The History of the Women's Suffrage: The Flame Ignites. Susan B. Anthony
having been declared a citizen by the Fourteenth Amendment is thus protected in his right to vote. But whence did he obtain this right unless from the National Constitution, which the Supreme Court in the Minor decision declares "does not confer the right of suffrage upon any one"? Volume II of this History of Woman Suffrage, containing nearly 1,000 pages, is devoted mainly to a recital of the efforts on the part of women to obtain and exercise the franchise through the Fourteenth and Fifteenth Amendments. This decision of the Supreme Court destroyed the last hope, although it did not shake the belief of the leaders of this movement in the justice and legality of their claim.
A number of the women contended that, if the National Constitution did not confer Full Suffrage, it did at least guarantee Federal Suffrage—the right to vote for Congressional Representatives—and in this opinion they were sustained by eminent lawyers. The National Association, however, never made an issue of this question, considering that it would be useless, but it has a Standing Committee on Federal Suffrage empowered to make such efforts in this direction as it deems advisable.6
The assertion is made that if Congress had no authority over the election of its own members, it would be wholly unable to perpetuate itself should the States at any time decide that they no longer care to be under the authority of a central governing body, and refuse to elect Representatives. Many able reports have been made by this Standing Committee, and the question was clearly stated in an article in The Arena, December, 1891, by Francis Minor, who gave the question of woman suffrage a more thorough legal examination, perhaps, than any other man. He prepared the following bill which was presented in the House of Representatives, April 25, 1892, by the Hon. Clarence D. Clark, member from Wyoming:
AN ACT TO PROTECT THE RIGHT OF CITIZENS OF THE UNITED STATES TO REGISTER AND TO VOTE FOR MEMBERS OF THE HOUSE OF REPRESENTATIVES.
Whereas, The right to choose Members of the House of Representatives is vested by the Constitution in the people of the several States, without distinction of sex, but for want of proper legislation has hitherto been restricted to one-half of the people; for the purpose, therefore, of correcting this error and of giving effect to the Constitution:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled: That at all elections hereafter held in the several States of this Union for members of the House of Representatives, the right of citizens of the United States, of either sex, above the age of twenty-one years, to register and to vote for such Representatives shall not be denied or abridged by the United States, or by any State, on account of sex.
The argument for the authority of Congress to pass this law is based partly on Article I of the Federal Constitution:
Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.
Section 4. The time, place and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.7
Congress is here endowed unquestionably with the right to regulate the election of Representatives. James Madison, one of the framers of the Constitution, when asked the intention of this clause, in the Virginia convention of 1788, called to ratify this instrument, answered that the power was reserved to Congress because "should the people of any State by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the General Government." [Elliott's Debates, Vol. II, p. 266.]
Again Madison said in The Federalist (No. 54), in speaking of the enumeration for Representatives:
The Federal Constitution, therefore, decides with great propriety in the case of our slaves when it views them in the mixed character of persons and property. This is in fact their true character. It is the character bestowed on them by the laws under which they live; and it will not be denied that these are the proper criteria; because it is only under the pretext that the laws have transformed the negroes into subjects of property, that a place is disputed them in the computation of numbers; and it is admitted that, if the laws were to restore the rights which have been taken away, the negroes could no longer be refused an equal share of representation.
Therefore, as women are counted in the enumeration on which the Congressional apportionment is based, they are legally entitled to an equal share in direct representation.
In 1884 the case of Jasper Yarbrough and others who had been sentenced to hard labor in the penitentiary in Georgia for preventing a colored man from voting for a member of Congress, was brought to the U. S. Supreme Court by a petition for a writ of habeas corpus. The decision rendered March 2, virtually nullified that given by this court in the case of Mrs. Minor in 1875, as quoted above, which held that "the National Constitution has no voters," for this one declared:
But it is not correct to say that the right to vote for a member of Congress does not depend on the Constitution of the United States. The office, if it be properly called an office, is created by the Constitution and by that alone. It also declares how it shall be filled, namely, by election. Its language is: "The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature."
The States in prescribing the qualifications of voters for the most numerous branch of their own Legislature, do not do this with reference to the election for members of Congress. Nor can they prescribe the qualifications for those eo nomine [by that name].
They define who are to vote for the popular branch of their own Legislature, and the Constitution of the United States says the same persons shall vote for members of Congress in that State.
It adopts the qualification thus furnished as the qualification of its own electors for members of Congress. It is not true, therefore, that the electors for members of Congress owe their right to vote to the State law in any sense which makes the exercise of the right to depend exclusively on the law of the State.
Counsel for petitioners seizing upon the expression found in the opinion of the Court in the case of Minor vs. Happersett, "that the Constitution of the United States does not confer the right of suffrage upon any one," without reference to the connection in which it is used, insists that the voters in this case do not owe their right to vote in any sense to that instrument. But the Court was combating the argument that this right was conferred on all citizens, and therefore upon women as well as men.(!)
In opposition to that idea it was said the Constitution adopts, as the qualification for voters for members of Congress, that which prevails in the State where the voting is to be done; therefore, said the opinion, the right is not definitely conferred on any person or class of persons by the Constitution alone, because you have to look to the law of the State for the description of the class. But the Court did not intend to say that, when the class or the person is thus ascertained, his right to vote for a member of Congress was not fundamentally based upon the Constitution which created the office of member of Congress, and declared it should be elective, and pointed to the means of ascertaining who should be electors.
The Fifteenth Amendment of the Constitution, by its limitation of the power of the States in the exercise of their right to prescribe the qualifications of voters in their own elections, and by its limitation of the power of the United States over that subject, clearly shows that the right of suffrage was considered to be of supreme importance to the National Government and was not intended to be left within the exclusive control of the States.
In such cases this Fifteenth Article of amendment does proprio vigore [by its own force] substantially confer on the negro the right to vote, and Congress has the power to protect and enforce that right. In the case of United States vs. Happersett, so