The Nineteenth Amendment and the Democratization of the Family
abstract.This Essay recovers debates over the family connecting the Reconstruction Amendments and the Nineteenth Amendment, and considers how this lost history can guide the Constitution’s interpretation, in courts and in politics.
A woman’s claim to vote contested a man’s prerogative to represent his wife and daughters, and so was a claim for democratization of the family. Suffragists argued that women needed the vote to change the ways that law structuring the family governed their lives. They argued that law should recognize women’s right to voluntary motherhood and to be remunerated equally with men for work performed inside and outside the household. Suffragists sought to create a world in which adult members of the household could be recognized and participate in democratic life as equals. And they debated how to realize these goals when women faced different and intersectional forms of discrimination. Claims for democratic reconstruction of the family that began in the quest for the vote continued in the immediate aftermath of the Nineteenth Amendment’s ratification and in 1970 during its half-century anniversary, and continue today in the era of its centennial.
Courts can draw on this history and interpret the Amendments synthetically. For example, judges can integrate the history of suffrage struggle into the equal-protection framework of United States v. Virginia. The Essay shows how an historical and intersectional understanding of suffrage struggle could change the way courts approach cases concerning the regulation of pregnancy, contraception, sexual violence, and federalism.
The Essay closes by looking beyond the courts to continuing claims for the democratization the family in politics, which it connects to suffrage struggle. How would we understand these claims if we recognized that liberty and equality claims about the family began in the decades before the Civil War, and if we recognized the disenfranchised Americans who voiced them among our Constitution’s esteemed Framers?
The Nineteenth Amendment changed the shape of our constitutional community. As the Reconstruction Amendments illustrate, the nation’s understanding of transformative amendments may evolve with the constitutional community they help reshape.1 The Nineteenth Amendment transformed We the People—not simply by adding voters,2 but by democratizing the family so that women could represent themselves in government.3 Yet we interpret the Constitution in ways that take no account of these institutional dimensions of the suffrage debate. We have forgotten the family-related equal-citizenship claims that began in the decades before the Nineteenth Amendment’s ratification, and continued for decades after. This Essay considers how these family-related equal-citizenship claims could be more fully incorporated into our constitutional tradition. A century after its ratification, we can read the Nineteenth Amendment together with the Reconstruction Amendments, informed by the voices and concerns of the disenfranchised as well as the enfranchised, as we enforce the Constitution in a wide variety of contexts.
That is far from our current practice. Today, we read the Nineteenth Amendment as a rule prohibiting government from discriminating on the basis of sex in determining who can vote. Since the era of sex discrimination in suffrage has ended, we see no reason to consult the Nineteenth Amendment in construing the Constitution. This reading of the Nineteenth Amendment is anchored by our collective memory of the suffrage campaign as concerned with voting only.4 But this narrow reading of the constitutional history and text represses a tradition of constitutional argument, rooted in the suffrage campaign and now nearly two centuries old, that sought equal citizenship through democratic reconstruction of the family.
The debate about women voting in the decades after the Founding centrally concerned the family. A male head of household was enfranchised to represent his wife, children, and other members of the household. A woman’s claim to vote was a challenge to this system of “virtual representation,” and for this very reason, was a claim for democratic reconstruction of the family. By endowing women with the capacity to represent their own interests in politics, the Nineteenth Amendment gave the family new democratic form.5 In seeking the vote, suffragists raised other far-reaching challenges to family and social structure. As suffragists demonstrated why women needed to represent their own interests in politics, they argued that women needed to vote to make changes in the law structuring the family, so that all adult members of the household could be recognized and participate in democratic life as equals.6 These family-related equal-citizenship claims persisted long after the Nineteenth Amendment’s ratification, and implicated a wide range of laws. Perhaps the most vivid evidence of the suffragists’ transformative claims is the backlash they provoked. Antisuffrage cartoons depicted the challenge to virtual representation and the prospect of women voting as threatening to queer both family and the state.7
Suffragists’ claims about the family expressed a complex understanding of equal citizenship. Suffragists challenged laws that enforced male household headship and women’s dependency on men, and proposed reforms that would enable adult members of the household to participate as equals in the family, market, and politics.8 Their claims for equal citizenship addressed voting—and property, sex, reproduction, and carework. Suffragists advocated reforming the law to recognize women’s right to voluntary motherhood and to be remunerated equally with men for work outside and inside the household. They sought to create a world in which women would be free to say yes or no to motherhood without undermining their status as equal citizens.9Today, presidential candidates propose to achieve these same ends through legislation that protects contraception, abortion, equal pay, paid family leave, and government-supported childcare.10 Then as now, many, but not all, of these claims were claims for equal treatment, which may be necessary, but not sufficient, for equal citizenship.
Suffragists asserted family-related equal-citizenship claims in the decades before and after the Civil War, but today they play no part in the way we interpret the Constitution; instead, we discuss women’s disenfranchisement as if it principally concerned prejudice about who was fit to vote.11 The Essay’s first goal is to reconstruct the rich debate about family and equal citizenship that the suffrage campaign provoked. To do so, I rely in part on my earlier work—principally, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family.12 This history shows that the movement’s long quest for the vote generated wide-ranging conversation about the law reforms that would enable members of the polity to participate in the family, market, and politics as equal citizens. After ratification of the Nineteenth Amendment, many women argued that an equal right to vote was not sufficient to secure equal citizenship, and they continued to press claims for democratic reconstruction of the family as necessary to their equality and freedom. This Essay traces claims for democratic reconstruction of the family in the debates that occurred in the 1920s in the immediate aftermath of the Nineteenth Amendment’s ratification, in 1970 during its half-century anniversary, and in the present, in the era of its centennial.
As this history makes clear, for nearly two centuries Americans have argued it was important to consider family structure in making good on commitments to liberty and equality, and have protested laws enforcing subordinating features of family roles, even as they spoke from different positions and perspectives, and with an understanding of freedom and equality that evolved over time. The Essay does not identify a single “woman's perspective” on these issues—but it does make clear that traditional family arrangements have not been fully consensual, and were, in important respects, coerced. Facing the historical record we are reminded that women made choices living under conditions of severe and intersecting inequalities, and those conditions shaped women’s decisions whether to protest and whether to make common cause with one another and to bridge differences of position and perspective along lines of class, race, religion, age, and region. Women have differed as to ends, and often as to means, divided by inequalities,13 and only intermittently mobilized en masse as they did in 1920 or 1970. Yet it is precisely as we recognize the challenges to women organizing that we can see the persistence of their family-related equal-citizenship claims as remarkable—as well as their claims’ perpetual marginalization.
The Essay’s second goal is to consider the constitutional implications of recovering this forgotten history. Women’s quest for the vote engendered a tradition of argument about the family that shaped debate over the Fourteenth, Fifteenth, and Nineteenth Amendments,14 continued across generations, and is ongoing in law and politics today. But this constitutional history is perpetually pushed to the margins—even in discussions of the coming centennial of the Nineteenth Amendment.
