Tuesday, November 6, 2018
Excerpt from my book: Tracy A. Thomas, chp. 2, "What Do You Women Want?", Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016)
Nineteenth-century women's rights leader Elizabeth Cady Stanton on the economic, political, and constitutional import of the vote and property ownership for women.
Property as Citizenship
This connection between taxation, property, and political rights was part of Stanton’s initial philosophy articulated in the Declaration of Sentiments. In the Declaration, she identified the abuse of power from taxation of single women and widows without a voice in governance. “If single and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profitable to it.” The Declaration made a broad demand for women’s status as “citizens” and full members of the community with all civil, economic, and political rights.[i] For citizens, unlike the more general category of “persons,” have power and participatory rights in the governance through political action. She challenged the deprivation of “the first right of a citizen, the elective franchise,” and demanded women’s “immediate admission to all the rights and privileges which belong to them as citizens.” These rights included “the right to protect one’s person and property; to govern one’s self; to have a voice in the law and rulers; to enjoy all the advantages and opportunities of life of which one is capable. This is citizenship in a republic. The natural right to life, liberty, and happiness.”[ii]
“The Declaration of Sentiments ushered in a new conception of citizenship, for its crucial themes included natural and inalienable rights, suffrage and national citizenship, and legal protection derived from right of contract.”[iii] Stanton utilized liberal political theories of natural, individual rights, arguing that women, the same as men, were entitled to participation in the public sphere in accordance with rights of self-government.[iv] She also appealed to republican political theories of the virtuous citizen working for the collective common good, arguing that women had abilities, as property holders, taxpayers, and morally superior people meriting citizenship.[v]
Women’s point of entry into this citizen class, though, was not clear. Citizens were defined by their privileges and obligations of voting, jury service, and military service, all of which excluded women.[vi] Women’s obligations of citizenship had instead been defined in terms of their family. “From the era of the American Revolution until deep into the present, the substitution of married women’s obligations to their husbands and families for their obligations to the state has been a central element in the way Americans have thought about the relation of all women, including unmarried women, to state power.”[vii] Republican values of political citizenship after the Revolutionary War created the cultural ideology of Republican motherhood, which held that women contributed their civic duty through their obligation to their families and in educating and raising citizen sons.[viii] This ideology valued women’s caregiving, even while it confined women to the private family sphere. Stanton attacked this notion of a “woman-citizen” as something supernatural, a “monster, half-human, half-beast,” derived from man’s false creation of the image of womanhood sentimentally worshipping her superior virtue yet fearing her emotional and religious nature in the public sphere.[ix] Understanding the reciprocal nature of citizenship, Stanton argued that women were ready to assume the duties of citizenship, like jury duty and liability for debts, if only granted the benefits.[x]
Stanton tried to break into this closed circle of citizenship by first latching onto the traditional American basis for granting citizenship rights, property holding.[xi] “In the eighteenth century, the liberal individual (male) was defined by owning property, voting, participating in the public sphere.”[xii] Many states inherited the traditional English system requiring property ownership for voting.[xiii] Property qualifications were viewed as properly extending suffrage to those “seen as having a vested stake in society” and excluding those “too poor to have a will of their own” and too easily coerced by those who controlled their livelihoods.[xiv] These property qualifications allowed women, briefly, in New Jersey to vote between 1776 and 1807, because, as the Supreme Court held, for single, propertied women, “the law supposes them to have wills of their own.”[xv]
Relying on this historical precedent, Stanton argued that women’s ownership of property entitled women to the vote, and thus citizenship.[xvi] “A citizen, says Webster, in the United States is a person native or naturalized who has the privilege of exercising the elective franchise in the qualifications which enable him to vote for senators and to purchase, hold real estate.”[xvii] She endorsed the property connection, arguing “There is no principle of equity more universally admitted than that the owner of property shall have a word to say in its use.”[xviii] Quoting Benjamin Franklin, she said: “If a man’s property can be taken from him without his consent, he is a slave.”[xix]
Stanton also tried to break into citizenship by linking suffrage to taxation.[xx] Echoing the American sentiment from the Revolutionary War, she decried the “tyranny of taxation without representation.” Stanton later developed this theme in an 1873 speech delivered to the Rochester Women Taxpayers’ Association and a later draft lecture, “Taxation,” focusing on the basic idea that “Webster’s defines ‘tax’ as a “sum of money assessed on the person or property of a citizen.” [xxi] She emphasized the citizenship link: “Thus in taxing women the state pays them the compliment of recognizing in them the dignity of citizenship.”
