The 19th Amendment’s Unwritten Impact on Law and Politics

This article explores the significant role of women's rights in the American Constitution, particularly focusing on the 14th and 19th Amendments, and their broader implications for America's unwritten constitution. It emphasizes Abigail Adams's plea to "remember the ladies" and how this sentiment has shaped the nation's legal and political landscape.

The 19th Amendment: More Than Just Voting Rights

The 19th Amendment, which granted women the right to vote, carries implications far beyond its literal text. The very process of its adoption highlights a historical paradox: women were not universally allowed to vote on an amendment that would grant them universal suffrage. This raises questions about the fairness of laws enacted before women had equal political participation.

Impact on Marriage and Domicile

Traditionally, marriage required a "unity of domicile," meaning a husband and wife had to reside in the same place. However, the 19th Amendment challenges this. If a woman has the right to vote independently, her domicile should not be dictated by her husband's. This suggests a woman's right to a separate domicile, a subtle but significant implication of the amendment.

Transforming Presidential Politics

The 19th Amendment also revolutionized the dynamics of presidential and vice-presidential politics.

• Abigail Adams vs. Eleanor Roosevelt: In Abigail Adams's era, a politically savvy wife like her had to operate cautiously, advising her husband John Adams privately. Public visibility would have offended traditionalist men and potentially harmed her husband's or son's political careers, as only men voted. Eleanor Roosevelt, however, operated in a different landscape. With women voting, her public activism electrified female voters, even if it offended some men.
• The "Two for the Price of One" Ticket: This shift led to the emergence of a "tag team" political dynamic, where the spouse of a presidential candidate plays an active and visible role. Examples include Franklin and Eleanor Roosevelt, Bill and Hillary Clinton, and Barack and Michelle Obama. This new role for the First Lady is an unwritten entailment of the 19th Amendment, reflecting women's status as equal voters.
• Presidential Succession: At the founding, figures like John Adams, Thomas Jefferson, and Alexander Hamilton were rivals, eyeing the presidency after Washington. No one considered Martha Washington a potential successor. Today, however, the possibility of a president being succeeded by their spouse (as seen with governors) is a real consideration. This transformation in the dynamics of presidential succession and the role of the vice president is a deep, unwritten logic of the 19th Amendment.

Women's Rights and Landmark Supreme Court Cases

The article re-examines two pivotal 20th-century Supreme Court cases concerning women's rights: Griswold v. Connecticut and Roe v. Wade.

Griswold v. Connecticut

Griswold invalidated a Connecticut law that made it a crime for married couples to use contraception. This law was an outlier, out of sync with American customs and traditions, and could be invalidated on traditionalist grounds. A key fact is that this law was adopted when no woman could vote in Connecticut.

Roe v. Wade

Roe v. Wade, which established a woman's right to abortion, is harder to defend on purely traditionalist grounds because many states had laws prohibiting abortion. The Roe decision rendered unconstitutional the laws of 49 out of 50 states at the time.

The "Unwritten Constitution" and Pre-Suffrage Laws

A different perspective on Griswold and Roe considers the "unwritten constitution" of American feminism. While the 19th Amendment doesn't invalidate all laws passed before women could vote, it does raise questions about laws that imposed particular disabilities on women.

• Laws Imposing Disabilities on Women: Laws passed before women's suffrage that specifically targeted women and made it difficult for them to participate equally in society (e.g., in politics, law, or the judiciary) are problematic. These laws, by restricting women's options related to childbearing and child-rearing, could have effectively kept women "in the home" rather than in public life.
• The Case of Griswold and Roe: The laws at issue in both Griswold (Connecticut's contraception ban) and Roe (Texas's abortion ban) were adopted before women had the right to vote in those states. These laws, by prohibiting contraception or abortion, disproportionately affected women, who are the sole bearers of children. This could lead to more unwanted pregnancies and child-rearing responsibilities, further limiting women's ability to participate fully in public life.
• A "Modest Middle Position": The argument is that laws passed before women's suffrage that impose special disabilities on women should be re-evaluated. If such laws were re-passed with women as equal participants, that would be different. However, perpetuating old laws that women did not initially vote for and that have an anti-woman effect is questionable.
• Pregnancy and Sex-Based Discrimination: The argument extends to laws targeting pregnancy. If a law prohibited pregnant women from voting, it would likely be deemed unconstitutional under the 19th Amendment, even if it technically allowed "women" to vote. This suggests that laws targeting pregnancy, which only affects women, are effectively laws "on account of sex" within the meaning of the 19th Amendment.

The Deep Logic of the 19th Amendment: Beyond Voting

The 19th Amendment's implications extend to women's full and equal participation in all aspects of government and society.

"Women are too sentimental for jury duty."

A 1915 political cartoon, depicting an all-male jury rendering a "not guilty" verdict for a female defendant, with the caption "Women are too sentimental for jury duty," highlights this broader logic. The cartoon, an anti-suffrage argument, implicitly acknowledges that if women gain the right to vote, they will also gain the right to serve on juries. This demonstrates that the suffrage movement was not just about voting but about women's full political equality.

Right to Be Voted For and Hold Office

The written Constitution, in Article Two, uses male pronouns when referring to the president. At the founding, the idea of a female president was unimaginable. However, today, it is inconceivable that a state could bar female candidates from appearing on a presidential ballot. This right for women not just to vote, but to be voted for, to run for and serve as president, is an unwritten implication of the 19th Amendment. It signifies that if women are fit to vote, they are fit to serve in all capacities, including the highest offices.

Abigail Adams's Legacy and the Three Revolutions

Abigail Adams's letter to John Adams in 1776, urging him to "remember the ladies" in the new code of laws and warning of rebellion if women were not given a voice, foreshadowed the long struggle for women's rights.

Her plea, initially disregarded by John Adams, led to a series of "revolutions":

1. The 14th Amendment: Women, alongside men, advocated for the 14th Amendment, which established birth equality, encompassing black and white, male and female.
2. The 19th Amendment: This amendment enshrined political equality for women.
3. The Unwritten Third Revolution: In the 20th century, feminists broadened and deepened these ideas of women's equality, leading courts to interpret the 14th and 19th Amendments together, effectively achieving what the Equal Rights Amendment (never ratified) would have.

Today, courts largely operate as if the ERA had been ratified, demonstrating that Abigail Adams's call to "remember the ladies" has profoundly shaped America's unwritten constitution, ensuring women's equal participation in all domains of life.