For nearly two centuries now, Americans have argued that liberty and equality of citizenship require changes in the family form. For long stretches of our nation’s history, women who reasoned about the constitution of the family were voteless and, even after enfranchisement, lacked the authority to realize their claims in law. For this reason, the history this Essay explores has played little role in shaping our law.
But our constitutional tradition is a living one. Americans living today can decide whether women seeking democratic reconstruction of the family reasoned from the Constitution’s margins or its core.15 There are many ways to incorporate this history into constitutional argument.16 We could read the record as a story of past wrongs for which we make present repair, or we could retrospectively enlarge the community of Americans we count among the Constitution’s esteemed Framers and ratifiers. The critical first step is to recognize that we have a constitutional tradition addressing a wide variety of questions of gender justice nearly two centuries old on which we can build.
I conclude by discussing two of the many contexts in which we could recognize a claim for democratization of the family as a part of our constitutional tradition. Courts can integrate a history of suffrage struggle into the equal-protection framework of United States v. Virginia17 that governs modern sex-discrimination law; an intersectional understanding of suffrage struggle could change the way courts approach cases concerning the regulation of pregnancy, contraception, sexual violence, and federalism. Outside courts, in politics, advocates can draw on history as they advocate a wide variety of policies promoting the democratization of family structure—a debate that on the Nineteenth Amendment's centennial will be nearly two centuries old.
The claims and voices the Essay recovers speak from past generations to future generations about the kind of community our constitutional commitments require. Including these claims and voices as part of our constitutional tradition is part of repairing disenfranchisement’s legacy. They challenge settled assumptions about the family in quest for deeper forms of constitutional democracy.
I. two perspectives on women’s exclusion from voting: the attitudinal and institutional
We live in a constitutional democracy organized around the principle of “one person, one vote.”18 Yet most know that at the Founding, voting was a privilege of the few, not a right of all. How do we account for this discrepancy? Two accounts predominate, one attitudinal and the other institutional.
The attitudinal story explains the unequal distribution of the franchise at the Founding through prejudice. But for racial and gender stereotypes, the Founders would have enfranchised many more members of the community. As prejudice abates over time, Americans can extend and perfect the franchise. In 1920, Americans recognized women as voters. Someday soon—perhaps after the Nineteenth Amendment’s 2020 centennial—Americans may finally find a woman “likeable” enough to elect as President.19 This is a very important story to engage as we mark the Nineteenth Amendment’s centennial, and I have no interest in detracting from it. Rather, my goal is to add to it, emphasizing what I call the institutional story.
The institutional story explains the unequal distribution of the franchise at the Founding by acknowledging that the Founders created a constitutional republic that was more egalitarian than its antecedents, yet still deeply hierarchical in structure. Unequal distribution of the franchise at the Founding was an expression of institutional design as well as attitude. The distribution of the vote empowered some members of the community—generally propertied white male heads of household—to control others. At the founding of our constitutional republic, state law looked to the head of household to govern and represent his legal dependents, not only children, but adults affiliated through institutions including slavery, employment, and marriage.20 Our republicanism was family-based.21 In redistributing the franchise, the government was not merely overcoming prejudice; it was emancipating some persons from the control of others, as it recognized slaves, servants, and wives as independent in the eyes of the law. This second account recognizes that the struggle to democratize access to the franchise is an integral part of a struggle to democratize institutions of work and family in our constitutional republic, still ongoing in our own day.
We generally understand African Americans’ quest for voting rights on this second, institutional model. The story of the Fifteenth Amendment’s ratification and belated enforcement a century later is part of the story of the struggle over slavery and segregation, which we recognize continues in the fight over felon disenfranchisement and mass incarceration.22 But we often recount women’s quest for the vote through the first attitudinal account, as a story about overcoming sexism in voting. These narrative forms shape our constitutional law. When our collective memory of conflict over the family is repressed, choices about family roles appear to be “natural,” a domain of custom and consensus,23 rather than a locus of law, struggle, and power, having a constitutional history like all other important institutions of our constitutional republic.
Women’s quest to vote concerned much more than suffrage. As I show, women’s quest for the vote is better understood on this second model, just as we understand African Americans’ quest for the vote: as part of a struggle to democratize the institutions of our constitutional republic. As we know, ratification of the Nineteenth Amendment certainly did not enfranchise all women,24 as many are intersectionally subordinated. It would take reconstruction of multiple institutions of social life to enable women of color or disabled women to participate fully in public life. If we return to the suffrage campaign and examine the struggle over voting from an institutional standpoint, we can begin to understand the centrality of the family in women’s claims for equal citizenship.
II. voting and the family
What made it seem reasonable, right, and just to deny emancipated women the vote in a constitutional democracy born in a revolutionary break from England on the principle of “no taxation without representation”? The customary answer, at the Founding and for decades after, pointed at the family: women, whether married or single, were represented by men.
The Founding generation understood the domestic relations of the household (husband/wife, parent/child, master/servant/slave) as relations of governance.25 As head of household, a male property holder who voted was thought to represent the interests of all who depended upon him—not only his sons and daughters, but also his wife, servants, and slaves.26 Over the course of the nineteenth century, American states expanded the franchise, first eliminating the property requirement for voting and then, in the wake of the Civil War, adopting constitutional amendments that enfranchised freedmen—a promise soon broken with the end of Reconstruction.27 Yet resistance to enfranchising women remained fierce in the decades before and after the Civil War. This resistance was focused on the family. Allowing women to vote was thought not only redundant, but destructive. Women were already represented by male heads of household, and, men argued, enfranchising women would destroy the harmony and good order of the household.28 Justin Smith Morrill, a senator from Vermont, spoke for many in the debates over Reconstruction when he contended in 1866 that allowing women to vote “would contravene all our notions of the family; ‘put asunder’ husband and wife, and subvert the fundamental principles of family government, in which the husband is, by all usage and law, human and divine, the representative head.”29
Women’s demand for political voice, and the deep resistance it provoked, exposed the family as an institution at odds with the nation’s growing commitments to individual representation. As Ellen DuBois has observed, “Woman suffrage carried with it the unmistakable message of women’s desire for independence, especially from men within the family.”30 Women were persons too, entitled to self-government in matters concerning politics, markets, and sex.31 Suffragists emphasized the contradiction between the nation’s founding principles and its practices. After all, the American Revolution began when the colonists rejected the British Crown’s claims that they were virtually represented in the British Parliament.32 Yet opponents of woman suffrage, seemingly without irony, appealed to virtual representation—women’s representation through the family—to justify denying women the vote.
