Early Women's Rights Activists and the Meaning of the 14th Amendment

19 Pages Posted: 1 Jan 2020 Last revised: 11 Sep 2021

Date Written: May 9, 2019

Abstract

The purpose of this paper is to consider the meaning of the 14th Amendment as it applies to women in the United States through the perspective of women’s rights litigants, advocates, and their allies in the 1860s and 1870s. Originalism as a method for constitutional interpretation can take many forms, including giving weight to the original intent of the drafters of the Constitution or its amendments, deferring to the understandings of the ratifiers in state conventions or legislatures, or perhaps giving weight to the “public meaning” or “public understanding” of the documents by considering newspaper editorials, pamphlets, and dictionary definitions in use at the times of their ratifications. In that sense, this paper is an originalist approach to interpreting the 14th Amendment as it was understood by a small group of people who were particularly active in the earliest debates on its meaning. Although their legal arguments ultimately failed and generally did not reflect the intentions of drafters and ratifiers, they nonetheless enjoy some acceptance in modern schools of constitutional thought. Modern interpretations as well as those from contemporaneous statesmen and jurists will be considered to provide some orientation and comparison.

To map this analysis broadly, Part I will provide a broad overview of the meaning of the 14th Amendment. Modern scholars argue that it protects some or all categories of individuals within the jurisdiction of the United States, and they variously claim that section 1 protects substantive or procedural civil, political, natural, fundamental, or common law rights. Some even argue it houses the principle of general, social equality. Part II will be divided between political efforts and legal efforts. It will focus first on the political efforts and the accompanying interpretations of the 14th Amendment from some of the most prominent activists during the 1860s and 1870s. It will then explore the legal arguments of women’s rights activists and their attorneys engaged in litigation from three notable cases in the earliest days after the amendment's ratification.

Suggested Citation

McClellan, Angus, Early Women's Rights Activists and the Meaning of the 14th Amendment (May 9, 2019). Available at SSRN: https://ssrn.com/abstract=3501138 or http://dx.doi.org/10.2139/ssrn.3501138

Angus McClellan (Contact Author)

Claremont Graduate University ( email )

Claremont, CA
United States
434 547-3710 (Phone)

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