On what principles of justice are there large numbers of men allowed to vote without paying taxes, while the women are compelled to pay taxes without voting? Whatever property the state protects should I think contribute its proportion to the state’s support. Hence as loyal law-abiding citizens we are willing to pay our share for the support of the state. But as our taxes are increased in proportion as many other classes and many kinds of property are exempt. We have a reason to complain of this injustice and to insist that women as large property holders throughout the United States should have a vote on this question.[xxii]
Stanton’s taxation arguments had popular appeal and were easily adopted by women’s rights advocates.[xxiii] Several famous protests by women refusing to pay their taxes were “frequently and widely recounted” by the women’s movement.[xxiv] These protestors included eighty-year old sisters, Julia and Abby Smith, who had their cows seized and sold at auction to pay the taxes, and abolitionist Abby Kelley Foster and her husband Stephen Foster who refused to pay taxes until Abby, and all women, could vote.[xxv] “Popular narratives, valuing as they did the Boston Tea Party, continued to convey that civic authority was related to democratic control of taxation.”[xxvi] These connections between property and taxation voting were partially successful in obtaining women’s right to vote in school or municipal elections, though they enfranchised only relatively well-to-do women.[xxvii] But the arguments failed to achieve Stanton’s greater purpose of establishing women’s full status of citizenship.
After the Civil War, the resulting constitutionalism of the Civil Rights Amendments provided alternative legal arguments to add to these political rationales for voting. Stanton returned to one of the demands from the Declaration of Sentiments insisting that women be given “immediate admission to all the rights and privileges which belong to them as citizens of the United States.”[xxviii] The Fourteenth Amendment, enacted in 1868, seemed to grant exactly this by guaranteeing that “all persons” are “citizens” against whom states cannot abridge “the privileges and immunities of citizenship.” In 1869, Missouri reformer Virginia Minor and her attorney husband, Francis Minor, devised an argument for woman’s suffrage based on the plain language of the newly-enacted privileges and immunities clause.[xxix] Stanton quickly adopted Minor’s argument, appreciating that the Fourteenth Amendment provided the textual hook women needed. She called it the “title deed” to woman suffrage for “without or without intent, a law stands as it is written.”[xxx] This textual argument became the foundation of Stanton’s NWSA legislative and judicial campaigns of “the New Departure” as hundreds of women, including Susan B. Anthony, civilly disobeyed the law by voting under the claimed authority of the privileges and immunities clause.[xxxi]
Stanton however extended the legal argument beyond mere textualism. She “proposed a dynamic model of constitutional interpretation designed to keep the principles of the text current with present social conditions and needs.” Adam Winkler has argued that Stanton theorized in what was then a “radically different way of understanding constitutional interpretation,” by arguing that the constitution should develop in a dynamic way to meet the ever-changing understanding of society. This idea of a changing, dynamic “living constitution” would become “the dominant mode of constitutional construction in the twentieth century.” Stanton’s use of the method not only foreshadowed modern critiques of originalism, but according to Winkler, secured her place as “its most important innovator.”[xxxii] Stanton described the fundamental law as “the organic law of the land” that should be “so framed and construed” to emphasize the progressive development of individual rights.[xxxiii] She argued in her speech to the Joint Committees of the District of Columbia, considering women’s suffrage in D.C., that “As history shows . . . each step in civilization has been a steady approximation to our democratic theory, securing larger liberties to the people.”[xxxiv] She gave the example of men’s suffrage, which had evolved from rights only for propertied white men, then expanded to universal white male suffrage including laborers, and then extended to black men. In another example, she cited the legal developments of the married women’s property acts that evolved from a new understanding of women’s civil rights departing from coverture. “Woman has not been standing still, but has been gradually advancing to an equal place with the man by her side.”[xxxv]
