Western Reconstruction and Woman Suffrage

The normal narrative of woman suffrage in the United States begins in Seneca Falls, New York, and steadily marches along through the lives and papers of the most noteworthy national suffragettes—Elizabeth Cady Stanton, Susan B. Anthony, Lucy Stone, and a handful of other women until the hard-fought passage of the Nineteenth Amendment. The six-volume History of Woman Suffrage tomes tells just such a story. Yet the dominant narrative “overgeneralizes the experiences of the national, largely eastern leadership” and “generally neglect[s] the West, or fail[s] to evaluate its significance within the national movement.” Although the American Woman Suffrage Association was organized to promote legislation in the states in 1869, its leaders, including Elizabeth Cady Stanton and Susan B. Anthony, did not travel west where suffrage was first won—indeed they had only minimal contact until 1871, after Wyoming adopted the franchise in December 1869 and to Utah in February 1870. Although there were certainly eastern rumblings whose aftershocks were felt on the frontier, the national narrative is notable here only for its lack. Instead, when looking at relative influence, at least in the beginning, the West had a much greater impact on the East. In fact, it may be said that American Woman’s Suffrage began not in Seneca Falls, but in Cheyenne and Salt Lake City. Not only were these capitals the first loci of equal suffrage, but the nation learned from these “quieter” equality states what it meant for women to vote in ballot and jury boxes and serve in public office. In short, understanding how the vote was won in the West “helps explain the ultimate success of” the national movement. If the national narrative and its eastern influence have been overplayed, what then explains why suffrage was first extended in the West? As Akhil Amar and others have convincingly demonstrated, suffrage was extended first in frontier situations globally and domestically where women were found in lower numbers, preempting any political threat they might otherwise pose. That women were in rare supply should not come as a surprise: the adventure of frontier life drew in greater proportions of men. As a novelty item, woman’s currency skyrocketed. The sight of the young, “good looking” suffragist Miss Anna Dickinson in Cheyenne drew an unwanted crowd of male admirers, pressed up to the glass of her train car, imposing on her privacy. The average age of the territorial Wyoming legislator was thirty-two, with only half of them married. Extending the vote to women may have been interpreted as the western bachelors’ collective mating call— a ploy to woo the gentler sex to their states’ altars. The exception to this disparity is Utah, wherein the number of women was roughly equal to the number of men, due to the emphasis on settlement by families. As Utah’s exceptionalism emphasizes, the lack of women and collective wooing there provide only the necessary condition in the suffrage calculus. Low numbers of women lessened resistance by removing the main obstacle of voting against men’s interest (assuming women would vote as a block against men), but it does not explain why any one man would be motivated to propose such a bill, especially a happily married man such as William T. Bright, sponsor of the suffrage bill in Wyoming. To correctly identify the sufficient variable, one must look to local history. In the first western extensions of the franchise, local histories show that politics, race, and religion motivated men to give women the vote. Such factors were the sufficient explanatory variables to the necessary condition of low proportions of women. Moreover, the conditions of early western suffrage show that it was not only an important part of the larger suffrage story, but, crucially, of the Reconstruction story— albeit of a western, rather than southern flavor. As the leading western suffrage historian writes: “There is a tendency to dismiss the early enfranchisement of women in Wyoming (1869) and Utah (1870) as isolated western anomalies, but these events acquire greater significance when examined within the context of Reconstruction, territorial, and state politics.” The West at this time had much in common with the South: politically, both were inferior to the Northeast in terms of status, privilege, and power. The Northeast used that status, privilege, and power to reconstruct the social, civil, and political lives of the citizens in both regions. The implications and reasoning were different, but the tactics were roughly the same. The lives of one region were reordered via constitutional amendments, the other by mere statutes. Territories, like southern states, responded to this heavy-handedness in similar fashion, pushing back as far as they could. Especially in the case of Utah, the Northeast broke it like it did the South, first waging war upon it and then forcing it through legal sanctions to ultimately discontinue polygamy as the South had been forced to discontinue slavery. The West’s response to its own Reconstruction provides a gloss on the Reconstruction Amendments themselves. While the Fifteenth Amendment was in the process of being ratified, it was already being implemented in federal territories. Wyoming Council President William T. Bright proposed woman suffrage in Wyoming because “[h]e sincerely believed that women should have the vote before Negroes, and Negroes had been given the vote.” Utah’s extension of suffrage was accomplished almost contemporaneous to ratification of the Fifteenth Amendment. Employing Amar’s powerful “enactment argument” modality of interpretation, these first grants of universal suffrage, read narrowly, can be understood as amendments to the Fifteenth Amendment. At a higher level of abstraction, this enactment history ties together the Nineteenth Amendment—seen as the ultimate consummation of the amendments proposed decades earlier in the West—to that of the Fifteenth Amendment and the Reconstruction Amendments generally. At an even greater level of abstraction, Western Reconstruction supplies a gloss on how “equality” and “liberty” as used in the Fourteenth Amendment were understood by some of its most progressive pioneers, tethering them firmly to women’s rights. All of this serves to bolster the arguments made by Akhil and Vikram Amar that the Nineteenth Amendment incorporates all political rights of the Fifteenth Amendment, and Steven Calabresi’s argument that the Nineteenth Amendment affected the equality guarantees of the Fourteenth. This Article will focus on the granular Reconstruction histories of the first franchise extensions in the United States—Wyoming and Utah—in identifying some of the sufficient conditions that propelled men to introduce suffrage bills. In addressing these local histories, we see national personalities play only supporting roles in leading men and women in each state. Once we have narrowed the investigation to the appropriate cast of characters, their motivations—the sufficient variable in a larger analysis—will more clearly come into view. As will be seen, territorial politics, race, and religion provided sufficient motivation for men (against the backdrop of non-threatening proportions of women) to extend the franchise. These sufficient conditions provide richer context for understanding the Reconstruction Era and Amendments, their relationship to the Nineteenth Amendment, and the concepts of constitutional liberty and equality