The suffrage movement invoked the principles and precedent of the American Revolution to attack claims of virtual representation.33 The movement’s Declaration of Sentiments, read in 1848 at Seneca Falls, offers an early and powerful expression of this argument. The Declaration of Independence indicted the King for his relations with the American colonies,34 and the Declaration of Sentiments took the text of the Declaration of Independence and transformed it into an incendiary indictment of patriarchy:
The history of mankind is 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. To prove this, let facts be submitted to a candid world... .
Having deprived her of this first right of a citizen, the elective franchise, thereby leaving her without representation in the halls of legislation, he has oppressed her on all sides.
He has made her, if married, in the eye of the law, civilly dead.
He has taken from her all right in property, even to the wages she earns.35
As suffragists appealed to the memory and principles of the American Revolution to assert women’s right to vote, they advanced politically explosive claims about relations between men and women. By applying the constitutional principles of the American Revolution to the family, the suffragists depicted the family in a new light. Men did not represent women; men oppressed women, in politics and in the household. “Male superordination was not benign, but tyrannical and fundamentally unjust.”36
The Civil War focused debate over equal citizenship on the federal Constitution. During Reconstruction, suffragists combined the individualism of the revolutionary constitutional tradition with the radical egalitarianism of the antislavery constitutional tradition37 to propose a Fourteenth Amendment recognizing universal suffrage38: a new understanding of the republic in which all adult members of the household would be equally and directly represented in the state. This egalitarian understanding of the constitutional community underwrote the movement’s claims—asserted in Congress, at the ballot box, and in courts—that the Fourteenth Amendment enfranchised women.39
As Frances Ellen Watkins Harper urged at the Eleventh National Woman’s Rights Convention in 1866, during the drafting of the Fourteenth Amendment, “We are all bound up together in one great bundle of humanity, and society cannot trample on the weakest and feeblest of its members without receiving the curse in its own soul.”40 Harper spoke proudly of the “wrongs” she suffered “as a colored woman” through marriage law and segregation law, and envisioned the logic of the American Revolution culminating in a “color-blind” nation that would “have no privileged class, trampling upon and outraging the unprivileged classes, but will be then one great privileged nation . . . .”41
Led by Elizabeth Cady Stanton, Victoria Woodhull, Mary Ann Shadd Cary, Sojourner Truth, Susan B. Anthony, and Virginia Minor, a wave of women began to vote in the early 1870s. The Supreme Court acted swiftly to reject the movement’s claims on the newly ratified Fourteenth Amendment, combining its ruling in the Slaughter-House Cases42 and arguments from coverture and custom to deny that the Constitution protected Myra Bradwell’s right to practice law and Virginia Minor’s right to vote.43
With its claims of universal suffrage spurned, the movement bitterly divided over whether to support a Fifteenth Amendment that failed to recognize women’s right to vote,44 but suffragists persisted in their quest for women’s enfranchisement. After the Civil War, as before, suffragists argued that women were not represented in the state because the laws men enacted did not represent women’s interests. These arguments served at one and the same time to refute claims of virtual representation, and to demonstrate to women why they needed to mobilize for the vote. Most of these arguments focused on the family. Suffragists protested the sex-based restrictions on women’s work and pay that forced women into marriage; they attacked laws that gave a husband rights in his wife’s property and in her labor inside and outside the home, making a wife totally dependent on her husband; and they protested the ways that the law of marriage authorized husbands to coerce their wives, exposing women to domestic violence, marital rape, and “forced motherhood.45
In 1875, the Woman’s Journal, the newspaper of the American Woman Suffrage Association, published by Lucy Stone and other abolitionist supporters of the Fifteenth Amendment,46 contained a column entitled “A Wife’s Protest”:
As a mother, a woman goes through the tragedy of giving birth to her son, watches over and cares for his helpless infancy, brings him through all the diseases incident to childhood, is his nurse, physician, seamstress, washerwoman, teacher, friend, and guide, spending the cream of her days to bring him up to be a voter with no provision in law for her own support in the mean time, with not so much as “I thank you.” Then he leaves home and marries a wife, whom it took some other mother twenty-one years to raise, educate, and teach to cook his meals, to make and wash his clothes, to furnish him with a bed, and to fill the house with comforts, of which he has the larger share, at her own expense. And all this done for him up to this period of his life without any cost to himself. Then he votes to help make a law to disfranchise his wife and these two mothers, who have unitedly spent forty-two years of the prime of their days for his benefit, without any compensation. And then he makes another law to compel his wife to do all the same kind of drudgery whieh [sic] his mother had done, with the addition of giving birth to as many children as in his good pleasure he sees fit to force upon her. And all her earnings and the fruit of her labor are his, his wife being the third woman who spends her life to support him. It takes three, and sometimes four women to get a man through from the cradle to the grave, and sometimes a pretty busy time they have of it, too. It is time we stated facts and called things by their right names, and handled this subject without kid gloves.47
In objecting to the way the law of marriage enabled a husband to expropriate the value of his wife’s household labor and to force her to bear children, the letter writer is voicing demands for changes in law. In the 1870s, suffragists regularly asserted claims for joint property rights in marriage (which would have abolished a husband’s rights to his wife’s services and compensated a wife for her contribution to the household economy)48 and for voluntary motherhood (which would have abolished a husband’s right to consortium and recognized a wife’s right to choose when to engage in sexual relations with her husband).49 In supporting voluntary motherhood, movement leaders claimed for women the right “to decide when she shall become a mother, how often & under what circumstances”50 and attacked the law of marriage “which makes obligatory the rendering of marital rights and compulsory maternity.”51 As Lucy Stone put it,
It is very little to me to have the right to vote, to own property . . . if I may not keep my body, and its uses, in my absolute right. Not one wife in a thousand can do that now, & so long as she suffers this bondage, all other rights will not help her to her true position.52
Suffragists objected to the way the law of marriage structured the social relations in which women conceived and raised children, depriving women of “self-ownership” in sex and motherhood, and forcing women into economic dependency on men—leading some to condone, even as they condemned, abortion.53 These challenges to the law of marriage grew out of and intersected with challenges to the law of slavery: marriage and slavery each gave men property rights in persons, authorizing coercion in intimate relations and the expropriation of labor.54
Many other women, perhaps reticent to employ the individualist language of woman’s rights, turned the altruistic care ethic of domesticity to suffrage ends. A broad-based temperance movement advocated for a “Home Protection” ballot, raising issues of domestic violence, sexual abuse, and women’s need for empowerment in the household and the public sphere.55 Frances Watkins Harper employed the language of Christian motherhood to cultivate intraracial and interracial alliances—her project of “home protection” included campaigning for federal intervention against lynching.56 As the suffrage movement widened its class base, suffragists also began to represent the enfranchisement of women as a means to “social housekeeping”: a world in which women would have a say in the regulation of municipal services and the industrial conditions in which they and their children worked.57
III. after ratification: the 1920s
After ratification of the Nineteenth Amendment in 1920,58 new voters converged to support certain family-focused legislation, such as a law beginning to recognize the principle that a woman marrying a man of another nationality should retain her U.S. citizenship59 and the first program providing health care for poor new mothers and infants.60 Suffrage leaders discussed whether the broad coalition of women that had come together in support of the vote would find common aims in the aftermath of the Nineteenth Amendment’s ratification. To illustrate the range of political choices facing movement leadership in this period, I share the diagnosis of one leader, Crystal Eastman—a socialist-feminist of the era who plainly understood women’s enfranchisement in institutional terms, as a stage in women’s emancipation from legally enforced dependence on men in the family.
