“Memorial” and “Constitutional Equality”

How and why does Woodhull argue that women are citizens entitled to protection under the Fourteenth and Fifteenth Amendments (see Appendix D)? Is this a valid mode of constitutional interpretation?
How does Murray’s view of women and men fit with the method of constitutional interpretation advocated by Woodhull here?

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Victoria Woodhull and her sister, Tennessee Clafin, worked as traveling healers and spiritualists; using tips from one of their clients, the industrialist Cornelius Vanderbilt, the two amassed a fortune in the stock market in early 1870, which they in turn invested in opening their own newspaper. Woodhull and Clafin’s Weekly first appeared in the spring of 1870 and quickly established a reputation as a feminist organ, publishing editorials and news articles on topics such as woman suffrage, marriage reform, sex education, and labor organization.

In her paper, Woodhull popularized the argument that women already had the right to vote under the Fourteenth and Fifteenth Amendments. With the help of Representative Benjamin Butler (R-MA), Woodhull brought her constitutional arguments directly to the attention of federal legislators when she became the first woman to testify before a congressional committee.

—Sarah A. Morgan Smith

Source: Woodhull and Clafin’s Weekly, December 19, 1870, and January 2, 1871.

The memorial of Victoria C. Woodhull, To the Honorable the Senate and House of Representatives of the United States in Congress assembled, respectfully showeth:

That she was born in the state of Ohio, and is above the age of twenty-one years; that she has resided in the state of New York during the past three years; that she is still a resident thereof, and that she is a citizen of the United States, as declared by the Fourteenth Article of Amendments to the Constitution of the United States:[1]

That since the adoption of the Fifteenth Article of Amendments to the Constitution,[2] neither the state of New York nor any other state, nor any territory, has passed any law to abridge the right of any citizen of the United States to vote, as established by said article, neither on account of sex or otherwise:

That, nevertheless, the right to vote is denied to women citizens of the United States by the operation of election laws in the several states and territories, which laws were enacted prior to the adoption of the said Fifteenth Article, and which are inconsistent with the Constitution as amended, and, therefore, are void and of no effect; but which being still enforced by the said states and territories, render the Constitution inoperative as regards the right of women citizens to vote:

And whereas, Article 6, section 2, declares “That this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land; and all judges in every state shall be bound thereby, anything in the Constitution and laws of any state to the contrary notwithstanding”:

And whereas, no distinction between citizens is made in the Constitution of the United States on account of sex, but the Fourteenth Article of Amendments to it provides that “no state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States,” “nor deny to any person within its jurisdiction the equal protection of the laws”:

And whereas, Congress has power to make laws which shall be necessary and proper[3] for carrying into execution all powers vested by the Constitution in the government of the United States; and to make or alter all regulations in relation to holding election for senators and representatives,[4] and especially to enforce, by appropriate legislation, the provisions of the said Fourteenth Article:

And whereas, the continuance of the enforcement of said local election laws, denying and abridging the right of citizens to vote on account of sex, is a grievance to your memorialist and to various other persons, citizens of the United States, being women—

Therefore your memorialist would most respectfully petition your Honorable Bodies to make such laws as in the wisdom of Congress shall be necessary and proper for carrying into execution the right vested by the Constitution in the citizens of the United States to vote, without regard to sex.

And your memorialist will ever pray.

Victoria C. Woodhull

Constitutional Equality | January 2, 1871

To the Hon. the Judiciary Committees of the Senate and the House of Representatives of the Congress of the United States:

The undersigned, Victoria C. Woodhull, having most respectfully memorialized Congress for the passage of such laws as in its wisdom shall seem necessary and proper to carry into effect the rights vested by the Constitution of the United States in the citizens to vote, without regard to sex, begs leave to submit to your honorable body the following in favor of her prayer in said Memorial which has been referred to your Committee:

The public law of the world is founded upon the conceded fact that sovereignty[5] cannot be forfeited or renounced. The sovereign power of this country is perpetual in the politically organized people of the United States, and can neither be relinquished nor abandoned by any portion of them. The people in this Republic who confer sovereignty are its citizens: in a monarchy the people are the subjects of sovereignty. All citizens of a republic by rightful act or implication confer sovereign power. All people of a monarchy are subjects who exist under its supreme shield and enjoy its immunities.

