In all three states the pending amendments were caught in the toils of the "wet and dry" issue. The "wets" obsessed by the idea that woman suffrage is "next door to prohibition" used their entire machinery to defeat the amendments, while the "drys" regarded the amendments as distinctly separate questions. These conditions may be regarded as the inevitable hazards of a campaign. It is, however, not at all clear that the amendments were defeated in any one of the three states by the honest "will of the majority." In none of them were women permitted to serve as watchers over their amendment. In Iowa well established proof of wilful or careless violations of laws throws doubt over the returns, while in West Virginia the suspicion of fraud rests upon the entire election. In Iowa four and in South Dakota nine counties colonized by people of foreign birth or parentage deprived the women of the state of their vote.
A Federal amendment ratified by the legislatures of the several states would secure to the women of South Dakota and Iowa the rights for which American and Americanized men have voted. The entire western or most American part of South Dakota has been twice carried for suffrage, that is, in 1914 and 1916. One county, Harding, adjacent to Wyoming, has been carried for woman suffrage in the six referenda on the question, the first one being held in 1890.
The only real argument against the Federal amendment thus far advanced is that one group of states which want woman suffrage may force it upon another group which does not want it. That argument works both ways. _A group of counties_ which want woman suffrage may be deprived of it for years because another group of un-Americanized, foreign-born citizens do not want it. The first is said to be the principle of "American sovereignty," the second may fairly be called the principle of "foreign sovereignty."
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 a.s.sociation that Congress should propose to the States an amendment to the Const.i.tution which shall in effect provide that no State shall deny to any person the right to vote on account of s.e.x.
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 const.i.tutional 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 who 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 ent.i.tled "Woman Suffrage by Const.i.tutional 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 a.s.sociation. 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 the theory was advanced that the attempt to bring about the right of suffrage by an amendment to the Const.i.tution of the United States was opposed to the genius of the Const.i.tution 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 Const.i.tution of the United States.
I may remark in pa.s.sing that the t.i.tle 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 Const.i.tution 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 Const.i.tution. 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 Const.i.tutional Convention of 1787. As the Articles const.i.tuted 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution when ratified by three-fourths of the several States. This is not the only method by which the Const.i.tution 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 Const.i.tution of a State is amended care must be taken to see to it that the amendment proposed does not involve a violation of the Const.i.tution of the United States. For a const.i.tution adopted by the people of a State in so far as it violates the Const.i.tution of the United States is void, for exactly the same reason that an Act pa.s.sed by a State Legislature is void if it is contrary to some provision in the Const.i.tution of the United States. This is so because the Const.i.tution of the United States in the Sixth Article directs that "This Const.i.tution ... shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Const.i.tution 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 Const.i.tution 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 ent.i.tled to equal representation in that body, and that equality of representation cannot be destroyed by any amendment not a.s.sented to by all the States. The reason is that the Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution 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 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 Const.i.tution 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 of the whole.
If it be a.s.sumed simply for the purpose of this discussion, that the amendment of the Const.i.tution is not wholly a political question, no one can seriously contend that the amendment the National American Woman Suffrage a.s.sociation 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 Const.i.tution; 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 Const.i.tution was adopted it is true it did not confer the right of suffrage upon any cla.s.s, 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 and 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 Const.i.tutional 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 Const.i.tution 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.
There is today a wide divergence in the qualifications required in the various states to ent.i.tle one to vote. In a few States there are educational qualifications, as in California, Connecticut, Ma.s.sachusetts, 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 Const.i.tution 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 Const.i.tution declaring that no citizen shall be deprived of the right to vote on account of s.e.x.
CHAPTER VI
OBJECTIONS TO THE FEDERAL AMENDMENT
I. STATES RIGHTS. THIS OBJECTION IS URGED BY ALL OPPONENTS OF WOMAN SUFFRAGE, BUT IS EITHER A BARRICADE TO DEFEND THEMSELVES FROM THE NECESSITY OF EXPOSING THE FACT THAT THEY HAVE NO REASONS, OR IS A PLAY TO POSTPONE WOMAN SUFFRAGE AS LONG AS POSSIBLE. BY A FEW IT IS URGED CONSCIENTIOUSLY AND WITH CONVICTION.
That there are many problems whose treatment belongs so appropriately to state governments that any infringement of that right by the Federal Government would be an act of tyranny, no American will question. But a.s.suredly woman suffrage is not one of these. One by one cla.s.ses of men have been granted the vote until women are the only remaining unenfranchised cla.s.s. States have set up various restrictive qualifications so that criminality, idiocy, insanity, pauperism, drunkenness, foreign birth are accepted as ordinary causes of disfranchis.e.m.e.nt. Yet not one of these conditions is common to all the states. The foreigner votes on his first papers in eight states and a five years" residence will usually secure his naturalization and a consequent vote in any state. The criminal, idiot and insane are not denied a vote in several states, and in most a large cla.s.s of ignorant un-American men with no comprehension of our problems, our history, or ideals, are conspicuous voters on election day. Millions of new voters have entered our country and without the expenditure of time, money or service have received the vote since the pending Federal Amendment was first introduced.
