Volume IV Part 2 (1/2)
WHEREAS, The right to choose Members of the House of Representatives is vested by the Const.i.tution in the people of the several States, without distinction of s.e.x, but for want of proper legislation has. .h.i.therto been restricted to one-half of the people; for the purpose, therefore, of correcting this error and of giving effect to the Const.i.tution:
_Be it enacted by the Senate and House of Representatives of the United States of America in Congress a.s.sembled:_ That at all elections hereafter held in the several States of this Union for members of the House of Representatives, the right of citizens of the United States, of either s.e.x, above the age of twenty-one years, to register and to vote for such Representatives shall not be denied or abridged by the United States, or by any State, on account of s.e.x.
The argument for the authority of Congress to pa.s.s this law is based partly on Article I of the Federal Const.i.tution:
SECTION 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.
SECTION 4. The time, place and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.[7]
Congress is here endowed unquestionably with the right to regulate the election of Representatives. James Madison, one of the framers of the Const.i.tution, when asked the intention of this clause, in the Virginia convention of 1788, called to ratify this instrument, answered that the power was reserved to Congress because ”should the people of any State by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government.”
[Elliott's Debates, Vol. II, p. 266.]
Again Madison said in _The Federalist_ (No. 54), in speaking of the enumeration for Representatives:
The Federal Const.i.tution, therefore, decides with great propriety in the case of our slaves when it views them in the mixed character of persons and property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criteria; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that _a place is disputed them in the computation of numbers_; and it is admitted that, if the laws were to restore the rights which have been taken away, _the negroes could no longer be refused an equal share of representation_.
Therefore, as women _are_ counted in the enumeration on which the Congressional apportionment is based, they are legally ent.i.tled to an equal share in direct representation.
In 1884 the case of Jasper Yarbrough and others who had been sentenced to hard labor in the penitentiary in Georgia for preventing a colored man from voting for a member of Congress, was brought to the U. S.
Supreme Court by a pet.i.tion for a writ of _habeas corpus_. The decision rendered March 2, virtually nullified that given by this court in the case of Mrs. Minor in 1875, as quoted above, which held that ”the National Const.i.tution has no voters,” for this one declared:
But it is not correct to say that the right to vote for a member of Congress does not depend on the Const.i.tution of the United States. The office, if it be properly called an office, is created by the Const.i.tution and by that alone. It also declares how it shall be filled, namely, by election. Its language is: ”The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.”
The States in prescribing the qualifications of voters for the most numerous branch of their own Legislature, do not do this with reference to the election for members of Congress. Nor can they prescribe the qualifications for those _eo nomine_ [by that name].
They define who are to vote for the popular branch of their own Legislature, and the Const.i.tution of the United States says the same persons shall vote for members of Congress in that State.
It adopts the qualification thus furnished as the qualification of its own electors for members of Congress. _It is not true, therefore, that the electors for members of Congress owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State._
Counsel for pet.i.tioners seizing upon the expression found in the opinion of the Court in the case of _Minor vs. Happersett_, ”that the Const.i.tution of the United States does not confer the right of suffrage upon any one,” without reference to the connection in which it is used, insists that the voters in this case do not owe their right to vote in any sense to that instrument. But the Court was combating the argument that this right was conferred on all citizens, and therefore upon women as well as men.(!)
In opposition to that idea it was said the Const.i.tution adopts, as the qualification for voters for members of Congress, that which prevails in the State where the voting is to be done; therefore, said the opinion, the right is not definitely conferred on any person or cla.s.s of persons by the Const.i.tution alone, because you have to look to the law of the State for the description of the cla.s.s. But the Court did not intend to say that, when the cla.s.s or the person is thus ascertained, his right to vote for a member of Congress was not _fundamentally based upon the Const.i.tution which created the office of member of Congress_, and declared it should be elective, and pointed to the means of ascertaining who should be electors.
The Fifteenth Amendment of the Const.i.tution, by its limitation of the power of the States in the exercise of their right to prescribe the qualifications of voters in their own elections, and by its limitation of the power of the United States over that subject, clearly shows that the right of suffrage was considered to be of supreme importance to the National Government and _was not intended to be left within the exclusive control of the States_.
