The Right To Vote in Corfield v. Coryell

I want to note how advocates of women’s suffrage understood Justice Bushrod Washington’s statement about the right to vote in Corfield v. Coryell. When Victoria Woodhull petitioned the House Judiciary Committee in 1871 to recognize female suffrage under the Fourteenth Amendment, John Bingham wrote the report rejecting her petition. But two members of the Committee (including Bingham’s arch-nemesis Benjamin Butler) dissented and relied in part on Corfield for support:

This case is cited by the majority of the committee as sustaining their view of the law, but we are unable to so understand it. It is for them an exceedingly unfortunate citation.

In that case the court enumerated some of the “privileges of citizens,” such as are “in their nature fundamental and belong of right to the citizens of all free governments.” (mark the language), and among those rights, place the “right of the elective franchise” in the same category with those great rights of life, liberty, and property. And yet the committee cite this case to show that this right is not a fundamental right of the citizen!

But it is added by the court that the right of the elective franchise “is to be enjoyed as regulated and established by the State in which it is to be exercised.”

These words are supposed to qualify this right, or rather take it out of the list if fundamental rights, where the court had just placed it. The court is made to say that by this attempt in the same sentence, “the elective franchise is a fundamental right of the citizen, and it is not a fundamental right.” It is a “fundamental right,” provided the State sees fit to grant the right. It is a “fundamental right of the citizen,” but it does not exist, unless the laws of the State give it. A singular species of “fundamental rights!” Is there not a clear distinction between the regulation of a right and its destruction? The State may regulate the right, but it may not destroy it.

I’ll have more to say soon about how Corfield broke new ground in talking about suffrage.

 

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1 Response

  1. Joe says:

    Interesting.

    The author wrote a bio on Bingham. He comes off as a bit of moderate at least on various issues and overall this suggests the limits of “original understanding.” For instance, Bingham’s views on the reach of the 13A might have been the minority view but influenced the 14A (including the felt need for it). So, where does that take us? Ultimately, we need to apply text as understood by our whole history.

    The support for women’s suffrage by the dissenting portion here is also appreciated. I felt it disappointing, e.g., Chief Justice Chase was too ill to write a dissent in the Bradwell case (privilege of women to be lawyers). He had died by the time Minor v. Happersett came around.