Eastman was an early woman graduate of New York University Law School. After graduating second in her class of 1907, Eastman was unable to secure employment as a lawyer; however, her prodigious legal talent and creativity is evident in the remarkable range of projects in which she immersed herself in just the first decade after her graduation from law school.61Eastman wrote a pathbreaking book on workers’ compensation, and was given a central role in drafting New York State’s first workers’ compensation law.62 She then began to explore the ways that law might alter women’s status in education, work, family, and politics. Eastman worked with Charlotte Perkins Gilman and other members of Greenwich Village’s radical feminist Heterodoxy Club, and with Henrietta Rodman and the Feminist Alliance to advocate for women’s access to medical and law school, employment opportunities, and household living arrangements that would enable women to combine family and market labor.63 In 1914, the Alliance wrote President Wilson urging him to introduce a constitutional amendment that “no civil or political right shall be denied to any person on account of sex,” the first proposal for an Equal Rights Amendment (ERA).64 At the same time, Eastman was working with Alice Paul to found the National Woman’s Party and to redirect women’s quest for the vote from the states back to a federal constitutional amendment.65 During World War I, Eastman also played a central role in leading the international Woman’s Peace Party,66 and worked with Roger Baldwin to found the National Civil Liberties Bureau, which he reorganized in 1920 as the American Civil Liberties Union.67
In the winter of 1920, as the National Woman’s Party was debating its next steps, Eastman delivered a speech entitled Now We Can Begin,68 in which she announced that the Nineteenth Amendment’s ratification was not, in fact, the end of a quest, but instead its beginning—the first step in attaining “[w]oman’s freedom, in the feminist sense.”69 Women had just secured political independence from their husbands in voting. Eastman now offered a program for securing women’s economic independence from their husbands in work.70 Women should be free to explore life pursuits outside their traditional family roles. And, women should be free to engage in traditional family work without suffering subordinating dependence on their husbands because of it. As a lawyer, Eastman saw law playing a crucial part in all these changes.
To bend gender outside and inside the family, Eastman offered the NWP a four-part plan. First, to open economic opportunities for women, feminists had to challenge all barriers to occupations and unions, as well as all inequality in pay.71 Eastman’s work with the Feminist Alliance anticipated modern antidiscrimination law; the group challenged sex-based exclusion from professional education, sought a constitutional amendment prohibiting denials of rights “on account of sex,”72 and mounted what is likely the first sustained campaign against pregnancy discrimination in employment.73
Second, to challenge sex roles so that working wives were not obliged to perform a double shift, feminists had to “institute a revolution in the early training and education of both boys and girls.”74 Eastman urged, “It must be womanly as well as manly to earn your own living, to stand on your own feet. And it must be manly as well as womanly to know how to cook and sew and clean and take care of yourself in the ordinary exigencies of life.”75 Across classes, “breadwinning wives have not yet developed home-making husbands.”76 [W]e must bring up feminist sons.”77
Third, and critically, Eastman emphasized, “[t]he immediate feminist program must include voluntary motherhood. Freedom of any kind for women is hardly worth considering unless it is assumed that they will know how to control the size of their families. ‘Birth control’ is just as elementary and essential in our propaganda as ‘equal pay.’”78 Eastman allied herself with the early birth-control movement in declaring birth control “essential” to “freedom of occupational choice.”79
Finally, Eastman reasoned that women who did choose the work of parenting should not suffer subordinating dependence on men because of it. She termed this fourth element a “motherhood endowment,”80 a concept that infused the private family with a public dimension inspired by the teachings of Charlotte Perkins Gilman and by Russia’s then-new experiments in collectivization:81
It seems that the only way we can keep mothers free, at least in a capitalist society, is by the establishment of a principle that the occupation of raising children is peculiarly and directly a service to society, and that the mother upon whom the necessity and privilege of performing this service naturally falls is entitled to an adequate economic reward from the political government. It is idle to talk of real economic independence for women unless this principle is accepted.82
Eastman summed her vision: “with a generous endowment of motherhood provided by legislation, with all laws against voluntary motherhood and education in its methods repealed, with the feminist ideal of education accepted in home and school, and with all special barriers removed in every field of human activity,” she concluded, “there is no reason why woman should not become almost a human thing.”83
It is as if Eastman, writing a half century after the woman who penned A Wife’s Protest, was determined to find a way to emancipate the letterwriter. Eastman reaffirmed the claims of the nineteenth-century movement, yet, in 1920, Eastman more openly challenged sex roles, as she would have allowed even a sexually active woman to retain control over the decision whether to become a mother and she offered women a path to economic independence through work outside the home as well as inside it.
Yet change was not simple, then as now. Under the leadership of Alice Paul, the NWP voted down Eastman’s proposals almost two to one, in favor of the program that Paul supported and that more narrowly focused on removing sex-based disabilities from the law of marriage and other legislation.84 The NWP voted to pursue formal equality in law, without addressing law and norms governing sex, reproduction, and the relation of market and family labor.85
Alice Paul’s commitment to a single-issue strategy, deployed to great effect in pursuit of the vote in the closing years of the suffrage campaign, now exerted a narrowing force on the ambit of the women’s movement. At the same convention where Paul resisted Eastman’s effort to place the new birth-control movement on the NWP agenda, Paul also engaged in parliamentary maneuvers that sidelined efforts of black woman suffragists to address the group, turning back efforts by white members including Mary White Ovington, a socialist who was a founding member of the NAACP, as well as Florence Kelley, to enable black women suffragists to speak about their continuing disenfranchisement in the South.86 Paul’s insistence on a single-issue politics perpetuated racial exclusion in the suffrage movement that had grown in the aftermath of Reconstruction.87 As Crystal Eastman reported: “Supremely neglectful of respectability during the long fight [over suffrage], Alice Paul saw to it that the victory celebration should be supremely respectable. All doubtful subjects, like birth control and the rights of Negro women, were hushed up, ruled out, or postponed until the affair at the Capitol was over.”88 Many women interested in black rights, pacifism, and birth control departed the NWP.89
Single-minded in focus, Paul did lead the post-suffrage movement in attacking women’s remaining legal disabilities, introducing state legislation, and in 1923, the first ERA. As Paul and Florence Kelley negotiated drafting the ERA, they initially sought to avoid invalidating sex-based protective labor legislation by focusing on discrimination on account of sex or marriage.90 By mid-decade, Paul’s drive for the ERA had divided the movement, with social-welfare feminists concerned that it would invalidate the sex-based protective labor legislation on which working women with family responsibilities depended, at a time when unions would not organize women. It is not clear what further law-reform possibilities then existed given the resistance among men that enfranchising women engendered; but it is clear that embrace of an ERA in the immediate aftermath of the Nineteenth Amendment’s ratification shattered alliances among women.91
For a flickering moment, the Court took account of the Nineteenth Amendment’s ratification in reasoning about women as constitutional rights holders, but then proceeded as if the decades of wide-ranging debate over ratification had no implications for the Constitution’s interpretation.92 With ratification of the suffrage amendment, the coalition of women’s groups that had united in pursuit of the vote splintered, its leadership dividing in the effort to articulate an account of women’s concerns that could speak across lines of race and class and diverging social and political commitments.