The subject of a monarch takes municipal immunities from the sovereign as a gracious favor; but the woman citizen of this country has the inalienable “sovereign” right of self-government in her own proper person. Those who look upon woman’s status by the dim light of the common law, which unfolded itself under the feudal and military institutions that establish right upon physical power, cannot find any analogy in the status of the woman citizen of this country, where the broad sunshine of our Constitution has enfranchised all.

As sovereignty cannot be forfeited, relinquished, or abandoned, those from whom it flows—the citizens—are equal in conferring the power and should be equal in the enjoyment of its benefits and in the exercise of its rights and privileges.

One portion of citizens have no power to deprive another portion of rights and privileges such as are possessed and exercised by themselves. The male citizen has no more right to deprive the female citizen of the free public, political expression of opinion than the female citizen has to deprive the male citizen thereof.

The sovereign will of the people is expressed in our written Constitution, which is the supreme law of the land. The Constitution makes no distinction of sex. The Constitution defines a woman born or naturalized in the United States, and subject to the jurisdiction thereof, to be a citizen. It recognizes the right of citizens to vote. It declares 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.”

Women, white and black, belong to races; although to different races. A race of people comprises all the people, male and female. The right to vote cannot be denied on account of race. All people included in the term race have the right to vote, unless otherwise prohibited.

Women of all races are white, black, or some intermediate color. Color comprises all people, of all races and both sexes. The right to vote cannot be denied on account of color. All people included in the term color have the right to vote unless otherwise prohibited.

With the right to vote sex has nothing to do. Race and color include all people of both sexes. All people of both sexes have the right to vote, unless prohibited by special limiting terms less comprehensive than race or color. No such limiting terms exist in the Constitution.

Women, white and black, have from time immemorial groaned under what is properly termed in the Constitution “previous condition of servitude.”

Women are the equals of men before the law, and are equal in all their rights as citizens.

Women are debarred from voting in some parts of the United States, although they are allowed to exercise that right elsewhere.[6]

Women were formerly permitted to vote in places where they are now debarred therefrom.[7] The naturalization laws of the United States expressly provide for the naturalization of women.[8]

But the right to vote has only lately been distinctly declared by the Constitution to be inalienable, under three distinct conditions—in all of which woman is distinctly embraced.

The citizen who is taxed should also have a voice in the subject matter of taxation. “No taxation without representation” is a right which was fundamentally established at the very birth of our country’s independence; and by what ethics does any free government impose taxes on women without giving them a voice upon the subject or a participation in the public declaration as to how and by whom these taxes shall be applied for common public use?

Women are free to own and to control property, separate and apart from males, and they are held responsible in their own proper persons, in every particular, as well as men, in and out of court.

Women have the same inalienable right to life, liberty, and the pursuit of happiness that men have. Why have they not this right politically, as well as men?

Women constitute a majority of the people of this country—they hold vast portions of the nation’s wealth and pay a proportionate share of the taxes. They are entrusted with the most holy duties and the most vital responsibilities of society; they bear, rear, and educate men; they train and mold their characters; they inspire the noblest impulses in men; they often hold the accumulated fortunes of a man’s life for the safety of the family and as guardians of the infants, and yet they are debarred from uttering any opinion, by public vote, as to the management by public servants of these interests; they are the secret counsellors, the best advisers, the most devoted aids in the most trying periods of men’s lives, and yet men shrink from trusting them in the common questions of ordinary politics. Men trust women in the market, in the shop, on the highway and the railroad, and in all other public places and assemblies, but when they propose to carry a slip of paper with a name upon it to the polls, they fear them. Nevertheless, as citizens women have the right to vote; they are part and parcel of that great element in which the sovereign power of the land had birth: and it is by usurpation only that men debar them from their right to vote. The American nation, in its march onward and upward, cannot publicly choke the intellectual and political activity of half its citizens by narrow statutes. The will of the entire people is the true basis of republican government, and a free expression of that will by the public vote of all citizens, without distinctions of race, color, occupation, or sex, is the only means by which that will can be ascertained. As the world has advanced in civilization and culture; as mind has risen in its dominion over matter; as the principle of justice and moral right has gained sway and merely physically organized power has yielded thereto; as the might of right has supplanted the right of might so have the rights of women become more fully recognized, and that recognition is the result of the development of the minds of men, which through the ages she has polished, and thereby heightened the luster of civilization.

