage crusade demonstrates that political rights embrace group-based as well as individual interests).
Breaking with conventions of casebook coverage, Jack Balkin added to the new edition of Processes of Constitutional Decisionmaking a discussion of conflicts over gender status law, from the Founding to the present, including narrative treatment of the Nineteenth Amendment. PAUL BREST, SANFORD LEVINSON, J.M. BALKIN & AKHIL REED AMAR, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 390-92, 397-99 (4th ed. 2000) [hereinafter BREST, ET AL.]; see also SAMUEL ISSAHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES, THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 26-37 (2d ed. 2001) (notes on the woman suffrage movement).
Back To Text3. Reva B. Siegel, Collective Memory and the Nineteenth Amendment: Reasoning About "the Woman Question" in the Discourse of Sex Discrimination, in HISTORY, MEMORY AND THE LAW 131, 133 (Austin Sarat & Thomas R. Kearns eds., 1999) [hereinafter Siegel, Collective Memory]. As I there observed:
[W]e do not understand gender relations to have a political history in anything like the way we understand race relations to have a political history: the narrative structures through which we explain the relations of the sexes depict gender arrangements as the product of consensus and custom rather than coercion and conflict. Our understanding of the Nineteenth Amendment both reflects and sustains these habits of reasoning. Because of these habits of reasoning, we read the suffrage amendment as a text shorn of the semantically informing context that an understanding of the struggles over its ratification might supply. And interpretive construction of the suffrage amendment as a rule, rather than a transformative constitutional commitment, in turn sustains the prevailing understanding of gender arrangements as the product of evolving social consensus rather than legal coercion and political conflict.Id.
Back To Text4. see infra Part II, pp. 960-77.
Back To Text5. see infra Part III, pp. 977-97.
Back To Text6. see infra Part IV, pp. 997-1006.
Back To Text7. In United States v. Lopez, 514 U.S. 549 (1995), the Court repeatedly described an overly expansive conception of the commerce power as one that would allow the federal government to regulate "family law (including marriage, divorce, and child custody)." Id. at 564. For variations on this assertion, see Id. at 565.
Back To Text8. see United States v. Morrison, 120 S. Ct. 1740 (2000) (striking down the civil rights remedy of the Violence Against Women Act).
Back To Text9. 411 U.S. 677 (1973).
Back To Text10. Id. at 682-88 (plurality opinion) (drawing the comparison by emphasizing factors such as the history of discrimination directed at the group, the immutability of the group's distinguishing trait, and the group's underrepresentation in the political process).
Feminist advocates drew on analogies between race and sex in arguing for the application of civil rights law to discrimination against women. For an early and influential use of this analogy, see Pauli Murray & Mary O. Eastwood, Jane Crow and the Law: Sex Discrimination and Title VII, 34 GEO. WASH. L. REV. 232 (1965). The ACLU Women's Rights Project drew on the race/sex comparison in their briefs. Brief of American Civil Liberties Union, Amicus Curiae at 7, Frontiero, 411 U.S. 677 (No. 71-1694) ("Legislative discrimination grounded on sex, for purposes unrelated to any biological difference between the sexes, ranks with legislative discrimination based on race, another congenital, unalterable trait of birth, and merits no greater judicial deference."); Brief for Appellant at 5, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4) (same). Serena Mayeri has explored feminist uses of the race-sex analogy in the 1960s and 1970s, especially by Pauli Murray and Ruth Bader Ginsburg. Mayeri demonstrates how the analogy was transformed as it was taken up into the Fourteenth Amendment case law in this era. Serena Mayeri, Note, "A Common Fate of Discrimination": Race-Gender Analogies in Legal and Historical Perspective, 111 YALE L. J. 1045 (2001).
Back To Text11. Frontiero, 411 U.S. at 692 (Powell, J., concurring).
Back To Text12. 429 U.S. 190 (1976).
Back To Text13. Id. at 197.
Back To Text14. EDWARD L. BARRETT, JR., CONSTITUTIONAL LAW: CASES AND MATERIALS 897 (5th ed. 1977) ("Certainly elimination of sex bias was not one of the purposes of the framers of the Fourteenth Amendment.") (citation omitted) (quoting Edward L. Barrett, Judicial Supervision of Legislative Classifications - A More Modest Role for Equal Protection?, 1976 BYU L. REV. 89, 106) (internal quotation marks omitted); BREST, ET AL., supra note 2, at 998 ("The Fourteenth Amendment was not understood by most of its framers to grant women political rights."); GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 682 (13th ed. 1997) ("If the history and immediate purpose of the 14th Amendment were all that counted, only racial classifications directed against blacks would be suspect."); GEOFFREY R. STONE, LOUIS M. SEIDMAN, CASS R. SUNSTEIN & MARK V. TUSHNET, CONSTITUTIONAL LAW 709 (3d ed. 1996) [hereinafter STONE, ET AL.] ("[I]t is hard to make the case that the framers had any intention of bringing into question laws that discriminated on the basis of gender."). Many casebooks quote an early article of Justice Ginsburg's in which she asserts, "Boldly dynamic interpretation, departing radically from the original understanding, is required to tie to the fourteenth amendment's equal protection clause a command that government treat men and women as individuals equal in rights, responsibilities, and opportunities." Ruth Bader Ginsburg, Sexual Equality Under the Fourteenth and Equal Rights Amendments, 1979 WASH. U. L.Q. 161, 161, quoted in STONE, ET AL., supra, at 709; see also PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 817 (3d ed. 1992) (quoting same); Earl Maltz, Some New Thoughts on an Old Problem - The Role of the Intent of the Framers in Constitutional Theory, 63 B.U. L. REV. 811, 813 (1983) ("There is no evidence that the [Fourteenth Amendment] Framers intended to prohibit state-imposed sex discrimination.").
Back To Text15. As Justice Powell put it in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), "The perception of racial classifications as inherently odious stems from a lengthy and tragic history that gender-based classifications do not share." Id. at 303.
Back To Text16. Craig, 429 U.S. at 198 (quoting Schlesinger v. Ballard, 419 U.S. 498, 508 (1975)). The Craig Court asserted that such "generalizations" about women's roles "could not justify use of a gender line in determining eligibility for certain governmental entitlements," nor could "increasingly outdated misconceptions concerning the role of females in the home rather than in the "marketplace and world of ideas'" justify "state statutory schemes that were premised upon their accuracy." Id. at 198-99 (citing Stanton v. Stanton, 421 U.S. 7 (1975)). The assumption that sex discrimination arises out of traditional, old-fashioned, or outmoded habits of thinking is commonplace in equal protection case law. see, E.g., Rostker v. Goldberg, 453 U.S. 57, 74 (1981) ("[T]he decision to exempt women from registration was not the "accidental by-product of a traditional way of thinking about females.'" (quoting Califano v. Goldfarb, 430 U.S. 199, 223 (1977) (Stevens, J., concurring in the judgment))); Michael M. v. Superior Court, 450 U.S. 464, 471 n.6 (1981) (plurality opinion) ("Certainly this decision of the California Legislature is as good a source as is this Court in deciding what is "current' and what is "outmoded' in the perception of women."); Orr v. Orr, 440 U.S. 268, 279-80 (1979) ("[T]he "old notio[n]' that "generally it is the man's primary responsibility to provide a home and its essentials,' can no longer justify a statute that discriminates on the basis of gender." (quoting Stanton, 421 U.S. at 10)); c. The Supreme Court, 1973 Term - Leading Cases, 88 HARV. L. REV. 71, 137-38 (1974) ("Unlike other forms of invidious discrimination, sex discrimination has been characterized more by paternalistic overprotection than by callous deprivation. Employment opportunities have been closed to women not simply because they have been considered inferior, but also because of the assumption that a woman's place is in the home." (footnote omitted)).
Back To Text17. For extended development of this argument, see Siegel, Collective Memory, supra note 3.
Back To Text18. For example, as Justice Stewart observed in Michael M:
[D]etrimental racial classifications by government always violate the Constitution, for the simple reason that, so far as the Constitution is concerned, people of different races are always similarly situated... . By contrast, while detrimental gender classifications by government often violate the Constitution, they do not always do so, for the reason that there are differences between males and females that the Constitution necessarily recognizes. In this case we deal with the most basic of these differences: females can become pregnant as the result of sexual intercourse; males cannot.Michael M., 450 U.S. at 478 (Stewart J., concurring) (citations omitted).
Back To Text19. see RICHARD WASSERSTROM, PHILOSOPHY AND SOCIAL ISSUES: FIVE STUDIES 24-43 (1980) (arguing that the assimilationist ideal often employed to conceptualize a nonracist society is not appropriate for conceptualizing a nonsexist society because there are contexts in which sex differences legitimately matter); Wendy Williams, The Equality Crisis: Some Reflections on Culture, Courts, and Feminism, 7 WOMEN'S RTS. L. REP. 175, 183-85 (1982) ("[S]peculate for a moment about where society might draw the line and refuse to proceed further with gender equality. What does our culture identify as quintessentially masculine? ... Surely, one rather indisputable answer to that question is "war': physical combat and its modern equivalents... . [P]erhaps even more fundamental than our definition of man as aggressor in war is man as aggressor in sex.").
Back To Text20. see BREST, ET AL., supra note 2, at 1000 ("The first instinct of many judges, commentators, and students in addressing the constitutionality of sex discrimination is to treat race discrimination as a point of comparison and to inquire to what extent gender classifications share the characteristics that call racial classification into disfavor."); GERALD GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 771 (9th ed. 1975) ("Are the reasons that make racial classifications suspect fully applicable to the use of sex criteria?"); GUNTHER & SULLIVAN, supra note 14, at 683 ("Consider especially the similarities and differences between race and sex discrimination."); STONE, ET AL., supra note 14, at 709 ("Should gender discrimination be treated like racial discrimination ... ?").
Back To Text21. 426 U.S. 229 (1976).
Back To Text22. 438 U.S. 265 (1978).
Back To Text23. Two classic essays of the era capture the preoccupations of antidiscrimination law during this period. see Paul Brest, The Supreme Court, 1975 Term - Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 6 (1976) (arguing that the purpose of antidiscrimination law is and should be to eliminate "race-dependent decisions and conduct"); Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107 (1976) (discussing doctrinal conflicts arising out of race discrimination challenges to affirmative action and facially neutral state action and arguing that the Equal Protection Clause should be interpreted through a "group disadvantaging principle"); c. Reva B. Siegel, Discrimination in the Eyes of the Law: How "Color Blindness" Discourse Disrupts and Rationalizes Social Stratification, 88 CAL. L. REV.. 77, 113-14 (2000) [hereinafter Siegel, Discrimination in the Eyes of the Law] (discussing the shift in rules and rhetoric of status-enforcing practices that prompted debate over the antidiscrimination principle in the 1970s).
Back To Text24. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111, 1119-29 (1997) [hereinafter Seigel, Why Equal Protection No Longer Protects].
Back To Text25. see, E.g., Michael J. Klarman, Race and the Court in the Progressive Era, 51 VAND. L. REV. 881, 889 (1998) ("Beginning with the Mississippi constitutional convention of 1890, southern states adopted formal measures such as poll taxes, literacy tests, and residency requirements to supplement the de facto disfranchisement of blacks already accomplished through violence and fraud by the late 1880s.").
Back To Text26. JANE J. MANSBRIDGE, WHY WE LOST THE ERA 114 (1986) ("Unisex toilets became one of the four major themes that activists speaking to reporters and writing in the newspapers stressed as central to their opposition."). Proponents of the ERA denied that the amendment would necessarily lead to unisex bathrooms, and argued that privacy doctrine would protect bathrooms from sex desegregation. Barbara Brown, Thomas I. Emerson, Gail Falk & Ann E. Freedman, The Equal Rights Amendment: A Constitutional Basis for Equal Rights for Women, 80 YALE L. J. 871, 901 (1971) (arguing that "the right of privacy would permit the separation of the sexes in public rest rooms, segregation by sex in sleeping quarters of prisons or similar public institutions, and appropriate segregation of living conditions in the armed forces"); Ruth Bader Ginsburg, The Fear of the Equal Rights Amendment, WASH. POST, Apr. 7, 1975, at A21 ("Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy.").
But the "potty issue," id., did not die with the ERA. Scholars continued to raise the question of segregated bathrooms to highlight the difference between race discrimination and sex discrimination. WASSERSTROM, supra note 19, at 21. And constitutional law casebooks continued to discuss the potty issue, canonizing it as a central question of sex discrimination law. E.g., PAUL BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 594 (1975) (quoting Brown, Emerson, Falk & Freedman, supra); GERALD GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 884 n.2 (10th ed. 1980) (quoting Ginsburg, supra); Id. at 885 n.4 (quoting Brown, Emerson, Falk & Freedman, supra); GERALD GUNTHER, CONSTITUTIONAL LAW 669 n.15 (11th ed. 1985) (quoting Ginsburg, supra); WILLIAM LOCKHART, YALE KAMISAR & JESSE H. CHOPER, THE AMERICAN CONSTITUTION: CASES-COMMENTS-QUESTIONS 968 (5th ed. 1981) (citing WASSERSTROM supra note 19); Stone ET AL., supra note 14, at 708 (quoting WASSERSTROM, supra note 19).
Back To Text27. 429 U.S. 190 (1974).
Back To Text28. Id.
Back To Text29. Geduldig v. Aiello, 417 U.S. 484 (1974). The Geduldig Court reasoned:
While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification... . The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups - pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.Id. at 496 n.20.
Back To Text30. Pers. Adm'r v. Feeney, 442 U.S. 256, 275 (1979) ("Although few women benefit from the preference, the nonveteran class is not substantially all female. To the contrary, significant numbers of nonveterans are men, and nonveterans - male as well as female - are placed at a disadvantage. Too many men are [adversely] affected by ch. 31, § 23, to permit the inference that the statute is but a pretext for preferring men over women.").
Back To Text31. Jill Elaine Hasday, Contest and Consent: A Legal History of Marital Rape, 88 CAL. L. REV.. 1373, 1500-03 (2000) (discussing facially neutral spousal rape policies); Reva B. Siegel, "The Rule of Love": Wife Beating as Prerogative and Privacy, 105 YALE L. J. 2117, 2189-90 (1996) [hereinafter Siegel, The Rule of Love] (discussing facially neutral domestic violence policies); Robin West, Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment, 42 FLA. L. REV. 45, 45-51, 63-71 (1990) (discussing facially neutral spousal rape policies). For similar problems in the rules of interspousal tort immunity, see Siegel, The Rule of Love, supra, at 2163 & n.163.
Like race discrimination doctrine, sex discrimination doctrine assumes that eliminating group-based classifications from law will rectify status harm. While this may be the case when the state uses law to segregate or separate members of different social groups who are engaged in performing the same activity, it is not clear that eliminating group-based classifications from law has significant transformative consequences where the state is regulating activities that are primarily or exclusively performed by members of one social group - where the group-based classification merely describes the group of persons who perform the regulated activity but otherwise has little directive or distributive force. Id. at 2193 n.276 (observing that the consequences of making a race-or gender-specific law facially neutral may vary, depending on "the nature of the law, the nature of the social practice it regulates, and the ways in which the regulated practice allocates dignitary and/or material privileges"). For this reason, the law of equal protection has had scant impact on the regulation of rape and pregnancy and has only marginally affected the law of the family. c Id. at 2189-94 (demonstrating, in the context of domestic violence, the limited impact of equal protection doctrines requiring gender neutrality in laws regulating highly gender-salient family roles).
Back To Text32. See Frontiero v. Richardson, 411 U.S. 677, 682-88 (1973) (plurality opinion) (Brennan, J.).
Back To Text33. Id. at 684.
Back To Text34. Id. at 686.
Back To Text35. Id. at 685 (quoting Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141 (1873) (Bradley, J., concurring)) (internal quotation marks omitted).
Back To Text36. Id. (citations and footnote omitted).
Back To Text37. Analogical argument need not do this, as Serena Mayeri has demonstrated in a legal history of the race/sex analogy in the American civil rights tradition. To illustrate how the semantic content and political salience of the race/sex analogy are shaped by the manner and context in which the analogy is invoked, Mayeri compares use of the analogy by Pauli Murray, an African-American activist in the civil rights and women's movements during the 1960s, and by Justice Brennan in the Frontiero opinion. Mayeri, supra note 10, at 1074-76 (discussing Frontiero).
Back To Text38. For a sociohistorical account that emphasizes the ways that status regulation can vary by group and within groups, see Siegel, Discrimination in the Eyes of the Law, supra note 23, at 83 & n.24. For analysis of some of the ways that the equal protection framework represses heterogeneity in the forms of discrimination different groups encounter, see Janet E. Halley, Gay Rights and Identity Imitation: Issues in the Ethics of Representation, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 115, 115 (David Kairys ed., 3d ed. 1998); Jane S. Schacter, The Gay Civil Rights Debate in the States: Decoding the Discourse of Equivalents, 29 HARV. C.R.-C.L. L. REV. 283, 285 (1994); and Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of "Don't Ask, Don't Tell", 108 YALE L. J. 485, 500 (1998).