IV. remembering the nineteenth amendment on its fiftieth anniversary: the strike for equality, august 26, 1970
Fast forward fifty years. On August 26, 1970, a second-wave women’s movement, emerging out of the antiwar, civil-rights, and labor movements, declared a strike for women’s equality on the half-century anniversary of the Nineteenth Amendment’s ratification that continued debates about equal citizenship from the 1840s, 1870s, and 1920s.93
In 1970, women had the vote, yet were barely represented in Congress or the courts,94 and there was as yet not a single Supreme Court decision striking down a sex-based law under the Equal Protection Clause, whether statutes reserved jobs or jury duty to men, or declared men entitled to higher pay for equal work. Women in the market still faced what civil-rights lawyer and feminist Pauli Murray termed “Jane Crow” in working conditions.95
The 1970 Strike for Equality was many things. Organized to mark the fiftieth anniversary of the Nineteenth Amendment’s ratification, the emerging “second wave” of the movement used the day to stage protests around the nation. Over 10,000 marched in New York City.96 Betty Friedan, the first president of the National Organization for Women (NOW), spoke in New York City; Toni Carabillo, president of Los Angeles NOW, spoke in Los Angeles; and Aileen Hernandez, NOW’s second president, spoke in San Francisco.97 The mass mobilization was designed to attract press attention, and did, though much of it was bemused, if not mocking.98
The strike cannily tied past and present. It featured surviving suffragists.99 Friedan walked down Fifth Avenue with Dorothy Kenyon, an early birth-control activist, who had opposed an ERA strategy and had recently begun, with Pauli Murray, to litigate for women’s rights under the Fourteenth Amendment on a race analogy—a strategy Ruth Bader Ginsburg would carry forward to great effect.100 Yet even as the strike looked backward, it was future-focused, led by NOW’s second president, civil-rights activist Aileen Hernandez, who arrived by way of the labor movement and her role as the only woman EEOC Commissioner.101
The strike memorialized the Nineteenth Amendment’s ratification in an institutionally self-conscious way. Strikers asserted demands including ratification of the ERA and three movement claims: (1) equal opportunity in jobs and education, (2) access to abortion without restriction, and (3) free twenty-four-hour childcare centers.102 Through these demands, the movement argued that equal votes do not secure equal citizenship; equal citizenship required transformation of the conditions in which women bear and rear children.
Eleanor Holmes Norton, then chairwoman of the New York City Commission on Human Rights, explained, “My mandate to enforce the law against sex discrimination is an empty mandate unless women can have twenty-four-hour day-care centers to leave their children while they work.”103 As Norton’s observations illustrate, the feminist movement understood that formal equality without institutional change is “an empty mandate.” The movement’s claims make clear its diagnosis: laws prohibiting discrimination against women in voting, education, or work would not secure for women equal citizenship without changes that would (1) give women control over whether to have children and (2) redistribute, in part, the work of childcare. In 1970, the feminist movement sought structural changes in the family form that would secure women’s independence, much as Crystal Eastman had in 1920, when she proposed voluntary motherhood through the embrace of birth control as part of “freedom of occupational choice” and endorsed state remuneration of childcare through a motherhood endowment.
The feminist movement acted on the strike’s agenda in the early 1970s. Much of this story is familiar. The ERA was reported out of Congress in 1972 with broad-based support in the women’s movement of the time.104 (As the women’s movement pressed for the EEOC to enforce the sex-discrimination provisions of federal employment-discrimination laws, federal courts had already begun to preempt sex-based protective labor legislation.)105 The Burger Court was visibly aware of the ERA debates as, a century after the Fourteenth Amendment’s ratification, the Court began for the very first time to interpret the Equal Protection Clause to prohibit sex discrimination.106
In this same time period, feminists began to bring lawsuits emphasizing that abortion bans violated equal protection because they discriminated on the grounds of poverty, race, and sex, as well as violating the right to privacy107—in this era, there were even claims brought on Nineteenth Amendment grounds.108 As we know, in 1973, the Court extended the privacy right to cover abortion in Roe v. Wade.109
Yet many forget that, even as the feminists sought protection for women’s decisions about abortion, the movement’s claims for reproductive justice included protection for women who sought to raise children as well as to postpone having them. Feminists sought job security for working pregnant women,110 and government support for childcare on a cross-class basis.111 These claims to democratize motherhood and the family were less well-received—and played a role in the great backlash the movement engendered.
Many know of feminist efforts to move the Burger Court to recognize pregnancy discrimination under equal protection and Title VII. These efforts failed and ultimately required the movement to appeal to Congress to enact the 1978 Pregnancy Discrimination Act.112
Fewer are aware of how close to fruition claims for government-financed childcare came. By 1971, as the ERA was moving through Congress, so too was national childcare legislation that would have provided early childhood education free to families below the poverty line and on a sliding scale for families above it. In 1971, the Comprehensive Child Development Act (CCDA) was enacted by Congress and vetoed by President Nixon; it was again reenacted by Congress and vetoed by President Ford in 1976.113
As these votes indicate, there was national support for a federal role in childcare in the early 1970s. Support for the federal childcare program grew from the civil-rights, antipoverty, and women’s movements; and the program attracted opposition accordingly. Its defeat over the course of the decade was tied to the rise of the new right.114 Pat Buchanan seems to have persuaded President Nixon to veto the CCDA on the ground that it would “commit the vast moral authority of the National Government to the side of communal approaches to child rearing over against the family-centered approach.”115 And Phyllis Schlafly wrote one of her first attacks on the ERA as an attack on feminists for their support of abortion and day care: “Women’s lib is a total assault on the role of the American woman as wife and mother and on the family as the basic unit of society. Women’s libbers . . . are promoting Federal ‘day-care centers’ for babies instead of homes. They are promoting abortions instead of families.”116
V. the centennial and the institutional nineteenth amendment in courts and politics
So far, this Essay has equal citizenship seeking democratization of the family that grew out of the suffrage movement—and has shown that this constitutional tradition was vibrant during the antebellum period, Reconstruction, World War I, and the Civil Rights era. Even this brief account suggests that the claims at the heart of this constitutional tradition are the locus of deep conflict and perpetual erasure.
