Gerard N. Magliocca noted in September that he was going on a blogging break after noting he already stopped using social media.
He is a self-proclaimed conservative, if of the Never Trumper variety (e.g., he supported the insurrection disqualification instead of impeachment of Trump). I have read and critiqued his sometimes idiosyncratic views on three blogs (Concurring Opinions is no longer around).
Magliocca has also written various books including a biography of a major framer of the Fourteenth Amendment, John Bingham. Rep. Bingham chaired a committee hearing testimony of Victoria Woodhull, who argued in 1871 that the Constitution protected women's suffrage.
The historical attempt failed but two committee members joined a largely forgotten dissent. Rep. Loughridge (formerly a judge) and the more well-known Civil War veteran Rep. Ben Bulter signed on. GM took a break from his break to post a link to an article he wrote about the report. He referenced the matter in past blogging comments.
The basic argument is that women are citizens and citizens have a right to vote. The dissent rests on principle with some citation of precedent including a famous circuit opinion that noted voting was a privilege of citizens, if one that the state can regulate.
The limited reference in the section section of the Fourteenth Amendment allowing states without penalty to only allow men to vote should be interpreted narrowly. Congress never enforced the penalty. GM wrote a criticism of this deficiency.
We could interpret the provision differently. Nonetheless, since voting rights are fundamental, they should not be denied by implication. This approach could help guard against felony disenfranchisement but the Supreme Court interpreted it differently.
(I think the main dissent has some force.)
The Loughridge Dissent shows that an open-ended interpretation of the Constitution, not based on narrow original expectations or a history and practice approach, was present basically at the Founding (of the Fourteenth Amendment). Comparable open-ended views could be cited in antebellum times, particularly involving abolitionist results.
The Fourteenth and Fifteenth Amendments reference a "right to vote" that should not be denied in certain respects. The dissent argued this meant that citizens had a right to vote. The amendments took special care to reference particular areas worthy of concern.
The argument suggests that the Fifteenth Amendment was not necessarily required. A citizen had a right to vote, which could not be denied arbitrarily, with or without that amendment.
The amendment was a means to emphasize racial discrimination was unconstitutional Some thought the First Amendment was redundant. Congress never had such powers anyway. Some thought otherwise. There was a value to emphasize the point.
The Twenty-Fourth Amendment bans poll taxes in federal elections. What about state elections? The Supreme Court held that equal protection principles make that unconstitutional. It would logically follow that the equal protection component of the Fifth Amendment could have dealt with poll taxes in federal elections.
One argument raised by the women petitioners not emphasized in the dissent was that women suffered a former condition of servitude -- coverture -- in marriage. Thus, the Fifteenth Amendment covers them too. The judge sympathetically noted during the hearings that it would seem to only help widows.
The dissent also notes that the Constitution bars arbitrary discrimination, including by sex. I think a more median position on that question was present at least in a minimal way. For instance, women did have basic due process rights. Women were birthright citizens. If you thought the 14A protected free speech, women had SOME sort of protection too.
The article also appeals to this forgotten history as a way to show how women's voices played a role in constitutional history. Likewise, a more open-ended understanding of the Nineteenth Amendment, viewing the amendment as promoting a broad equal protection result is possible.
I have noted that this arose during early abortion cases. Suffrage meant women had an equal place in society, which required bodily autonomy. Likewise, a well-known lower court opinion included the 19A as part of the path to women's equality. See also, the 1920s opinion Adkins v. Children's Hospital.
I have long argued that originalism is not a suitable constitutional analytical approach. One problem is that history is selectively applied. A fuller understanding of history and tradition is helpful in sound constitutional analysis in the current day.
Atypical views like this will not settle the question in that fashion. They will help provide a wider understanding of the complete history and can improve things overall. Plus, they provide an interesting window into the past.
Woodhull married again a few years later. She took on a more conservative life though still was involved in some reform causes. Loughridge didn't serve too long in Congress. Butler continued his political career in various ways. He also successfully defended paper money in a later Supreme Court case.
.jpg)