Back To Text39. E.g., GLENDA GILMORE, GENDER AND JIM CROW: WOMEN AND THE POLITICS OF WHITE SUPREMACY IN NORTH CAROLINA, 1896-1920 (1996) (examining the interconnected roles of race and gender in a North Carolina community during the era of Jim Crow); JACQUELINE JONES, LABOR OF LOVE, LABOR OF SORROW: BLACK WOMEN, WORK AND THE FAMILY, FROM SLAVERY TO THE PRESENT 11-43, 79-151 (1985); Barbara Y. Welke, When All the Women Were White and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855-1914, 13 LAW& HIST. REV. 261, 266-67 (1995) (analyzing the intertwined forms of gender-and race-based segregation in public transportation during the era of Jim Crow).
Back To Text40. See supra p. 955 & n.16.
Back To Text41. Craig v. Boren, 429 U.S. 190, 197 (1976).
Back To Text42. see infra pp. 1043-44.
Back To Text43. C Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (plurality opinion).
Back To Text44. Neither Frontiero nor Craig discusses the ratification history of the Fourteenth Amendment nor even refers to the use of the term "male" in the suffrage provisions of the Fourteenth Amendment's second section. see infra note 45.
Back To Text45. The Amendment's second section provides:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice president of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of male citizens shall bear to the whole number of such male citizens twenty-one years of age in such State.U.S. CONST. amend. XIV, § 2.
Back To Text46. It is difficult to translate the record of debate over the Fourteenth Amendment into the doctrinal framework in which courts reason about the meaning of the Amendment today. There is no doubt that the framers of the Fourteenth Amendment understood that the Amendment could have implications for groups other than African-Americans. See WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 163 (1988) ("Those who discussed the amendment were aware of its implications for other groups, such as Chinese, Indians, women, and religious minorities."). The record of debate further suggests that the framers of the Fourteenth Amendment expected it to apply to laws regulating the relations of the sexes, for example, the law of marriage. See, e.g., Jill Elaine Hasday, Federalism and the Family Reconstructed, 45 UCLA L. REV. 1297, 1394-95 (1998) (reviewing debates over the Fourteenth Amendment's application to marriage law); Nina Morais, Sex Discrimination and the Fourteenth Amendment: Lost History, 97 YALE L. J. 1153, 1157-58 (1988) (arguing that the framers of the Fourteenth Amendment intended that Section One would apply to civil but not to political rights such as voting).
On the other hand, there is little in the record to suggest that the framers of the Fourteenth Amendment intended it to disturb traditional forms of gender status law. See Ward Farnsworth, Women Under Reconstruction: The Congressional Understanding, 94 NW. U. L. REV. 1229, 1254-60 (2000) (reviewing debates and concluding that, although the Amendment was said to protect civil rights, its framers did not speak as if it would affect the ways that marriage law restricted women's legal capacities and property rights); see also Siegel, Collective Memory, supra note 3, at 147 ("Republican leaders such as Thaddeus Stevens took the position that while the Fourteenth Amendment might govern family law, provisions such as the equal protection clause would not disturb traditional forms of marital-status regulation... . [T]he architects of Reconstruction were more alarmed about giving women political than civil rights; they specifically drafted the Fourteenth and Fifteenth Amendments so as to enfranchise freedmen without enfranchising women." (footnote omitted)).
Back To Text47. See sources cited supra note 14.
Back To Text48. C Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 748, 788 (1999) ("Textual argument as typically practiced today ... [focuses] intently on the words of a given constitutional provision in splendid isolation. By contrast, intratextualism always focuses on at least two clauses and highlights the link between them.").
Back To Text49. 347 U.S. 497 (1954).
Back To Text50. 347 U.S. 483 (1954).
Back To Text51. In Bolling, the Supreme Court held that the equal protection standards announced in Brown would apply to the District of Columbia public schools:
The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.Bolling, 347 U.S. at 499. While Bolling anticipates some differences in the Fifth and Fourteenth Amendments' equal protection standards, more recently the Court has ruled that equal protection standards governing the conduct of federal and state governments are "the same." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995) (ruling that there should be "congruence" in the constitutional standards governing affirmative action programs adopted by federal and state governments).
Back To Text52. Adarand, 515 U.S. at 217.
Back To Text53. See, e.g., RONALD DWORKIN, LAW'S EMPIRE 225 (1986) ("The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author - the community personified - expressing a coherent conception of justice and fairness."); c Amar, supra note 48, at 795 (explaining that intratextualism "takes seriously the document as a whole rather than as a jumbled grab bag of assorted clauses ... [for it] is a (single, coherent) Constitution we are expounding").
Back To Text54. For an account of the Constitution's text within a temporally self-conscious framework, see Amar, The Document and the Doctrine, supra note 2:
Instead of directly rewriting Articles I through VII via deletions and insertions, later generations of Americans have chosen to make amends at the end of the document in a series of postscripts inscribed in chronological order. Although this mode of textual alteration has generated certain ambiguities that direct rewriting might have avoided, there is an offsetting virtue in the postscript approach: The practice of inscribing amendments in chronological order visually dramatizes the distinct improvements of each generation and makes the temporal trajectory of the overall document much easier to identify at a glance. The document itself thus takes pains to draw attention to the vector of constitutional change, to highlight the arc of constitutional history. Sensitive documentarians should not ignore this arc.Id. at 52-53 (footnotes omitted). For arguments that doctrinal elaboration of the Constitution's various provisions ought to reflect an understanding of the Constitution's revision over time, see Vicki C. Jackson, Holistic Interpretation: Fitzpatrick v. Bitzer and Our Bifurcated Constitution, 53 STAN. L. REV. 1259, 1284 (2001), which argues that a "holistic approach to constitutional interpretation needs to reflect in its understanding of "basic' values those values that are implicit in later-enacted amendments, and, where they are in conflict with earlier values, to give weight to the later-enacted amendments within the traditions of the interpretive discourse"; and Michael C. Dorf, Equal Protection Incorporation (Nov. 24, 2001) (unpublished manuscript, on file with the Harvard Law School Library), which argues for an "incorporationist" account of the Equal Protection Clause that reads the Fourteenth Amendment in light of the nondiscrimination provisions contained in the First, Fifteenth, Nineteenth, and Twenty-Sixth Amendments.
Back To Text55. See, e.g., BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 86-130 (1991) (discussing the problem of intergenerational synthesis in constitutional jurisprudence of the Reconstruction and the New Deal eras).
Back To Text56. 2 HISTORY OF WOMAN SUFFRAGE 91 (Elizabeth Cady Stanton, Susan B. Anthony & Matilda Joslyn Gage eds., photo. reprint 1985) (1882).
Back To Text57. Id. at n..
Back To Text58. HISTORY OF WOMAN SUFFRAGE reports that Robert Dale Owen gave Stanton and Anthony the following "behind the scenes" report of discussions on the drafting of Section Two: "One of the Committee proposed "persons' instead of "males.' "That will never do,' said another, "it would enfranchise all the Southern wenches.' "Suffrage for black men will be all the strain the Republican party can stand,' said another." Id. at 91.
Stanton and Anthony attempted to intervene. During the debates over the Fourteenth Amendment, "the woman suffragists ... sent out forms for a petition that the resolution might be amended by striking out the word "male.' Before the session was over they had secured and presented 10,000 names." Hearing Before the U.S. Senate Comm. on Woman Suffrage, 56th Cong. 2 (1900) (suffrage movement history presented by Susan B. Anthony and Clara Colby). HISTORY OF WOMAN SUFFRAGE reports that "Charles Sumner said, years afterward, that he wrote over nineteen pages of foolscap to get rid of the word "male' and yet keep "negro suffrage' as a party measure intact; but it could not be done." 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 91.
For a discussion of the strategic considerations underlying the Republican Party's decisions about expanding the franchise during the Reconstruction Era, see Lind, supra note 2, at 154-67. Rebecca Edwards analyzes the gender understandings that linked and differentiated men in the Democratic and Republican Parties during the tumultuous years of the Civil War and Reconstruction. See REBECCA EDWARDS, ANGELS IN THE MACHINERY: GENDER IN AMERICAN PARTY POLITICS FROM THE CIVIL WAR TO THE PROGRESSIVE ERA 12-38 (1997). For accounts of women's efforts to prevent the Republican Party from including gender as a basis for suffrage in Section Two of the Fourteenth Amendment, see ELLEN CAROL DUBOIS, FEMINISM AND SUFFRAGE: THE EMERGENC OF AN INDEPENDENT WOMEN'S MOVEMENT IN AMERICA, 1848-1869, at 58-62 (1978) [hereinafter DUBOIS, FEMINISM AND SUFFRAGE]; and ELLEN CAROL DUBOIS, Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820-1878, in WOMAN SUFFRAGE & WOMEN'S RIGHTS 81, 91-94 (1998) [hereinafter DUBOIS, Outgrowing the Compact].
Back To Text59. The debate began in 1865-1866, after the drafting of the Fourteenth Amendment, as a dispute about reforming the suffrage laws for the District of Columbia. As the Republican Party moved to eliminate racial restrictions on the franchise, some of its members proposed, and debated at length, removing gender restrictions on the franchise as well. For a sample of this debate, see pp. 984-86, below.
Debate over the text of a constitutional amendment regulating suffrage began in late 1868, after ratification of the Fourteenth Amendment. On January 29, 1869, Senator Pomeroy offered the most radically egalitarian proposal for the Fifteenth Amendment. Instead of specifying that the franchise should not be denied on the basis of "race, color, or previous condition of servitude," he submitted: "The right of citizens of the United States to vote and hold office shall not be denied or abridged by the United States or any State for any reasons not equally applicable to all citizens of the United States." CONG. GLOBE, 40th Cong., 3d Sess. 708 (1869). Other senators also proposed drafting the Fifteenth Amendment in terms that might have allowed for the enfranchisement of women. See, e.g., Id. at 828 (remarks of Senator Fowler) (proposing that "[a]ll citizens of the United States residents of the several States now or hereafter comprehended in the Union, of the age of twenty-one years and upward, shall be entitled to an equal vote in all elections in the State wherein they shall reside, (the period of such residence as a qualification for voting to be decided by each State,) except such citizens as shall engage in rebellion or insurrection, or shall be duly convicted of treason or other infamous crime"). Throughout the debates on the Fifteenth Amendment, Senator Pomeroy and others introduced petitions proposing extension of the franchise to women. There was not, however, the same kind of sustained floor debate on the question of enfranchising women under the Fifteenth Amendment as there had been two years earlier when Congress revised the franchise laws of the District of Columbia.
Back To Text60. Ellen DuBois has provided the most detailed account of the movement's effort to make common cause around the universal suffrage creed and the internal conflicts that ensued when the Republican Party refused to enfranchise women. See DUBOIS, FEMINISM AND SUFFRAGE, supra note 58, at 53-78 (describing efforts of the American Equal Rights Association to advance the universal suffrage creed in the aftermath of the Civil War). When the Republican Party did not yield, Stanton and Anthony refused to support the Fifteenth Amendment, and former antislavery allies in the Republican Party split into two rival woman suffrage associations: Stanton and Anthony assumed leadership of the National Woman Suffrage Assocation (NWSA), while Lucy Stone, Henry Blackwell, and others organized the American Woman Suffrage Association (AWSA), which continued to support the Fifteenth Amendment and the policies of the Republican Party. see Id. at 162-64. As DuBois emphasizes, it was during this period of wrenching internal conflict that the movement first formed organizations dedicated to the woman suffrage cause. See Id. at 162-202. She also emphasizes the ways the conflict revealed racist attitudes in Stanton, Anthony, and others who were enraged that the Republican Party had privileged the suffrage claims of black men over those of (white) women. see Id. at 93-99. For the most detailed account of the predicament of African-American members of the woman suffrage movement in this period of conflict, see ROSALYN TERBORG-PENN, AFRICAN AMERICAN WOMEN IN THE STRUGGLE FOR THE VOTE, 1850-1920, at 24-35 (1998). See also Id. at 36-53 (discussing African-American members of AWSA and NWSA). For other accounts of this conflict, see Bettina Aptheker, Abolitionism, Woman's Rights and the Battle over the Fifteenth Amendment, in WOMAN'S LEGACY: ESSAYS ON RACE, SEX, AND CLASS IN AMERICAN HISTORY 9, 45-52 (1982); and Andrea Moore Kerr, White Women's Rights, Black Men's Wrongs, Free Love, Blackmail, and the Formation of the American Woman Suffrage Association, in ONE WOMAN, ONE VOTE: REDISCOVERING THE WOMAN SUFFRAGE MOVEMENT 61, 64-73 (Marjorie Spruill Wheeler ed., 1995).
Back To Text61. Congress passed the Fifteenth Amendment on February 27, 1869. On March 15, 1869, Representative George W. Julian of Indiana introduced a bill for a sixteenth amendment that would have granted women the vote. see CONG. GLOBE, 41st Cong., 1st Sess. 72 (1869); H.R.J. Res. 15, 41st Cong. (1869) (proposing a sixteenth amendment providing that "the right of suffrage in the United States shall be based upon 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").
Back To Text62. See TERBORG-PENN, supra note 60, at 37 (citing 2 REVOLUTION 307 (Nov. 19, 1868)).
Back To Text63. Stanton, Anthony, and Gage provide the most detailed account of this attempt to secure the right to vote, "the New Departure under the Fourteenth Amendment." 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 407; see also Id. at 407-520 (reproducing constitutional argumentation before Congress); Id. at 586-755 (reporting trials of women who attempted to vote under the Fourteenth Amendment). Francis Minor, one of the legal architects of the New Departure strategy, gives an analysis of the cases in her work, The Law of Federal Suffrage. FRANCIS MINOR, THE LAW OF FEDERAL SUFFRAGE: AN ARGUEMENT IN SUPPORT OF(n.p., 1889). For a recent historical account of the New Departure, see Adam Winkler, A Revolution Too Soon: Woman Suffragists and the Living Constitution, 76 N.Y.U. L. REV. 1456 (2001). see also ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 180-83 (2000); DUBOIS, Outgrowing the Compact, supra note 58, at 98-106; Jules Lobel, Losers, Fools & Prophets: Justice as Struggle, 80 CORNELL L. REV. 1331, 1364-75 (1995). For the most detailed discussion of the role of African-American women in the New Departure cases, see TERBORG-PENN, supra note 60, at 36-42.
Back To Text64. 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 407-08 (letter of Francis Minor to the editors of Revolution reporting on a woman suffrage convention in St. Louis in 1869 that announced the theory and strategy of the New Departure).
Back To Text65. NWSA adopted the resolutions of the 1869 St. Louis convention at which the Minors announced the New Departure strategy as its official position on the interpretation of the Fourteenth Amendment. It maintained this position until the Supreme Court's final repudiation of the claim in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874). See 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 407-11. The St. Louis resolutions begin by articulating the movement's claims based on the Citizenship and the Privileges or Immunities Clauses of the Fourteenth Amendment and then proceed to detail all constitutional provisions on which the movement based the suffrage claim. see Id. at 408-09. Quoting the Privileges and Immunities Clause of Article IV, the resolutions observe parenthetically: "The elective franchise is one of the privileges secured by this section - See Corfield vs. Coryell, 4 Washington Circuit Court Rep. 380." Id. at 409. For the movement's elaboration of this claim in various settings before Congress, see Id. at 407-520.
Back To Text66. The St. Louis resolutions also invoke, on behalf of women's right to vote, the Preamble ("We, the People" and the General Welfare Clause), the Privileges and Immunities Clause of Article IV, the Guarantee Clause, and the Titles of Nobility and Bills of Attainder Clauses. See 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 408-09. Many of these clauses played a central role in abolitionist arguments that slavery was unconstitutional. See WILLIAM M. WIECEK, THE SOURCES OF ANTISLAVERY CONSTITUTIONALIMS IN AMERICA, 1760-1848, at 265-71 (1977) (discussing abolitionist arguments based on the Due Process Clause of the Fifth Amendment, the Guarantee Clause, the Privileges and Immunities Clause of Article IV, and the General Welfare Clause); Daniel R. Ernst, Legal Positivism, Abolitionist Litigation, and the New Jersey Slave Case of 1845, 4 LAW & HIST. REV. 337, 345, 350-51 (1986) (discussing abolitionist arguments based on the Due Process Clause of the Fifth Amendment, the Preamble, and the Guarantee Clause).
Back To Text67. See 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 443-61 (reproducing a hearing of the House Judiciary Committee from the Congressional Globe, Dec. 21, 1870); H.R. REP. NO. 41-22 (1871) (majority report by John Bingham, one of the principal authors of the Fourteenth Amendment's first section, rejecting the Woodhull memorial).
Back To Text68. Albert G. Riddle, who argued the suffragists' case before the House Judiciary Committee, rested their core claim on the ground that the Citizenship and the Privileges or Immunities Clauses of the Fourteenth Amendment enfranchised women. Riddle cited Corfield v. Coryell, 6 F. Cas. 546 (E.D. Pa. 1823) (No. 3230), and its "canonization" by Chancellor Kent in support of the proposition that the constitutional language of "privileges or immunities" includes the privilege of voting and holding office. 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 453. In further support of their case, Riddle invoked Justice Bradley's expansive reading of the Fourteenth Amendment's Privileges or Immunities Clause in the circuit opinion Bradley authored in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873). see 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 457.
Back To Text69. 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 455-56. On the Fifteenth Amendment argument more generally, see Reva B. Siegel, Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880, 103 YALE L. J. 1073, 1148 (1994) [hereinafter Siegel, Home As Work] (discussing Susan B. Anthony's use of the Fifteenth Amendment argument at her trial for voting unlawfully and stating that "[i]f Anthony's argument that marital status law constituted a regime of servitude drew on a decades-old tradition of advocacy, its contemporaneity may be discerned in the fact that it had now been cast in the constitutional discourse of suffrage").
