Women’s Suffrage in 1871
One issue that I touch on in the Bingham book is the first significant legal action on voting rights for women. In 1871, Victoria Woodhull presented a petition to the House Judiciary Committee arguing that Congress should pass a statute (under Section 5 of the Fourteenth Amendment) to enforce the right to vote for women that was, Woodhull said, a “privilege and immunity” of citizenship. Bingham wrote the report rejecting the petition, arguing that voting was not one of the privileges and immunities protected by the Fourteenth Amendment.
There were, though, two dissenting votes on the Judiciary Committee, and their explanation was a powerful rejection of what Jack Balkin would call “original expected application” originalism. Congressmen William Loughridge and Benjamin Butler (Bingham’s nemesis) argued, in part, that legal distinctions based on sex were irrational:
“Could a State disenfranchise and deprive of the right to vote all citizens who have red hair; or all citizens under six feet in height? All will consent that the States could not make such arbitrary distinctions the ground for denial of political privileges; that it would be a violation of the first article of the fourteenth amendment; that it would be abridging the privileges of citizens. And yet, the denial of the elective franchise to citizens on account of sex is equally as arbitrary as the distinction on account of stature, or color of hair, or any other physical distinction.”
Butler and Loughridge then responded to the argument that precedent supported the exclusion of women from voting:
“We are told that the acquiescence by the people, since the adoption of the Constitution, in the denial of political rights to women citizens, and the general understanding that such denial was in conformity with the Constitution, should be taken to settle the construction of that instrument. Any force this argument may have . . . can only apply to the original text and not to the fourteenth amendment, which is of but recent date. But, as a general principle, this theory is fallacious. It would stop all political progress; it would put an end to all original thought, and put the people under that tyranny with which friends of liberty have always had to contend–the tyranny of precedent.”
There are some significant flaws in the dissent (it has a hard time explaining why the word “male” was used in Section Two of the Fourteenth Amendment), but the report is worth reading.