For two generations groups of women have given their lives and their fortunes to secure the vote for their s.e.x and hundreds of thousands of other women are now giving all the time at their command. No cla.s.s of men in our own or any other country has made one-tenth the effort nor sacrificed one-tenth as much for the vote. The long delay, the double dealing, the broken faith of political parties, the insult of disfranchis.e.m.e.nt of the qualified in a land which freely gives the vote to the unqualified, combines to produce as insufferable a tyranny as any modern nation has perpetuated upon a cla.s.s of its citizens.
The souls of women which should be warm with patriotic love of their country are growing bitter over the inexplicable wrong their country is doing them. Hands and heads that should be busy with other problems of our nation are withheld that they may get the tools with which to work. Purses that should be open to many causes are emptied into suffrage coffers until this monumental injustice shall be wiped away.
Woman suffrage is a question of righting a nation-wide injustice, of establishing a phase of unquestioned human liberty and of carrying out a proposition to which our nation is pledged; it therefore transcends all considerations of states rights. This objection comes chiefly from Southern Democrats, who claim that it is a form of oppression for three-fourths of the states to foist upon one-fourth measures of which the minority of states do not approve. Yet the provision for so amending the Const.i.tution was adopted by the states and has stood unchallenged in the Const.i.tution for more than a century. If it be unfair, undemocratic or even unsatisfactory, it is curious that no movement to change the provision has ever developed. The Const.i.tution has been twice amended recently and it is interesting to note that it happened under a Democratic Administration. More, the child labor and eight-hour bills, while not const.i.tutional amendments, are subject to the same plea that no state shall have laws imposed upon it without its consent. Both measures were introduced by Southern Democrats.
The pending Federal Prohibition Amendment was also introduced by a Southern Democrat and is supported by many others. Upon consideration of these facts, it would seem that "states rights" is either a theory to be invoked whenever necessary to conceal an unreasoning hostility to a measure or that those who advance it are guilty of extremely muddy thinking.
The Const.i.tution of the United States as now amended provides that no male citizen subject to state qualifications shall be denied the vote by any state. Were all the state const.i.tutions amended so as to enfranchise women, the word male would still stand in the National Const.i.tution. Men and women would still be unequal, since the National Const.i.tution can impose a penalty upon a state which denies the vote to men, but none upon the state which discriminates against women.
A woman comes from Montana to represent that state in Congress.
The State of Montana has done its utmost to remove her political disabilities, yet should she cross the border of her state and live in North Dakota, she loses all that Montana gave her. Not so the male voter. Enfranchised in one state, he is enfranchised in all (subject to difference of qualification only). The women of this nation will never be content with less protection in their right to vote than is given to men and there is no other possible way to secure that protection except through amendment to the National Const.i.tution.
No single state, nor the forty-eight collectively, can grant that protection except through the Federal Const.i.tution.
As granting to half the population of our country the right of consent to their own government, whose expenses they help to pay, is a question of fundamental human liberty, Congress and the legislatures should be proud to act and to add one more immortal chapter to America"s history of freedom.
II. SOUTHERN MEMBERS OF CONGRESS VERY GENERALLY URGE THAT THEY OPPOSE THE FEDERAL AMENDMENT BECAUSE IT WILL CONFER THE VOTE UPON THE NEGRO WOMEN OF THEIR RESPECTIVE STATES; AND THAT THAT WILL INTERFERE WITH WHITE SUPREMACY IN THE SOUTH.
It is difficult to believe this objection to be sincere, since facts do not support the contention. The facts are that woman suffrage secured by Federal Amendment will be subject to whatever restrictions may be imposed by state const.i.tutions (provided those restrictions are in accord with the National Const.i.tution) in precisely the same way as woman suffrage secured by state const.i.tutional amendment. No larger number of negro women can be enfranchised by Federal Amendment than will be enfranchised by State Amendment. If the women of the South are ever to be enfranchised, it must be by (1) Federal Const.i.tutional Amendment, or (2) State Const.i.tutional Amendment. If their franchise is obtained by the former method, it will come by the votes of white men in Congress and legislatures; if by the second, they will be forced to appeal to voting Negroes to elevate them to their own political status. One would suppose the first would be the preferable method from the Southern viewpoint. It is possible that behind this commonly spoken objection, lies a hope and belief that Southern women will remain disfranchised forevermore. A man unfamiliar with political history, psychology, and the science of evolution might cherish such a belief in fancied security, but ideas cannot be shut outside the borders of a state. There is no Southern state in which women of the highest families are not giving their all in order to propagate this cause, and they are doing it with so n.o.ble a spirit and so eloquent an appeal that final surrender of the citadel of prejudice is only a question of time. No one has ever questioned the "fighting ability" of the South. That ability is not confined to men. Courage, intelligence, conviction and willingness to sacrifice characterize the suffrage movement in every state, and the South is no exception. The women of that section will vote; the question is how long must they work, how much must they sacrifice to win that which has so freely been granted to men of all cla.s.ses?
