The Legal Tests Begin
With the era of State referenda left behind, with the fight for the submission of the Federal Suffrage Amendment by the Congress triumphantly finished, with the ratifications of 22 States already to the amendment's credit, and with the women of a majority of the States qualified to vote for the next President, ratification or no ratification, it might have seemed to the unwary that the rest of the suffrage struggle would be easy. But nothing in connection with the suffrage struggle was ever allowed to be easy. In that auspicious appearing autumn of 1919 two of the most menacing hazards of all suffrage history lay just ahead; one, the legal tests to which the constitutionality of both the suffrage and the prohibition amendments was to be subjected; the other, the determination of the opposition to prevent the 36th ratification. It was not 22 ratifications, nor 30, nor 35 that that opposition feared. It was exactly 36. Toward these hazards the suffrage struggle now moved irresistibly.
By Election Day (November 4, 1919) both the prohibition and the suffrage amendments were deep in the maelstrom of legal contention which awaits all controversial legislation. Law in the United States is exceedingly elaborate, consisting of a federal and forty-eight State constitutions, and a federal and forty-eight codes of statutory law. The most accomplished of legal minds is incapable of holding the details of so diversified a system, and the laity, prone to confuse statutory and constitutional provisions, simply dismisses the whole subject of law as quite beyond the realm of comprehension.
To make the entire system one constructive whole, every State law must be in agreement with the federal constitution, which is the supreme law of the land. Inconsistencies between newly made laws and constitutions of State or nation are not infrequently discovered, and, upon suitable action being brought, the courts declare such laws nullified because of their unconstitutionality.
Opponents of disputed measures usually transfer their activities from legislative halls to courts, as soon as the law they oppose has been passed by a Legislature or the Congress, anticipating that what has been done by the “will of the people” may be undone on the strength of some neglect or loose construction of legal procedure. Until they have set their lawyers to make a thorough search for unconstitutionalities and brought to the courts any flaw they allege has been discovered, no campaign on any issue is considered at an end. As any law to be tested proceeds upon its snail-like course from minor to higher court, from higher court to State Supreme Court, and thence to the Federal Supreme Court, its path is frequently obscured in the fog of contention, and long before its final destiny is determined the fact that an action has been begun has been forgotten by the masses of the people who were interested at the beginning. Only those who have endured it can comprehend the agony of uncertainty which is the portion of friends and foes of every measure during “the law's delay.”
Before the suffrage amendment had been submitted to the Legislatures by the Congress, a group of prominent lawyers had been for some time engaged in a study of the possibilities of invalidating the prohibition amendment. Among them was the well-known Elihu Root, accounted one of the ablest constitutional lawyers in the United States. Although many suggested loop-holes, through which the nation might hope to escape from its dry fate, were used as a basis for legal tests, only one of the methods of attack upon the Eighteenth Amendment affected the Nineteenth. This method was one which, in the early months of the agitation, brought out widespread differences of legal opinions, with eminent lawyers arrayed upon both sides. It sought an affirmative answer to the following question:
Can a federal amendment be referred to the voters of a State, after ratification by the Legislature, under State initiative and referendum laws?
Twenty-two States had such laws.* The initiative and referendum was an undreamt of procedure when the federal constitution was written, and since its introduction its application to federal legislation had never been tested. It became the point around which for several months the hopes of anti-prohibitionists and anti-suffragists mounted with comforting anticipation, and likewise the point which presented to prohibitionists and suffragists the most gloomy uncertainty.
The Suffrage Amendment had three distinct advantages over the prohibition amendment and one important disadvantage. The advantages were, (1) A time limit of seven years for ratification had been fixed by the Congress for the prohibition amendment; no limit was attached to the Suffrage Amendment. (2) The prohibition amendment treated of absolutely new matter and consequently every phrase invited legal examination and interpretation concerning its agreement with other parts of the federal constitution. A considerable number of the legal attacks made against that amendment were based upon claims that inconsistencies existed; the Suffrage Amendment had been drawn in the exact form of the Fifteenth Amendment which had been held to be constitutional against every possible mode of attack. (3) The liquor forces threatened a referendum by petition in at least eighteen of the referendum States on the prohibition amendment. Twelve of the twenty-two initiative and referendum States were full suffrage States, and woman suffrage had passed so far beyond the controversial stage as to render a proposal for a referendum improbable in any of them. Two other initiative and referendum States, Louisiana and Mississippi, were certain to reject the Amendment in any event, thus leaving eight States only where there was any likelihood of a referendum, should the Federal Supreme Court declare State laws applicable to federal amendments.
On the other hand, these three advantages were offset by, first, the certainty that nine States of the far South, in obedience to tradition concerning the Negro vote, would reject the Amendment, thus leaving thirty-nine States only from which to draw the necessary thirty-six ratifications; second, suffrage referenda were already scheduled in three States for 1920. If the courts held that a State had the right to dispose of a federal amendment by referendum instead of by action of the Legislature, ratification in the three States was sure to be postponed for the referenda. That meant until after the presidential election; and should the referenda result adversely, the suffrage struggle might be indefinitely prolonged.