Back To Text70. See 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 498 ("At the appointed hour the whole convention adjourned to the Capitol, crowding not only the committee room but the corridors, thousands of eager, expectant, women struggling to gain admission."). The testimony at this hearing was a strikingly rich combination of constitutional theory and political rhetoric that drew heavily on the traditions of antislavery constitutionalism. See, e.g., Id. at 505 (statement of Isabella Beecher Hooker) ("Having attempted a strictly legal view of this question, permit me, gentlemen, to say that in my heart my claim to vote is based upon the original Constitution, interpreted by the Declaration of Independence... . [T]he great principles of liberty and responsibility contained in the Declaration and the Constitution should have afforded protection to every human being living under the flag, and properly applied they would have been found sufficient. For my own part, I will never willingly consent to vote under any special enactment conferring rights of citizenship upon me as upon an alien."); Id. at 513 (statement of Elizabeth Cady Stanton) ("But with or without intent, a law stands as it is written... . The true rule of interpretation, says Charles Sumner, under the National Constitution, especially since its additional amendments, is that anything for human rights is constitutional."); Id. at 512 (statement of Elizabeth Cady Stanton) ("It is not safe to leave the "intentions' of the Pilgrim fathers, or the Heavenly Father, wholly to masculine interpretation, for by the Bible and Constitution alike, women have thus far been declared the subjects, the slaves of men.").
Back To Text71. Rebecca Edwards, who has written on gender in party politics of the era, observes of the 1872 election:
Grant's running mate, Henry Wilson of Massachusetts, was a known advocate of woman suffrage; Grant's delegates appeared sympathetic, and the national platform contained for the first time a plank on women's rights. "The Republican Party," it stated, "is mindful of its obligations to the loyal women of America for their noble devotion to the cause of freedom; ... the honest demand of any class of citizens for additional rights should be treated with respectful consideration." GOP leaders offered funds for Anthony, Stanton, and other suffragists to tour on the party's behalf, and they reprinted thousands of copies of Lucy Stone's appeal for women to "throw the whole weight of their influence on the side of the Republican Party.EDWARDS, supra note 58, at 51. On the movement's response to the Republican Party platform, see 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 517-20.
Back To Text72. 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 520, 627-29. For a full account of Anthony's trial for voting unlawfully, see AN ACCOUNT OF THE PROCEEDINGS ON THE TRIAL OF SUSAN B. ANTHONY, ON THE CHARGE OF ILLEGAL VOTING, AT THE PRESDIENTIAL ELECTION IN NOV., 1872 (photo. reprint 1974) (1874).
Back To Text73. 83 U.S. (16 Wall.) 36, 74-80 (1873).
Back To Text74. 83 U.S. (16 Wall.) 442, 445 (1873). Given the publicity generated by the civil disobedience strategies of the New Departure, the Court certainly knew about the movement's privileges or immunities claim. In all likelihood, the Justices were aware that in House Judiciary Committee hearings on the movement's petition for a Section Five statute, suffragists had substantiated their claim that the Fourteenth Amendment gave women the right to vote by pointing to Justice Bradley's expansive reading of the Privileges or Immunities Clause in his circuit opinion in the Slaughter-House Cases. See supra note 68. Indeed, the association of the suffragists' claims with the Privileges or Immunities Clause was tight enough that when Senator Matthew Carpenter argued Myra Bradwell's case, he assured the Supreme Court that it could interpret the Privileges or Immunities Clause to protect a woman's right to practice her occupation without having to rule that it also protected a woman's right to vote. Carpenter's brief for Bradwell opens by assuring the Court, "I do not believe that female suffrage has been secured by the existing amendments to the Constitution." Brief for Appellant at 2, Bradwell, 83 U.S. (16 Wall.) 442 (No. 67). The Court handed down its decision holding that the Privileges or Immunities Clause did not protect Bradwell's right to practice law the day after the Slaughter-House decision. BARBARA ALLEN BABCOCK ANN E. FREEDMAN, ELEANOR HOLMES NORTON & SUSAN C. ROSS, SEX DISCRIMINATION AND THE LAW: CAUSES AND REMEDIES 8 (1st ed. 1975).
Back To Text75. 88 U.S. (21 Wall.) 162, 178 (1875). The Court held that "the amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it." Id. at 171. The Court then undertook to demonstrate that women lacked the right to vote under the original Constitution, see Id. at 170-74, and that their claim to vote under the Reconstruction Constitution was belied by the terms of the Fourteenth and Fifteenth Amendments, see Id. at 174-75.
Back To Text76. A Sixteenth Amendment to the Constitution of the United States, Prohibiting the Several States from Disfranchising U.S. Citizens on Account of Sex: Hearing Before the Senate Comm. on Privileges & Elections, 45th Cong. 9 (1878) (statement of Elizabeth Cady Stanton) [hereinafter 1878 Senate Hearings]. The woman suffrage amendment was first introduced in this form in 1869. Id. at 8; supra note 61. There seems to have been no alternative language proposed until 1880, when suffragists petitioned the Senate Judiciary Committee for a suffrage amendment providing that:
[T]he right of suffrage in the United States shall be based on citizenship and 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, or for any reason not equally applicable to all citizens of the United States.
Arguments of the Woman-Suffrage Delegates Before the Senate Comm. on the Judiciary, S. MISC. DOC. NO. 47-74, at 19-20 (1880) (remarks of Susan B. Anthony) [hereinafter 1880 Senate Hearings]. The Senate Committee on Woman Suffrage incorporated this proposal into S. 19, the version of the amendment it proposed for adoption in 1884. See S. REP. NO. 48-399, at 27 (1884). In the House, however, Representative White proposed an amendment providing 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 sex." 47 CONG. REC. 5859 (1882). The Senate began to consider this version of the amendment - the version that ultimately became the Nineteenth Amendment - in February 1885. See 48 CONG. REC. 1322 (1885).
Back To Text77. The movement continued to advance arguments for enfranchising women based on the existing constitutional text, even as it sought a constitutional amendment protecting women's right to vote. See, e.g., 1880 Senate Hearings, supra note 76, at 10-11 (remarks of Mary A. Stewart) ("The fourteenth and fifteenth amendments give the right of suffrage to women, so far as I know, although you learned men perhaps see a little differently... . The fourteenth and fifteenth amendments, in my opinion, and in the opinion of a great many smart men in the country, and smart women, too, give the right to women to vote without any "ifs' or "ands' about it, and the United States protects us in it; but there are a few who construe the law to suit themselves, and say that those amendments do not mean that, because the Congress that passed the fourteenth and fifteenth amendments did not mean to do that."); Id. at 12 (remarks of Susan B. Anthony) ("The Constitution of the United States as it is protects me. I do not come to you to petition for ... any more amendments to the Constitution, because I think they are unnecessary, but because you say there is not in the Constitution enough to protect me."); Hearing Before the Senate Comm. on Woman Suffrage, 50th Cong. 3 (1888) (statement of Elizabeth Cady Stanton) [hereinafter 1888 Senate Hearings] ("By every principle of fair interpretation we need no amendment, no new definitions of the terms "people,' "persons,' "citizens,' no additional power conferred on Congress to enable this body to establish a republican form of government in every State of the Union ... ."); infra pp. 990-91 (noting various constitutional clauses the movement invoked as it argued for an amendment that would bar gender-based restrictions on suffrage). Arguments for constitutional interpretation and constitutional amendments are often fused in nonjuridical claims about the Constitution's meaning. See Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. PA. L. REV. 297, 321 & n.62 (2001) [hereinafter Siegel, Text in Contest] (discussing the interplay of interpretive and amendatory claims in constitutional advocacy of the nineteenth-and twentieth-century women's movements).
Back To Text78. CARRIE CHAPMAN CATT & NETTIE ROGERS SHULER, WOMAN SUFFRAGE AND POLITICS 107 (1923).
Back To Text79. Women were not allowed to vote anywhere except in New Jersey, which adopted qualified suffrage for women at the nation's founding and retained it for several decades. see Judith A. Klinghoffer & Lois Elkis, "The Petticoat Electors": Women's Suffrage in New Jersey, 1776-1807, 12 J. EARLY REPUBLIC 159-60 (1992) (describing how this brief period of woman suffrage in New Jersey deviated from the "norm of exclusive male suffrage"). In New Jersey during this period, unmarried women - some of whom were heads of families - qualified for suffrage, while married women could not vote. Id. at 172.
Back To Text80. See supra section II.C, pp. 968-76.
Back To Text81. Antisuffragists often argued that enfranchising women would make women less womanly. See, e.g., B.V. HUBBARD, SOCIALISM, FEMINISM, AND SUFFRAGISM, THE TERRIBLE TRIPLETS: CONNECTED BY THE SAME UMBILICAL CORD, AND FED FROM THE SAME NURSING BOTTLE 129 (1915) ("[The feminist suffrage advocate is] a woman who ... is an Egotist with no motherly sentiments. Neither man, nor woman, but a being more correctly referred to as "IT.'"); Rev. Justin D. Fulton, Women vs. Ballot, in THE TRUE WOMAN: A SERIES OF DISCOURSES: TO WHICH IS ADDED WOMAN VS. BALLOT 3, 6 (Boston, Lee & Shepard 1869) (claiming that the suffragist will "unsex herself, and render herself a monster"); see also L.P. BROCKETT, WOMAN: HER RIGHTS, WRONGS, PRIVILEGE, AND RESPONSIBILITIES 288 (Books for Libraries Press 1970) (1869) (arguing that if women vote, "the timid, half-frightened expression which is, to all right-thinking men, a higher charm than the most perfect, self-conscious beauty, will disappear, and in the place of it we shall have hard, self-reliant, bold faces" (emphasis added)); HORACE BUSHNELL, WOMEN'S SUFFRAGE; THE REFORM AGAINST NATURE 135 (photo. reprint 1978) (1869) ("The word woman of course will remain to denote the female sex of man, but the personal habit and type of the sex will be no more what it is. The look will be sharp, the voice will be wiry and shrill, the action will be angular and abrupt ... ."); Id. at 136 ("[T]hey will become taller and more brawny, and get bigger hands and feet ... ."); Emily P. Bissell, Talk to Women on the Suffrage Question, in DEBATERS' HANDBOOK SERIES: SELECTED ARTICLES ON WOMAN SUFFRAGE 145, 147 (Edith M. Phelps ed., 2d ed. 1912) [hereinafter DEBATERS' HANDBOOK] ("The woman, who might be a woman, is half a man instead."); Elihu Root, Address Before the New York State Constitutional Convention, August 15, 1894, in DEBATERS' HANDBOOK, supra, at 120, 120-21 ("Put woman into the arena of [political] conflict and she ... takes into her hands ... weapons with which she is unfamiliar and which she is unable to wield. [She] becomes hard, harsh, unlovable, repulsive ... .").
Less commonly, anti-suffragists also argued that enfranchising women would make men less manly. see BUSHNELL, supra, at 54 ("The ... determinating mastership ... must so far be with [the man], and it can not be anywhere else, without some very deplorable consequences to his manhood. If he has ... no authority of will and council that enables him to hold the reins, he is no longer what nature means when she makes a man."). The threat that woman suffrage posed to masculinity is a clear theme in antisuffrage cartoons, which often depict women voting as a cause of gender confusion implicating men as well as women. For example, in one cartoon, George Washington is seated between Stanton and Anthony with all three wearing lap-rugs that look like skirts; in another, a husband and wife engage in political drag, with the aproned husband sitting at home with two wailing babies on his lap as his top-hatted and umbrella-wielding wife heads out the door to work. Am. Memory Div., Library of Cong., By Popular Demand: "Votes for Women" Suffrage Pictures, 1850-1920, http://memory.loc.gov/ammem/vfwhtml/ vfwhome.html (last visited Jan. 13, 2002).
Back To Text82. KEYSSAR, supra note 63, at 192 (statement of Mr. Caples at the California Constitutional Convention of 1878-79); see also Id. (quoting an Ohio politician who characterized woman suffrage as "this attempt to obliterate the line of demarcation ... between the sexes" (alteration in original)).
Back To Text83. Id. (alteration in original) (quoting Pennsylvania Debates 1872-1873).
Back To Text84. AILEEN S. KRADITOR, THE IDEAS OF THE WOMAN SUFFRAGE MOVEMENT, 1890-1920, at 15 (W.W. Norton & Co. 1981) (1965).
Back To Text85. For one discussion of separate spheres discourse, see Siegel, Home As Work, supra note 69, at 1092-94.
Back To Text86. See, e.g., BROCKETT, supra note 81, at 127-29 ("To the married woman, then, who understands her duties ... there is no occasion, and indeed, no opportunity, for other employments ... . "Like a man, when he chooses a profession, so, when a woman marries, it may in general be understood that she makes choice of the management of a household and the bringing up of a family ... and that she renounces ... all other objects and occupations ... which are not consistent with the requirements of this.[']" (quoting JOHN STUART MILL, THE SUBJECTION OF WOMEN (1869))); FRANCIS PARKMAN, SOME OF THE REASONS AGAINST WOMEN SUFFRAGE 8-9 (Norman E. Tanis ed., Santa Susana Press 1977) (1894) ("Women have great special tasks assigned them in the work of life, and men have not... . Everything else in their existence is subordinated to the indispensable functions of continuing and rearing the human race; and, during the best years of life, this work, fully discharged, leaves little room for any other... . When these indispensable duties are fully discharged, then the suffrage agitators may ask with better grace, if not with more reason, that they may share the political functions of men.").
Back To Text87. H.R. REP. NO. 48-1330, at 3 (1884).
Back To Text[V]ery few men who have no property, have any judgment of their own. They talk and vote as they are directed by some man of property, who has attached their minds to his interest.....
... [They are] to all intents and purposes as much dependent upon others, who will please to feed, clothe, and employ them, as women are upon their husbands, or children on their parents. Letter from John Adams to James Sullivan (May 26, 1776), in 9 THE WORKS OF JOHN ADAMS 375, 376-77 (Charles Francis Adams ed., 1854).
Back To Text89. See KEYSSAR, supra note 63, at 53-76; Robert Steinfeld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335, 341 (1989) (tracing the expansion of the franchise among men from the late eighteenth to the early nineteenth century).
Back To Text90. Many sources discuss the tradition that equated independence with household headship in the nineteenth century. See, e.g., Rowland Berthoff, Conventional Mentality: Free Blacks, Women, and Business Corporations as Unequal Persons, 1820-1870, 76 J. AM. HIST. 753, 757 (1989) ("Only men ... free to sustain the commonwealth ought to be citizens - not their dependent wives, children, tenants, employees, servants, or slaves."); Nancy F. Cott, Marriage and Women's Citizenship in the United States, 1830-1934, 103 AM. HIST. REV. 1440, 1452 (1998) ("Independence ... for the male household head existed in counterpoint to the dependence of others. Having and supporting dependents was evidence of independence."); Laura F. Edwards, "The Marriage Covenant Is at the Foundation of All Our Rights": The Politics of Slave Marriages in North Carolina After Emancipation, 14 LAW & HIST. REV. 81, 83 (1996) (observing that in the antebellum South, "the figure of a household head was an adult, white, propertied male" and that "dependency tainted all those who lacked sufficient property to control their own labor and maintain households of their own"); Nancy Fraser & Linda Gordon, A Genealogy of "Dependency": Tracing a Keyword of the U.S. Welfare State, in JUSTICE INTERRUPTUS: CRITICAL REFLECTIONS ON THE "POSTSOCIALIST CONDITION" 121, 125 (Nancy Fraser ed., 1997) ("In a world of status hierarchies dominated by great landowners and their retainers, all members of a household other than its "head' were dependents ... ."); Christopher Tomlins, Subordination, Authority, Law: Subjects in Labor History, 47 INT'L LAB. & WORKING-CLASS HIST. 56, 73 (1995) ("The public realm was where economically independent heads of households met, their participation sanctified, democratized, and to a degree equalized in the polity's civic guarantees. Relationships within households (master/servant, parent/child, husband/wife), in contrast, occurred within a separate domestic realm.").
Back To Text91. See infra section III.A, pp. 981-87.
Back To Text92. See LINDA K. KERBER, NO CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP 81-123 (1998); KEYSSAR, supra note 63, at 182.
Back To Text93. See infra section III.A, pp. 981-87.
Back To Text94. See infra section III.C, pp. 993-97.
Back To Text95. 52 CONG. REC. 1465 (1915) (statement of Rep. Heflin). Such claims were commonplace in antisuffrage arguments from the earliest days of constitutional debate. See, e.g., sources cited infra note 105 and accompanying text (observing that the same argument was advanced in 1866).
Back To Text96. For discussion of the role that biblical traditions played in shaping conceptions of male household headship in the work of political theorists such as Filmer, Hobbes, and Locke, see MARY BETH NORTON, FOUNDING MOTHERS & FATHERS: GENDERED POWER AND THE FORMING OF AMERICAN SOCIETY 59-62 (1996). Religious conceptions of male household headship remained part of the antisuffrage argument throughout the campaign and in the final debates over ratification of the Nineteenth Amendment. See, e.g., 52 CONG. REC. 1413 (1915) (statement of Rep. Clark) ("God has decreed that man is to be the head of the family and woman is to be his "helpmeet,' and any attempt to change this order of human affairs is an attempt to change and to overthrow one of the solemn decrees of God Almighty."); Fulton, supra note 81, at 5 ("It is patent to every one that this attempt to secure the ballot for woman is a revolt against the position and sphere assigned to woman by God himself."); Root, supra note 81, at 121 ("In the divine distribution of powers, the duty and the right of protection rests with the male. It is so throughout nature.").
