Women’s Rights Movement:
Liberty and Equality
Bill of Rights Institute
Kansas City, Kansas
October 27, 2015
Artemus Ward
Dept. of Political Science
Northern Illinois University
aeward@niu.edu
Colonial Women’s Rights
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During the colonial period, suffrage was largely
determined by local custom. While there are few
records of women voting, it is clear that some did,
especially large landowners.
After the revolution, individual states began to draft
written constitutions and female suffrage evaporated.
Women were also excluded by the gradual shift from
gender-neutral, property owning requirements to near
universal male suffrage.
On March 31, 1776, Abigail Adams wrote to her
husband John, who was attending the 2nd Continental
Congress, urging him to “remember the Ladies, and be
more generous and favourable to them than your
ancestors.”
Adams’ admonitions to her husband had little impact on
either the Declaration of Independence, Articles of
Confederation, or the Constitution.
Women were deliberately excluded in all of these
documents and were relegated to second-class
citizenship.
Anti-Slavery
Movement
• Recognition of their inferior legal status, however, did not come
overnight.
• In 1840, 20 years before the Civil War, two women who were active in
the American abolitionist movement traveled by boat across the
Atlantic Ocean to London for the annual meeting of the International
Anti-Slavery society.
• After a long arduous journey, Elizabeth Cady Stanton and Lucretia
Mott were denied spots on the convention floor because the were
women. Instead, they were relegated to the rear of the balcony.
• They resolved to call a meeting to discuss women’s 2nd-class status
but the antislavery movement and issues in their own lives kept them
from acting for another 8 years.
Declaration of Sentiments (1848)
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In 1848, in what is widely hailed as the first major step
toward female equality in the United States, a women’s
rights convention was held in Seneca Falls, New York.
At that meeting, and also at a later meeting in
Rochester, New York, a series of resolutions and a
Declaration of Sentiments were drafted calling for
expanded rights for women in all walks of life.
The documents reflected dissatisfaction with
contemporary moral codes, divorce and criminal laws,
and the limited opportunities for women to obtain an
education, participate in the church, and enter careers
in medicine, law, and politics.
While these issues continue to dominate the field of sex
discrimination law today, none of the participants at
Seneca Fall or subsequent meetings saw the U.S.
Constitution as a potential source of rights for women.
American Equal
Rights Association
(1866)
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While women continued to press for changes in state laws to ameliorate their
inferior legal status, they also continued to be active in the abolitionist
movement.
During the Civil War most women’s rights activists concentrated on the war effort
and abolition.
Many who had been present at Seneca Falls or active in subsequent efforts for
women’s rights joined the American Equal Rights Association (AERA), an
association dedicated to abolition and woman suffrage.
AERA members saw the issues of slavery and women’s rights as inextricably
intertwined, believing that suffrage would be granted when the franchise was
extended to newly freed slaves.
The 14th Amendment (1868)
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Even the AERA, however, soon abandoned the cause of
female suffrage with its support of the proposed 14th
Amendment.
When a majority of its members agreed that “Now is the
Negro’s hour,” key women’s right’s activists including
Stanton and Susan B. Anthony (left) were outraged.
They were particularly incensed by the test of the
proposed amendment, which introduced the word “male”
into the Constitution for the first time.
Although Article II of the Constitution does refer to the
president as “he,” the use of the word “male” to limit
suffrage was infuriating to many women.
Not only did Anthony and Stanton argue that women
should not be left out of any attempt to secure fuller
rights for freed slaves, but they were concerned that the
text of the proposed amendment would necessitate the
passage of an additional amendment to enfranchise
women.
The 15th Amendment (1870)
• How right they were. Soon after the passage of the 14th
Amendment, the 15th Amendment was added, enfranchising
black males previously ineligible to vote.
• Feverish efforts to have the word “sex” added to the
amendment’s list of race, color, or previous condition of
servitude as improper limits on voting were unsuccessful.
• Women were once again told that the rights of AfricanAmericans must come first.
