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 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 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
the 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
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 of 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 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
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.
There 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.