Revolution Too Soon: Woman Suffragists and the Living Constitution, A

A REVOLUTION TOO SOON: WOMAN SUFFRAGISTS AND THE "LIVING CONSTITUTION" ADAM WINKLER* From 1869 to 1875, activists associatedwith the National Woman Suffrage Associa- tion, including Susan B. Anthony and Elizabeth Cady Stanton, argued that the United States Constitution guaranteed women's right to vote. Adam Winkler argues that this movement-which the suffragists termed the "New Departure"-- rested on an innovative theory of constitutional interpretationthat would become the dominant mode of constitutionalconstruction in the twentieth century. Now recognizable as "living constitutionalism," the suffragists' approach to constitutional interpretation was harshly critical of originalism-the dominant mode of nineteenth-century interpretation-andproposed to construe textual language to keep up with changingsocietal needs. This Article analyzes the intellectual currents that made plausiblethe suffragists' embrace of an evolutionaryinterpretive methodology, traces the development of the suffragists' approach as they fought for the franchise in Congress and in the courts, and reveals how radicalsuffragists encoun- tered the obstacles of originalism at every turn. Correcting the error of constitutional historians who assert that living constitutionalism first emerged in the Progressive Era, this Article stakes a claim for recognizing woman suffragists as important innovators at the forefront of modern constitutional thought. Introduction .................................................... 1457 I. Originalism and the Intellectual Currents Underlying Static Constitutionalism ................................. 1460 A. Originalism and the Turn to Evolutionary Constitutionalism in Historical Scholarship ......... 1460 B. The Institutional and Cultural Context of the Suffragists' Constitutional Method .................. 1466 II. The National Woman Suffrage Association and the Development of Suffragist Living Constitutionalism ....1473 A. A Minor Suggestion ................................ 1473 * Lecturer in Law, University of Southern California Law School; John M. Olin Fel- low, U.S.C. Center in Law, Economics, and Organization. J.D., 1993, New York Univer- sity; M.A., 1998, Ph.D. candidate (political science), University of California Los Angeles. Associate Editor, Encyclopedia of the American Constitution (2d edition). For thoughts, suggestions, and encouragement, I owe many thanks to Mark Brandon, Michael Dorf, Michael Kent Curtis, Ellen Carol DuBois, Tony Freyer, Barry Friedman, Howard Gillman, Ken Karst, Richard Kay, Linda Kerber, Earl Maltz, Martha Minow, Karen Orren, Daniel Ortiz, Rick Pildes, Carole Pateman, H. Jefferson Powell, Allison Sneider, Clyde Spilenger, Keith Whittington, and Beth Wilson. Special gratitude, as always, to Melissa Bomes. Drafts of this Article were presented, and helpful comments received, at the American Society for Legal History annual conference and at a workshop of the U.S.C. Center in Law, History, and Culture. 1456 Imaged with the Permission of N.Y.U. Law Review November 2001] A REVOLUTION TOO SOON B. A Change in Direction ............................. 1491 C. The Suffragists' Counterattack ...................... 1498 D. United States v. Susan B. Anthony .................. 1506 E. The Return of Virginia Minor-and Her Retreat... 1514 Conclusion ..................................................... 1518 INTRODUCTION Around the turn of the twentieth century, constitutional argument shifted away from the traditional mode of originalism-in which constitutional disputes are settled by reference to the intent of the Framers-to an evolving, progressive "living constitutionalism"-in which constitutional provisions are unmoored from their originalist grounding and interpreted to meet present societal needs.1 Legal historians credit Progressive Era thinkers such as Oliver Wendell Holmes Jr., Christopher Tiedeman, Louis D. Brandeis, and Woodrow Wilson for making the "earliest efforts" to adopt a changing, evolving Consiti- tution.2 Overlooked in these accounts is an earlier sustained effort to promote adoption of an evolutionary constitutional interpretive methodology. In the early 1870s a cadre of woman suffragists, including Elizabeth Cady Stanton, Susan B. Anthony, and other members of the National Woman Suffrage Association (NWSA) put forward a version of living constitutionalism when they mounted legal challenges to their continued disenfranchisement following the ratification of the Reconstruction Amendments to the U.S. Constitution. This Article argues that these woman suffragists, though unsuc- cessful in achieving their goal of enfranchisement through constitutional interpretation, used living constitutionalism long