Back To Text97. HENDRICK HARTOG, MAN AND WIFE IN AMERICA: A HISTORY 101 (2000) ("Being a householder, being someone who cared for and controlled a family, gave a man political significance. It was a foundation for republican political virtue."); Rogers M. Smith, "One United People": Second-Class Female Citizenship and the American Quest for Community, 1 YALE J.L. & HUMAN. 229, 238 (1989) ("As the ancient republics and the American South show, many republicans believed that the citizenry's economic independence, military security, and shared life of civic virtue would be impossible unless a body of subjects performed many of the most arduous, dangerous, or menial tasks. Since these subjects - conquered peoples, poor laborers, servants, slaves, and women - lacked the leisure, education, and economic freedom they made possible for others, they were unfit for the franchise or other aspects of full citizenship. They were properly subject to near-absolute rule, so that citizens could live in freedom.").
The suffrage movement sought to efface these aspects of the republican tradition and, as Sarah Lawsky has recently demonstrated, vigorously and creatively invoked republicanism on behalf of the right to vote. See Lawsky, supra note 2, at 788-92. Drawing on traditions of antislavery constitutionalism, the movement invoked the Guarantee Clause on behalf of the right to vote. See supra note 66.
Back To Text98. See Siegel, The Rule of Love, supra note 31, at 2122-25.
Back To Text99. ROBERT J. STEINFELD, THE INVENTION OF FREE LABOR: THE EMPLOYMENT RELATION IN ENGLISH AND AMERICAN LAW AND CULTURE, 1350-1870, at 56-57 (1991).
Back To Text100. Steinfeld observes that the common law viewed household relationships through the lens of governance:
Resident servants were like wives and children because all were members of the household and all were the legal dependents of its head. As household dependents, all were legally entitled to be maintained by the head of household while their relationship continued, and all were subject by law to his authority... . The responsibility for all of them rested on the head of their household.
Id. at 56.
Back To Text101. Women's legal disabilities in marriage rested on this understanding of "family government." At common law, a husband acquired rights to his wife's paid and unpaid labor and to most property she brought into the marriage. A wife was obliged to serve and obey her husband, and a husband had a reciprocal duty to support her financially and represent her in the legal system. A wife was unable to file suit without her husband's consent and participation; he, in turn, was responsible for his wife's conduct - liable, under certain circumstances, for her contracts, torts, and even some crimes. NORMA BASCH, IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN NINETEENTH-CENTURY NEW YORK 51-55, 90, 99, 111-112 (1982). For an account of the many practical contexts in which the rules of representation and substitution shaped husband-wife relations, see HARTOG, supra note 97, at 142-49.
Back To Text102. Sometimes antis directly invoked coverture law as a basis for reasoning about the franchise. E.g., BUSHNELL, supra note 81, at 68 (antisuffrage tract drawing on coverture's rules of representation as a basis for reasoning about woman's right to vote, observing that "her personality is so far merged in his, that she can not bring a suit any more in her own name, for it is a name no longer known to the law. The assumption is that, being in and of her husband, he will both act and answer for her, except when arraigned for "a' crime"). Sometimes antis invoked male suffrage as necessary to preserve the traditional order of coverture. Such arguments treated public and private law systems of male representation as interrelated or interdependent. See infra section III.C, pp. 993-97. (discussing marital unity arguments against woman suffrage). Often the links between gendered systems of representation in public and private law were tacitly assumed rather than explicitly elaborated. C 52 CONG. REC. 1447 (1915) (statement of Rep. Borland) ("Mr. Speaker, the world moves. It is now nearly two full generations since the States of this Union have removed from woman the common-law restrictions, and yet we have heard some of the last echoes of that archaic system in this debate.").
For a wide-ranging account of the ways that federal law enforced policies respecting the institution of marriage during the period of the suffrage debate, see NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE NATION (2000).
Back To Text103. CONG. GLOBE, 40th Cong., 2d Sess. 1956 (1868) (statement of Rep. Broomall) (emphasis added).
Back To Text104. See supra pp. 969-70 & n.59.
Back To Text105. CONG. GLOBE, 39th Cong., 2d Sess. 40 (1866); see also CONG. GLOBE, 39th Cong., 2d Sess. 307 (1867) (statement of Sen. Sherman) ("So far as the families, the women and children, are concerned, we know that they are represented by their husbands, by their parents, by their brothers, by those who are connected with them by domestic ties ... ." ); CONG. GLOBE, 38th Cong., 1st Sess. 2243 (1864) (statement of Sen. Howe) ("I am willing to deprive those who are not males of the right of suffrage, because they exercise it by proxy, as we all know. Females send their votes to the ballot-box by their husbands or other male friends.").
Back To Text106. CONG. GLOBE, 39th Cong., 1st Sess. 309 (1866).
Back To Text107. Id.
Back To Text108. CONG. GLOBE, 39th Cong., 1st Sess. 410 (1866) (statement of Rep. Bromwell).
Back To Text109. CONG. GLOBE, 39th Cong., 2d Sess. 63 (1866) (statement of Sen. Wade). Or, as Senator Williams put it: "Negroes in the United States have been enslaved since the formation of the Government... . [A] large minority of the people of this country today, if they had the power, would deprive them of all political and civil rights and reduce them to a state of abject servitude," while:
Women have not been enslaved. Intelligence has not been denied to them; they have not been degraded; there is no prejudice against them on account of their sex; but, on the contrary, if they deserve to be, they are respected, honored, and loved... . Exceptions I know there are to all rules; but, as a general proposition, it is true that the sons defend and protect the reputation and rights of their mothers; husbands defend and protect the reputation and rights of their wives; brothers defend and protect the reputation and rights of their sisters; and to honor, cherish, and love the women of this country is the pride and glory of its sons.CONG. GLOBE, 39th Cong., 2d Sess. 56 (1866).
Back To Text110. In these and other moments in the suffrage debates, men agreed that women did not need the vote because women were adequately represented by the men of their families, a fact that the congressmen determined by considering the case most intimately known to them - the case of their own families. When woman suffrage is considered from this reflexive vantage point, the potential rights-holder assumes the race and class position of the congressmen debating the question. Yet at other points in the campaign, considerable attention was devoted to the African-American members and potential beneficiaries of the woman suffrage movement. Segregationist practices spread within the women's movement in the decades after the Civil War, and white women in the movement came under increasing pressure to distance themselves from African-American members - pressure to which white organizations increasingly succumbed. The closer the woman suffrage amendment came to passage, the more openly white supremacist groups attacked the woman suffrage amendment as a measure that would enfranchise blacks. See TERBORG-PENN, supra note 60, at 118-32. For an example of such attacks, see infra, p. 1003 (quoting a southern senator who opposed the Nineteenth Amendment on the ground that it is "exactly the identical same amendment applied to the other half of the Negro race. The southern man who votes for the Susan B. Anthony amendment votes to ratify the fifteenth amendment").
Back To Text111. CONG. GLOBE, 39th Cong., 2d Sess. 66 (1866) (statement of Sen. Frelinghuysen) (stating that in this regard, "there is a vast difference between the situation of the colored citizen and the women of America"); c PARKMAN, supra note 86, at 6 ("[W]oman is generally represented in a far truer and more intimate sense by her male relative than is this relative by the candidate to whom he gives his vote ... .").
Back To Text112. As one congressman explained, the ballot "is not given to the woman, because it is not needed for her security. Her interests are best protected by father, husband, and brother." CONG. GLOBE, 39th Cong., 1st Sess. 3035 (1866) (statement of Sen. Henderson). "The theory is that the fathers, husbands, brothers, and sons to whom the right of suffrage is given will in its exercise be as watchful of the rights and interests of their wives, sisters, and children who do not vote as of their own." CONG. GLOBE, 39th Cong., 1st Sess. 2962 (1866) (statement of Sen. Poland).
Back To Text113. See supra pp. 969-70 & n.59.
Back To Text114. CONG. GLOBE, 40th Cong., 3d Sess. 710 (1869).
Back To Text115. See, e.g., BROCKETT, supra note 81, at 263 ("We have, we think, demonstrated that the family, and not the individual, is the unit of all organized society and government; that this being the case, there is no such thing as an individual right of suffrage ... ."); Id. at 271-72 ("[T]he exercise of the suffrage by woman would be an attempt to make suffrage individual instead of representative, and so against the natural order of things."); Id. at 272 ("[T]his would inaugurate an entirely different principle; the right of the individual, as such, to participate in the government, a claim incompatible with the organization of society, and subversive of its best interests."); BUSHNELL, supra note 81, at 68 (stating that, under English common law, the husband acts for and speaks on behalf of his wife and that women were already represented through the votes of men); KRADITOR, supra note 84, at 24 ("A man voted not for himself alone but for all the members of his family, as their political representative."); PARKMAN, supra note 86, at 3 ("The man is the natural head of the family, and is responsible for its maintenance and order. Hence he ought to control the social and business agencies which are essential to the successful discharge of the trust imposed upon him.").
Back To Text116. H.R. REP. NO. 48-1330, at 3 (1883).
Back To Text117. BUSHNELL, supra note 81, at 71.
Back To Text118. S. REP. NO. 49-70, at 2-3 (1886).
Back To Text119. MARY PUTNAM JACOBI, "COMMON SENSE" APPLIED TO WOMAN SUFFRAGE 138 (1894).
Back To Text120. REPORT OF THE WOMAN'S RIGHTS CONVENTION (Seneca Falls, N.Y., July 19 & 20, 1848) (describing the "history of mankind [as] a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her"), reprinted in 1 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 66, 70 [hereinafter REPORT OF THE WOMAN'S RIGHTS CONVENTION].
Back To Text121. C S. MISC. DOC. NO. 47-74, at 6 (1880) (testimony of Mrs. Elizabeth L. Saxon):
I beg of you, gentlemen, to consider this question [of the proposed woman suffrage amendment] apart from the manner in which it was formerly considered. We, as the women of the nation, as the mothers, as the wives, have a right to be heard, it seems to me, before the nation. We represent precisely the position of the colonies when they plead, and, in the words of Patrick Henry, they were "spurned with contempt from the foot of the throne." We have been jeered and laughed at, and ridiculed: but this question has passed out of the region of ridicule.
Back To Text122. See S. MISC. DOC. NO. 1211, at 25 (1894) (remarks of Mrs. Sara Winthrop Smith) ("The right of women to vote began with the first pronunciamento against the tyranny of England. It is as firmly placed in the fundamental laws of our country as is the same right of men."). Mary Stewart expressed a similar sentiment:
We are taxed without representation; there is no mistake about that. The colonies screamed that to England; Parliament screamed back, "Be still; long live the king, and we will help you." Did the colonies submit! They did not. Will the women of this country submit! They will not. Mark me, we are the sisters of those fighting revolutionary men; we are the daughters of the fathers who sang back to England that they would not submit. Then if the same blood courses in our veins that courses in yours, dare you expect us to submit!S. MISC. DOC. NO. 74, at 6-7 (1880). Consider also Senator Anthony's remarks when debating suffrage for the District of Columbia prior to the drafting of the Fifteenth Amendment:
CONG. GLOBE, 39th Cong., 2d Sess. 55 (1866).Nor is it a fair statement of the case to say that the man represents the woman in the exercise of suffrage, because it is an assumption on the part of the man; it is an involuntary representation so far as the woman is concerned... . A representation to which the represented party does not assent is no representation at all, but is adding insult to injury. When the American Colonies complained that they ought not to be taxed unless they were represented in the British Parliament, it would have been rather a singular answer to tell them that they were represented by Lord North, or even by the Earl of Chatham ... .
Nor have we any more right to assume that the women are satisfied with the representation of the men. Where has been the assembly at which this right of representation was conferred? Where was the compact made? What were the conditions?
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123. Elizabeth Cady Stanton pursued this strategy quite self-consciously:
But what do lofty utterances and logical arguments avail so long as men, blinded by old prejudices and customs, fail to see their application to the women by their side? Alas! gentlemen, women are your subjects. Your own selfish interests are too closely interwoven for you to feel their degradation, and they are too dependent to reveal themselves to you in their nobler aspirations, their native dignity.2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 510.
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124. See REPORT OF THE WOMAN'S RIGHTS CONVENTION, supra note 120, at 70 (quoting the Declaration of Sentiments, which draws on the Declaration of Independence, to describe the "history of mankind [as] a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her").
Back To Text125. The movement emphasized this theme during the Centennial celebrations on July 4, 1876, when Susan B. Anthony stood in front of Independence Hall and read from NWSA's Declaration of Rights for Women:
Universal manhood suffrage, by establishing an aristocracy of sex, imposes upon the women of this nation a more absolute and cruel despotism than monarchy; in that, woman finds a political master in her father, husband, brother, son. The aristocracies of the old world are based upon birth, wealth, refinement, education, nobility, brave deeds of chivalry; in this nation, on sex alone; exalting brute force above moral power, vice above virtue, ignorance above education, and the son above the mother who bore him.3 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 33; see also 1878 Senate Hearings, supra note 76, at 5 (testimony of Elizabeth Cady Stanton) ("When we place in the hands of one class of citizens the right to make, interpret, and execute the law for another class wholly unrepresented in the government, we have made an order of nobility. Universal manhood suffrage makes all men sovereigns, all women slaves - the most odious from [sic] of aristocracy the world has yet seen.").
Back To Text126. Hearing of the Woman Suffrage Association Before the House Comm. on the Judiciary, 52d Cong. 1 (1892) [hereinafter 1892 Hearings] (emphasis added). Stanton's testimony was widely circulated under the title "The Solitude of Self" and is reprinted in BETH M. WAGGENSPACK, THE SEARCH FOR SELF-SOVEIRGNTY: THE ORATORY OF ELIZABETH CADY STANTON 159-67 (1989).
Back To Text127. 1892 Hearings, supra note 126, at 1. Stanton went on to urge:
The strongest reason why we ask for woman a voice in the government under which she lives; in the religion she is asked to believe; equality in social life, where she is the chief factor; a place in the trades and professions, where she may earn her bread, is because of her birthright to self-sovereignty; because, as an individual, she must rely on herself. No matter how much women prefer to lean, to be protected and supported, nor how much men desire to have them do so, they must make the voyage of life alone, and for safety in an emergency they must know something of the laws of navigation. To guide our own craft, we must be captain, pilot, engineer; with chart and compass to stand at the wheel; to watch the wind and waves and know when to take in the sail, and to read the signs in the firmament over all. It matters not whether the solitary voyager is man or woman.Id.
Back To Text128. Arguments from the Constitution's Preamble were a regular part of the suffrage case. See, e.g., 1888 Senate Hearings, supra note 77, at 4 (statement of Elizabeth Cady Stanton) (citing the Preamble); 1878 Senate Hearings, supra note 76, at 5 (statement of Elizabeth Cady Stanton) ("This is declared to be a government "of the people.' ... Our State constitutions also open with the words, "We, the people.'... When we say people, do we not mean women as well as men?"); 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 630, 632 (reproducing text of the stump speech that Susan B. Anthony delivered in the weeks prior to her trial for voting unlawfully in 1873) ("It was we, the people, not we, the white male citizens, nor yet we, the male citizens, but we, the whole people, who formed this Union.").
Back To Text129. On the movement's use of the language of individualism to expose unequal status relations, see Siegel, Home As Work, supra note 69, at 1107, which explains that the antebellum woman's rights movement "used a rhetoric of autonomy to raise questions of equality, and used a rhetoric of individualism to explore conditions of group domination and to articulate aspirations of group emancipation." Id. (emphasis omitted). On the movement's frequent use of the language of caste, see Id. at 1107 n.118.
Back To Text130. See supra pp. 971-72 & n.66.
Back To Text131. H.R. MISC. DOC. NO. 46-20, at 20, 19 (1880); see Id. at 18-22 (statement of Susan B. Anthony).
Back To Text132. 1880 Senate Hearings, supra note 76, at 5. For other examples of the Titles of Nobility claims, see S. REP. NO. 50-2543 app. I at 11 (1889) (hearing of Senate Committee on Woman Suffrage, April 2, 1888) (statement of Elizabeth Cady Stanton). This theme was a central part of the movement's case during the nation's centennial celebrations. See supra note 125. For examples of the Bill of Attainder claim, see 1878 Senate Hearings, supra note 76, at 5 (remarks of Elizabeth Cady Stanton) ("Notwithstanding these provisions of the Constitution, bills of attainder have been passed by the introduction of the word "male" into all the State constitutions, denying the woman the right of suffrage, and thereby making sex a crime. A citizen disenfranchised in a republic is a citizen attained.").
Back To Text133. As Lucy Stone argued before the House Judiciary Committee in 1892:
Men must know the value of votes and the value of the possession of power, and I look at them and wonder how it is possible for them to be willing that their own sisters, mothers, wives, and daughters should be debarred from the possession of like power... . [Legislators] respect the wants of the voter, but they care nothing about the wants of those who do not have votes. So, when we asked in Massachusetts for protection for wives beaten by their husbands ... and that the husband should be made to give a portion of his earnings to support the minor children, again we had leave to withdraw.Hearing of the Woman Suffrage Association Before the House Comm. on the Judiciary, 52d Cong. 6 (1892) (statement of Lucy Stone); see also source cited supra note 123, at 510 (Elizabeth Cady Stanton discussing the forms of self-interest that bias male judgment).