Today, we view claims for the democratization of family life as modern—and only tenuously connected to the Constitution—not as claims for liberty and equality voiced in the idiom of the Revolution and the abolitionist movement117 that were an integral part of the movement for women’s enfranchisement spanning the nineteenth and twentieth centuries and a core part of the pre- and post-ratification histories of the Reconstruction Amendments and the Nineteenth Amendment.118 In what follows, I consider some implications of this history for our law.
Because of women’s long exclusion from legal institutions—itself a legacy of votelessness—the nearly two centuries of argument we have just considered presently play no part in American constitutional law. Few know that the chants of “Equal Pay!” that broke out at the World Cup championship can be traced to the dawn of the suffrage movement, where they began as a critique of laws enforcing women’s economic dependency on men in marriage.119 Few know that suffragists talked about the law of marriage as expropriating women’s household labor and enforcing childbearing,120 or that they talked about working women’s need for contraception.121 No doubt because of women’s exclusion from voting, political parties, governing, judging, and the academy for most of the nation’s life, long-running debate about the family is perpetually erased from our understanding of our constitutional tradition and from our understanding of slavery as well as voting. As a result, questions of the family are made peripheral in our understanding of freedom and equality under the Thirteenth, Fourteenth, and Fifteenth Amendments,122 as well as the Nineteenth.
It is not only women’s exclusion from voting, but women’s persistent exclusion from positions of authority in governing, judging, and the academy that has perpetuated the erasure of this constitutional history—so that those seeking democratic reconstruction of the family appear to be new claimants rather than participants in a quest for equality that reaches back to the antebellum era. These continuing exclusions of onetime disenfranchised citizens have fateful consequences in shaping constitutional meanings, as one example can illustrate. When John Hart Ely concluded in a widely-cited article that Roe had nothing to do with the Constitution,123 he repeatedly invoked talking to his students as he reasoned through the question.124 In fact, Ely reasoned about the constitutional question in terms suggesting that he had never talked to the Yale Law students who were interested enough to challenge Connecticut’s abortion ban in 1971,125 and he had never read the district court opinion striking down Connecticut’s abortion statute in 1972, which cited the Nineteenth Amendment and the sex-equality authorities then available, including Reed v. Reed126 (the only equal-protection sex-discrimination decision at that time), and the ERA, just reported out to the states.127 It was not then beyond the capacity of a Yale Law professor to talk with the handful of women students at the school; in 1971, Thomas Emerson, who litigated Griswold, co-authored a legislative history of the ERA with three women students, two of whom were organizers of the lawsuit challenging Connecticut’s abortion ban.128 Had Ely talked to these students, he would have heard an equality-themed story, his own preferred constitutional basis in the Griswold case—and not a story about substantive due process, threatening revival of Lochner, which he staunchly opposed.129
If Americans recounted the story of We the People in ways that treated women’s quest to vote as central, and understood women’s quest to vote as a story about the democratization of the family, our constitutional tradition would include claims for self-ownership and voluntary motherhood at the root of the Reconstruction Amendments and the very heart of freedom and equality—not at their periphery. Imagine if the right to vote of half the population mattered in the telling of America’s story. And imagine if women’s views about the importance of voting mattered: “It is very little to me to have the right to vote, to own property &c. [sic] if I may not keep my body, and its uses, in my absolute right.”130 Imagine if we consulted the disenfranchised about the meaning of our constitutional values.
Instead, the nearly two centuries of debate over the family surveyed in this Essay play no role in the interpretation of our Constitution. We recount women’s quest for the vote on the attitudinal model, as a story about overcoming sexism in voting. With collective memory of conflict over the family repressed, the family appears to be “natural,” a domain of custom and consensus, rather than a locus of law, struggle, and power, having a constitutional history like other important institutions of our constitutional republic.
Americans can mark the Nineteenth Amendment’s centennial by changing the very premises on which they interpret the Constitution: by recognizing that women’s fight for the vote involved generations of struggle over the family and other institutions of the republic and produced an intersectional body of gender-justice claims that properly bear on the ways the Constitution speaks to these questions today.
In these final sections of the Essay, I examine how this recovered constitutional history can orient our law. I open by considering a few of the many ways that judges might draw on this history as they are interpreting the Constitution. I then identify continuing expressions of this constitutional tradition outside the courts, in politics. I conclude by considering how the Constitution’s meaning might evolve if we broke with continuing vestiges of virtual representation in practices of interpretation and recognized a wider community of Americans who played a role in forging our constitutional democracy.
A. A Synthetic Reading of the Fourteenth and Nineteenth Amendments
Few constitutional interpreters pay any attention to the Nineteenth Amendment. We might change course and appeal to judges to read the Nineteenth Amendment, standing alone, as applying beyond the context of voting.131 “In applying the Nineteenth Amendment to practices other than voting, we would be reading the language of the Amendment to identify, without exhausting, the practical contexts in which the constitutional values it embodies are to be vindicated,” much as “the Court does when it applies the Eleventh Amendment to suits brought by citizens against their own states, or applies the First Amendment to the President or state governments.”132
Yet this is not the only, or even the most intuitive, interpretive path. Rather than interpret the Nineteenth Amendment standing alone, interpreters could employ a synthetic approach that would integrate the Nineteenth Amendment’s history with the Reconstruction Amendments. Women’s quest for the vote starts well before Reconstruction, threads through the drafting and ratification of the Fourteenth and Fifteenth Amendments, and continues on through the ratification of the Nineteenth Amendment and the struggles over the enforcement of the Fifteenth Amendment during the Second Reconstruction and in our own day.133 This long quest for the vote offers a rich body of pre- and post-ratification history. A synthetic interpretation might draw on this history in a variety of ways. Given our current constitutional convictions about the distribution of the franchise, we might retrospectively enlarge the community of Americans we count among the Fourteenth Amendment’s ratifiers.134 Or, more simply, we could read women’s long quest for political voice and for democratic reconstruction of the family as critical post-ratification history of the Fourteenth Amendment, as important for its interpretation and enforcement as Brown v. Board of Education.135 Both approaches would seek to recover and include women’s voices, not simply to recount wrongs we have rectified, but also to record the beliefs of generations of Americans who fought to democratize the American constitutional order.
In what follows, I suggest a few ways in which an institutional understanding of the Nineteenth Amendment can guide the Court’s interpretation of the Equal Protection Clause. The Court’s own decisions provide a natural framework.