National Women’s Suffrage Association (1869)
• Passage of the 15th
Amendment, and the AERA’s
support of it, led Anthony and
Stanton to found the National
Women’s Suffrage Association
(NWSA) in 1869.
• Its relatively radical demands
for the reform of family and
standards of dress, as well as
its support of a well-known
supporter of free love, Victoria
Woodhull, led many to derided
its more conservative demand
for suffrage via a national
constitutional amendment.
Victoria Woodhull
NWSA
Publicity
Efforts
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The NWSA’s advocacy of controversial reforms led to a severe image problem
for both the association and its goals.
In 1869, to led credibility to its cause as well as to short-circuit the possibility of a
long battle for a universal suffrage amendment, Francis Minor, an attorney and
the husband of a prominent NWSA member, put forth his belief that women, as
citizens, were entitled to vote under the existing provisions of the 14th
Amendment.
Minor saw the NWSA’s possible resort the courts as a means to gain favorable
publicity for the organization.
Victoria Woodhull’s presentation to Congress in 1871, urging them to pass
enabling legislation to give women the right to vote under the 14th Amendment,
provided the impetus for renewed efforts.
NWSA Strategy
Susan B. Anthony
• Minor, along with Susan B. Anthony, quickly seized
on the enthusiasm that Woodhull’s suggestions
created.
• Minor urged that test cases be brought to
determine if the courts would obviate the need for
additional legislative action.
• A number of legal scholars and judges had publicly
agreed with Minor’s arguments, and, moreover, in
rejecting Woodhull’s request for enabling
legislation, the House of Representatives had
noted that if a right to vote was vested by the
Constitution, that right could be established in the
courts without further legislation.
• More importantly, the newly appointed Chief
Justice Salmon P. Chase had suggested that
women test the parameters of the Constitution to
determine if they were already enfranchised by its
provisions.
Race to the Court
Roger Taney
• Despite Chase’s encouragement, prior
references to women by the Supreme Court
had generally accepted a limited role for them.
• In Dred Scott (1857), for example, Chief
Justice Taney noted, “Women and minors, who
form a part of the political family, cannot vote.”
• Ignoring this discouraging language, the NWSA
initiated several test cases hoping to have at
least one heard by the Supreme Court.
• They had reason to be hopeful as the post-Civil
War Reconstruction era had ushered in a
progressive time in the South for AfricanAmericans.
• But before one of their voting rights test cases
could be heard by the justices, a different case
involving women—one not tied to the NWSA’s
litigation strategy—got there first.
Bradwell v. Illinois (1873)
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Joseph Bradley
Myra Bradwell studied law with her attorney husband and published the Chicago
Legal News—a leading legal publication of the time. She applied for admission to the
state bar and the Illinois Supreme Court denied the application because she was a
woman. A state statute provided that any adult person with sufficient training was
eligible for admission, so she sought a writ of error from the U.S. Supreme Court
claiming a violation of the Fourteenth Amendment Privileges or Immunities Clause.
Justice Samuel Miller delivered the 8-1 opinion holding that women could be
prohibited from practicing law. Miller cited the Slaughterhouse Cases (1873) as
precedent and held that the Fourteenth Amendment did not cover the right to
practice a profession, therefore it was up to individual states to decide such
matters.
Justice Joseph Bradley, however, issued a concurring opinion focusing on the fact
that Bradwell was a woman. He argued that “[t]he natural and proper timidity and
delicacy which belongs to the female sex evidently unfits it for many of the
occupations of civil life... The paramount destiny and mission of women are to
fulfill the noble and benign offices of wife and mother. This is the law of the
Creator.”
Bradley’s statement was seemingly at odds with his dissent in the Slaughterhouse
Cases, where he had argued (with respect to men) that "the right of any citizen to
follow whatever lawful employment he chooses to adopt (submitting himself to all
lawful regulations) is one of his most valuable rights, and one which the legislature
of a State cannot invade, whether restrained by its own constitution or not."