The liquor forces repeatedly announced through the press that they intended to defeat prohibition on referenda in ten States if possible, thus reducing the total number of States ratifying prohibition below thirty-six.* Failing to achieve this expectation, they relied upon other legal action either to invalidate the Amendment, or at least to keep the question pending in the courts beyond the seven years' limit. In support of this program they had either filed petitions on the prohibition amendment in eighteen States or publicly advertised their intention of so doing.
Two State Supreme Courts, Ohio with one dissenting judge, and Washington with four dissenting judges, had declared such referenda constitutional. Two State Supreme Courts, Maine and Oregon, had unanimously declared them unconstitutional. Under the Ohio decision, and pending action by the Federal Supreme Court, a referendum had actually been held on the ratification of the prohibition amendment, and the “wets” had won. Cases were pending in the Supreme Courts of Nebraska, New Mexico, Michigan, Colorado, California and Arkansas, and were on their way to State Supreme Courts in others. The opponents of both amendments were issuing widely published statements to the effect that ratification was not reflecting the “will of the people.” In consequence not a little importance attached to the result of the Ohio election, as it seemed to furnish a practical illustration of the truth of their claim.*
The anti-suffragists announced anew that their plan was to defeat ratification of the Suffrage Amendment in thirteen States (and suffragists in private counsels always conceded nine such rejections) and to secure a Proclamation of Defeat. Although certain opinions rendered in connection with the Fourteenth and Fifteenth Amendments by the Secretary of State have lent weight to the theory that no Proclamation of Defeat can be promulgated, the fact remains that the Supreme Court, which is the sole authority to decide questions of that import, has had no occasion to express itself on this still undecided point. In support of this program of the antis two States had rejected the Amendment, and the eleven which would follow were confidently named. A petition for a referendum had been filed in Ohio on ratification of the Suffrage Amendment and also on presidential suffrage. Petitions were announced as in circulation in Missouri, Nebraska and Massachusetts. Other referenda were threatened should 36 States ratify. A referendum petition had been filed on presidential suffrage in Maine, and the State Supreme Court, which had declared a referendum on ratification of prohibition illegal, had declared such a referendum legal on presidential suffrage. As the authority for presidential suffrage was drawn from the federal constitution, this decision would probably have been overturned had the case gone up to the Federal Supreme Court. It happened that the Governor had signed the bill in each State where this privilege had been extended to women, a fact that gave the general impression that it was distinctly a State measure. An attack had been made upon the validity of the Woman's Primary Law in Texas and it had been upheld in the lower courts.
The state of legal confusion was now sufficiently perplexing to make it of use for campaign purposes. Suffrage opponents promptly organized a drive upon national and State Republican and Democratic party committeemen with the purpose of convincing the leaders that the Suffrage Amendment was caught in such a tangle of legal uncertainty and of threatened referenda that further efforts to secure ratification before the presidential election would be futile. As the Republican party was in control of the majority of the Legislatures that were expected to take action, the campaign was more forcefully aimed at the leaders of that party.
The group of Eastern Senators who had for so many years prevented the submission of the Federal Suffrage Amendment, and who were as obdurate if less publicly outspoken opponents as ever, listened to the anti pleas and with fresh courage took up the appeals for delay. A public and private effort was made to persuade contributors to Republican campaign funds to make their gifts contingent upon promises quietly to withdraw the party from the ratification campaign. Whether these efforts met with any success only those in private charge of Republican affairs knew and they made no public confessions. Women anti-suffragists as callers at the National Republican headquarters became an insistent and daily feature. Constant official announcements, widely published by the newspapers of the country, were issued by the opponents to the effect that woman suffrage in 1920 was impossible.
“If ratification cannot be completed in time for women to vote in 1920, why disturb the even tenor of State politics by calling unnecessary special sessions?” they asked. This question was put in every conceivable form by the official publicity issued by the opponents and was revamped and put forth editorially by every State paper which for reasons of its own opposed a special session of its State Legislature.
This campaign began to tell. National party leaders began to betray a coolness in noticeable contrast to the warmth of their co-operation at an earlier period. When people do not know what to think, they pause. With a State press warning the public that action by the State would be useless, many State suffragists caught the general alarm and relaxed their efforts to secure early action. The success of the campaign in the suffrage States was particularly perplexing. In most of them, not an active opponent of woman suffrage could be found, and none objected to ratification. Yet press and public, while denouncing anti-suffragists, picked up the excuses they advanced in order to secure delay and joined in forwarding their argument. Governors felt the effect of the gradual lessening of the demand for special sessions and began to return evasive replies to plain questions. All along the line of campaign a disconcerting hesitation made itself manifest.