As a Justice, Ruth Bader Ginsburg turned to the story of the women’s suffrage struggle to explain the intermediate-scrutiny sex-discrimination framework in the 1996 case United States v. Virginia.136 Where Justice Scalia argued that judges interpreting the Constitution ought to defer to traditional understandings,137 endowing past practice with authority just as the Court did in Minor v. Happersett,138 Justice Ginsburg writing for a six-Justice majority sharply differed. Where Justice Scalia saw the Constitution as entrenching past practice, the majority described a very different role for history in enforcing the Constitution’s equal-protection guarantee:
Today’s skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history. As a plurality of this Court acknowledged a generation ago, ‘our Nation has had a long and unfortunate history of sex discrimination.’ . . . . Through a century plus three decades and more of that history, women did not count among voters composing ‘We the People’; not until 1920 did women gain a constitutional right to the franchise.139
In Loving v. Virginia, the majority reasoned about the past, as it often does in equal-protection race cases, as an era of wrongdoing requiring repudiation, invoking past practice as negative precedent.140 The majority connected the long era of women’s disenfranchisement to the passage of many sex-discriminatory laws, and ruled that the Equal Protection Clause forbids state action that perpetuates subordination of this kind: “Sex classifications . . . may not be used, as they once were . . . to create or perpetuate the legal, social, and economic inferiority of women.”141
These passages of United States v. Virginia invite synthetic interpretation. They expressly direct judges to consider the Nineteenth Amendment’s belated enfranchisement of women as judges enforce the Equal Protection Clause. At United States v. Virginia’s direction, courts can read the Fourteenth and Nineteenth Amendments together, applying “skeptical scrutiny of official action denying rights or opportunities based on sex” to offset women’s long exclusion from the franchise, and its continuing legacies in law and politics.142 Virginia directs judges to consider history in scrutinizing sex-based state action, so that the government does not carry forward practices that perpetuate inferiority or second-class status in new forms. Women’s long quest for the vote and for freedom and equality in the family can guide how judges apply equal-protection law. Just as the constitutional disestablishment of slavery and segregation orients race-discrimination law, so too can the disestablishment of male household headship—intersectionally understood—orient sex-discrimination law.143
Equal-protection doctrine presently asks whether a challenged law entrenches or destabilizes traditional gender roles. Since the 1970s—the era of the 1970 Strike and ERA mobilization—the Court’s cases have asserted that “[n]o longer is the female destined solely for the home and the rearing of the family, and only the male for the marketplace and the world of ideas.”144 Reading the Fourteenth and Nineteenth Amendments together gives specific constitutional grounding to disestablishment of traditional sex roles in the family, amplifying the constitutional authority of sex-discrimination law in ways that those concerned with original understanding can respect.145 Ratification of the Nineteenth Amendment was part of a movement to emancipate women from legally-enforced dependence on men and to recognize women as juridically, politically, and economically independent from men in matters of family life.146 Whether the debate concerned a married woman’s right to her person, her earnings, or her vote, the question was whether to preserve the principle of men’s household headship or to reorganize family relations on the principle of women’s co-headship, equality, and independence.147
Anchoring intermediate scrutiny in the institutional history of the suffrage campaign can provide courts additional guidance in applying equal-protection doctrine. In developing the equal-protection sex-discrimination cases, courts have faltered when physical difference seems salient148—a confusion in the case law that Virginia famously endeavors to correct.149 The institutional history of the suffrage campaign can guide courts puzzling over how to apply the Equal Protection Clause in cases involving the regulation of pregnancy and contraception, where judges have focused on physiology and lost sight of social roles. In determining whether a law implicating an employee’s fertility violates equal protection, a judge can ask if the law enables an employee’s economic independence or enforces or presupposes an employee’s economic dependence. A law excluding coverage of pregnancy from an otherwise-comprehensive disability benefits program presupposes a pregnant worker’s economic dependence and departure from the labor force.150 A law that authorizes an employer to object to his employees receiving health-insurance benefits covering contraception gives the employer control over the employee’s coordination of work and family roles.151 The institutional history of the Nineteenth Amendment can guide the application of Virginia’s anti-caste or anti-subordination principle: “[s]ex classifications . . . may not be used, as they once were, . . . to create or perpetuate the legal, social, and economic inferiority of women.”152
The institutional history of the Nineteenth Amendment shows us that there are intersectional forms of inequality among women as a class. Attention to these intersecting inequalities is crucial in enforcing equal protection in the family. Just as the conditions of women’s struggle for freedom and equality diverged from men’s, such that the Declaration of Independence inspired a Declaration of Sentiments, so too did the struggle for freedom and equality among women and men continue well after the Nineteenth Amendment’s ratification, because some class members faced forms of discrimination that others did not. We can bring these concerns about intersecting inequalities to bear on laws regulating fertility; while controlling the timing of conception promises independence for many, there are many who focus on freedom from coercive sterilization,153 and yet others who focus on equal parental recognition and access to the means of family formation.154
Looking beyond the Court’s traditional case law enforcing Section One of the Fourteenth Amendment, a synthetic reading of the Amendments can guide the Court’s interpretation of Congress’s power under Section Five. In United States v. Morrison,155 the Court struck down a statute recognizing women’s civil right to freedom from gender-motivated violence because in deliberating about the law, Congress discussed its application to domestic violence and marital rape. Judges repeatedly declared the civil-rights law, which would have applied to gender-motivated assault in a wide variety of contexts, including sexual assault on campus, to intrude upon states’ traditional prerogative to regulate the family.156 Courts brushed aside the question whether the Constitution authorized the federal government to address violence against women, as if women and men in the abolitionist, suffrage, and temperance movements had never raised the question on the path to the ratification of the Reconstruction Amendments or the Nineteenth Amendment and the ratification of those amendments had not changed federalism in matters of the family.157
The history of our federalism is not frozen at the Founding in matters of the family any more than it is in matters of slavery. The history of the Nineteenth Amendment offers a rich account of the ways in which the national government has intervened in state regulation of the household to secure the citizenship rights of women, as I have argued in criticizing United States v. Morrison.158 This decision demands renewed attention in light of #MeToo. Morrison’s claim that Congress lacks power under the Commerce Clause and the Reconstruction Amendments to address gender-motivated violence159 preserves in amber the Constitution of Coverture that Justice Bradley celebrated in Bradwell.160 Morrison aligns the Constitution with the beliefs about family that men held at the Founding—making no mention of the freedom and equality claims of generations of Americans who challenged state laws empowering men over women through the family—or of the role that federal constitutional law played in recognizing their claims. In so doing, the Morrison decision perpetuates the legacy of women’s disenfranchisement as it denies Congress its power to legislate under many sources of law: the Commerce Clause, and the Thirteenth, Fourteenth, and Nineteenth Amendments.161
Given that the Roberts Court is not likely to reverse Morrison any time soon, Congress can start a conversation about the reach of its authority to legislate in support of women’s equal citizenship under its combined powers to enforce the Commerce Clause, the Fourteenth Amendment, and the Nineteenth Amendment162 by debating and enacting the Pregnant Workers Fairness Act (PWFA).163 The Act provides for reasonable accommodation of pregnancy in the workplace,164 premised on the radical presumption that an employee who becomes pregnant will continue employment rather than leave the workforce—a claim first advanced by the Feminist Alliance in 1914.165 A century later, this view of women’s roles appears to be gaining increasing traction. Twenty-seven states, many of them “red,” have recently enacted PWFAs.166 A law providing for reasonable accommodation of pregnancy in the workplace seeks to structure the family in ways that allow all adult members of the household to be recognized and participate in democratic life as equals.