In the Room Where the Constitution Happens

Constitution-writing, according to the United Nations, should be participatory, non-exclusionary, and transparent. Recent scholarship has identified group inclusion, or ensuring that a broad swath of enfranchised groups is welcomed into the drafting room, as the lodestar of constitutional process. In making this comparative case—one which has important implications for modern constitution-writing— scholarship provides precious little empirical evidence, particularly from the historical genre. This ignores the benefit of studying the oldest constitution-writing traditions in America and all that can be learned by tracing a practice or idea to its roots. This study, the first monogram on New Hampshire’s five constitution-writing processes between 1776-1784, provides needed empirical evidence for linking a constitution’s legitimacy to getting all the right groups “in the room where it happened” and suggests further theoretical links between constitutional process and a constitution’s medium and long-term legitimacy. It also provides the first detailed telling of the moment when the theory of popular sovereignty was made real through the earliest popular constitution-writing and further participatory innovations not repeated for another 200 years in Africa. This study first reviews relevant extant literature on domestic and comparative constitutionalism before proceeding to an in-depth study of New Hampshire’s five constitutional processes. The first process produced a temporary constitution on January 5, 1776. This crude, 911-word document heralded the first epoch of popular sovereignty-inspired constitution-writing. New Hampshire’s next three attempts were instituted via popular sovereignty innovations of constitutional conventions, supermajoritarian ratification, direct popular participation in constitution drafting via town recommendations, and special issue constitutional referenda, but all were stillborn. This because each excluded the western-most portion of the state. It was not until the process included representatives from this area “in the room [where the constitution] happened” that a draft was finally ratified in 1784

Supreme Court Voting Behavior - 2003 Term

The 2003 Term, for the second year, notes a liberal trend across a majority of the Tables of this Study. The voting behavior of individual Justices in 2003 was somewhat more stable this Term in that individual departures from past voting behaviors were less pronounced than in 2002. Nevertheless, the Study still demonstrates continuing instability in the voting behavior of individual Justices. This Term, statistically significant departures from past behavior by at least five Members of the Court are present on six Tables. This might suggest that the voting behavior of the Justices on these Tables is in transition, although the often-small statistical samples reported on many of these Tables also suggests caution in making (or relying upon) this inference. Bloc voting continues to control the outcome of a substantial number of the most controversial questions presented to the Court. But, as noted in the past few Studies, the voting power of conservative voting blocs seems to be losing steam. Justice O\u27Connor maintained her position as the Member of the Court most likely to cast the key swing-vote in closely divided opinions. The Study also demonstrates that Justice O\u27Connor\u27s voting behavior in state criminal cases has been a reliable indicator of the outcome of Majority Opinions in this category for a number of years. Her absence might alter decisional outcomes, not only in state criminal cases, but in the often-important cases decided by five-to-four votes of the Court

The Missing Indian Affairs Clause

Congressional plenary power over Native Americans sits in direct conflict with tribal sovereignty. Scholarship and case law justifying plenary power run the gamut from finding an expansive preconstitutional federal plenary power over Native Americans to narrowly reading the Indian Commerce Clause to limit congressional power to trade alone. All claim historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution or, conversely, why the new federal government never limited itself to regulating Indian trade. The combination of the unexplained textual shrinkage and disharmony between text and practice seems to suggest that the Framers made a mistake in drafting the Constitution. Based on archival and forensic research, this Article concludes that the Constitution is missing an Indian Affairs Clause first by mistake, then by design. The five-member Committee of Detail, tasked by the Constitutional Convention with producing a working draft of the Constitution, seems to have accidentally omitted an Indian Affairs Clause. Inclusion of a congressional power over Indian trade and affairs was compelled by its long prehistory and a unanimous vote by the Convention, and John Rutledge as Committee chair directed James Wilson to include it in a marginal note. The evidence indicates that Wilson meant to comply with the command: not only was he personally motivated to comply, but he placed a check mark next to the Clause. However, he simply failed to include the power in his final draft. Thereafter, James Madison caught the mistake, and the Committee of Detail deigned to address its lapse by importing “Indian Tribes” into the Commerce Clause but refused to restore power over “Indian affairs,” converting an innocent mistake into a meaningful omission. None thereafter seemed to notice the disappearance of the Indian affairs power, and the omission has caused two centuries of confusion to the detriment of the tribes

Supreme Court Voting Behavior: 2002 Term

The results of the 2002 Study - as with the Study last Term - reveal continued polarization and voting instability on the United States Supreme Court. Only two categories of cases, Civil/State and Civil/Federal, were decided by predominantly unanimous opinions. Yet, while the Justices voted in fairly consistent conservative and liberal blocs, neither wing of the Court seems able to consistently garnish the fifth vote crucial to a definitive liberal or conservative trend. As a result, the Rehnquist Court may have lost its conservative momentum. The data suggest several possible explanations for this development. Justice O\u27Connor is again the Court\u27s most consistent fifth vote in closely divided cases. The relatively unpredictable nature of Justice O\u27Connor\u27s voting behavior may dampen ideological movement in either a conservative or liberal direction. Furthermore, the data this Term demonstrate that several Justices have departed (in a statistically significant sense) from past voting practices. In short, the 2002 Study suggests that the United States Supreme Court has become more polarized, more fragmented and even less predictable than in the 2001 Term. This on-going polarization and fragmentation may well become a matter of political debate should a Member of the Court retire in the near future