It was reserved for our great country to recognize by constitutional enactment that political equality of all citizens which religion, affection, and common sense should have long since accorded; it was reserved for America to sweep away the mist of prejudice and ignorance, and that chivalric condescension of a darker age, for in the language of Holy Writ, “The night is far spent, the day is at hand, let us therefore cast off the work of darkness, and let us put on the armor of light. Let us walk honestly as in the day.”[9]

It may be argued against the proposition that there still remains upon the statute books of some states the word “male” to an exclusion, but as the Constitution in its paramount character can only be read by the light of the established principle, ita lex Scripta est;[10] and as the subject of sex is not mentioned and the Constitution is not limited either in terms or by necessary implication in the general rights of citizens to vote, this right cannot be limited on account of anything in the spirit of inferior or previous enactments upon a subject which is not mentioned in the supreme law. A different construction would destroy a vested right in a portion of the citizens, and this no legislature has a right to do without compensation, and nothing can compensate a citizen for the loss of his or her suffrage—its value is equal to the value of life. Neither can it be presumed that women are to be kept from the polls as a mere police regulation.[11] It is to be hoped, at least, that police regulations in their case need not be very active. The effect of the amendments to the Constitution must be to annul the power over this subject in the states whether past, present, or future, which is contrary to the amendments. The amendments would even arrest the action of the Supreme Court in cases pending before it prior to the adoption of the amendment, and operate as an absolute prohibition to the exercise of any other jurisdiction than merely to dismiss the suit.[12]

And if the restrictions contained in the Constitution as to color, race, or servitude were designed to limit the state governments in reference to their own citizens, and were intended to operate also as restrictions on the federal power, and to prevent interference with the rights of the states and its citizens, how then can the states restrict citizens of the United States in the exercise of rights not mentioned in any restrictive clause in reference to actions on the part of those citizens having reference solely to the necessary functions of the general government, such as the election of representatives and senators to Congress, whose election the Constitution expressly gives Congress the power to regulate?[13]

Your memorialist complains of the existence of state laws, and prays Congress, by appropriate legislation, to declare them, as they are, annulled, and to give vitality to the Constitution under its power to make and alter the regulations of the states contravening the same.

It may be urged in opposition that the courts have power, and should declare upon this subject.

The Supreme Court has the power, and it would be its duty so to declare the law; but the Court will not do so unless a determination of such point as shall arise make it necessary to the determination of a controversy, and hence a case must be presented in which there can be no rational doubt. All this would subject the aggrieved parties to much dilatory, expensive, and needless litigation, which your memorialist prays your honorable body to dispense with by appropriate legislation, as there can be no purpose in special arguments “ab inconvenienti,”[14] enlarging or contracting the import of the language of the Constitution.

Therefore, believing firmly in the right of citizens to freely approach those in whose hands their destiny is placed, under the Providence of God, your memorialist has frankly, but humbly, appealed to you, and prays that the wisdom of Congress may be moved to action in this matter for the benefit and the increased happiness of our beloved country.

Most respectfully submitted,

Victoria C. Woodhull

  1. 1. See Appendix 20.
  2. 2. The Fifteenth Amendment was adopted in February 1870.
  3. 3. Article 1, section 8.
  4. 4. Article 1, section 4.
  5. 5. In political theory, the concept of authority or rule.
  6. 6. The territory of Wyoming gave women the right to vote in 1869. Utah extended the franchise to women in 1870.
  7. 7. For example, the case of New Jersey, where single women who met the property qualifications were able to vote from 1776 to 1807 (see Edenton Ladies' Agreement).
  8. 8. This statement is true, albeit glosses over the fact that in most cases, the naturalization of women occurred simply because they either married an American citizen or their spouses became naturalized American citizens. Single women did occassionally apply to become naturalized on their own, but it was much less common.
  9. 9. Romans 13:12–13. Verse 13 reads in full: “Let us walk honestly, as in the day, not in revelry and drunkenness, not in lewdness and lust, not in strife and envy.”
  10. 10. A Latin phrase meaning “thus the law is written.” It is a legal term meaning that the law must be taken as written.
  11. 11. The term “police” here means all municipal regulations intended to establish order.
  12. 12. Woodhull’s footnote: 3 Dall., 382; 6 Wheaton, 405; 9 id., 868; 3d Circ., Pa., 1832.
  13. 13. Woodhull’s footnote: S.C., 1847: Fox v. Ohio, 5 Howard, 410.
  14. 14. Latin phrase meaning “from inconvenience.” An argument from inconvenience has force in legal reasoning only when the construction of a law is unclear.
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