Back To Text134. See generally Siegel, Home As Work, supra note 69, at 1151 & n.281 (discussing articles in woman suffrage newspapers arguing that the deplorable state of marital property law illustrated women's need for political self-representation).
Back To Text135. Id. at 1159-60 (quoting A Wife's Protest, Woman's J., Mar. 6, 1875, at 74).
Back To Text136. For examples of this tradition of protest, see Id. at 1121.
Back To Text137. See generally Siegel, Home As Work, supra note 69.
Back To Text138. E.g., Hasday, supra note 31, at 1413-42 (describing the movement's protest of marital rape); Siegel, Home As Work, supra note 69, at 1104-06 (describing how the movement's demands for "self-ownership" supported a far-ranging critique of the marriage relation, including challenges to the expropriation of women's domestic labor, to marital rape, and to forced motherhood); Siegel, The Rule of Love, supra note 31, at 2127-32 (describing the movement's protest of domestic violence); see also source cited supra note 133 (quoting Lucy Stone's testimony on the movement's inability to persuade legislators to enact laws protecting women from domestic violence).
Back To Text139. Jane E. Larson, "Even a Worm Will Turn at Last": Rape Reform in Late Nineteenth-Century America, 9 YALE J.L. & HUMAN 1, 8-10 (1997).
Back To Text140. See generally DEBORAH L. RHODE, JUSTICE AND GENDER 48-50 (1989); Cristina M. Rodriguez, Note, Clearing the Smoke-Filled Room: Women Jurors and the Disruption of an Old-Boys' Network in Nineteenth-Century America, 108 YALE L. J. 1805 (1999). For examples of movement rhetoric protesting women's exclusion from juries, see 1 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 597-98 (address of Elizabeth Cady Stanton to the New York legislature), which discusses the plight of women charged with infanticide; Id. at 708 n. (resolutions of the Tenth National Woman's Rights Convention), which demanded the right to serve on juries; 2 HISTORY OF WOMAN SUFFRAGE, supra note 56, at 687-88 (statement of Susan B. Anthony following her conviction for voting unlawfully), which criticized women's exclusion from juries.
Back To Text141. KRADITOR, supra note 84, at 65-71; see also Jane Addams, Why Women Should Vote, in ONE WOMAN, ONE VOTE 195, 195-202 (Marjorie Spruill Wheeler ed., 1995).
Back To Text142. On the expansion of the class base of the suffrage movement in the first decades of the twentieth century, see ELLEN CAROL DUBOIS, HARRIOT STANTON BLATCH AND THE WINNING OF WOMAN SUFFRAGE 88-121 (1997).
Back To Text143. C Siegel, Home As Work, supra note 69, at 1116 (relating the movement's reform agendas for marital status law and suffrage). For a discussion of the suffrage movement's utopian proposals to restructure work performed in the family setting, see DOLORES HAYDEN, THE GRAND DOMESTIC REVOLTUION: A HISTORY OF FEMINIST DESIGNS FOR AMERICAN HOMES, NEIGHBORHOODS, AND CITIES 3-53, 67-89, 135-49, 183-205 (1981).
Back To Text144. E.g., 2 OFFICIAL REPORT OF THE DEBATES AND PROCEEDINGS IN THE STATE CONVENTION, ASSEMBLED MAY 4th, 1853, TO REVISE AND AMEND THE CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS 598-99 (1853) (statement of George Boutwell) ("[The family] can have but one will; and the man, who, by nature, is placed at the head of that government, is the only authorized exponent of that will... . [Because] the will of the whole family is represented by the man, who is the head of the family ... woman has no right to be directly consulted in public affairs."), quoted in Jacob Katz Cogan, Note, The Look Within: Property, Capacity, and Suffrage in Nineteenth-Century America, 107 YALE L. J. 473, 488-89 (1997); BROCKETT, supra note 81, at 255 ("It is plain that each family needs, at the utmost, but a single representative, its proper head and father, who represents the entire interests of the family, including himself, his wife, and his children, if he has any.").
Back To Text145. BROCKETT, supra note 81, at 246 ("Perhaps no other rule is so extensively true, as that women are under influence. But further, women have no political interests apart from those of men ... . As citizens, therefore, they are sufficiently represented already. To give them the franchise would just double the number of voters, without introducing any new interest ... ."); PARKMAN, supra note 86, at 3-4 ("If, as many [suffrage] advocates complain, women are subservient to men, and do nothing but what they desire, then woman suffrage will have no other result than to increase the power of the other ... sex ... ."); Bissell, supra note 81, at 147 ("[A] woman must study up the subjects on which she is to vote and cast her ballot with a personal knowledge of current politics in every detail. She must take it all from her husband, which means that he is thus given two votes instead of one, not equal suffrage, but a double suffrage for the man." (emphasis added)).
Back To Text146. H.R. REP. NO. 48-1330, at 3 (1884); accord S. REP. NO. 48-399, pt. 2, at 6-7 (1884) (minority report). The House Committee's reasoning elicited this rejoinder from its dissenting members:
If it be urged that her interests are so bound up in those of man that they are sure to be protected, the answer is that the same argument was urged as to the merger in the husband of the wife's right of property, and was pronounced by the judgment of mankind fallacious in practice and in principle. If the natures of men and women are so alike that for that reason no harm is done by suppressing women, what harm can be done by elevating them to equality? If the natures be different, what right can there be in refusing representation to those who might take juster views about many social and political questions?H.R. REP. NO. 48-1330, at 5-6.
Back To Text147. Edward D. Cope, Relation of the Sexes to Government, in DEBATERS' HANDBOOK, supra note 81, at 123, 126.
Back To Text148. BROCKETT, supra note 81, at 248 (emphasis added).
Back To Text149. S. REP. NO. 48-399, pt. 2, at 6-7 (emphasis added). Suffragists also invoked wives' fear of defying their husbands' authority to explain why many women did not demand the right to vote:
It has been said for a long time that Southern women do not want suffrage. There are women in every Southern State who do want it, and already in Georgia there is a respectable number of women who openly demand the ballot; and I can say to you that there are a great many more in Georgia who would make that demand openly if they were not so much afraid of their husbands, who declare themselves to be their absolute protectors. And I am sorry to say that the gentlemen of Georgia, most of those from whom we have heard on this question, do not seem to be protecting the right of their wives to entertain and openly express opinions of their own.Woman Suffrage: Hearing Before the Senate Select Comm. on Woman Suffrage, 52d Cong. 13 (1892) (statement of H. Augusta Howard). On women's need for the ballot to obtain legislation redressing domestic violence, see the testimony of Lucy Stone, reproduced above in note 133.
Back To Text150. Siegel, The Rule of Love, supra note 31, at 2161-70. In The Rule of Love, I trace the rise of privacy discourse in marital status law as it was reformed during the nineteenth century. Where a husband's prerogative to chastise his wife was once justified in terms of his authority over her, a husband's immunity from his wife's tort claims under the married women's property acts was justified in a less overtly hierarchical discourse that emphasized the importance of preserving marital privacy and domestic harmony.
Back To Text151. See HUBBARD, supra note 81, at 167 ("[Suffragists] have a vision of the future ... when each one shall be an individual and destroy the unity of the family, and the sanctity of marriage and the dependence of the child."); Id. at 173 ("The progressive woman and the Suffragette of today may see herein mirrored their characteristics in the near future after they have obtained the vote and broken up the family, and created themselves distinct individuals."); Bissell, supra note 81, at 146 ("No good woman lives to herself. She has always been part of a family as wife or sister or daughter from the time of Eve."); Id. at 148 ("The individualism of woman, in these modern days, is a threat to the family. There is ... a fever for "living one's own life,' that is unpleasantly noticeable. The desire for the vote is part of this restlessness, this ... ignorant desire to do "the work of the world' instead of one's own appointed work."); Fulton, supra note 81, at 5 ("It is patent to every one that this attempt to secure the ballot for woman is a revolt against the position and sphere assigned to woman by God himself."); Robert Afton Holland, The Suffragette, 17 SEWANEE REV. Q. 272, 282 (1909) ("The woman who does not rightly obey her husband, will not obey the God who enjoins her submission. Her rights-ism is simply sex-atheism, and can only generate atheistic minds."), quoted in KRADITOR, supra note 84, at 17.
Back To Text152. PARKMAN, supra note 86, at 4. Antis who talked about preserving the unity and harmony of marriages often fretted about the prevalence of divorce. Divorce in this conversation, however, was code for any threat to male authority and household headship in marriage. See, e.g., BROCKETT, supra note 81, at 279 ("[If] the wife should ... adopt the views, principles, and candidates of one party, and the husband those of another ... how often would it break up the peace of families, and lead to separation, or, at least, to permanent estrangement!"); Bissell, supra note 81, at 145, 148 (ascribing divorce to women's agitation for suffrage and other rights). The charge that woman suffrage would increase divorce figured prominently in the antisuffrage case from Reconstruction until the final debates over ratification. But c 51 CONG. REC. S4140-42 (1914) (statement of Sen. Shafroth) (reading letters from judges in Colorado - a state where women had the right to vote - who testified that they had never presided over a divorce case that arose out of political differences between spouses).
Back To Text153. See supra pp. 977-78 & nn.81-82.
Back To Text154. H.R. REP. NO. 48-1330, at 1 (1884).
Back To Text155. Id. at 3 (emphasis added). Similarly, the 1884 minority report for the Senate Committee on Woman Suffrage moved from reasoning about suffrage as a problem concerning family structure to characterizing the problem as a "local question":
It is said by those who have examined the question closely that the largest number of divorces is now found in the communities where the advocates of female suffrage are most numerous, and where the individuality of woman as related to her husband, which such a doctrine inculcates, is increased to the greatest extent. If this be true, and it seems to be well authenticated, it is a strong plea in the interest of the family and of society, against granting the petition of the advocates of woman suffrage. After all, this is a local question, which properly belongs to the different States of the Union, each acting for itself ... .S. REP. NO. 48-399, pt. 2, at 8 (1884).
Back To Text156. S. REP. NO. 47-686, pt. 2 (1882), reprinted in S. REP. NO. 52-1143, at 5-6 (1893); in S. REP. NO. 54-787, at 1-3 (1896); and in S. Doc. No. 62-1035, at 10-12 (1913).
Back To Text157. S. REP. NO. 47-686, pt. 2, at 1 (emphasis added).
Back To Text158. Id.
Back To Text159. Id. at 2 (emphasis added).
Back To Text160. Compare the use of "local self-government" in an 1893 Senate Report:
Every thoughtful man ... will recognize the fact that the power to say who shall vote and under what conditions is one of the first and grandest attributes of the sovereignty and dignity and safety of the States, the very essence of home rule and local self-government... . All attempts on the part of the General Government to assume to itself, or in any way interfere with, this undoubted right and inestimable privilege of the States have been justly regarded with the greatest jealousy.S. REP. NO. 52-1143, at 4 (1893)
Back To Text161. S. REP. NO. 47-686, pt. 2, at 2 (emphasis added).
Back To Text162. Throughout American history, the law of federalism has generally recognized and respected the forms of authority expressed in the common law of domestic relations. C Carter v. Carter Coal Co., 298 U.S. 238, 298, 308 (1936) (holding that the regulation of "productive industries" is beyond federal power because "the relation of employer and employee is a local relation[;] ... at common law, it is one of the domestic relations"). When the national government endorses policies that interfere with status prerogatives protected by the common law of domestic relations, it is especially vulnerable to the charge that it is interfering with "local self-government." National regulation that undermines status prerogatives protected at common law quite literally diminishes forms of "local self-government" - even if the forms of household governance protected by the common law of domestic relations are classically antidemocratic in form.
Back To Text163. 13 CONG. REC. 229 (1881).
Back To Text164. Id.
Back To Text165. Id.
Back To Text166. Id.
Back To Text167. Id.
Back To Text168. It seems to have been commonplace for congressmen to reason about woman suffrage with imaginative reference to their own families. The virtual representation argument was often expressed from this standpoint. See supra pp. 985-87.
Back To Text169. HENRY ST. GEORGE TUCKER, Local Self-Government, in WOMAN SUFFRAGE BY CONSTITUTIONAL AMENDMENT 106 (1916) (Storrs Lecture delivered at Yale Law School in 1916). Like his nineteenth-century forebears, St. George Tucker argued that Article V amending powers could not be used to alter control over questions of woman suffrage without violating deep structural underpinnings of the federal system that protected "local self-government." As St. George Tucker defined "local self-government" in his lectures of that title, he reasoned in explicitly gendered terms. The federal system protected local self-government, which St. George Tucker understood to be a man's control over his home:
The words "local self government" ... are the guaranty of the safety of the home, the recognition of the trusteeship of man as the defender of the home and the guardian of its sacred precincts. They single out the individual, arm him with the greatest political power that can possibly be given to an individual, and hold him responsible for its exercise in the development of home and neighborhood ... . It will be admitted that the nearer the government comes to the man - the closer it touches him in his home life - in his varied every day affairs - that here his power should be greatest for the protection of his home and his rights.Id. at 105-06.
Back To Text170. But see 58 CONG. REC. 570 (1919) (statement of Sen. Underwood) ("When it comes to those powers of government which invade the family home and the fireside, that welcome the infant into life and carry old age to the cemetery, those laws of our intimate life and living, if we want just government, must be determined by the local people who live under them. That is the only way we can accomplish the desired result.").
Back To Text171. 58 CONG. REC. 618 (1919) (statement of Sen. Smith). On the entanglement of federalism arguments against the Fifteenth and Nineteenth Amendments, see especially H.R. REP. NO. 64-1216, pt. 2, at 8 (1916) (supporting the Nineteenth Amendment) ("The last census shows that there are more than six million more white women than colored women in the fifteen southern states, and two million more white women than Negro men and women combined... . National emancipation of women will in no way interfere with the policy of the Southern States in dealing with the negro problem."); 52 CONG. REC. app. at 149-50 (1915) (remarks of Rep. Hayden) (proposing to substitute for the suffrage amendment a resolution that would have allowed individual states to vote on the question of enfranchising women, declaring that "the question of State rights, when carefully analyzed with relation to the suffrage question, is really the great race problem, and this problem is no longer confined to the South, but is one seriously in the minds of Senators and Representatives from Western States, having to deal intimately and immediately with the race question growing out of immigration or attempted immigration to our shores by the Asiatic").
Back To Text172. CLEMENT E. VOSE, CONSTITUTIONAL CHANGE: AMENDMENT POLITICS AND SUPREME COURT LITIGATION SINCE 1900, at 53-63 (1972).
Back To Text173. Marbury had recently challenged the Fifteenth Amendment's constitutionality while defending Maryland's grandfather clause in Myers v. Anderson, 238 U.S. 368, 368-74 (1915). For an account of Marbury's attempts to challenge the Fifteenth Amendment, see VOSE, supra note 172, at 39-40. Marbury's brief in Myers drew heavily on the work of another proponent of the Fifteenth Amendment's unconstitutionality: Arthur Machen. See Arthur W. Machen, Jr., Is the Fifteenth Amendment Void?, 23 HARV. L. REV. 169 (1910). Marbury's brief in Myers argued:
Assuming that the Fifteenth Amendment ... is "an amendment" within the meaning of that term as employed in Article V of the Constitution, it falls within the express prohibition therein contained against any amendment which would deprive a State of its equal suffrage in the Senate, without its consent.VOSE, supra note 172, at 39 (quoting Marbury's Myers brief) (emphasis omitted).For it is submitted that any amendment which would have the effect under any possible circumstances of converting one of the States of the Union into an Asiatic State or an African State by compelling the white people to permit Asiatics or Negroes to vote upon the same terms as themselves, would be in substance and effect depriving the original State - the State which assented to and was contemplated and meant by the Constitution - of all representation in the Senate.
Back To Text174. See William L. Marbury, The Nineteenth Amendment and After, 7 VA. L. REV. 1, 3-4 (1920) ("The participation of women equally with men in political activities might have no ill effect, social or political. It might not have any tendency to destroy the unity of the family, to increase the frequency of divorce, to affect injuriously the training and welfare of children ... ."); see also Id. ("No sane man will undertake to say ... what the political or social effect of giving the right of suffrage to Japanese women would be fifty years hence.").
Back To Text175. Id. at 16; c U.S. CONST. art. V ("No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.").
Back To Text176. Marbury, supra note 174, at 17 (emphasis added); c Id. at 15 ("If this "other power' has the right to say that women shall vote at State elections in States ... which have rejected this Suffrage Amendment, it would have equally the right to say that men shall not vote in those States or that only certain men or certain women shall vote. What then becomes of those States? Can they be said to be indestructible States if their continued existence is thus "at the mercy' of another?").
Back To Text177. Marbury and others first advanced this argument as a basis for challenging the constitutionality of the Fifteenth Amendment. See supra note 173. For another example of its use to challenge the Nineteenth Amendment, see George Stewart Brown, The Amending Clause Was Provided For Changing, Limiting, Shifting or Delegating "Powers of Government." It Was Not Provided For Amending "The People." The 19th Amendment Is Therefore Ultra Vires., 8 VA. L. REV. 237 (1922).