In such cases this Fifteenth Article of amendment does _proprio vigore_ [by its own force] substantially _confer on the negro the right to vote_, and Congress has the power to protect and enforce that right. In the case of _United States vs. Happersett_, so much relied on by counsel, this Court said, in regard to the Fifteenth Amendment, that it has invested the citizens of the United States with a new const.i.tutional right which is within the protecting power of Congress. That right is an exemption from discrimination in the exercise of the elective franchise on account of race, color or previous condition of servitude.
This new const.i.tutional right was mainly designed for [male]
citizens of African descent. The principle, however, that the protection of the exercise of this right _is within the power of Congress_, is as necessary to the right of other citizens to vote in general as to the right to be protected against discrimination.
This legal hair-splitting is beyond the comprehension of the average lay mind and will be viewed by future generations with as much contempt as is felt by the present in regard to the infamous decision of the Supreme Court in the Dred Scott case in 1857. If it decides anything it is that the right to vote for Congressional Representatives is a Federal right, vested in all the people by the National Const.i.tution, and one which it is beyond the power of the States to regulate. Therefore, no State has the power to deprive women of the right to vote for Representatives in Congress.
Those who hold that women are already ent.i.tled to Federal Suffrage under the National Const.i.tution, further support their claim by a series of decisions as to the citizens.h.i.+p of women and the inherent rights which it carries. They quote especially the case of the _United States vs. Kellar_. The defendant was indicted by a Federal grand jury in Illinois for illegal voting in a Congressional election, as he never had been naturalized. He and his mother were born in Prussia, but came to the United States when he was a minor, and she married a naturalized citizen. The case was tried in June, 1882, in the Circuit Court of the United States for the Southern District of Illinois, by a.s.sociate Justice Harlan of the U. S. Supreme Court, who discharged the defendant. He held that the mother, having become a citizen by marriage while the son was a minor, transferred citizens.h.i.+p to him. In other words she transmitted a Federal Citizens.h.i.+p including the right to vote which she did not herself possess, thus enfranchising a child born while she was an alien. The whole matter was settled not by State but by Federal authority.[8] If a mother can confer this right on a son, why not on a daughter? But why does she not possess it herself?
The clause of the National Const.i.tution which established suffrage at the time that instrument was framed, does not mention the s.e.x of the elector.
The argument for Federal Suffrage was presented in a masterly manner before the National Convention of 1889 by U. S. Senator Henry W. Blair (N. H.); and it was discussed by Miss Anthony and Mrs. Minor. See present volume, Chap. IX.
From this bare outline of the claim that women already possess Federal Suffrage, or that Congress has authority to confer it without the sanction of the States, readers can continue the investigation.
Notwithstanding its apparent equity, the leaders of the National a.s.sociation, including Miss Anthony herself, felt convinced after the decision against Mrs. Minor that it would be useless to expect from the Supreme Court any interpretation of the Const.i.tution which would permit women to exercise the right of suffrage. They had learned, however, through the pa.s.sage of the Fourteenth and Fifteenth Amendments, that it had been possible to amend this doc.u.ment in such a way as to enfranchise an entire new cla.s.s of voters--or in other words to protect them in the exercise of a right which it seemed that in some mysterious way they already possessed. As the Fourteenth Amendment declared the negroes to be citizens, and the Fifteenth forbade the United States or any State to deny or abridge ”the right of citizens of the United States to vote, on account of race, color or previous condition of servitude,” it was clearly evident that this right inhered in citizens.h.i.+p. This being the case women must already have it, but as there was no national authority prohibiting the States from denying or abridging it, each of them did so by putting the word ”male” in its const.i.tution as a qualification for suffrage; just as many of them had used the word ”white” until the adoption of the Fifteenth Amendment by a three-fourths majority made this unconst.i.tutional. Therefore, since the _Minor vs. Happersett_ decision, the National a.s.sociation has directed its princ.i.p.al efforts to secure from Congress the submission to the several State Legislatures of a Sixteenth Amendment which should prohibit disfranchis.e.m.e.nt on account of ”s.e.x,” as the Fifteenth had done on account of ”color.”