America's Unwritten Constitution: The Precedents and Principles We Live By (47 page)

By contrast, the members of Congress who passed our hypothetical modern civil-rights law (and who passed the real-life VAWA)
were
voted for by women. Indeed, women themselves—lots of them—serve in modern Congresses even though women were generally barred from serving in the constitutional ratifying conventions of the 1780s and the legislatures that approved the Reconstruction Amendments in the 1860s.

If we are to vindicate the written Constitution’s legitimating principle—popular sovereignty—we should embrace the following as a basic precept of America’s unwritten Constitution: When the written Constitution can fairly be read in different ways, congressional laws that are enacted after the Nineteenth Amendment and are designed to protect women’s rights
merit a special measure of respect because of their special democratic pedigree. Thus, Congress should enjoy broad power to protect women’s rights for the simple reason that the unwritten Constitution is a Constitution of American popular sovereignty, and popular sovereignty is perverted when more democratic, post-woman-suffrage enactments championing women’s rights are trumped by less democratic, pre-woman-suffrage legal texts.

True, various pre-1920 constitutional enactments and amendments were enormously democratic for their time. Yet when these earlier enactments and amendments are viewed retrospectively through the lens of the Nineteenth Amendment, they suffer from a notable democracy deficit because they excluded women voters. The problem cannot be wished away by blithe assertions that earlier generations of men “virtually represented” women, because
the Nineteenth Amendment’s underlying logic repudiated this particular version of virtual representation of women by men
. The very adoption of the Nineteenth Amendment undermined the glib assumption that before 1920, male voters and lawmakers always properly protected the legitimate interests of nonvoting females.

TO SEE THIS PROFOUND POINT
about the retrospective democracy defi-cit more clearly, we should begin by noticing that the Nineteenth Amendment was designed to correct a past wrong. It was an amendment to make amends.

Not all amendments are of this sort. For example, nothing in the Eighteenth Amendment establishing National Prohibition in 1919 suggested that any rights violation or deep injustice had occurred when America was wet. Instead, the idea was simply that a dry America would be better. Unlike, say, murder and rape, drinking and selling alcohol were not intrinsically evil. In legalese, selling alcohol was widely understood as
malum prohibitum
(an action that was wrong only if and because the law prohibited it) and not
malum in se
(an action legally prohibited because it was wrong in itself, even before the law came along). Precisely because selling alcohol was merely
malum prohibitum
, the Eighteenth Amendment provided a special time-delay of one year after the amendment’s ratification before any new federal criminal law implementing Prohibition would take effect. This year-long delay would give Americans time to adjust to a new—dry—code of conduct.

By contrast, the Allies at Nuremberg in the late 1940s applied their code of conduct to punish actions previously committed by the Nazis, and did so over the defendants’ emphatic objection that this application was improperly ex post facto. Not so, said the Allies, correctly. Certain things were evil from time immemorial. Genocide and other war crimes had always been wrongful—
malum in se
. The Allies were not changing the basic human code of right and wrong; they were merely creating a new legal court to enforce the preexisting moral order, an order inscribed in the hearts of all right-thinking humans.
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On which side of the line did the Nineteenth Amendment fall? Did it merely create new rules that would apply purely prospectively, as with the Eighteenth Amendment? Or did it call for fully retrospective application, as with the Nuremberg prosecutions? Or was some intermediate approach called for? If so, what were its contours?

The text of the Nineteenth Amendment does not answer these questions. But here, as elsewhere, the text narrows the range of possible outcomes, and various elements of America’s unwritten Constitution—structural inferences, logical entailments, principles of interpretive coherence, and common sense—narrow the range even further.

On the one hand, we should immediately reject the outlandish idea that the Nineteenth Amendment somehow pulled the rug out from under its own feet and retroactively rendered illegitimate the entire constitutional project that preceded it. The amendment’s text, after all, purports to modify, not exterminate, the preexisting Constitution. It was explicitly ratified as an “amendment” to an earlier document. In the language of Article V, it forms “Part of this Constitution.” In this respect, the Nineteenth Amendment differs radically from the original Constitution itself, which was designed to kill and bury its predecessor document, the Articles of Confederation.
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Similarly, it would be nonsensical to think the Nineteenth Amendment requires interpreters to determine how the pre-1920 Constitution would have been worded differently had women been involved in its initial enactment or its pre-woman-suffrage amendments, and to follow the presumed constitutional text that would have emerged in this alternative universe. This would be a mind-bending thought experiment of such indeterminacy that all legal constraint would be lost—and the amendment was surely
about modifying a document designed to work as
law
. Likewise, no one can say whether past presidential elections would have turned out the same if women had voted, because the candidates would surely have played the game quite differently—but how, precisely? The whole world would have been different, almost unimaginably so. As the saying goes, if my aunt had wheels, she’d be a wagon.

On the other hand, it would lean too far in the other direction to limit the Nineteenth Amendment to purely prospective application, à la the Eighteenth. Such an approach would make sense if the ratification of the Nineteenth were exactly like the coming of age of an individual. When a person reaches age eighteen, she is allowed to vote, but we do not think that the fact that our new adult-voter was denied the vote last year is anything wrongful or deplorable. She couldn’t vote then because she was not, in legal contemplation, old enough then. She is now older and presumably wiser. But woman suffrage was not like this. The idea was not that in 1920 women had matured and were thus fundamentally different from the women of 1919 or 1918 or 1901—or 1866 or 1787, for that matter. Rather, the very adoption of the Nineteenth Amendment was an official recognition that the previous exclusion of women from the franchise had indeed been wrong and deplorable by the more enlightened standards of the post-woman-suffrage Constitution itself. The question is how to factor this profound implication of woman suffrage into proper constitutional interpretation.