In January 1872, appearing before the Senate Judiciary Committee in support of woman’s suffrage, Stanton “added a stinging condemnation of the dominant method of constitutional interpretation, originalism, which was proving to be the primary stumbling block for suffrage reform.” “Though the world has been steadily advancing in political science, and step by step in recognizing the rights of new classes, yet we stand to-day talking of precedents, authorities, laws, and constitutions, as if each generation were not better able to judge of its wants than the one that preceded it. If we are to be governed in all things by the men of the eighteenth century, and the twentieth by the nineteenth, and so on, the world will be always governed by dead men.[xxxvi] Stanton argued for an evolutionary understanding of the entire Constitution from 1789 to 1870, arguing that the meaning of the privileges and immunities clause, contained originally in Article IV, had changed.[xxxvii]
Stanton needed to depart from the traditional legal constitutional interpretation of originalism because the framers of the Fourteenth Amendment clearly did not intend to include the right to vote in its guarantees. This legislative intent was recent history and familiar to all, especially Stanton’s congressional audience, many of whom were the framers themselves.[xxxviii] Their primary intent had been to grant civil, legal rights to freed slaves; they explicitly did not include the right to vote, which was envisioned separately as a political compromise in the Fifteenth Amendment granting suffrage to black men.[xxxix] The national citizenship of the Fourteenth Amendment was defined not by the vote, but as the reciprocal obligation of allegiance by the individual to the nation in exchange for protection by the state.[xl]
The U.S. Supreme Court agreed, rejecting Stanton and Minor’s claim of a constitutional right to vote. In Minor v. Happersett, the Court easily recognized women as citizens.[xli] As John Bingham, the primary drafter of the Fourteenth Amendment had explained in a Senate Report several years before, there was “no longer any reason to doubt that all persons” born or naturalized in the United States were citizens as declared by the amendment.[xlii] But that was a conclusion without significance, for the catch was that citizens did not automatically have the right to vote. That had been the feminists’ assumption: that voting was the distinguishing privilege of a citizen, and why they focused their goal on establishing women as full citizens.[xliii] Stanton attacked Bingham’s report and its implication that “women are not ‘citizens,’ but ‘members’ of the nation!—mere appendages to the State, the Church and the home.” She snarked, “If this, indeed, be woman’s normal condition, may God grant us a wiser, nobler type of manhood as our prefix than John Bingham, of Ohio.”[xliv]
The Court Supreme Court in Minor agreed that voting was not a privilege of national citizenship protected by the Fourteenth Amendment, but was instead a political right discretionarily granted by the state.[xlv] The Court defined “privileges and immunities” by reference to its antecedent in Article IV of the Constitution and the intent of the founders which did not include the vote as a privilege of citizenship. The republicanism of the founders believed in virtual representation by which only an elite few property owners were qualified to govern with political rights of voting. The Court applied the traditional originalist interpretation of the intent of the framers, both constitutional and amendment, refusing to engage Stanton’s dynamic interpretation.
Undeterred, Stanton continued to press for what she thought was self-evident, even as she simultaneously pursued alternative political strategies like a new Sixteenth Amendment for women’s suffrage. “By every principle of fair interpretation we need no amendment, no new definitions of the terms ‘people,’ ‘persons,’ ‘citizens,’ no additional power conferred on Congress” to enable Congress to grant women suffrage.[xlvi] She continued to believe that the text of the Fourteenth Amendment, properly interpreted, should grant women the right to vote. Her argument, however, “was still too radical for its time.”[xlvii]
[i] Declaration, 3; McClain and Grossman, 1, 8.