What better occasion than the Nineteenth Amendment’s centennial to hold hearings on the scope of Congress’s powers legislatively to enforce women’s equal citizenship?
B. The Nineteenth Amendment and the Family in 2020
Debate over President Donald Trump’s policies will shape the Nineteenth Amendment’s centennial year. The 2016 election provoked a Women’s March at his Washington inaugural167 and around the world,168 with a sea of pink hats signaling resistance to President Trump’s call to Make America Great Again.169 After the nation elected the largest-ever number of women to the House in 2018, Democratic congresswomen wore “#SuffragetteWhite” at President Trump’s State of the Union address.170 A record-breaking six women launched presidential bids for 2020, yet a century after women won the right to vote, Americans were still uncertain whether voters were ready to elect a woman President.171
It does not take the pink hats of the Women’s March, the glow of suffrage white suits, or even the spread of red robes172 to recognize the persistence of the institutional Nineteenth Amendment in the year of its centennial. Think back to the wife’s protest of the 1870s with its challenge to the expropriation of women’s family labor and its protest of forced childbearing, to Crystal Eastman’s claim for employment opportunities, voluntary motherhood, and a motherhood endowment, and to the Women’s Strike demands for sex-equality law, abortion rights, and universal childcare.
These themes recur in the 2020 presidential campaign, where candidates have proposed policies that promote democratization of the family—seeking to structure family life in ways that enable adult members of the household to be recognized and participate in democratic life as equals. For example, Democratic candidates endorsed legislation going beyond the 1978 Pregnancy Discrimination Act to provide for the reasonable accommodation of pregnancy in the workplace;173 and when conservatives questioned Elizabeth Warren’s experience of pregnancy discrimination in the 1970s, they provoked a national speak-out about the pervasive forms of discrimination mothers-to-be and new mothers still face.174 A number of the candidates proposed recognizing the work of at-home caregivers,175 and Elizabeth Warren introduced a bill providing for federal support for locally managed childcare programs that would pay childcare workers as public-school teachers,176 while Pete Buttigieg announced his support for paid family leave which, Buttigieg emphasized, he and his husband hoped to participate in.177
At the same time, candidates emphasized the importance of protecting voluntary motherhood as a core principle of equal citizenship. Elizabeth Warren has emphasized protection for abortion and contraception, and funding for those who cannot afford to pay.178 Kamala Harris introduced legislation designed to make sure that over-the-counter birth control is affordable and accessible, specifically designed to offset the Trump Administration’s efforts to undermine the Title X program (which funds contraception and reproductive health care for low-income families) through new regulations that would replace providers of medically approved methods of family planning with providers of natural family planning.179
It is surely progress to see these proposals for the federal government to protect voluntary motherhood and to help organize and finance childcare as the positions of leading presidential candidates. One way or another, these proposals—as claims for freedom and equality—have recurred in legal, political, and constitutional debates since the decades before the Civil War, even as they continuously prompt repression and backlash.
Does the three-quarters of a century it took to win the vote teach us anything about the scale and duration of the backlash through which we are now living? Why, a century after the Nineteenth Amendment’s ratification, does Crystal Eastman’s vision of freedom and equality remain unrealized and unrealizable for so many? And what comes next? Who has proposals for democratic reconstruction of the family as far-reaching as Stanton’s, Stone’s, and Harper’s, or Eastman’s, Friedan’s, and Hernandez’s? And what will they look like?
If we recognized these women as architects of our constitutional order and were generally familiar with the proposals they have advanced for democratic reconstruction of the family over the last two hundred years, might the proposals now before us look less utopian—in fact, generations overdue?
The ratification of the Nineteenth Amendment did more than add voters; it gave new form to a conversation about the democratization of the family ongoing in our own day. This conversation began before the Civil War and continued through the debates over the Reconstruction Amendments and the Nineteenth Amendment and after. And yet we talk about our constitutional tradition as if these debates over the family never happened, as if Americans first raised questions of liberty and equality in the family in the 1960s and 1970s—rather than the decades before the Civil War.
As this Essay has demonstrated, recovering the memory of suffrage struggle can guide constitutional interpretation in many contexts. The story functions as negative precedent, making vivid wrongs that state action can perpetuate in modern forms. As United States v. Virginia holds,180 and a federal district court has recently reminded us, the memory of suffrage struggle can help identify underlying gender bias181 and racial bias182 in practices today. The story of women’s long quest for the vote demonstrates how gender inequality is enforced through the family, and how such inequalities can assume different forms as gender intersects with relations of race, class, citizenship, or sexuality. 183
Yet at the same time, the story of suffrage struggle offers us rich, positive precedent. It is a story of constitution-making, of Americans struggling to democratize the institutions of our constitutional republic whom we can honor as we define ourselves in the present. The long quest for suffrage features audacious dreamers who dared to claim new, more egalitarian forms of citizenship, family, and constitutional community that we are still struggling to realize today. Whether or not these constitutional architects of our present could vote in their day, we surely can recognize and honor them in our own.
It is time to break the vestiges of virtual representation in practices of constitutional interpretation—where we still reason about the framing and many other questions as if only men made the Constitution. When Justice Thomas quotes Fredrick Douglass in a debate over affirmative action,184 Justice Thomas quotes Douglass without pausing to establish whether Douglass could vote,185 despite Thomas’s claimed fidelity to originalist methods. Douglass exerts a different form of authority for Justice Thomas and American audiences today—the same form of authority that Frances Harper, or even Crystal Eastman, might, if enough judges recounted their claims on liberty and equality. As the Nineteenth Amendment enters its second century and we continue to argue over the meaning of our Constitution in courts and in politics, it is time to appeal to a wider cross-section of esteemed Americans—embracing the disenfranchised as well as the enfranchised and the concerns they brought to the democratic reconstruction of America.
Imagine how we might understand our Constitution in another generation if we did.
Nicholas deB. Katzenbach Professor of Law, Yale University. This Essay is for my grandmother, who sewed for her family and marched for suffrage. For wide-ranging debate about the project, I thank my colleagues at the Yale Law School Faculty Workshop. For comments on the draft, I thank Bruce Ackerman, Jack Balkin, Nancy Cott, Jane Kamensky, Louise Melling, Paula Monopoli, Doug NeJaime, Robert Post, and Aziz Rana, and for research assistance, I thank the Yale law librarians, in particular Jordan Jefferson, as well as Jenny Choi, Joshua Feinzig, Chandini Jha, Laurel Raymond, and Kath Xu.