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Chapter V. Federal Action and State Rights Henry Wade Rogers

Judge of the United States Circuit Court of Appeals, New York City, and Professor in the Yale University School of Law.

I do not propose to discuss the subject of woman suffrage in the abstract. I am content with saying as regards the general question that in a republic which theoretically is founded upon the principle that government derives its just powers from the consent of the governed I think it illogical, unreasonable and an injustice to deny the vote to adult women who are citizens. With that statement I shall address myself to the suggestion of the National American Woman Suffrage Association that Congress should propose to the States an amendment to the Constitution which shall in effect provide that no State shall deny to any person the right to vote on account of sex. And as respects that suggestion. I shall deal with a single phase of the matter. It seems to be supposed in some quarters that if such an amendment were to be adopted it would involve a breach of faith with the dissenting States, or violate some unwritten principle of local self-government, or conflict with the historic doctrine of State Rights.

I have no hesitancy in saying that I have for years believed and still believe that there is a constitutional doctrine of State Rights which cannot be safely or rightfully ignored. Many of the foremost men in both parties share that belief. It must be admitted, however, that this doctrine sometimes has been so perverted, misapplied and carried to such extreme limits as seriously to prejudice many worthy and intelligent citizens against its true merit and value. This fact makes it all the more necessary on the part of those whose would save the doctrine from absolute repudiation to be careful when and how and to what purpose it is invoked.

There has recently been published a book entitled “Woman Suffrage by Constitutional Amendment.” The author of that book, the Hon. Henry St. George Tucker of Virginia, was at one time a member of Congress, and has been president of the American Bar Association. He was invited to deliver a course of five lectures, in 1916, before the School of Law of Yale University on the subject of “Local Self-Government.” In one of the lectures woman suffrage by Federal Amendment was discussed and they theory was advanced that the attempt to bring about the right of suffrage by an amendment to the Constitution of the United States was opposed to the genius of the Constitution and subversive of the principle of local self-government. In his opinion, woman suffrage by Federal Amendment is contrary to the rightful demarcation of the powers of the Federal and State governments under the Constitution of the United States.

I may remark in passing that the title of the book is liable to mislead the public into thinking that Mr. Tucker was invited to Yale to discuss woman suffrage, whereas the fact was that that was only an incident in his discussion of Local Self-Government.

But is woman suffrage by Federal Amendment contrary to the genius of the Constitution and contrary to the rightful demarcation of the powers of the Federal Government?

In considering the question involved it is to be noticed in the first place that a difference exists between the Articles of Confederation and the Constitution. In the Articles of Confederation it was in the Thirteenth Article expressly provided that no alteration should be made in any of the Articles “unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.” This provision was an element of weakness and recognized as such by the men who sat in the Constitutional Convention of 1787. As the Articles constituted a league between independent states it was deemed necessary to make it incapable of alteration except by unanimous consent of the states in order to preserve to each state all of its rights.

When the convention of 1787 met to agree upon a Constitution to submit to the States one of the questions they had to consider was whether it should be made capable of amendment. They agreed that it was the part of wisdom to provide that the States might modify the system of government the Constitution established when in the progress of time to do so seemed desirable. Mr. Madison accordingly proposed what with some modifications became the Fifth Article.

The Congress was given power by that Article to propose amendments by a vote of two-thirds of both Houses and amendments so proposed were to become valid to all intents and purposes as parts of the Constitution when ratified by three-fourths of the several States. This is not the only method by which the Constitution may be amended. For it is provided that the States may themselves propose amendments through a convention called by two-thirds of the States, and it is also provided that proposed amendments may be submitted for ratification to conventions in the several States instead of to the Legislatures of the States if Congress so directs.

When the Constitution of a State is amended care must be taken to see to it that the amendment proposed does not involve a violation of the Constitution of the United States. For a constitution adopted by the people of a State in so far as it violates the Constitution of the United States is void, for exactly the same reason that an Act passed by a State Legislature is void if it is contrary to some provision in the Constitution of the United States. This is so because the Constitution of the United States in the Sixth Article directs that “This Constitution * * shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

But any amendment with a single exception, which is proposed by Congress, no matter what it may be, if it has received the two-thirds vote of both Houses and has been ratified by the Legislatures of three-fourths of the States, or of three-fourths of the conventions in the several States, according as Congress has submitted it in the one way or the other, is valid irrespective of any provision that can be found in any State Constitution or law. The one exception to which reference has been made is that no change can be made which would deprive a State of its right to equal representation in the Senate. As it is, the Senate is composed of two Senators from each state. New York and Nevada, the one with a population of 9,113,614, and the other with a population of 81,875 are entitled to equal representation in that body, and that equality of representation cannot be destroyed by any amendment not assented to by all the States. The reason is that the Constitution expressly declares in the Fifth Article—the one which deals with amendments—“that no State, without its consent, shall be deprived of its equal suffrage in the Senate.” This provision was incorporated into the Constitution at the suggestion of Roger Sherman of Connecticut. Certain other restrictions were imposed which now have become unimportant, but which at the time were of the greatest possible importance. It was provided that no amendment was to be made prior to the year 1808 which should prohibit the States from further importation of slaves, and that no capitation or other direct tax should be laid unless in proportion to the census or enumeration of the inhabitants of the states in which three-fifths only of the slaves were included. So we see that the founders withdrew from the possibilities of amendment the subjects regarding which they were unwilling amendments should be made. The understanding of the States therefore must have been that as respects all subjects not so withdrawn the right of amendment might be exercised whenever the States desired to exercise it. Whenever they do see fit to exercise it they are not breaking faith with each other, or doing anything wrongfully.