White supremacy will be strengthened, not weakened, by woman suffrage.
In the fifteen states south of the Mason and Dixon line are:
8,788,901 white women, 4,316,565 negro women, or 4,472,336 more white than negro women.
The total negro population is 8,294,274, and white women outnumber both negro males and females by nearly half a million. In two states only, South Carolina and Mississippi, are there more negro than white women, and in these states there are more negro men than white men. In South Carolina, voters must read, own and pay taxes on $300 worth of property. In Mississippi, voters must read the Const.i.tution. The other four states of the "black belt"--Georgia, Florida, Alabama and Louisiana--impose an educational test. Women voters would be compelled to submit to the same qualifications. In the other nine states white women exceed the total negro population. Woman suffrage in the South would so vastly increase the white vote that it would guarantee white supremacy if it otherwise stood in danger of overthrow. If a sly dread of female supremacy is troubling the doubter he may find comfort in the rather astonishing fact that white males over 21 are considerably in excess of white females over 21 in all except Maryland and North Carolina; negro females over 21 exceed negro males in Alabama, Tennessee, Georgia, South Carolina, North Carolina and Virginia, but the restrictions in these states of property ownership represented by tax receipts, education and various other tests, would fall more heavily upon women than men, and thus admit fewer women than men to the vote. If the South really wants White Supremacy, it will urge the enfranchis.e.m.e.nt of women. The following table offers insuperable proof:
==================================================================== | |Per Cent. of| WHITE | NEGROES | | Negroes in | 21 Years and Over | 21 Years and Over | STATES | Population | | | | All Ages | Male | Female | Male | Female +---------------+------------+---------+---------+---------+-------- |Delaware ......| 15.4 | 52,804 | 50,160 | 9,050 | 8,281 |Maryland ......| 17.9 | 303,561 | 309,897 | 63,963 | 63,899 |Dist. Columbia.| 28.5 | 75,765 | 81,622 | 27,621 | 34,449 |Virginia ......| 32.6 | 363,659 | 353,516 | 159,593 | 164,844 |North Carolina.| 31.6 | 357,611 | 358,583 | 146,752 | 159,236 |South Carolina | 55.2 | 165,769 | 162,623 | 169,155 | 181,264 |Georgia .......| 45.1 | 353,569 | 343,187 | 266,814 | 269,937 |Florida .......| 41.0 | 124,311 | 105,662 | 89,659 | 72,998 |Kentucky ......| 11.4 | 527,661 | 506,299 | 75,694 | 73,413 |Tennessee .....| 21.7 | 433,431 | 419,646 | 119,142 | 122,707 |Alabama .......| 42.5 | 298,943 | 284,116 | 213,923 | 217,676 |Mississippi ...| 56.2 | 192,741 | 180,787 | 233,701 | 231,901 |Arkansas ......| 28.1 | 284,301 | 248,964 | 111,365 | 102,917 |Louisiana .....| 43.1 | 240,001 | 222,473 | 174,211 | 172,711 |Texas .........| 17.7 | 835,962 | 722,063 | 166,393 | 161,959 |Missouri ......| 4.8 | 919,480 | 874,997 | 52,921 | 48,057 |Oklahoma ......| 8.3 | 393,377 | 311,266 | 36,841 | 30,208 |West Virginia .| 5.3 | 315,498 | 270,298 | 22,757 | 14,667 ====================================================================
Speaking of the probable enforcement of the National Const.i.tution against the "Grandfather clause" in Southern const.i.tutions, Walter E.
Clark, Chief Justice of the Supreme Court of North Carolina, said:
"In North Carolina such a decision would readmit to the polls 125,000 negro votes. What preparation have we made to meet such a possible result? I know of but one remedy. The census shows that the white population of North Carolina is seventy per cent. and the colored population thirty per cent. It follows that the white adult women of North Carolina are more in numbers than the negro men and negro women combined. _The votes of 260,000 white women can be relied on to stand solid against any measure or any man who proposes to question Anglo-Saxon supremacy._
"I am not intimating that the admission of the white women to the polls will secure democratic supremacy (they will not impair it), nor that it will prejudice the republican element. The equal suffrage movement has never proceeded on party lines and the women would scorn to be admitted unless they were as free in their choice of party measures and candidates as the men. But what I am saying is that if the negroes are readmitted by a decision of the Federal Court to suffrage, the 260,000 votes of the white women of the State will be one solid obstacle to any measure that would impair either for them or their children the continuance of white supremacy."