Suffrage—Sex

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

Amendment XIX

Contrary to popular belief, the United States Constitution of 1787 is a gender-neutral document. Throughout the original text, the Framers refer to "persons"—as opposed to "male persons"—and use the pronoun "he" only in the generic sense. The word "male" did not even appear in the Constitution until the Fourteenth Amendment was ratified in 1868.

Nothing in the original Constitution bars women from voting. Instead, the Framers left the matter of determining who was eligible to participate in the election of House Members and presidential electors almost entirely to the discretion of the states. Article I, Section 2, minimally requires that each state's congressional electors "shall have the qualifications requisite for electors of the most numerous branch of the state legislature," and Article II, Section 1, simply directs each state legislature to appoint its presidential electors in whatever manner it chooses. Although it is true that almost every state opted to restrict the vote to men, New Jersey did not. Accordingly, between the late 1780s and 1807, when that state's legislature restricted the vote to men, many women participated in federal elections. Under the Constitution, in short, no change was needed to enable women to vote. This fact was ultimately reflected in the different strategies used by the advocates of woman suffrage to remove sexual qualifications for voting.

Although scholars typically trace the origins of the organized woman's rights movement generally, and the drive for woman suffrage particularly, to a famous 1848 gathering in Seneca Falls, New York, the woman suffrage movement began to affect policy only during Reconstruction. In this period, the advocates of woman suffrage began pursuing three main strategies. The first was a judicial strategy involving the Fourteenth Amendment. From the standpoint of the woman suffrage movement, the Fourteenth Amendment represented both a setback and an opportunity. It was a setback insofar as its second section introduced the word "male" into the Constitution and did so in a clause penalizing any state that abridged the right of its "male inhabitants" to vote in state or federal elections for reasons other than crime or rebellion. In so doing, woman suffrage advocates worried, the second section lent credibility to the idea that the Constitution restricted the right to vote to men. Nevertheless, they also viewed the amendment as an opportunity, because they believed the first section of the amendment contradicted the implication of the second. When the Citizenship Clause was read in combination with the Privileges or Immunities Clause, they argued, the Fourteenth Amendment barred states from denying a woman's right to vote in federal elections. In its 1874 decision of Minor v. Happersett, however, the Supreme Court unequivocally disagreed, holding that voting was not one of the privileges and immunities of citizens of the United States.

At the same time, various elements of the woman suffrage movement began pursuing other strategies. Consistent with the Framers' arrangements in Articles I and II, the first such strategy involved persuading individual states and territories to eliminate sexual qualifications for voting. In 1869, the Wyoming territory became the first territorial government to do so; upon obtaining statehood in 1890, Wyoming became the first state since New Jersey to allow women to participate in federal elections on an equal basis with men. Although success was often slow in coming, by the time the Nineteenth Amendment was ratified in 1920, thirty states and one territory already permitted women to vote in at least some aspect in the selection of Members of the House (and by then the Senate) or presidential electors.

The other strategy begun in this period involved amending the federal Constitution in a way that would render such state action unnecessary. More precisely, the advocates of woman suffrage sought to reduce the power conferred upon the states in Article I, Section 2; Article II, Section 1; and eventually in the Seventeenth Amendment (which was ratified in 1913)—as well as their own constitutions—by explicitly barring the states from making sex a qualification for voting in federal and state elections. The first such amendment was introduced in Congress in 1869. In 1878, California Senator Aaron A. Sargent introduced the proposal that would, without any change in wording, be approved by Congress in 1919 and ratified by three-fourths of the states in 1920. Sargent's proposal simply repeated the language of the Fifteenth Amendment save for one change: whereas the Fifteenth Amendment forbids both the U.S. and state governments from denying or abridging their citizens' right to vote "on account of race, color, or previous condition of servitude," the Nineteenth forbids the same "on account of sex."

Unlike so many other clauses of the Constitution—including the Fifteenth Amendment itself—the Nineteenth Amendment has generated a remarkably small body of case law. In the first decade or so following ratification, a relatively small number of state courts implemented its restriction on the power of the states by striking down constitutional or statutory provisions that restricted the vote to men, made it more difficult for women to qualify than men, or otherwise treated male and female ballots differently. The amendment has generated even fewer federal cases. Although the Court has obliquely commented on the meaning of the amendment in various cases, it has confronted this question squarely on only one occasion. In Breedlove v. Suttles (1937), a Georgia law exempted payment of a one-dollar poll tax for unregistered female voters, but required male voters to pay the tax before registering to vote. In its decision, the Court stated that the amendment's restriction on the power of the federal and state governments to deny or abridge their citizens' right to vote "on account of sex" applied to men and women equally, and superseded all federal or state measures to the contrary. The Court concluded, however, that the amendment was not designed to restrict the state's ability to tax.

Tiffany Jones Miller
Associate Professor of Politics
Department of Politics
University of Dallas