The Constitutional Development of the Nineteenth Amendment in the Decade Following Ratification
11 ConLawNOW 61 (2020)
14 Pages Posted: 8 Feb 2020 Last revised: 10 Feb 2020
Date Written: February 7, 2020
This essay is based on my remarks at the Center for Constitutional Law’s symposium on the Centennial of the Nineteenth Amendment. It offers a brief summary of the thesis of my forthcoming book from Oxford University Press. In Constitutional Orphan: Gender Equality and the Nineteenth Amendment (forthcoming 2020), I argue that the ratification of the Nineteenth Amendment in 1920 represented a significant moment in American history, one which held the promise of change in the political, civil and social status of women in our republic. However, what emerged from a decade of contestation was a thin conception of the Nineteenth’s constitutional meaning, as a mere nondiscrimination in voting rule. The story of the Nineteenth presents a puzzle as to why this thin conception of the amendment prevailed over a thicker conception of the amendment, as a broader norm around women’s equal citizenship and gender equality. Drawing on original historical sources, legal scholarship and case analysis, the book illuminates a piece of that puzzle.
The book offers an account of how that thin conception emerged and the role played by national suffrage organizations, as institutional actors, in that story. While Congress and the courts are significant sites of constitutional interpretation and enforcement, social movements within civil society play influential roles as well. Through their efforts to enfranchise American women, suffragists assumed that role. Yet, the suffragists made strategic choices post-ratification that took them away from the Nineteenth as a focus of energy and resources. That pivot meant that there was less consistent, unified pressure on state courts as they parsed the corollary constitutional questions around the extent of the Nineteenth’s impact on state law regulating poll taxes, jury service and holding public office. A close reading of the history around these cases illustrates how the Nineteenth implicated issues of federalism, the scope of woman’s citizenship and the constitutional meaning of equality, in ways shaped by race, gender and class. There was a similar absence of unified pressure on Congress to enact enforcement legislation pursuant to section two of the Nineteenth, as well as a deep split in the former suffrage movement over the proposed Equal Rights Amendment. Exploring this history helps us understand the puzzle of why the Nineteenth did not develop a thicker, more robust constitutional meaning in the decade following its ratification. Given the current uncertainty about the status of the proposed Equal Rights Amendment, revisiting the jurisprudential potential of the Nineteenth Amendment can shed light on how we may better secure women’s constitutional equality today.
Keywords: nineteenth amendment, constitutional amendments, legal history, suffragists, Alice Paul, gender equality
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