America's Unwritten Constitution: The Precedents and Principles We Live By (48 page)

Despite all this,
Taylor
clearly reached the right result. It simply used
the wrong clause, as did so many other Warren Court and post–Warren Court cases involving voting rights and/or the Fourteenth Amendment. Once the Warren Court in the early 1960s decided to press the equal-protection clause into service as a voting-rights provision in cases such as
Harper v. Virginia
and
Kramer v. Union Free School District
, the next logical step was to treat jury service as akin to voting. Those who voted for ordinary lawmakers should as a rule also be allowed to serve—or to vote, if you will—on ordinary juries. This logic made perfect sense; but the root right of women to vote (for lawmakers or on juries) came not from the Fourteenth Amendment but from the Nineteenth.

Put another way, women’s equal right to vote on juries was a simple implication of their equal right to vote generally. Even if not all suffragists and not all their opponents understood this entailment in the 1910s, many surely did;
^*
and any other way of thinking about the question risked making a hash of the Constitution as a whole. The Nineteenth Amendment’s text tracked the Fifteenth Amendment’s text virtually verbatim, simply substituting “sex” for “race, color, or previous condition of servitude.” Ever since the 1870s, landmark congressional legislation had made clear that the antidiscrimination rules applicable to ordinary voting for legislators (and executives and state judges) also applied to jury service. If this was true of the Fifteenth Amendment, surely it also applied to the Nineteenth, whether or not every amendment supporter or opponent understood this implication.
⁹

The right to vote was generally conceptualized not merely as a right to vote for legislators but also as a right to vote within a legislature. If blacks or women could not as such be disfranchised, neither could they be excluded from the legislature on account of their race or sex. Put differently, given that the Fifteenth Amendment and the Nineteenth Amendment clearly applied to initiatives, referendums, bond measures, and other occasions when ordinary voters engaged in direct lawmaking, surely these amendments likewise applied when lawmaking and voting occurred in representative assemblies.

But note what this means. The Nineteenth Amendment vested women with a right to run for president—for presidents are surely part of the legislative process—even though the original Constitution repeatedly used the words “he” and “his” to refer to the federal chief executive. Though the Suffrage Amendment did not expressly modify the basic rules of the Executive Article and the Twelfth Amendment, it implicitly did so. Before 1920, states could constitutionally keep women from: (1) voting for presidential electors, (2) serving as presidential electors, and (3) appearing on the ballot as presidential candidates. After 1920, states lost all three of these constitutional powers—and did so even though the Nineteenth Amendment’s text might at first be thought to address only issue (1). Here, too, the amendment required a deeper restructuring of previous practices than might appear from a quick glance at the amendment’s text.

THOUGH THE NINETEENTH AMENDMENT
focused centrally on women’s political rights and duties, it also had surprising ramifications for women’s personal lives.

For example, if a married woman had an equal right to vote—if she was no longer merely represented politically by her husband—then a wife could choose to vote differently than her husband. Not only could she vote for a different candidate, but presumably she could also vote in a different jurisdiction. Politically, she was now her own man, so to speak. Thus, the Nineteenth Amendment effected an important change in traditional marriage law, which had insisted that husband and wife share a common domicile as part of the legal unity of marriage.
¹⁰

Subtle changes within private domains such as marriage, wrought by an amendment facially concerned with public matters such as voting, have even played out within America’s first families. Just as the Twelfth, Twenty-second, and Twenty-fifth Amendments reshaped the basic role of American vice presidents, so the Nineteenth Amendment worked changes in the role of the other traditional presidential running “mate”—the first lady.
¹¹

The notion that a president’s spouse might have political ideas of her own and might function as a powerful political partner to her husband would not have shocked leading men in the Founding generation, familiar
as they were with the likes of Abigail Adams (the savvy wife and mother of Presidents John and John Quincy Adams, respectively) and Mercy Otis Warren (a respected political historian married to a prominent Massachusetts politician). But in a world where women could neither vote nor hold office, political spouses often felt obliged to hide their lights under bushels and to act as traditional wives in public. Just as George Washington defined the archetypical presidential role, and Thomas Jefferson redefined this role in a world of national parties, so Martha Washington and Dolley Madison (who acted as a hostess first for Jefferson, who was a widower, and then for her husband, James) solidified the role of the first lady.

Most first ladies followed in Martha and Dolley’s footsteps, supporting their men at social events and perhaps exerting political influence in private, but not asserting their intellectual independence by holding forth on the great issues of the day in newspapers or other political forums. This mold was shattered by Eleanor Roosevelt—a high-profile and highly opinionated political force in her own right, resembling Alexander Hamilton more than Martha Washington. Hillary Clinton continued in this spirit and took the new model even further, becoming a U.S. senator, presidential candidate, and cabinet officer after her tenure as first lady.

Doubtless many causes have produced this evolution in the role of first lady, but one that should not be overlooked is the Nineteenth Amendment. Just as ordinary women were freed by the amendment to vote contrary to their husbands, so women within America’s first families faced a new menu of options. Had Abigail Adams spoken out in public venues, she would have offended some male traditionalists and probably damaged her husband’s political prospects. Seven score years later, Eleanor Roosevelt surely did offend some traditional men, but she also electrified many women,
and women could now vote
. According to a Gallup poll, roughly 57 percent of women supported Eleanor’s husband for reelection in 1936—a lower percentage than the male support for FDR that year, but still a huge vote of confidence, especially compared to 1928, when women had overwhelmingly voted Republican.
¹²

In effect, Franklin and Eleanor offered themselves up as a canny post–Nineteenth Amendment two-for-the-price-of-one political pair—a kind of balanced ticket in which Franklin wooed moderates while Eleanor
courted crusaders. In the very first presidential election ever held in which women could vote nationwide—in 1920—Franklin had been the Democrat’s vice-presidential candidate. FDR was also the first president to have a female cabinet officer (Labor Secretary Frances Perkins) and the first to name a woman to the federal appellate bench (Florence Ellinwood Allen, who in 1922 had become the first woman ever elected to a state supreme court). In these Roosevelt appointments we see additional ripple effects of woman suffrage.