The mode of amending the Constitution is in strict accordance with the doctrine of State Rights. The amending power is not to be exercised by the collective people of the United States acting as a majority. It can only be exercised by three-fourths of the States acting as States in their sovereign capacity. If three-fourths of the States desire to amend the instrument then the one-fourth must submit to the will of the three-fourths. There is no principle in the doctrine of State Rights which is violated when the Constitution is amended by the three-fourths, for all the states have agreed that the three-fourths shall possess the power to do so and that the minority will consent to be bound by action so taken. The principle that the minority must be submit to the majority is a principle which the States apply to the government of their local communities and to the people of their several commonwealths. And it is a principle which the States as sovereigns have agreed shall be applied to themselves in their relations to each other and to the Federal Government. In creating the amending power the framers of the Constitution were careful to remove it from the people of the nation and to lodge it in the State sovereignties. That is all that the believers in the doctrine of State Rights asked. They could not wisely ask, and they did not ask, more. They only asked that in so important a matter as the amendment of the fundamental law the minority should not be compelled to submit to a mere majority, but only to three-fourths if the whole.

If it be assumed simply for the purpose of this discussion, that the amendment of the Constitution is not wholly a political question, no one can seriously contend that the amendment the National American Woman Suffrage Association urges violates any principle of law, written or unwritten. Mr. Tucker makes no such claim. His argument, as I understand it, is that woman suffrage by Federal Amendment is a departure from the original thought of the makers of the Constitution; that they left the subject of suffrage along with most other subjects to be regulated by State action and that their decision upon that question was wise and should not be disturbed. The same argument exactly was made against the Thirteenth, Fourteenth and Fifteenth Amendments and without effect. It can be made against any amendment which can be proposed which deprives the States of any power which they now possess.

When the Constitution was adopted it is true it did not confer the right of suffrage upon any class, but left the subject to each state to regulate in its own way. The members of the House of Representatives were to be chosen by the people of the several States and it was simply provided that “the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.” Senators were to be chosen by the State Legislatures. The President an Vice-President were to be chosen by electors, who were to be appointed in each state “in such manner as the Legislature thereof may direct.” These were at the time very wise regulations, for they showed, as James Wilson, a member of the Constitutional Convention, said, the most friendly disposition toward the governments of the several States, and they tended to destroy the seeds of jealousy which might otherwise spring up with regard to the National Government. At that time the framers of the constitution did not deem it wise to limit in any respect the control of the states over the subject of suffrage. There was then no uniformity regarding the suffrage in the several states. A property qualification was usually prescribed, but the amount of property it was necessary to hold varied considerably in different states. For instance, in Maryland all freemen, above 21 years of age, having a freehold of fifty acres of land in the county in which they resided, and all freemen having property in the state above the value of thirty pounds current money and who had resided in the county one year, could vote. In New Jersey “all inhabitants” of full age worth “fifty pounds, proclamation money clear estate within that government,” could vote. In New York” every male inhabitant of full age” who had resided within the county for six months immediately preceding the day of election could vote if he had been a freeholder possessing a freehold of the value of twenty pounds within the county or had rented a tenement therein of the yearly value of forty shillings, and had been rated and actually paid taxes to the state. In a number of the States the right to vote was restricted to taxpayers. In Pennsylvania every freeman of 21 years who had resided in the state two years next before the election and within that time had paid a State or a county tax could vote.

This is today a wide divergence in the qualifications required in the various states to entitle one to vote. In a few States there are educational qualifications, as in California, Connecticut, Massachusetts, Washington and North Carolina. In some States one cannot vote unless he has paid certain taxes, almost always poll taxes. In certain States Indians who are not members of any tribe can vote. And in a number of the States every male of foreign birth, 21 years of age, who has declared his intention to become a citizen according to the naturalization laws of the United States can vote.

These differences exist because the Constitution remains, so far as this subject is concerned, as it was originally adopted, except that the Fifteenth Amendment provides that “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 race, color or previous condition of servitude.” It is, however, an anomalous condition that the right of citizens of the United States to vote remains wholly dependent on the laws of the States, subject only to the restriction that in the regulations the States establish they cannot discriminate against any citizen on account of race, color or previous condition of servitude. If woman suffrage is a sound principle in a republican form of government, and such I believe it to be, there is in my opinion no reason why the States should not be permitted to vote upon an Amendment to the Constitution declaring that no citizen shall be deprived of the right to vote on account of sex.

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