Bradwell’s Aftermath
• The only dissenter (without issuing
any opinion) in Bradwell, Chief
Justice Salmon P. Chase, died and
was replaced by Morrison R. Waite
(right).
• The Court finally heard one of the
NWSA’s test cases in 1874—two
years before the disputed
Hayes/Tilden election of 1876 that
would undue gains made by AfricanAmericans during Reconstruction.
• Would the NWSA be able to take
advantage of the progressive era of
Reconstruction?
Minor v. Happersett (1875)
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The Missouri Constitution says: “Every male citizen of the
United States shall be entitled to vote.”
Virginia Minor, one of the leaders of the NWSA, attempted to
register to vote in 1872 Missouri. When she was denied by the
registrar of voters, she brought suit in the state courts under
the U.S. Constitution’s Privileges or Immunities Clause and
lost.
There was no opposing counsel at the U.S. Supreme Court.
Chief Justice Morrison Waite delivered the unanimous
decision of the Court in favor of the Missouri, holding that the
denial of the vote to women did not violate the Fourteenth
Amendment.
After determining that Minor was indeed a citizen, the decision
held that the Constitution neither granted nor forbade the right
to vote to women and voting is not an inherent right of
citizenship.
“It cannot for a moment be doubted that if it had been intended
to make all citizens of the United States voters, the framers of
the Constitution would not have left it to implication. So
important a change in the condition of citizenship as it actually
existed, if intended, would have been expressly declared.”
International Council of Women (1888).
Susan B. Anthony, seated second from left, and Elizabeth Cady Stanton,
seated fourth from left, and members of the first International Council of
Women, which met in Washington, D.C., in 1888 to discuss women’s
rights.
Triangle Shirtwaist Factory Fire (1911)
Youtube clip: PBS, New York – 4 (36 min.)
Power to the People @ 1:07:56 – 1:44:08
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Women began attending college in higher numbers and entering the workforce
out of necessity.
Young women, especially immigrants, were confined to low-paying jobs in
substandard conditions.
The Triangle Shirtwaist Factory Fire in New York City put the issue on the
national agenda.
In its wake, New Yorkers demanded and the legislature passed laws protecting
workers from dangerous working conditions.
National Consumer’s League
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Calls for improved working conditions for women and children
began to pick up steam around the nation.
The organization most responsible for change, and for the Court
again addressing issues of gender, was the National
Consumer’s League (NCL).
Through the work of its national staff and numerous affiliates,
the NCL secured maximum-hour or other restrictions on night
work for women in 18 states.
The NCL asked Louis Brandeis, the brother-in-law of one of the
organization’s most active members and already a famous
progressive lawyer, to take the case of Muller v. Oregon (1908).
Brandeis agreed but under one condition—that he have sole
control over the litigation—Oregon agreed and allowed the NCL
(and Brandeis) to represent the group in Court.
The precedent for Muller was Lochner v. New York (1905),
where the Court invalidated a law regulating the work hours of
bakers under a substantive view of “liberty” under the 14th
Amendment’s Due Process Clause: liberty, or freedom of
contract between employers and employees, which had to be
balanced against the police powers of the state.
Louis Brandeis
“Brandeis Brief” (1908)
• Brandeis knew that in order to win the case, he would have to present
information to show that the dangers to women working more than 10
hours a day made them more deserving of state protection than the
bakers in Lochner, and by proving that there was something different
about women that justified an exception to the freedom of contract
doctrine.
• NCL researchers compiled information about the possible detrimental
effects of long work hours on women’s health and morals, as well as on
the health and welfare of their children, including t heir unborn children.
• Brandeis stressed women’s differences from men and the
reasonableness of the state’s legislation (low-level scrutiny).
• In fact, the brief had only 3 pages of legal argument and 110 pages of
sociological data culled largely from European studies of the negative
effects of long hours of work on women’s health and reproductive
capabilities.
