Thank the suffragists.

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Voting for a Female President Isn't So Radical Now

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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No matter the outcome, this Election Day marks a signal moment in the history of women’s suffrage. The Founding Fathers had a bad conscience about slavery, but no such qualms about women’s rights. The movement for women’s suffrage didn’t begin until the 1840s. And after the Civil War, when the 15th Amendment was proposed to give blacks the vote, women’s groups splintered over whether the denial of voting rights to women was a reason to oppose the amendment. Today, Democratic presidential candidate Hillary Clinton, a moderate, centrist reformer, is the political descendant of the women’s suffrage movement of the late 1800s and early 1900s.

At the time of the American founding, voting rights for women was not yet a major national issue. But the idea was not unthinkable. In 1778, the Virginian Hannah Lee Corbin wrote a letter (now lost) to her brother, the patriot and politician Richard Henry Lee, arguing that as a widow in possession of property, she ought to have the right to vote just as much as a property-owning man.

Lee wrote back that, logically, widows and unmarried women with property should indeed have voting rights like men, and that he personally “would at any time give my consent to establish their right of voting.”

Both brother and sister were writing against the backdrop of the idea, then prevalent, that voting rights properly belonged to property holders. Because the English common-law rule of coverture gave married women’s property to their husbands, both Corbin and Lee assumed that married women would not have the right to vote.

New Jersey actually adopted a constitution in 1776 that gave the right to vote to “all inhabitants” with 50 pounds’ worth of property. Although there is some historical debate about the topic, at least some women -- presumably unmarried ones who owned property -- voted in the state. In 1797, a state voting law expressly referred to the voter as “he or she.”

No other state imitated New Jersey. And in 1807, the state legislature passed a statute declaring that the 1776 constitution could never have intended to enfranchise women or blacks, putting an end to the experiment.

Thus, the most likely explanation for why women didn’t vote at the time of the founding was the background legal sexism that denied property rights to married women. Three changes put women’s voting rights onto the national agenda. The first was a more general interest in women’s rights, spurred in part by Mary Wollstonecraft’s 1792 book, “A Vindication of the Rights of Woman.” The second was the gradual decline of the idea that only property holders should vote. And the third was the even more gradual decline of the law of coverture through the passage (starting in 1839) of what were called “married women’s property acts” -- themselves a product of the movement for women’s rights.

In 1848, the landmark Seneca Falls convention adopted -- after much debate -- Elizabeth Cady Stanton’s argument that the denial of the franchise to women lay at the heart of structural sexism. The declaration of sentiments explained that by denying women the right to vote, men could then subject women to laws in which women had no say -- including the denial of property rights. This profound insight reversed the direction of causal analysis from the 18th century: Instead of treating possession of property as the qualification for voting, Stanton was proposing that denying the right to vote led to denial of property.

Yet it would take 70 more years for women’s suffrage to be adopted in the Constitution. Opponents insisted, among other arguments, that women were “virtually” represented through their husbands.

When the 15th Amendment extending the franchise to blacks was under consideration, the women’s suffrage movement found itself internally conflicted. Stanton and Susan B. Anthony actively opposed ratification as a blow to women, and formed the National Woman Suffrage Association as a competitor to the more moderate, accommodationist American Woman Suffrage Association, which supported ratification of the 15th Amendment.

The organizations merged in 1890, and by the time of World War I, the National American Woman Suffrage Association was considered the moderate mainstream of the suffrage movement. It avoided direct criticism of the war effort and instead argued that the principle of spreading democracy abroad ought to be applied at home. The 19th Amendment was ratified in 1920, after the end of the war to end all wars.

Win or lose, Hillary Clinton counts in historical terms as a descendant of the reformers who got suffrage passed. Her political career, complexly interwoven with her husband’s, is a reminder of how women’s right to vote was itself often caught up in the complicated historical politics of marriage. After this election, sexism will still exist. But the long practice of denying women the right to vote will seem that much more like ancient history.

  1. Hannah Lee Corbin in particular had reason to be interested in the rights of widows. Her husband, who died after a riding accident in 1759, had written his will to reduce the likelihood of her remarriage by depriving her of substantial property if she did. Consequently, Corbin cohabited with Richard Lingan Hall instead of marrying him.

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Noah Feldman at nfeldman7@bloomberg.net

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