before the Progressive Era and helped to shape the evolutionary constitutional 1 Originalism and riving constitutionalism are certainly not the exclusive modes of constitutional interpretation. Among the other popular ways of reading the Constitution are textualism, structuralism, and natural rights arguments. See infra notes 19-21 and accom- panying text. According to the standard historical accounts of American constitutional development, however, the most important change in interpretive methodology vas the shift from the nineteenth century's predominant emphasis on originalism to the twentieth century's use of living constitutionalism. See, e.g., Howard Gillman, The Collapse of Con- stitutional Originalism and the Rise of the Notion of the "Living Constitution" in the Course of American State-Building, 11 Stud. Am. Pol. Dev. 191 (1997) (describing "shift away from originalism" and toward living constitutionalism); Morton J. Horwitz, Transfor- mation of Constitutional Law, in 6 Encyclopedia of the American Constitution 2712-14 (Leonard XV. Levy et al. eds., 2d ed. 2000) (same). 2 See, e.g., Paul NV. Kahn, Legitimacy and History- Self-Government in American Constitutional Theory 77-89 (1992) (discussing Holmes, Tiedeman, and Thomas Cooley); Gillman, supra note 1, at 215-20 (discussing Vison, Tiedeman, and Holmes); Morton J. Horwitz, The Supreme Court, 1992 Term-Foreword: The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 Harv. L Rev. 30, 51-54 (discussing Wilson and Brandeis). Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 76:1456 method that became dominant in the twentieth century. This Article analyzes in detail how suffragists argued that the text of the Constitu- tion should be construed to keep up with the cultural and legal changes in the status of women,3 and shows how they mixed this evolutionary method with a forceful critique of originalism. 4 This Article shows how the suffragists first attempted to persuade Congress to pass legislation protecting woman suffrage,5 but finding no success there, turned to the courts.6 It also analyzes how suffragists used litigation to transform their evolutionary approach to the Constitution into a model of judicial reasoning.7 The pattern-critiquing originalism, in- sisting that the interpretation of the constitutional text evolve to meet changed conditions in society, and pursuing reform through litigation strategies that made evolution central to judicial reasoning-has come to define modern living constitutionalism. Recognizing the constitutional innovations of the "New Depar- ture"-the name given by the suffragists to their novel interpretive move 8-is important in order to correct the deficiencies in standard accounts of both constitutional development and the New Departure. Historians, lawyers, and political scientists have yet to recognize the New Departure activists as early players in one of the most significant transformations in American judicial practice-the move from originalism to living constitutionalism. This Article suggests the in- completeness of timelines tracing the emergence of living constitutionalism only back to the Progressive Era. More than twenty-five years earlier, suffragists condemned originalism and adopted living constitutionalism as the core strategy of a nationwide, high-profile reform effort that they fought in both houses of Congress, the Supreme Court, and numerous federal trial courts.9 Scholars who have focused on the New Departure have not no- ticed the revolutionary promise of its constitutional argument. This Article counters the suggestion that the New Departure's arguments were "radical... only because... women dared to ask for the basic individual right that white males already possessed."10 The suffragists' claims were more than just requests to extend men's rights to women; they were a radically different way of understanding constitutional in- 3 Infra Part II.A. 4 Infra Part II.C. 5 Infra Part II.A. 6 Infra Part II.B. 7 Id. 8 Ellen Carol DuBois, Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820-1878, 74 J. Am. Hist. 836, 853 (1987). 9 See infra Part II. 10 Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women 174 (1991). Imaged with the Permission of N.Y.U. Law Review November 2001] A REVOLUTION TOO SOON terpretation, opposed to reasoning by original intent and seeking to update the principles of the text to societal and legal changes in the status of women. The New Departure was even more innovative than scholars of the women's movement have recognized. Another significant reason for focusing on the constitutional argument undergirding the New Departure is that it suggests an unrec- ognized measure of women's influence and creativity

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