• Some examples…
“Brandeis Brief” (1908)
• “The leading countries in Europe in which women are largely
employed in factory or similar work have found it necessary to take
action for the protection of their health and safety and the public
welfare, and have enacted laws limiting the hours of labor for adult
women…”
• “Twenty states of the Union…have enacted laws limiting the hours
of labor for adult women…. In no state has any such law been held
unconstitutional, except in Illinois…”
• Brandeis provided reports such as:
• “Report of Select Committee on Shops Early Closing Bill, British
House of Commons, 1895” where a doctor describes the
deterioration of the health of women who work long hours.
• “Report of the Maine Bureau of Industrial and Labor Statistics, 1888”
where a doctor described the adverse effects of standing for 8-10
hours a day – linking it with infant mortality rates.
• Should judges consider such information?
Muller
v.
Oregon
(1908)
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In 1903 Oregon enacted a law that limited women to 10 hours of work in factories
and laundries. A laundry business owner was convicted of violating the law by
forcing female employees to work excessive hours.
Does the Oregon law violate a woman’s freedom of contract implicit in the liberty
protected by Due Process Clause of the Fourteenth Amendment? Attorney—and
future Supreme Court justice—Louis Brandeis argued on behalf of the state that
excessive hours harmed women. He provided a lengthy legal brief that included
medical studies and other material not traditionally used in legal argumentation to
justify the law. This type of legal brief became known as the Brandeis brief and
influenced a generation of lawyers.
Writing for a unanimous Court, Justice David Brewer noted Brandeis’ extensive
analysis and upheld the statute. Though the opinion contained language that
patronized women, Brewer said that liberty of contract was not an absolute right
and must be balanced against the police power of the state to protect the health,
safety, welfare, and morals of its people.
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Muller v. Oregon (1908)
“That woman’s physical structure and the performance of maternal
functions place her at a disadvantage in the struggle for subsistence
is obvious. This is especially true when the burdens of motherhood
are upon her. Even when they are not, by abundant testimony of the
medical fraternity continuance for a long time on her feet at work,
repeating this from day to day, tends to injurious effects upon the
body, and, as healthy mothers are essential to vigorous offspring, the
physical well-being of woman becomes an object of public interest
and care in order to preserve the strength and vigor of the race.”
“History discloses the fact that woman has always been dependent
upon man. He established his control at the outset by superior
physical strength… (which) has continued to the present…. It is
impossible to close one’s eyes to the fact that she still looks to her
brother and depends on him…. The two sexes differ in structure of
body, in the functions to be performed by each, in the amount of
physical strength, in the capacity for long continued labor, particularly
when done standing, the influence of vigorous health upon the future
well-being of the race, the self-reliance which enables one to assert
full rights, and in the capacity to maintain the struggle for
subsistence. This difference justifies a difference in legislation, and
upholds that which is designed to compensate for some of the
burdens which rest upon her.”
Muller v. Oregon (1908)
• Does the Court mention the fact that women cannot
vote in Oregon?
• Yes, but it doesn’t matter: “We have not referred in this
discussion to the denial of elective franchise in the
state of Oregon, for while that may disclose a lack of
political equality in all things with her brother, that is not
of itself decisive. The reason runs deeper, and rests in
the inherent difference between the two sexes, and in
the different functions in life which they perform.”
• Do they overturn Lochner?
• No. They distinguish it: “For these reasons, and without
questioning in any respect the decision in Lochner v.
New York, we are of the opinion that it cannot be
adjudged that the act in question is in conflict with the
Federal Constitution, so far as it respects the work of a
female in a laundry, and the judgment of the Supreme
Court of Oregon is affirmed.”
Muller’s
Progeny
• Muller had an immediate effect. State courts began to hold other forms of
protective legislation for women constitutional, whether or not they
involved the kind of 10-hour maximums at issue in Muller.
• Thus, 8-hour maximum work laws in a variety of professions, outright
bans on night work for women, and minimum-wage laws for women were
routinely upheld under the Muller rationale.
• Much of this Court-sanctioned governmental protection, however, worked
to keep women out of high-paying evening jobs or positions that they
desperately needed to support their families.