The Clintons took the Roosevelts’ strategy to new heights, with implications for presidential baton-passing that are still emerging. Alexander Hamilton, Thomas Jefferson, and John Adams paid close attention to each other as potential rivals—but none of them worried about Martha Washington as a potential successor to her husband once he decided to exit the political stage. By contrast, Vice President Al Gore could not afford to overlook Hillary Clinton as President Clinton’s other political “mate” and possible political successor. Thanks to the rise of women voters and women politicians—that is, thanks to the Nineteenth Amendment—dramatic new, albeit unwritten, political possibilities dwell in the old position of first lady.

THE TWO MOST FAMOUS REPRODUCTIVE RIGHTS CASES
of the twentieth century—
Griswold v. Connecticut
and
Roe v. Wade
, championing unwritten rights of contraception and abortion, respectively—can also be seen in a new way if examined through the prism of the Nineteenth Amendment and the Suffrage Revolution more generally.

Both the particular Connecticut anticontraceptive law under review in
Griswold
and the specific Texas antiabortion law challenged in
Roe
were initially adopted in the nineteenth century by all-male legislatures chosen by all-male electorates. (The Texas law was adopted in the 1850s, the Connecticut law in the 1870s.) Of course, the Nineteenth Amendment did not in 1920 wipe clean the entire legal slate by sweeping off the books all previous constitutional and statutory texts. But there was a unique problem, post-1920, whenever a government continued to enforce an old
statute that: (1) was initially enacted without a single woman’s vote, and (2) imposed special burdens on women qua women—burdens that (3) might make it more difficult for women, even after woman suffrage was won, to be fully equal political participants, and therefore (4) might be particularly difficult for women to undo even after they won the vote.

The laws in
Griswold
and
Roe
were precisely of this sort. Both laws were adopted when no woman voted. Both laws imposed special burdens of childbearing on women, and only women, as women. Both laws probably made it harder for women to achieve full equality as legislators, governors, jurors, judges, and so on, because these women were busy being at-home mothers when some of them would have preferred to avoid conception or childbearing, and would have done so if contraception or abortion had been legally available.

Thus, under an entirely plausible vision of America’s unwritten feminist Constitution, judges soon after 1920 could have held that laws such as these were valid only if reenacted by a legislature elected by women voting equally alongside men. As for
these laws
, perhaps judges should have wiped the legal slate clean in 1920, by striking down the old laws and thereby obliging states to put the matter put to a fresh vote.

An antifeminist critic of this plausible approach might say that because women were able to vote in Connecticut and Texas after 1920, the burden was properly on them to repeal these old laws if they believed that such laws discriminated against them. But the Nineteenth Amendment should be read more broadly, even though its literal words do not compel this broader reading. To repeat, this amendment sought to make amends. It sought to end a past practice of exclusion that was viewed as unfair, wrongful, erroneous. To the extent that the Connecticut and Texas laws were sex-specific remnants of that wrongful era—badges of female inequality and disempowerment—and to the extent that these laws arguably created self-entrenching effects making it harder for women to repeal these laws, even after women had formally won the vote, these laws should not have been allowed to continue after 1920. Under a robust vision of the Nineteenth Amendment, judges could have set aside the old contraception law in Connecticut and the old abortion law in Texas, obliging both states to engage in a new conversation involving men and women on a truly equal legal footing.

An opposing, ultra-feminist critic might say that courts immediately after 1920 should have decided the full meaning of women’s equality for themselves, rather than merely remanding the question to the political process in Connecticut and Texas. Such a critic might be aghast at the idea of putting constitutional rights up to a vote. But surely one apt way of respecting women’s equality after the adoption of the Nineteenth Amendment would simply have been for judges to precipitate and then heed broad political conversations about women’s roles in which women would participate as equals. Such conversations had not been possible before woman suffrage. They might not have been possible within the judiciary itself circa 1920. As a venue for a proper conversation with and about women, the political process post-1920 was arguably preferable to a purely judicial process dominated by lawyers, and therefore by men. The world of the 1920s, after all, was a world in which women still did not attend law schools in large numbers, and a proper post-suffrage conversation about women’s rights needed to involve women themselves.

AT THIS POINT IN THE ANALYSIS,
it is worth pondering the similarities and differences between race-equality law and sex-equality law. There are profound but oft-overlooked parallels between the twentieth century’s two most famous reproductive-rights cases and its two most famous race cases,
Brown
and
Bolling
. Recall that the Connecticut contraception law and the Texas abortion law (1) were initially enacted without a single woman’s vote, and (2) imposed special gender-based burdens on women—burdens that (3) likely made it more difficult for women, even after woman suffrage was won, to be fully equal political participants, and therefore (4) were particularly difficult for women to undo even after they won the vote. Similarly, in
Brown
and
Bolling
the Court confronted Jim Crow laws that: (1) were initially enacted without the support of black voters (because blacks were widely disfranchised, often in unremedied violation of the Constitution), and (2) imposed serious race-based burdens on blacks (who were denied the chance to associate on equal terms with more privileged whites)—burdens that (3) likely made it more difficult for blacks to be fully equal political participants both in society at large and inside legislatures, and therefore (4) were particularly difficult for blacks to undo even if they later regained some measure of voting rights.