Document Type
Article
Publication Date
2025
Abstract
Nearly 150 years ago, Minor v. Happersett rejected a constitutional challenge to a Missouri law that excluded women from the electorate. Ratification of the Nineteenth Amendment forty-five years later is often said to have “overturned” Minor. In fact, the Amendment did no such thing. Minor held that voting is not among the privileges of citizenship protected by the Fourteenth Amendment. The Nineteenth Amendment says nothing to the contrary, and instead bars laws and practices that deny or abridge the right to vote “on account of sex.” Minor remains good law today.
It was not happenstance that the Nineteenth Amendment failed to overrule Minor. It was never intended to do so. The expansion of the male-only electorate following ratification of the Fourteenth and Fifteenth Amendments changed the meaning of women’s disenfranchisement. What advocates of women’s suffrage had previously seen as a harm experienced by all women based on their collective exclusion from the male-only electorate morphed for many into a distinct injury inflicted on specific women by the inclusion of specific men in the electorate. The universalist claim to inclusion based on equal citizenship—the argument Virginia Minor pressed—was relegated to the periphery, and, for many advocates, abandoned entirely. In its place, a zero-sum project emerged and gained traction, and it demanded the enfranchisement of some women, and the exclusion of others—along with a host of men—who lacked what were deemed necessary credentials for membership in the electorate.
This Article describes and contrasts the theory of political participation Virginia Minor advanced and the Supreme Court rejected in 1875 with the one it will argue propelled ratification of the Nineteenth Amendment in 1920. It offers an explanation for why leading advocates of the Amendment did not push to overrule Minor and, indeed, all but repudiated the vision of the right to vote that Virginia Minor espoused. Finally, the Article explores why the Nineteenth Amendment’s preservation of Minor, far from a technical oversight, matters.
We cannot know whether recognition of voting as a privilege of citizenship back in Minor would have disrupted the vast array of race-based vote suppression tactics so many supporters of the Nineteenth Amendment pledged to preserve and promote. It is nevertheless evident that the arguments and commitments that would have been needed to press for and ultimately ratify an amendment that recognized voting to be a substantive privilege of citizenship required acknowledgement of an equality among citizens that was incompatible with the core arguments that so many Nineteenth Amendment supporters advanced in support of the measure.
As I argue elsewhere, the arguments these advocates pressed best explain why the Amendment did not have the transformative impact on American law and society that many contemporary scholars argue should have followed ratification. We can only speculate what would have happened had the Nineteenth Amendment’s most vocal proponents chosen instead to vindicate Virginia Minor’s claim and work to constitutionalize the principles of equal citizenship she had endorsed. What we know, however, is what they actually said and did, and the events that followed.
Recommended Citation
Katz, Ellen D. "Minor v. Happersett and the Repudiation of Universal Suffrage." Washington University Law Review 102, no. 6 (2025): 1909-1926.
Comments
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