Suffragists Parade Down Fifth Avenue (1917).
Advocates march in October 1917, displaying placards containing the signatures of
over one million New York women demanding to vote.
Stettler v. O’Hara (1917):
Brandeis Joins the Court
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The NCL’s efforts to protect women from unscrupulous
employers were victorious in the Supreme Court in
several additional cases, but then ran into trouble in the
early 1920s.
In Stettler v. O’Hara (1917) a lower court decision
upholding Oregon’s minimum-wage law for women was
appealed to the Supreme Court.
Conservatives argued that freedom of contract and
Lochner were controlling.
Brandeis was again hired and he filed another brief
explaining how a living wage was essential to the health,
welfare, and morals of women.
But before the Supreme Court could decide the case,
Brandeis was appointed to it!
The case was reargued and the justices split 4-4 with
Brandeis not participating, thus sustaining the lower court
decision.
Louis Brandeis
Bunting v. Oregon (1917)
• The next NCL sponsored case,
Bunting v. Oregon (1917)
attracted significant attention.
• Brandeis’ hand-picked successor
as counsel for the NCL, Felix
Frankfurter, used the same kinds
of arguments Brandeis had used
in Muller and Stettler.
• In a 5-3 decision, again with
Brandeis not participating, the
Court extended Muller to uphold
an Oregon maximum hour statute
for all factory and mill workers.
th
19
Amendment (1920)
• Although the NCL was
victorious in Muller and Bunting,
it did not anticipate the effect
that the controversy within the
suffrage movement would have
on pending litigation.
• In 1920, the movement was
successful in overturning Minor
v. Happersett (1875) by passing
the 19th Amendment granting
women the right to vote—50
years after the 15th Amendment
guaranteed voting rights to
African-American males.
The National Woman’s Party and
an Equal Rights Amendment
• Once the 19th was ratified, attempts were
made to secure other rights for women.
• Women in the more radical branch of the
suffrage movement, represented by the
National Woman’s Party (NWP), proposed
the addition of an equal rights amendment to
the Constitution.
• Progressives and those in the NCL were
horrified because they believed that an equal
rights amendment would immediately
overturn Muller and Bunting and invalidate
all the protective legislation they had lobbied
so hard to enact.
Alice Paul: Co-founder NWP
Adkins v. Children’s Hospital
(1923)
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When Adkins came to the Court, the NCL was ready.
Adkins involved the constitutionality of a Washington, DC minimum wage law for
women.
The NWP filed an amicus brief urging the Court to rule that, in light of the 19th
Amendment, women should be viewed on a truly equal footing with men.
The division among women between equal rights and protective legislation was
now exposed to public view and was a debate resurrected again and again both in
the Court and in public discourse—and continues to this day.
Many thought the Court had essentially overruled Lochner in the Bunting decision,
which upheld limits on factory and mill workers.
Yet in Adkins, the Court seemed to resurrect Lochner, ruling 5-4 that minimum
wage laws for women were an unconstitutional violation of liberty of contract.
But the Court did not overturn Muller and Bunting, choosing instead to distinguish
them.
It was obvious to many that the Court had been influenced by the passage of the
19th Amendment and the pro-equality arguments of the NWP.
Conclusion:
New Deal Equality?
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The Great Depression and the election of Franklin Roosevelt and New Deal
Democrats to Congress in 1932 ultimately transformed American and the
Court.
In West Coast Hotel v. Parrish (1937) the Court abandoned the liberty of
contract doctrine, explicitly overruled Adkins, and upheld a minimum-wage
law for women.
By United States v. Darby Lumber (1941) the Court unequivocally upheld
Congress’s authority to pass the federal Fair Labor Standards Act, which
regulated maximum hours and minimum wages for ALL workers.
It appeared that the legal distinction between men and women had
disappeared and no new women’s rights cases came to the Court until 1948.
But it was not until the women’s rights movement of the 1970s that saw the
next wave of policy changes to promote women’s liberty and equality.