To repeat, the terse text does not prescribe a specific answer to this question. To some extent, the issue turns on basic principles of remedy law, and the text says very little about how to vindicate the venerable idea that for every legal wrong there should be some remedy.
⁵

Very little, but not nothing. One clause in the Judicial Article reminds us that when judges hear cases arising under the Constitution, they are properly influenced by traditional principles of “Equity.” A second clause, in the Nineteenth Amendment itself, suggests that Congress should have broad authority to enforce the amendment’s letter and spirit. Indeed, the very words used—“Congress shall have power to enforce this article by
appropriate
legislation”—harked back to the letter-and-spirit test laid down by Marshall in
McCulloch
: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are
appropriate
, which are
plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional” (emphasis added). Marshall himself applied this test so as to accord Congress wide discretion to promote national security. Nothing in the written Constitution said anything specific about a national bank, and a national bank was not absolutely and indispensably necessary for national security. But if Congress plausibly thought that a national bank would promote national security, that was good enough for Marshall. Similarly, if Congress tomorrow plausibly thinks that a women’s-rights law might promote women’s full political equality, that, too, should be good enough under an amendment that gestures toward the generous
McCulloch
test via its use of the word “appropriate.”

Though the text of the Nineteenth Amendment can easily be read in this fashion, it must be admitted that the text standing alone can also be read in a more stingy way. Recall that in 2000, the
Morrison
Court in fact adopted a stingy stance and rejected the claim that Congress has plenary power to pass any and all laws genuinely aimed at promoting women’s full civil and political equality.

The decisive point, then, is a deeper one implicating unwritten constitutional first principles that, alas, were not presented to the
Morrison
Court, and that the Court therefore failed even to see, much less ponder. Whenever the Constitution is read to sharply limit the power of today’s Congress to protect women’s rights, an ambiguous and less democratic constitutional text (from whose original enactment and early amendment women were excluded—wrongly, in retrospect) ends up trumping a clear and more democratic statutory text (in whose making women rightly enjoy political equality). Such a result undermines the popular-sovereignty foundation of the Constitution—its basic claim to legitimacy. The written text depends on the unwritten principle of popular sovereignty and must be construed in light of that principle even though the text does not quite say so in any one explicit clause.

THE NINETEENTH AMENDMENT
is not the only part of the written Constitution that means more than meets the eye. Before examining several other implications of this transformative amendment, let’s recall some basic truths about earlier transformative constitutional clauses that also meant more than they initially seemed to say.

Although nothing in the original Constitution explicitly declared that American citizens would be more free than British subjects to criticize officialdom, this truth was a logical implication and entailment of American popular sovereignty—a principle that underlay the entire document, beginning with its opening three words (to say nothing of its actual enactment). Not everyone at the Founding initially understood the logical implications of the new American system. This widespread failure of understanding helps to explain why so many early Congressmen voted for the Sedition Act of 1798. People who live through a revolution do not always immediately appreciate just what they have wrought.

A similar dynamic of unintended entailments unfolded during America’s second great revolution, more commonly known as Reconstruction. Some Reconstructionists at first believed that the Thirteenth Amendment would suffice to repair the constitutional damage caused by slavery and secession. But once blacks became free, republicanism obliged further reforms. How could any ex-gray state be a true republic if a great mass of the state’s
free men
were excluded from the franchise? On further reflection, Americans came to see that freedom without the franchise was unstable—at least if the nation was to stand by the constitutional principle that each state be an honest-to-goodness republic. Excluding slaves from voting in antebellum America had been one thing; for purposes of republican self-government, slaves were no more part of the polity than were aliens. But excluding free men was something very different—and excluding large numbers of free men was, on second thought, the very definition of unrepublicanism. Thus, Reconstruction Republicans ended up going further than many had initially intended.

What was true of America’s first two great democratic revolutions was equally true of its third, the doubling of suffrage accomplished in the early
twentieth century. Here, too, not all the implications and entailments were at first fully understood even by the revolutionaries themselves.
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FOR EXAMPLE,
most suffragists probably gave little or no thought to how the Nineteenth Amendment’s words should be squared with the apportionment rules laid down by section 2 of the Fourteenth Amendment, rules that had never been enforced by Congress or the courts prior to 1920. Yet simple logic dictated that the word “male” in section 2—the Constitution’s first and only use of this word—would need to be modified after the Suffrage Revolution. Otherwise, section 2 itself would violate the central command of the Woman Suffrage Amendment, namely, that no law could henceforth treat males and females differently in the domain of voting rights.
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Exactly how far did this domain extend? For example, did voting rights entail the right to serve on juries? On this issue, too, the Suffrage Revolution implied reforms that not all suffragists may have fully understood during the revolution itself.

The Supreme Court did not recognize a right of women to serve on juries equally with men until 1975—and when the Court finally did recognize this right, in
Taylor v. Louisiana
, the Woman Suffrage Amendment went wholly unmentioned. Instead, the Court derived a right of women to serve equally on juries from the Fourteenth Amendment’s equal-protection clause. As a matter of constitutional text and original understandings, this judicial reasoning left much to be desired. The equal-protection clause was written to be, and in the 1860s was universally understood to be, categorically inapplicable to voting rights. Nothing in this clause, which applied to all persons, including aliens, operated to enfranchise aliens—or blacks, or women for that matter. (In the 1875 case of
Minor v. Happersett
, a unanimous Supreme Court made mincemeat of the plaintiff’s claim that the Fourteenth Amendment enfranchised women.) But if the Fourteenth Amendment gave women no right to vote outside the jury box, then how exactly did this amendment give women a right to vote inside the jury box? Conversely, if the Fourteenth Amendment equal-protection clause somehow had in fact enfranchised women, what exactly was all the fuss about in the 1910s over that Nineteenth Amendment thingy?
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