Unwritten Constitution and the 19th Amendment: Key Implications

This article explores the "unwritten constitution" of America, focusing on how constitutional principles extend beyond the literal text and are shaped by historical context, societal evolution, and judicial interpretation. It delves into the implications of the 19th Amendment, particularly regarding women's rights and popular sovereignty.

The Unwritten Constitution: Beyond the Text

The American Constitution is not merely a written document but a dynamic system interpreted through various lenses. Key aspects of this "unwritten constitution" include:

• Holistic Reading: The Constitution should be read as a whole, recognizing overarching principles like separation of powers, checks and balances, limited government, federalism, and the rule of law. As John Marshall famously stated in McCulloch v. Maryland, "it is a constitution we are expounding," emphasizing the document as an entire system rather than isolated clauses.
• Ordainment Process: The process by which the Constitution was enacted reveals deep principles such as free speech and majority rule.
• Amendment Process: The amendment process, particularly the 14th Amendment, highlights principles like robust republican government.
• Lived Constitution: Americans, through their daily lives, embody unwritten constitutional rights, such as the right to own a dog, play music, or raise children, even without explicit textual mention.
• Case Law: Judicial decisions, though not formally part of the written text, provide a crucial prism through which the Constitution is understood and applied. The Warren Court's jurisprudence is a significant example.
• Constitutive Texts: Iconic texts outside the formal Constitution, such as the Declaration of Independence, Martin Luther King Jr.'s "I Have a Dream" speech, Brown v. Board of Education, and the Gettysburg Address, profoundly influence the national constitutional culture. Abraham Lincoln's influence, in particular, is seen as foundational to how the Constitution is read today.

Remembering the Ladies: The 19th Amendment and Popular Sovereignty

The discussion then shifts to the role of women in the constitutional framework, drawing inspiration from Abigail Adams' 1776 letter to John Adams, urging him to "Remember the ladies."

The Preamble of the Constitution states it was "ordained and established by the people," and Article VI declares it the "supreme law." This legitimacy stems from a theory of popular sovereignty, where the Constitution's supremacy is justified by its inclusive ordainment process, involving a broader segment of the population than any previous historical document. Similarly, constitutional amendments, requiring supermajorities (two-thirds of the House and Senate, three-quarters of the states), reflect a deep democratic consensus, granting them supremacy over ordinary statutes.

However, the 19th Amendment, granting women the right to vote, complicates this narrative. While it affirms women as equal political participants, it also implicitly questions the fairness of previous constitutional processes where women were excluded.

The Unsettling Logic of the 19th Amendment

Consider a hypothetical scenario: Congress passes a sweeping law to vindicate women's rights, similar to the Violence Against Women Act, providing protections against private violence and discrimination. While the text of the 14th and 19th Amendments could be interpreted to support such a law (the 14th affirming equal citizenship for all, and the 19th addressing sex discrimination), a counterargument might arise based on legislative history. Critics might argue that the 14th Amendment's legislative history primarily focused on race, not sex, and the 19th Amendment specifically addressed voting, not broader issues like private violence or employment discrimination.

This argument, however, faces a critical challenge: the legislative history of these amendments was overwhelmingly shaped by men, as women were largely excluded from the political process at the time. The very adoption of the 19th Amendment, which declares women as political equals, retrospectively casts doubt on the fairness of the processes that led to earlier constitutional provisions. If women are now considered political equals, then their exclusion from the founding, the 14th Amendment, and even parts of the 19th Amendment's ratification process, appears fundamentally unfair.

The deep logic of the 19th Amendment is not merely about voting rights; it asserts that women have always been the political equals of men. This implies that any legislative history predominantly created by men, which might narrowly interpret women's rights, should not automatically trump a more recent, democratically enacted law where women are full participants. To uphold popular sovereignty, interpretations of the Constitution should hesitate to invalidate laws affirming women's equality based on a male-dominated legislative history.

Broader Implications: Beyond the 19th Amendment

This principle of deeper, unwritten implications is not unique to the 19th Amendment:

• Freedom of Speech (First Amendment): The First Amendment's commitment to freedom of speech implies a broader right of political expression than existed in England, where Parliament was sovereign. In America, the people are sovereign, and government officials are their servants. While not everyone at the founding fully grasped this, the logic of popular sovereignty eventually led to a broader understanding of free speech, challenging early attempts at censorship like the Sedition Acts.
• Reconstruction Amendments (13th, 14th, 15th): The initial aim of ending slavery (13th Amendment) evolved as it became clear that stability required guaranteeing equal citizenship and voting rights for freed slaves. The 14th Amendment affirmed citizenship, and the 15th extended voting rights, first to the South and then to the North, reflecting a growing understanding of the deep logic of equality and republican government.

Just as these amendments had broader implications than initially understood, the 19th Amendment's impact extends beyond mere suffrage. Future discussions will explore its implications for marriage laws, the roles of the First Lady and Vice Presidents, and landmark cases like Griswold and Roe, as well as the role of women on juries. The 19th Amendment, therefore, serves as a powerful lens through which to re-evaluate and expand the understanding of American constitutionalism.