[ii] ECS, “Women Do Not Wish to Vote,” National Bulletin, Apr. 1894.
[iii] Isenberg, 32.
[iv] ECS to SBA, July 4, 1858; ECS, “The Power of the Statute Legislature,” Woman’s Tribune, Mar. 1, 1885.
[v] ECS, “A Household of Women,” Woman’s Tribune, Oct. 6, 1900; Mrs. Stanton’s Suffrage Convention Letter, Washington Chronicle¸ Jan. 28, 1883; Davis, 2, 19-20.
[vi] Kerber, Ladies, 94; Isenberg, 13.
[vii] Kerber, Ladies, 11.
[viii] Kerber, Republic, 283; Norton, Liberty’s, 247-49.
[ix] Isenberg, 198; ECS, 1860 NY Address; ECS, “The Degradation of Woman,” Rev., Jan. 15, 1868; Miller, 173.
[x] ECS, “Editorial Correspondence,” Rev., Mar. 17, 1870; “Rev. Thompson.”
[xi] ECS, Bible and the Church Degrade Woman.
[xii] Clark, “Self-Ownership,” 905.
[xiii] Isenberg, 26.
[xiv] Kerber, Ladies, 94.
[xv] Isenberg, 24
[xvi] ECS, Speech to the Women Taxpayers’ Association in Rochester, New York, Oct. 31, 1873.
[xvii] ECS, Taxation Lecture, 15-16 (1877).
[xviii] Taxation Lecture, 23h.
[xx] Declaration; Bible and Church, 1-12.
[xxi] Taxpayers’ Speech.
[xxii] Taxation Lecture, 23e-g.
[xxiii] Rochester Proceedings, 15.
[xxiv] Kerber, Ladies, 100-04; Jones, 265, 269.
[xxv] Jones, 269.
[xxvi] Kerber, Ladies, 113.
[xxvii] Jones, 272-73.
[xxviii] Declaration, 4.
[xxix] “Francis Minor,” Rev., Oct. 21, 1869; “Mrs. Francis Minor,” Rev., Oct. 28, 1869; “Fundamental Rights,” Rev., Jan. 20, 1870.
[xxx] Argument of Mrs. Stanton Before the Judiciary Committee, reprinted as “Woman Suffrage,” Daily Morning Chronicle, Jan. 13, 1872.
[xxxi] Winkler, 1456, 1475-77, 1483; DuBois, “Taking the Law,” 23-34.
[xxxii] Winkler, 1456-59, 1468, 1480, 1515.
[xxxiii] ECS, Speech to Joint Committees of D.C., in “The Women in Washington,” Rev., Jan. 27, 1870.
[xxxiv] Id.; HWS, v.II, 411-16.
[xxxv] HWS, v.II, 510.
[xxxvi] “Woman Suffrage; HWS, v.II, 510.
[xxxvii] Winkler, 1482-83.
[xxxviii] Id. 1472-74.
[xxxix] Jack M. Balkin, “How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure,” 39 Suffolk University Law Review 27, 46 (2005); John Bingham, H.R. Rep. No. 41-22, Report, Committee on the Judiciary, 41st Cong., House of Rep., Jan. 30, 1871.
[xl] Bingham Report.
[xli] 88 U.S. 162 (1875).
[xlii] Bingham Report.
[xliii] “Rev. Thompson”; HWS, v.I, 412; see 41st Cong., 3d Session, H.R. Rep. 22, Jan. 30, 1871, by Reps. Loughridge and Butler (pt. 2, minority) (Judiciary Committee) (Minority Report, 9); HWS, v. II, 594.
[xliv] ECS, Letter to Editor, Woodhull and Claflin’s Weekly, Mar. 11, 1871.
[xlv] 88 U.S. 162 (1875); Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872).
[xlvi] ECS, “Statement of Mrs. Elizabeth Cady Stanton,” Woman Suffrage, to the Senate Select Committee on Woman Suffrage, Apr. 2, 1888.
[xlvii] Winkler, 1465.