Back To Text178. See VOSE, supra note 172, at 55-63 (discussing several cases challenging the validity of the Nineteenth Amendment on federalism grounds).
Back To Text179. 258 U.S. 130 (1922).
Back To Text180. Brief for Plaintiffs in Error at 75, Leser v. Garnett, 258 U.S. 130 (1922) (No. 553).
Back To Text181. The brief argued that the Fifteenth Amendment was originally imposed as a war measure and then acquiesced in for decades without challenge, in a manner sufficient to demonstrate the consent of all states. Id. at 85-94.
Back To Text182. Id. at 94-96.
Back To Text183. Id. at 98-99 (emphasis added). The argument continues:
The substantial difference then between the Fifteenth and Nineteenth Amendments is that one imposes conditions upon the exercise of the power over suffrage, while the other appropriates the power to itself, imposing upon the State and the Nation an arbitrary rule of sex uniformity from which there can be no relaxation or escape, creating a new electorate or body politic in all male suffrage states, and thus changing or depriving these States of their suffrage in the Senate, and making it impossible for them under their own laws to consent or refuse to consent to this or any other amendment whatever.Id. at 99.
Back To Text184. Leser, 258 U.S. at 136.
Back To Text185. 52 CONG. REC. 1418 (1915) (statement of Rep. Lafferty).
Back To Text186. 52 Cong Rec. 1437 (1915) (statement of Rep. Bryan).
Back To Text187. 56 CONG. REC. 788 (1918) (statement of Rep. Lehlbach). The congressman continued:
The mass of women in this country are no longer entirely and solely dependent upon the men for their support and maintenance... . In the marriage relation the wife is no longer under such domination of her husband as he might exercise over an older child. She retains control of her own property, and her liberty of action in ordinary affairs is unchallenged. The restrictions of old conventions that limited her social activities no longer obtain. These strides toward social and economic independence do not result from the demands of women for them, but flow from industrial conditions.Id.This status by women having been achieved, participation in political affairs is a necessary corollary.
Back To Text188. For a discussion of these advocacy efforts, see J. STANLEY LEMONS, THE WOMAN CITIZEN: SOCIAL FEMINISM IN THE 1920s, at 25-30, 45 (1973); ROBYN MUNCY, CREATING A FEMALE DOMINION IN AMERICAN REFORM 1890-1935, at xi-xiii (1991); Kim Nielsen, The Security of the Nation: Anti-Radicalism and Gender in the Red Scare of 1918-1928, at 72-83 (1996) (unpublished Ph.D. dissertation, University of Iowa) (on file with the Harvard Law School Library).
Back To Text189. On the passage of the legislation, see DAVID E. KYVIG, EXPLICIT AND AUTHENTIC ACTS: AMENDING THE U.S. CONSTITUTION, 1776-1995, at 254-261 (1996); LEMONS, supra note 188, at 25-30, 154; and MUNCY, supra note 188, at 93-123.
Back To Text190. For an account of the National Woman's Party's legislative aims, see Nat'l Woman's Party, Declaration of Principles, EQUAL RIGHTS, Feb. 17, 1923, at 5. For an assessment of the movement's legislative accomplishments at the decade's end, see Report of Legislative Work from 1921 to 1929, EQUAL RIGHTS, Jan. 4, 1930, at 379. As of 1924, the League of Women Voters reported that its state affiliates had secured enactment of eighty-six bills that would work to remove "legal discriminations against women." NAT'L LEAGUE OF WOMEN VOTERS, A RECORD OF FOUR YEARS IN THE NATIONAL LEAGUE OF WOMEN VOTERS 1920-1924, at 23 (1924).
Back To Text191. For a detailed historical account of the early drafting of an equal rights amendment and the jurisprudential and strategic debates attending this question, see Joan G. Zimmerman, The Jurisprudence of Equality: The Women's Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children's Hospital, 1905-1923, 78 J. AM. HIST. 188 (1991).
Proposed drafts of an equal rights amendment that the National Woman's Party circulated in this period prohibited discrimination "on account of sex or marriage." Id. at 207, 213. An early draft modeled on the Thirteenth Amendment declared: "Neither political nor legal disabilities on account of sex or coverture shall exist within the United States or any place subject to its jurisdiction." Id. at 211 (observing that "the idea lingering behind the use of the Thirteenth Amendment model was that marriage under the common law was a form of involuntary servitude for women"). As the National Woman's Party circulated drafts of a proposed constitutional amendment, it also urged state legislatures to adopt an omnibus "woman's rights bill" that prohibited inequalities in marriage in three of its four sections. See Gladys Wells, A Critique of Methods for Alteration of Women's Legal Status, 21 MICH. L. REV. 721, 737 & n.83 (1923) (reproducing model legislation).
Back To Text192. Various groups seeking to restrict divorce proposed constitutional amendments that would give the federal government power to enact uniform marriage and divorce legislation. For some accounts, see NELSON MANFRED BLAKE, THE ROAD TO RENO: A HISTORY OF DIVORCE IN THE UNITED STATES, 130-51 (1962); WILLIAM L. O'NEILL, DIVORCE IN THE PROGRESIVE ERA, 238-61 (1967); GLENDA RILEY, DIVORE: AN AMERICAN TRADITION, 71-77, 108-44 (1991). see also MICHAEL MUSMANNO, PROPOSED AMENDMENTS TO THE CONSTITUTION: A MONOGRAPHY ON THE RESOLUTIONS INTRODUCED IN CONGRESS PROPOSING AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 104-06 (1929) (listing proposed amendments granting Congress the power to enact marriage and divorce law). For the version of the amendment introduced in the post-ratification period, see Marriage and Divorce - Proposed Amendment to the Constitution of the United States: Hearing on S.J. Res. 5, Proposing an Amendment to the Constitution of the United States Relative to Marriage and Divorce Laws Before Subcomm. of the Senate Judiciary Comm., 68th Cong. 1 (1924).
Proposed amendments to give Congress power to enact national marriage and divorce legislation elicited support from many prominent Americans. See BLAKE supra, at 146-47 (listing among supporters of a federal divorce law President Theodore Roosevelt, Franklin Roosevelt (while still in the New York State Senate), and various governors and congressmen); RILEY, supra, at 134-35 (observing that the General Federation of Women's Clubs supported an amendment, while other women's groups were cautious about the proposal because of concerns about the terms of the federal divorce legislation that might be enacted). Not surprisingly, the proposals drew considerable criticism as well. Iredell Meares, Washington Counsel to the Sentinels of the Republic, assembled a lengthy critique of the amendment (as proposed by Senator Capper in 1924) that was printed in the Congressional Record by the Senate Judiciary Committee of the 70th Congress. Meares opposed federalizing marriage and divorce law for classic "states' rights" reasons, which he coupled with arguments infused with 1920s racism. see 70 CONG. REC. 10,065-68 (1928).
Back To Text193. Groups that opposed the social transformations represented by the suffrage movement organized during the 1910s and 1920s to defeat a variety of reforms that the women's movement supported. Leadership of two of the most socially conservative groups of the 1920s, the Woman Patriots and the Sentinels of the Republic, consisted of men and women who formally had played significant roles in the antisuffrage campaign. E.g., Nielsen, supra note 188, at 101, 106-108 (observing that the Woman Patriots was the "post-1920 descendent of the National Association Opposed to Woman Suffrage" and noting that Mary Kilbreth - who served on the board of directors of the Woman Patriots and was a member of the Sentinels - had been a president of the New York Association Opposed to Woman Suffrage and of the National Association Opposed to Woman Suffrage). For detailed accounts of the conservative reaction that ratification of the suffrage amendment elicited, see LEMONS, supra note 188, at 181-227; and Nielsen, supra note 188.
Spurred in part by the advocacy of such groups, during the 1920s politically prominent men such as Senator J. W. Wadsworth, Columbia University President Nicholas Murray Butler, Elihu Root, James A. Garfield, and Senator Henry Cabot Lodge joined Mary Kilbreth, Harriet Frothingham (of Frothingham v. Mellon renown) and other conservative women in defending the family and states' rights from encroachment by the federal government. See LEMONS, supra note 188, at 219; Bill Kauffman, The Child Labor Amendment Debate of the 1920s; or, Catholics and Mugwumps and Farmers, 10 J. LIBERTARIAN STUD. 139, 157 (1992); Sheldon M. Stern, The Evolution of a Reactionary: Louis Arthur Coolidge, 1900-1925, 5 MID-AMERICA 89, 105 (1975).
Back To Text194. Kauffman, supra note 193, at 139-60 (describing the issues of federalism and states' rights in debates over the proposed Amendment); VOSE, supra note 172, at 247-52 (describing the opposition of the American Catholic Church and the Sentinels of the Republic to the child labor amendment); Nielsen, supra note 188, at 174-217 (arguing that the child labor amendment, like Sheppard-Towner and the Department of Education, were in part perceived as attacks on male power in the home); Richard B. Sherman, The Rejection of the Child Labor Amendment, 45 Mid-America 3 (1963). For some contemporary diatribes against the amendment, see Kauffman, supra note 193, at 140 (quoting the President of the American Bar Association's claim that the child labor amendment was "a communistic effort to nationalize children, making them primarily responsible to the government instead of to their parents"); Id. at 155 (quoting a Congressman mocking the amendment as enjoining children to "Honor thy father and thy mother, for the Government has created them but a little lower than the Federal agent. Love, honor, and disobey them"); Sherman, supra, at 7-8 (quoting Georgia legislature as declaring that the child labor amendment "would place Congress in control in every home in the land between parent and child").
Back To Text195. For an account of the statute's defeat, see LEMONS, supra note 188, at 159 (observing of the Sheppard-Towner Act that "because suffragists favored the bill, anti-suffragists opposed it"); Id. at 163-64 (describing the medical establishment's opposition to federal maternity and infancy care); MUNCY, supra note 188, at 124-57 (offering a detailed account of the forces arrayed against Sheppard-Towner and the new understanding of the government's role it represented). see also Nielsen, supra note 188, at 221-22 (observing that "the foes of Sheppard-Towner understood the statute as another intrusion into the family home ... . Maternal health care, infant care, and child-raising pamphlets - provided by female government employees, legislated due to the lobbying of women, and funded by federal tax dollars - threatened patriarchy and the male duties which gave men power"). For some contemporary polemics against the statute, see 67 CONG. REC. 12,919-37 (1926) (petition of Harriet Frothingham) (quoted infra note 196); and Bentley W. Warren, Destroying Our "Indestructible States', 133 ATLANTIC MONTHLY 370, 375-77 (1924) (quoted infra note 196).
Back To Text196. Before assuming the presidency of the Sentinels of the Republic in 1925, Bentley Warren wrote a lengthy polemic in the pages of the Atlantic Monthly arguing that the legislative reforms supported by the women's movement and other progressive groups were "destroying our indestructible states." Warren, supra note 195; see also Stern, supra note 193, at 104 (discussing transition in the leadership of the Sentinels). The dystopia Warren envisioned began with the health care provisions of Sheppard-Towner and included the proposed Department of Education, the child labor amendment, and the amendment authorizing a national divorce law:
Even before the citizen of a state can now be born, he and his prospective mother are subject to rules and regulations established by a Federal bureau. After birth, the extent and method of his education will, under the Sterling-Towner bill, be fixed by a Federal Department of Education. However needy may be the condition of his parents, or however great his own ambition to earn something, the child-labor Amendment will enable Congress entirely to prohibit his labor until he is eighteen years old. On reaching manhood, his right to marry and, in the event of an unfortunate marriage, his resort to divorce, may be dictated by the Federal government... . Would it not be difficult to imagine a more complete invasion of those "more domestic and personal interests of the people" which the authors of the Constitution intended should be "provided for and regulated" by the States?Warren, supra note 195, at 377. After failing in her suit challenging the constitutionality of the Sheppard-Towner Act, Harriet Frothingham expressed the Woman Patriots' objections to the Act's extension in a lengthy petition to Congress that decried a range of post-suffrage reforms affecting the family, which the petition characterized as "a triplet of socialist bills to cover education, maternity and infancy, and child labor": "The bills are different, but the backers are always the same, with the same general objective, nationalized care, control, and support of mothers and children." 67 CONG. REC. 12,919, 12,930 (1926). In the petition, the Woman Patriots argued that the feminist women proposing these new regulatory responsibilities for the federal government were in the thrall of communism. The group warned of:
Id. at 12,945. The Woman Patriots condemned suffrage and post-suffrage activism as animated by the same dangerous impulse:[C]onclusive evidence that the communists designed to destroy the monogamous family (as the "molecule' and "economic' unit of society) by arousing women (as the "proletariat') against men (the "bourgeoisie'), precisely as they designed to destroy capitalism by abolishing private property through the class war of the proletariat against the bourgeoisie.
[It] has been shown that "the worst form of communism," as Senator King well calls it, is found in the feminist phase of communism - arousing women against men, wives against husbands, and providing community care for children, legitimate and illegitimate, to "remove the economic foundations of monogamous marriage," etc. ... .Id. at 12,946.It is also worthy of note that the feminist societies which originally proclaimed a desire for woman suffrage as their reason for existence, have not in the least discontinued their sex war campaigns, but, in fact, have intensified them, purporting to represent women voters - without ever consulting women voters on any feminist measure - en masse, as a class, aligned against men and the regular political parties, through a so-called "National League of Women Voters" and a "National Woman's Party" with the communist philosophy of sex war their only remaining excuse for existence.
Back To Text197. For accounts of women's early efforts to enter politics and the party system, see KRISTI ANDERSEN, AFTER SUFFRAGE: WOMEN IN PARTISAN AND ELECTORAL POLITICS BEFORE THE NEW DEAL (1996); JO FREEMAN, A ROOM AT A TIME: HOW WOMEN ENTERED PARTY POLITICS (2000); ANNA L. HARVEY, VOTES WITHOUT LEVERAGE: WOMEN IN AMERICAN ELECTORAL POLITICS, 1920-1970 (1998); Nancy F. Cott, Across the Great Divide: Women in Politics Before and After 1920, in WOMEN, POLITICS AND CHANGE (Louise A. Tilly & Patricia Gurin eds., 1990); Evelyn Brooks Higginbotham, In Politics to Stay: Black Women Leaders and Party Politics in the 1920s, in WOMEN, POLITICS AND CHANGE, supra.
Back To Text198. See infra section V.A, pp. 1013-19.
Back To Text199. 261 U.S. 525 (1923).
Back To Text200. Lochner v. New York, 198 U.S. 937 (1905).
Back To Text201. Id. at 944-45.
Back To Text202. Muller v. Oregon, 208 U.S. 412 (1908).
Back To Text203. Id. at 422-23 ("The two sexes differ in structure of body, in the functions to be performed by each... . This difference justifies a difference in legislation.").
Back To Text204. Muller began with the observation that "the current runs steadily and strongly in the direction of the emancipation of the wife." Id. at 418. The Court noted that Oregon had reformed the common law to allow wives to make contracts as if single. Id. But the Court then asserted that even if legislatures were reforming the marital status rules of the common law, there was still reason to treat women's contracts differently from men's: "Though limitations upon personal and contractual rights may be removed by legislation, there is that in her disposition and habits of life which will operate against a full assertion of those rights." Id. at 422. Elsewhere, I have argued that "in Muller, the Court employed claims about women's bodies to reach a result which some decades earlier it might have justified by invoking the common law of marital status." Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 STAN. L. REV. 261, 323 (1992) [hereinafter Siegel, Reasoning from the Body].
Back To Text205. For a detailed account of the political and jurisprudential aspects of this conflict, see Zimmerman, supra note 191. See also NANCY F. COTT, THE GROUNDING OF MODERN FEMINISM 117-42 (1987); Reva Siegel, Book Review, 3 BERKELEY WOMEN'S L.J. 171, 180-87 (1987-88) (reviewing SUSAN LEHRER, ORIGINS OF PROTECTIVE LABOR LEGISLATION FOR WOMEN, 1905-1925 (1987)). For a recent work on "maternalist" thought in the movement during the progressive era, see Lisa D. Brush, Love, Toil, and Trouble: Motherhood and Feminist Politics, 21 SIGNS 429, 433-35 (1996).
Back To Text206. See Zimmerman, supra note 191, at 220-21.
Back To Text207. see Children's Hosp. v. Adkins, 284 F. 613, 618 (D.C. Cir. 1922) ("No reason is apparent why the operation of the law should be extended to women to the exclusion of men, since women have been accorded full equality with men in the commercial and political world. Indeed, this equality in law has been sanctioned by constitutional amendment ... .").
Back To Text208. see Zimmerman, supra note 191, at 212-13, 219-20.
Back To Text209. Adkins v. Children's Hosp., 261 U.S. 525, 553 (1923) (emphasis added).
Back To Text210. Id.
Back To Text211. Id.
Back To Text212. Id. at 567 (Taft, C.J., dissenting); see also Id. at 569-70 (Holmes, J., dissenting).
Back To Text213. Adkins, 261 U.S. at 553.
Back To Text214. C supra pp. 966-67 (discussing synthetic interpretation).
Back To Text215. United States v. Hinson, 3 F.2d 200, 200 (S.D. Fla. 1925).
