Commemorating the Forgotten Intersection of the Fifteenth and Nineteenth Amendments

Authors

Taunya Lovell Banks

Document Type

Article

Abstract

(Excerpt)

The women’s rights movement, throughout its history, defined its priorities with reference to white middle- or upper- class women. Thus “discrimination that affected all women” included the right of owning property but not [B]lack women’s voting rights.

This year we commemorate the one hundredth anniversary of the Nineteenth Amendment’s ratification. I use the term commemorate instead of celebrate because it is important to remember that this anniversary is also a time to reflect on the lost opportunities to advance equality for all one hundred years ago. This reflection seems especially appropriate in a presidential election year rife with accusations of voter suppression.

First, a caveat about terminology. We commonly speak of the Nineteenth Amendment as conferring the right to vote on women, but that is not what the actual text says. It reads: “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 sex.” Any right to vote is conferred by the state, not the federal constitution. The Nineteenth Amendment, like its cousin the Fifteenth Amendment—which applies to race—only prohibits states from disqualifying someone from becoming a voter due to sex.

What we casually call the right to vote is actually a franchise—a privilege, that the state can choose to confer or withhold. The Framers had a deep “distrust of direct democracy.” They consciously chose not to include voting as a constitutional right, instead giving the states the power to determine voter qualifications. According to the United States Supreme Court, “[s]tates . . . have broad powers to determine the conditions under which the right of suffrage may be exercised, absent of course the discrimination which the Constitution condemns.” As one scholar notes, the decision not to constitutionalize the vote, consigning voter qualifications to the individual states, “reinforced the established view of the time that the vote, however essential to a popular government, was not a natural right but a privilege conferred by government and subject to constitutional and statutory limitations.”

In commemorating the one hundredth anniversary of the Nineteenth Amendment it is important to note that the quest for women’s first-class citizenship, which I define as equal participation in all aspects of the American political process, has not been achieved. While white women have greater access to the franchise than non-whites, they are not necessarily considered political equals on the ballot. Legal scholar Reva Siegel points out that fifty years after ratification of the Nineteenth Amendment “women . . . were barely represented in Congress or the courts,” and state laws containing gender-based restrictions were still valid. Further, African Americans, women, and men, as well as other non-white individuals, continue to be denied unfettered access to the franchise.