Back To Text216. See McCormick v. United States, 57 Treas. Dec. 117, 125-26 (1930) (Cline, J., concurring). I am indebted to Gretchen Ritter for drawing my attention to this decision. See also SOPHONISBA P. BRECKINBRIDGE, MARRIAGE AND THE CIVIC RIGHTS OF WOMEN: SEPERATE DOMICILE AND INDEPENDENT CITIZENSHIP 4-5 (1931) (discussing state legislation allowing separate domicile).
Back To Text217. McCormick, 57 Treas. Dec. at 125 (quoting Adkins, 261 U.S. at 553) (internal quotation marks omitted).
Back To Text218. Id. The majority held that the woman had established an independent domicile for tax purposes because the husband had consented to the arrangement. See Id. at 120.
The Virginia Supreme Court also recognized a married woman's right to select her own domicile for state tax purposes. In so holding, the court expressed concern that continued adherence to the marital unity principle would be "subversive of the statutory right of voting." Commonwealth v. Rutherford, 169 S.E. 909, 913 (Va. 1933) (quoting Shute v. Sargent, 36 A. 282, 283 (N.H. 1892)).
Back To Text219. For example, a New Jersey chancery court concluded that the legal changes culminating in ratification of the Nineteenth Amendment warranted giving a narrow construction to a clause in the state's married women's property act that preserved coverture restrictions on a wife's capacity to contract. Hollander v. Abrams, 132 A. 224, 229 (N.J. Ch. 1926) (observing that traditions in equity allowing a wife to act as a separate agent with respect to her separate property had been "enlarged and extended by both courts and legislative bodies to the point where, since the adoption of the Nineteenth Amendment to the federal Constitution, practically all of the disabilities of women, both married and single, have been removed, so that [today] she has practically all the rights and privileges of the male citizen"). The New Jersey court described the Nineteenth Amendment's ratification as the culmination of efforts to emancipate women from traditional forms of status regulation and then treated the Amendment as normative authority to extend these egalitarian commitments in private law, much as Adkins did in public law.
Back To Text220. McNeil v. Conn. Fire Ins. Co., 24 F.2d 221, 223 (W.D. Tenn. 1928).
Back To Text221. See Radice v. New York, 264 U.S. 292, 295 (1924).
Back To Text222. See Act Relative to the Naturalization and Citizenship of Married Women, ch. 411, 42 Stat. 1021 (1922) [hereinafter Cable Act].
Back To Text223. See Virginia Sapiro, Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States, 13 POL. & SOC'Y 1, 13 (1984).
Back To Text224. 62 CONG. REC. 9047 (1922) (statement of Rep. Rogers), quoted in Sapiro, supra note 223, at 12. For a contemporary account that analyzes the Cable Act in light of changes in the law of marriage as well as suffrage, see Cyril D. Hill, Citizenship of Married Women, 18 AM. J. INT'L L. 720, 725 (1924) (discussing changes in the law of marital status and observing that "[s]uch a revolution in civil rights could not be effected without a similar tendency in political rights").
Back To Text225. According to the Act, an American woman still lost her citizenship if she married a foreigner who was ineligible for United States citizenship, such as an Asian man. Cable Act, 3, 42 Stat. at 1022. For a discussion of the exceptions to the Cable Act that emphasizes the connection between women's marital status and citizenship, see Cott, supra note 90, at 1464-68.
Back To Text226. Some state legislators attempted to resolve issues surrounding the determination of married women's domicile by providing statutory exceptions to the common law rule of marital unity. Many states established that married women could establish a separate domicile for voting purposes. See, e.g., 1929 Me. Acts 268; 1922 Mass. Acts 315-16; MICH. COMP. LAWS § 2755 (1929); 1927 N.J. Laws 325; 1929 N.Y. Laws 984; 1923 Ohio Laws 118-19; 1923 Pa. Laws 1034; VA. CODE ANN. § 82a (Michie 1924); 1921 Wis. Laws 869 (establishing that women have "the same rights and privileges under the law as men in the exercise of suffrage, [and] freedom of contract," and also allowing married women a "choice of residence for voting purposes"). But see N.C. CONS. STAT. § 5937(a) (Michie 1939) (stating that married women may only establish a separate domicile for voting purposes if their husbands are domiciled outside of the state).
Back To Text227. For historical accounts of the Nineteenth Amendment's interpretation in the jury cases, see LEMONS, supra note 188, at 69-73; Brown, supra note 2, at 2182-85; Gretchen Ritter, Jury Service and Women's Citizenship Before and After the Nineteenth Amendment, 20 L. & HIST. REV. (forthcoming 2002). For a more recent argument that the Nineteenth Amendment should be read to bestow on women the full panoply of political rights (for example, the right to hold office, serve on juries, and even serve in militias), see Amar, Women and the Constitution, supra note 2, at 471-72; and Amar, The Bill of Rights as a Constitution, supra note 2, at 1202-03. See also Vikram David Amar, supra note 2, at 241-42.
Back To Text228. See Opinion of the Justices, 113 A. 614, 615-16 (Me. 1921).
Back To Text229. Id. at 617.
Back To Text230. For an account of the different ways that states responded to ratification of the Nineteenth Amendment in matters concerning women's eligibility to hold office, see LEMONS, supra note 188, at 68-69. For other office-holding cases, see In re Opinion of the Justices, 135 N.E. 173, 175-76 (Mass. 1922), which held that by striking the sex restriction on voting from the Massachusetts constitution, the Nineteenth Amendment removed the only source of law that might have precluded women from holding office; Preston v. Roberts, 110 S.E. 586, 586 (N.C. 1922), which held that a woman was qualified to serve as a notary public and deputy clerk of the superior court because the Nineteenth Amendment had removed the disqualification to hold public office; and Dickson v. Strickland, 265 S.W. 1012, 1023 (Tex. 1924), which cited the Nineteenth Amendment in holding that the wife of a former governor was not disqualified from holding public office by reason of sex or marital status. But see State ex rel. Buford v. Daniel, 99 So. 804 (Fla. 1924) (upholding a statute providing that the county welfare board was to be composed of five men and four women, over a dissenting opinion arguing that the rule was unconstitutional under the Nineteenth Amendment).
Back To Text231. 3 WILLIAM BLACKSTONE, COMMENTARIES 362.
Back To Text232. See Ritter, supra note 227 (discussing the jury claim after the ratification of the suffrage amendment); supra p. 992 (discussing the jury claim during the suffrage campaign).
Back To Text233. See, e.g., State v. James, 114 A. 553, 556 (N.J. 1921) ("The spirit of equality of the sexes which [the Nineteenth Amendment] breathes moved the Legislature of New Jersey in 1921 to amend our act concerning jurors so as to include ... women as well as men."); LEMONS, supra note 188, at 72 (observing that in the immediate aftermath of ratification, twenty states put women on juries, but that the momentum for change dissipated shortly thereafter).
Back To Text234. See, e.g., Browning v. State, 165 N.E. 566, 567 (Ohio 1929) (holding that women automatically became eligible to serve as jurors after the ratification of the Nineteenth Amendment, despite the word "men" in the jury statute, because the state statute provided that all electors were to serve as jurors); Cleveland, Cincinnati, Chi. & Saint Louis Ry. v. Wehmeier, 170 N.E. 27, 29 (Ohio Ct. App. 1929) (same). State courts also interpreted state suffrage amendments expansively to enable women to serve as jurors. See, e.g., People v. Barltz, 180 N.W. 423, 425 (Mich. 1920); Parus v. Dist. Court, 174 P. 706, 708-10 (Nev. 1918) (holding that the state constitutional amendment allowing women to vote enabled women to serve as jurors notwithstanding the use of "he" in the statute stipulating jury qualifications).
Because of a strong common law tradition in which only men served as jurors, courts also considered and rejected claims that gender-neutral juror statutes permitted only men to serve as jurors, even after women had become electors by federal or state constitutional amendment. See, e.g., Palmer v. State, 150 N.E. 917, 919 (Ind. 1926) (finding that where state law established gender-neutral juror qualifications, the Nineteenth Amendment made women electors and hence eligible for jury service); Commonwealth v. Maxwell, 114 A. 825, 829 (Pa. 1921) (holding that a pre-Nineteenth Amendment statute providing that "electors" are subject to jury duty applied prospectively to women following the passage of the Nineteenth Amendment).
Back To Text235. State v. Bray, 95 So. 417, 417 (La. 1923) (finding that a state constitutional amendment allowing women to serve as jurors only if they had registered for jury duty did not violate the Nineteenth Amendment). For similar state court responses to the Nineteenth Amendment during the 1920s, see State v. Dreher, 118 So. 85, 92-93 (La. 1928), which held that a statute that only required women to register before being considered for jury service did not violate a female criminal defendant's rights as secured by the Fourteenth, Fifteenth, and Nineteenth Amendments; People ex rel. Fyfe v. Barnett, 150 N.E. 290, 291 (Ill. 1925), which held that the Nineteenth Amendment had no effect on women's eligibility for jury service; State v. Mittle, 113 S.E. 335, 337 (S.C. 1922), which held that the Nineteenth Amendment conferred upon women neither the right to vote nor the right to serve as jurors, but instead simply barred the state from discriminating against women in voting qualifications; and Harper v. State, 234 S.W. 909, 910 (Tex. Crim. App. 1921), which held that the Nineteenth Amendment had no effect on women's eligibility for jury service.
Back To Text236. Bray, 95 So. at 418.
Back To Text237. Fyfe, 150 N.E. at 292.
Back To Text238. Id. at 291. Well into the 1930s, many state courts continued to interpret the Nineteenth Amendment as a rule that only concerned suffrage. See, e.g., Hall v. State, 187 So. 392, 400-01 (Fla. 1939) (observing that the Nineteenth Amendment did not alter juror eligibility, nor any laws "protective to women"); Powers v. State, 157 S.E. 195, 195 (Ga. 1931) (holding that a Georgia statute prohibiting women from serving on juries, passed after the Nineteenth Amendment, was not "obnoxious" to the Nineteenth Amendment); People ex rel. Murray v. Holmes, 173 N.E. 145, 147 (Ill. 1930) ("The Nineteenth Amendment has nothing to do with the qualification for service as jurors... . The federal government has nothing to do with [women's] selection as jurors."); State v. Dolbow, 189 A. 915, 918 (N.J. 1937) (holding that the Nineteenth Amendment "conferred no right on women to serve on the juries in our courts; it conferred nothing but the right of franchise"). For a similarly narrow interpretation of state constitutional amendments and statutes, see State v. Kelley, 229 P. 659 (Idaho 1924), which held that Idaho's women's suffrage amendment, in combination with changes to the state jury statute eliminating gendered references, had no bearing on women's eligibility to serve as jurors, Id. at 660.
Back To Text239. Commonwealth v. Welosky, 177 N.E. 656, 661 (Mass. 1931) ("When [legislators] used the word "person' ... to describe those liable to jury service, no one contemplated the possiblity of women becoming so qualified.").
Back To Text240. See Hoyt v. Florida, 368 U.S. 57, 61-62 (1961) (upholding a statute giving women an absolute exemption from jury service unless they expressly waived the privilege, reasoning that "despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life").
Back To Text241. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994) (holding that Alabama's use of gender as a basis for peremptory strikes in jury selection is unconstitutional under the Equal Protection Clause); Taylor v. Louisiana, 419 U.S. 522, 525-26 (1975) (finding that a statute providing women automatic exemption from jury service, waivable in writing, is unconstitutional under the Sixth and Fourteenth Amendments).
Back To Text242. See supra p. 950 & nn.2-3.
Back To Text243. See supra Part I, pp. 953-60.
Back To Text244. See Craig v. Boren, 429 U.S. 190 (1976).
Back To Text245. 404 U.S. 71 (1971).
Back To Text246. See Tuan Anh Nguyen v. INS, 121 S. Ct. 2053, 2065 (2001) (upholding a proof-of-paternity requirement for citizenship when the citizen-parent of a child born abroad is the father); Miller v. Albright, 523 U.S. 420, 445 (1998) (upholding the same proof-of-paternity requirement at issue in Nguyen); Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 286-87 (1993) (overturning an injunction against protesters at an abortion clinic); Heckler v. Mathews, 465 U.S. 728, 750-51 (1984) (upholding a Congressional "pension offset" provision that applies to nondependent men but not to nondependent women); Lehr v. Robertson, 463 U.S. 248, 267-68 (1983) (upholding a New York procedure for contesting adoption proceedings as applied to a father); Kirchberg v. Feenstra, 450 U.S. 455, 462-63 (1981) (holding unconstitutional a Louisiana statute that allowed a husband to dispose of jointly owned community property without his wife's consent); Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 152-53 (1980) (holding unconstitutional a provision of Missouri's workers' compensation law that granted a widow death benefits without her having to prove incapacitation or dependency, but that denied benefits to a widower in the absence of such proof); Califano v. Westcott, 443 U.S. 76, 89 (1979) (holding unconstitutional an Aid to Families with Dependent Children provision that granted benefits to families when dependent children were deprived of parental support because of the unemployment of their father, but not of their mother); Caban v. Mohammed, 441 U.S. 380, 394 (1979) (holding unconstitutional a New York law that allowed unwed mothers, but not unwed fathers, to block adoption of their children simply by withholding consent); Parham v. Hughes, 441 U.S. 347, 358-59 (1979) (upholding a Georgia statute permitting the mother, but not the father, of an "illegitimate" child to sue for wrongful death of the child); Orr v. Orr, 440 U.S. 268, 283 (1979) (holding unconstitutional an Alabama statute imposing alimony obligations on husbands but not on wives); Califano v. Goldfarb, 430 U.S. 199, 217 (1977) (holding unconstitutional a Social Security Act provision that allowed a widow benefits regardless of dependency but that allowed a widower benefits only if half or more of his support came from his working wife); Stanton v. Stanton, 421 U.S. 7, 17-18 (1975) (holding unconstitutional a Utah statute that classified males as minors until age twenty-one and females as minors until age eighteen for child support purposes); Weinberger v. Wiesenfeld, 420 U.S. 636, 653 (1975) (holding unconstitutional a gender-based distinction in the Social Security Act that granted survivor benefits to widows but not to widowers); Geduldig v. Aiello, 417 U.S. 484, 497 (1974) (upholding a California disability insurance system that excluded pregnancy from coverage); Kahn v. Shevin, 416 U.S. 351, 355-56 (1974) (upholding Florida's differing treatment of widows and widowers for tax purposes); Frontiero v. Richardson, 411 U.S. 677, 690-91 (1973) (holding unconstitutional the uniformed services' policy of preventing married female officers from seeking benefits for "dependent" spouses); Reed v. Reed, 404 U.S. 71, 77 (1971) (holding unconstitutional a provision of the Idaho probate code that gave preference to male relatives over female relatives as estate administrators).
The Supreme Court has also decided a variety of sex discrimination cases under the Equal Protection Clause that did not involve family relationships. See United States v. Virginia, 518 U.S. 515, 558 (1996) (holding unconstitutional Virginia's exclusion of women from its military college, the Virginia Military Institute); J.E.B., 511 U.S. at 130-31 (holding that intentional discrimination on the basis of gender by state actors in exercising peremptory jury challenges violates the Equal Protection Clause); Roberts v. U.S. Jaycees, 468 U.S. 609, 631 (1984) (upholding application of the Minnesota Human Rights Act to compel a nonprofit organization to accept women); Miss. Univ. for Women v. Hogan, 458 U.S. 718, 733 (1982) (holding unconstitutional a Mississippi nursing school's single-sex admissions policy); Rostker v. Goldberg, 453 U.S. 57, 83 (1981) (upholding the Military Selective Service Act, which registers and conscripts only men); Michael M. v. Superior Court, 450 U.S. 464, 476 (1981) (upholding California's statutory rape law that makes men and not women criminally liable for having sexual relations with an underage partner); Pers. Adm'r v. Feeney, 442 U.S. 256, 280-81 (1979) (upholding Massachusetts's grant of absolute lifetime preference to veterans in civil service applications); Davis v. Passman, 442 U.S. 228, 248-49 (1979) (allowing an implied private right of action for gender discrimination under the Due Process Clause of the Fifth Amendment); Craig, 429 U.S. at 210 (holding unconstitutional an Oklahoma statutory scheme that authorized the sale of 3.2% beer to females over 18 and males over 21); Taylor v. Louisiana, 419 U.S. 522, 538 (1975) (holding unconstitutional the systematic exclusion of women from jury venires); Schlesinger v. Ballard, 419 U.S. 498, 510 (1975) (upholding the United States Navy's policy of allowing women more time than men to achieve promotion before facing a discharge).
Back To Text247. 120 S. Ct. 1740 (2000).
Back To Text248. See Siegel, The Rule of Love, supra note 31, at 2189-91; supra Part I, pp. 953-60.
Back To Text249. See supra Part I, pp. 953-60.
Back To Text250. See supra pp. 958-59.
Back To Text251. See Siegel, The Rule of Love, supra note 31, at 2156-58.
Back To Text252. See Id. at 2188-96.
Back To Text253. Pers. Adm'r v. Feeney, 442 U.S. 256, 279 (1979).
Back To Text254. See Siegel, The Rule of Love, supra note 31, at 2172-73.
Back To Text255. See Hynson v. City of Chester, Legal Dep't, 864 F.2d 1026, 1031 (3d Cir. 1988) ("If the categories used by the police in administering the law are domestic violence and nondomestic violence, this is not sufficient to raise a claim for gender-based discrimination absent a showing of an intent, purpose or effect of discriminating against women."); see also Shipp v. McMahon, 234 F.3d 907, 914-15 (5th Cir. 2000); Soto v. Flores, 103 F.3d 1056, 1066 (1st Cir. 1997); Navarro v. Block, 72 F.3d 712, 716-17 (9th Cir. 1995) (reversing the district court's dismissal of an equal protection claim on summary judgment because issues of material fact remained as to whether the county had a custom of not classifying domestic violence 911 calls as emergencies, in which case the policy might fail even the rational basis test); Eagleston v. Guido, 41 F.3d 865, 878 (2d Cir. 1994); Ricketts v. City of Columbia, 36 F.3d 775, 779 (8th Cir. 1994); Brown v. Grabowski, 922 F.2d 1097, 1101 (3d Cir. 1990). For more on how discriminatory purpose is established, see Watson v. City of Kansas City, 857 F.2d 690, 696-97 (10th Cir. 1988), which required an equal protection plaintiff to show that the defendant police department had adopted a policy or custom of providing less protection to victims of domestic assault than to other assault victims, that discrimination against women was the motivating factor behind this policy or custom, and that the operation of the policy or custom caused the injury.
In an early case that stimulated public awareness of the discriminatory implications of traditional domestic violence policies, Thurman v. City of Torrington, 595 F. Supp. 1521 (D. Conn. 1984), the court assumed for the purpose of denying a motion to dismiss that the plaintiff's allegations of gender-based discrimination were true, noting that in the vast number of cases, it is the husband who has abused his wife. The court observed that "it may develop that the classification in the instant case is not one based on gender, but instead consists of all spouses who are victims of domestic violence - male and female." Id. at 1528 n.1; see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 701 (9th Cir. 1990) (noting that where a complaint alleged that responding police officer "stated that he "did not blame plaintiff's husband for hitting her, because of the way she was "carrying on[,]" ... such remarks strongly suggest an intention to treat domestic abuse cases less seriously than other assaults, as well as an animus against abused women" (quoting Balistreri's complaint)), distinguished in Navarro, 72 F.3d at 716-17 (stating that Navarro had failed to offer any evidence of the sort of "invidious intent or motive" found in Balistreri). Thus, a municipality defending a domestic violence policy couched in "gender neutral" terms need only show that such a policy satisfies the "rational relation" test.
Back To Text256. C Hasday, supra note 31, at 1381.
Back To Text257. See Siegel, The Rule of Love, supra note 31, at 2191-94.
Back To Text258. The civil rights remedy as it was eventually enacted provided that "all persons within the United States shall have the right to be free from crimes of violence motivated by gender." 42 U.S.C. § 13981(b) (1994). It defined a "crime of violence motivated by gender" as "a crime of violence committed because of gender or on the basis of gender, and due, at least in part, to an animus based on the victim's gender." Id. § 13981(d)(1). Victims of gender-motivated violence were entitled to compensatory and punitive damages, as well as declaratory and injunctive relief. Id. § 13981(c).
Back To Text259. See S. REP. NO. 101-545, at 36 (1990) (first committee report on the proposed civil rights remedy to trace women's need for federal legislative redress to the legacy of the common law's approach to domestic violence). On the general background of the civil rights remedy, see Victoria Nourse, Where Violence, Relationship, and Equality Meet: The Violence Against Women Act's Civil Rights Remedy, 11 WIS. WOMEN'S L.J. 1 (1996); Judith Resnik, The Programmatic Judiciary: Lobbying, Judging, and Invalidating the Violence Against Women Act, 74 S. CAL. L. REV.. 269 (2000); and Siegel, The Rule of Love, supra note 31, at 2196-200.
Back To Text260. Crimes of Violence Motivated by Gender: Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 103d Cong. 83-84 (1993) [hereinafter Crimes of Violence] (statement by Conference of Chief Justices on S. 15, Violence Against Women Act of 1991, adopted by the State-Federal Relations Committee of the Conference of Chief Justices at the Fourteenth Midyear Meeting at Scottsdale, Arizona on Jan. 31, 1991).
Back To Text261. William H. Rehnquist, Chief Justice's 1991 Year-End Report on the Federal Judiciary, THE THIRD BRANCH, Jan. 1992, at 1, 3. For more extended consideration of Chief Justice Rehnquist's role in lobbying against the Act, see Resnik, supra note 259, at 269-77.
Back To Text262. Nourse, supra note 259, at 28-33 (discussing how amendments restricted coverage of the civil rights remedy by linking the meaning of "gender motivated" violence to the concept of gender "animus" and by excluding jurisdiction over divorce proceedings).
Back To Text263. See, e.g., Anisimov v. Lake, 982 F. Supp. 531, 536-40 (N.D. Ill. 1997); Doe v. Doe, 929 F. Supp. 608, 612-16 (D. Conn. 1996).
Back To Text264. Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 842 (4th Cir. 1999) (emphasis added) (citation omitted) (quoting Rehnquist, supra note 261, at 3).
Back To Text265. United States v. Morrison, 120 S. Ct. 1740, 1751 (2000). The Court reasoned:
Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.Id.
Back To Text266. Id. at 1753 (citing 42 U.S.C. 13981(e)(4) (1994)).
Back To Text267. Id. at 1754.
Back To Text268. See Id. at 1754-59. For an extended critique of the Court's Section Five reasoning, see Robert C. Post & Reva B. Siegel, Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel, 110 YALE L. J. 441, 473-509, 522-26 (2000).
Back To Text269. Morrison, 120 S. Ct. at 1759.
Back To Text270. See supra p. 1001.
Back To Text271. Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 825-26 (4th Cir. 1999).
Back To Text272. See Siegel, Collective Memory, supra note 3, at 131-42.
Back To Text273. Adkins v. Children's Hosp., 261 U.S. 525 (1923).
Back To Text274. Id. at 553.
Back To Text275. See supra Part III, pp. 977-97.
Back To Text276. See supra Part IV, pp. 997-1006.
Back To Text277. See Siegel, Collective Memory, supra note 3, at 133-34 ("By telling stories about a common past, a group can constitute itself as a group, a collective subject with certain experiences, expectations, entitlements, obligations, and commitments. The stories that help forge group identity also supply structures of ordinary understanding, frameworks within which members of a society interpret experience and make positive and normative judgments concerning it.").
Back To Text278. Robert C. Post, Theories of Constitutional Interpretation, 30 REPRESENTATIONS 13, 29 (1990).
Back To Text279. For a wide-ranging account of the role of narrative in legal reason, see ANTHONY G. AMSTERDAM & JEROME BRUNDER, MINDING THE LAW (2000). See Id. at 117 ("Cultures convert their plights and aspirations into narrative forms that represent both the culture's ordinary legitimacies and possible threats to them. Narratives function not simply to make experience communicable and thereby increase cultural solidarity, but also to give a certain practical predictability to the plights of communal life and a certain direction to the efforts needed to resolve them.").
Back To Text280. Brown v. Bd. of Educ., 347 U.S. 483 (1954). In deciding Brown, the Court heard reargument on the question of whether the Fourteenth Amendment's framers intended to prohibit the racial segregation of public schools. Id. at 489. The Court ultimately concluded that the Fourteenth Amendment's ratification history was "[a]t best ... inconclusive," asserting that "what others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty." Id. At the same time, the Court emphasized the extent to which the role of education in securing equality of citizenship had changed since the framing of the Fourteenth Amendment. Id. at 489-93.
Back To Text281. 388 U.S. 1, 9 (1967) (rejecting the argument that the framers of the Fourteenth Amendment did not intend to invalidate anti-miscegenation laws and relying on Brown for the proposition that the Fourteenth Amendment's enactment history is "[a]t best ... inconclusive" as a guide to the Amendment's scope and purpose).
Back To Text282. 488 U.S. 469, 488 (1989) (analyzing the scope of the Fourteenth Amendment without reference to its enactment history or to legislative intent). But c Id. at 491 (stating that the Amendment's framers "desired to place clear limits on the States' use of race").
Back To Text283. WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 6-7 (1988) (emphasizing that there are many constitutional questions that the ratification debates over the Fourteenth Amendment will not resolve).
Back To Text284. See supra note 280 (discussing the Court's reasoning in Brown).
Back To Text285. Planned Parenthood v. Casey, 505 U.S. 833, 863 (1992) (citing Plessy v. Ferguson, 163 U.S. 537 (1896)).
Back To Text286. C Bret Boyce, Originalism and the Fourteenth Amendment, 33 WAKE FOREST L. REV. 909, 951-54 (1998) (discussing recent scholarship supporting the view that the Fourteenth Amendment's framers "intended it to permit segregation"). Michael McConnell has advanced an elaborate argument thatBrown can be justified as consistent with the intentions of the framers of the Fourteenth Amendment. Michael W. McConnell, Originalism and the Desegregation Decisions, 81 VA. L. REV. 947 (1995). Michael Klarman criticizes McConnell's claim, while emphasizing that McConnell's argument, even if correct, does not offer support for the Court's civil rights jurisprudence outside the area of school desegregation. Michael J. Klarman, Brown, Originalism, and Constitutional Theory: A Response to Professor McConnell, 81 VA. L. REV. 1881 (1995).
Back To Text287. United States v. Morrison, 120 S. Ct. 1740, 1751-53 (2000); see also supra pp. 1028-29.
Back To Text288. For detailed historical accounts of the ways in which the federal government has regulated family relations during the nineteenth and twentieth centuries, see Cott, supra note 102; and Hasday, supra note 46. For an analysis of the many ways national government is presently involved in regulating family relations, see Judith Resnik, Categorical Federalism: Jurisdiction, Gender, and the Globe, 111 YALE L. J. 619 (2001); and Ann Laquer Estin, Shared Governance? Congress and the New Family Law (unpublished manuscript, on file with the Harvard Law School Library).
Back To Text289. See supra Part IV, pp. 997-1006; see also Siegel, The Rule of Love, supra note 31, at 2202-05.
Back To Text290. Brzonkala v. Va. Polytechnic Inst., 169 F.3d 820, 843 (4th Cir. 1999) (emphasis added).
Back To Text291. Carter v. Carter Coal Co., 298 U.S. 238, 308 (1936). The legal category of "domestic relations" has evolved over the last several centuries. The law of slaveholding states classified slavery as a private relation of the household. See COTT, supra note 102, at 62 ("Slavery fell under the "master-servant' category in the law, which also included employer/employee relations. Master-servant and husband-wife relations were categorized together as domestic relations, because the authority vested in the household head determined them all."). Thus, southern states invoked the understanding that slavery was one of the "domestic relations" as they argued that slavery was properly governed by local, not federal law. See Hasday, supra note 46, at 1319.
Because the common law categorized the law of master-servant as one of the domestic relations, the discourse of domestic relations could also be invoked on behalf of local control of labor relations. See Carter, 298 U.S. at 299, 308 (noting that the regulation of "productive industries" is beyond federal power because "the relation of the employer and employee is a local relation. At common law, it is one of the domestic relations"); c supra p. 983 & nn.97-98 (discussing the common law understanding of the labor relation as a domestic relation).
Back To Text292. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. CONST. amend. XI. Yet in Hans v. Louisiana, 134 U.S. 1 (1890), the Court read the Eleventh Amendment to apply to suits against a state brought by one of its own citizens, and in Monaco v. Mississippi, 292 U.S. 313 (1934), to suits brought by a foreign state against one of the states of the union. In extending sovereign immunity doctrine beyond the express terms of the Eleventh Amendment, the Monaco Court reasoned: "Manifestly, we cannot rest with a mere literal application of the words of § 2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control." Id. at 322 (emphasis added). The Court has recently reiterated its understanding that it is the principles giving rise to the Eleventh Amendment and not the Amendment's text alone that should govern its meaning. See Seminole Tribe v. Florida, 517 U.S. 44, 69 (1996) (criticizing "blind reliance upon the text of the Eleventh Amendment").
Back To Text293. For discussion of how the Nineteenth Amendment has been construed to bear on practices other than voting, see Part V, pp. 1007-22, above.
Back To Text294. See Seminole Tribe, 517 U.S. at 69-70 (reasoning that "[t]he text [of the Eleventh Amendment] dealt in terms only with the problem presented by the decision in Chisholm [v. Georgia, 2 U.S. (2 Dall.) 419 (1793)]; in light of the fact that the federal courts did not have federal-question jurisdiction at the time the Amendment was passed ... , it seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States").
Back To Text295. Adkins v. Children's Hosp., 261 U.S. 525, 553 (1923).
Back To Text296. See Lochner v. New York, 198 U.S. 45 (1905) (discussed pp. 1012-16, above).
Back To Text297. In developing such an account, one could analyze the woman suffrage campaign as part of the Constitution's enactment or post-enactment history. If one reads the Constitution with an awareness of its amendment over time, one can read the enactment history of the Fourteenth Amendment as supplemented by the enactment history of the Nineteenth Amendment. Reservations about the terms of women's citizenship that were raised by the framers of the Fourteenth Amendment were fully debated during the campaign for the Nineteenth Amendment. Concerns that were peripheral to debates over the Fourteenth Amendment were central to debates over the Nineteenth Amendment.
One can also read the struggle over the Nineteenth Amendment as a particularly powerful chapter in the post-enactment history of the Fourteenth Amendment, a struggle over the meaning of equal citizenship that began with the ratification debates over the Fourteenth Amendment but that was not definitively resolved by them. The civil rights movement inaugurated a struggle over equal citizenship that occurred long after the ratification of the Fourteenth Amendment, a struggle of such persistence and passion and sheer jurisgenerative force that today it has come to shape the meaning of the Fourteenth Amendment's equal citizenship guarantee. We might look to the history of the woman suffrage campaign in similar terms.
What is at stake in the choice between reading the woman suffrage campaign as enactment or post-enactment history? Perhaps most fundamentally it puts at issue the ways we imagine the processes of constitutional lawmaking and the authority of those who engage in them. If groups are formally excluded from voting on an Article V amendment, or are otherwise politically inaudible in the process, whose voices should we attend to in interpreting the ratified amendment? What if, by reason of constitutionally suspect constraints on their political power or cultural authority, groups mobilize to advocate change in constitutional understandings in ways that do not satisfy Article V's rule of recognition? Must mobilized Americans engage in Article V lawmaking before their voices can shape our constitutional canon? Much of our understanding of the Equal Protection Clause derives from the actions of disfranchised or otherwise politically inaudible groups that mobilized to address constitutional questions in ways that did not always conform to conventional lawmaking processes - among them, the civil rights movement, the modern women's movement, and more recently, the gay rights movement. Acknowledging the role that these social movements have played in forging modern understandings of the Equal Protection Clause requires us to recognize that our constitutional order is co-authored by those with formal and less conventionally recognized forms of lawmaking power. See Siegel, Text in Contest, supra note 77 (exploring the influence of social movements on constitutional development).
Back To Text298. For a more detailed consideration of the difference this approach might make in the kinds of historical analysis that would support and shape sex discrimination doctrine, see Part II, pp. 960-77, above.
Back To Text299. Considered from the standpoint of history, the institutions, practices, and understandings that regulate the social status of groups vary by group, within groups, and over time. I discuss these matters at greater length in Siegel, Discrimination in the Eyes of the Law, supra note 23, where I observe:
When we analyze race and gender inequality from a historical standpoint, we encounter relations of group inequality embedded in the social organization of work, reproduction, and sexuality as such activities are structured in institutions such as slavery, the market, or marriage. Indeed, from the standpoint of history, what is perhaps most visible is the sheer heterogeneity of institutions, practices, stories, and reasons that sustain the unequal social position of different groups over time. Couched a bit more abstractly, we might say that social stratification is constituted through features of (1) social structure (institutions or practices) and (2) social meaning (stories or reasons). The elements of social structure and social meaning that sustain stratification vary by group and within groups, and they evolve over time as their legitimacy is contested. In short, when considered from a historical standpoint, discrimination has no transcontextual or fixed form.Id. at 82.
Back To Text300. Brown v. Bd. of Educ., 347 U.S. 483 (1954). See supra p. 1033 & nn.280-286.
Back To Text301. Loving v. Virginia, 388 U.S. 1 (1967).
Back To Text302. See Id. at 9-10 (quoting Brown, 347 U.S. at 489, for the proposition that the evidence concerning the intentions of the Fourteenth Amendment's framers is "at best ... inconclusive" and emphasizing instead that "the clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States" (internal quotation marks omitted)).
Back To Text303. See Siegel, Text in Contest, supra note 77 (discussing constitutional mobilizations of the women's movement in the nineteenth and twentieth centuries).
Back To Text304. 518 U.S. 515 (1996).
Back To Text305. Id. at 531 (quoting Frontiero v. Richardson, 411 U.S. 677, 684 (1973), and Goesaert v. Cleary, 335 U.S. 464, 467 (1948)) (footnote omitted) (citations omitted).
Back To Text306. Id. at 532-34 (emphasis added) (citations omitted) (alteration in original) (quoting Califano v. Webster, 430 U.S. 313, 320 (1977), and California Federal Savings & Loan Ass'n v. Guerra, 479 U.S. 272, 289 (1987)).
Back To Text307. See supra pp. 358-59.
Back To Text308. Virginia, 518 U.S. at 532, 534.
Back To Text309. For extended consideration of the Section Five holding of the Morrison opinion, see Post & Siegel, supra note 268, at 473-522.
Back To Text310. See supra pp. 954, 965 & nn.14, 46.
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