Abstract
[INTRODUCTION] During a public speech in 1856, Sojourner Truth is described as stating: “I have had two husbands yet I never possessed one of my own. I have had five children and never could take any one of them up and say “my child” or “my children . . .” One of Truth’s two husbands was an older enslaved man, forced upon her for the purpose of providing new victims of slavery. The second husband may have been a man she considered to be her real husband but was never allowed to marry. By law, Truth’s children belonged entirely to her enslaver. Truth’s courageous contributions to the women’s suffrage movement, through her 1856 speech and many others, emphasize the brutal control slaveowners possessed over the bodies and lives of Black women during slavery. Truth’s white fellow suffragists also experienced a lack of autonomy over their bodies as laws permitted marital rape and denied them the ability to take any action to prevent pregnancy. The founding fathers of the United States drafted a federal Constitution that declared a right of liberty, but did not extend that right to women. Suffragists fought for political and legal recognition as equal participants in civic life and believed that the right to vote would deliver their full liberation, including bodily autonomy. Today, however, the Supreme Court’s reliance on “history and tradition” when defining liberty interests risks embedding women’s historical oppression into modern legal precedent. In particular, in its Dobbs v. Jackson Women’s Health Organization opinion, the Supreme Court majority applied a narrow view of history and tradition, drawing primarily from early American law and even earlier English legal sources. This approach may also enable future restrictions on reproductive autonomy, including calls among some conservatives to ban oral contraceptives and intrauterine devices. Without conceding that the history and tradition test is an appropriate focus for due process analysis, this article argues that women’s long battle to win equal citizenship through the Nineteenth Amendment at least requires a more expansive view of history and tradition that considers women’s liberty. Further, a central focus of the fight for women’s rights was—and remains—women’s bodily autonomy.
The Court’s current approach to history and tradition fails to consider the voices that really matter to the question of whether bodily autonomy is an essential aspect of women’s liberty. With respect to women’s rights, Sojourner Truth and other women’s rights advocates are better sources than the founding fathers to identify fundamental rights protected by the Due Process Clause. The term “founding mothers,” like “founding fathers,” conveys a role in nation-building. If the Fourteenth Amendment was, as some scholars have suggested, a “second founding,” then the Nineteenth Amendment should be considered a third founding. This article’s focus on “founding mothers” insists that women’s voices must take center stage in any discussion of the meaning of “due process of law” as it pertains to women’s liberty.
The fallacy inherent in searching for women’s rights in a patriarchal “history and tradition” has been explained in prior feminist scholarship. Recognizing that the history and tradition test may nonetheless be favored in constitutional jurisprudence for some time to come, this article aims to improve the test by redirecting the Court’s historical analysis to focus on the history of the women’s rights movement as movement leaders began to identify and disrupt the oppression of women. The gaping hole left by the history and tradition test in identifying fundamental rights of women can be filled by investigating women’s understanding of what their full citizenship requires. While specific policy preferences have differed among feminists and between factions over time, one common thread clearly emerges: women’s right to autonomy over their bodies. From Sojourner Truth’s feminist lens on abolition to the modern reproductive justice movement, and from suffragists’ first emergence to the recent “#MeToo movement,” women’s rights advocates have consistently—and with increasing vigor—identified interference with their bodily autonomy as gender-based oppression. The history of women’s rights in America is one of government control over women’s bodies as a method to achieve perceived societal benefits that have included slave labor, eugenics, white supremacy, male dominance, paternalism, and population control. The Court’s current narrow framing of the history and tradition test for fundamental rights analysis sanctions the continuation of the oppression of women by failing to consider their long-standing fight for bodily autonomy as a critical aspect of this nation’s history.
The article builds upon several threads of prior scholarship, where a growing number of scholars have called for consideration of the Nineteenth Amendment in constitutional doctrine. Feminist scholar Reva Siegel has criticized the lack of legal doctrine connecting the Nineteenth Amendment to women’s rights. Siegel has argued that the Fourteenth Amendment should be read in conjunction with the Nineteenth Amendment, a call that other scholars have since joined.
Alternatively, some scholars have argued that the Nineteenth Amendment can stand on its own as a source of constitutional rights for women. To support this contention, another feminist scholar, Paula Monopoli, has pointed out that some state courts recognized the Nineteenth Amendment as conveying rights and duties of full citizenship previously denied to women, like the ability to serve as jurors or run for office. Monopoli also specifically connected the Nineteenth Amendment to the Dobbs decision, arguing that reproductive autonomy was a core goal of the suffrage movement. This article shares Monopoli’s focus on reproductive autonomy as central in the fight for suffrage and Siegel’s conception of the Nineteenth Amendment as affecting the interpretation of the Fourteenth Amendment. To some extent, this article is a bridge between these scholars. Rather than focusing on equal protection as Siegel does, this article addresses the effect of the Nineteenth Amendment on the Due Process Clause. The connection to the Due Process Clause finds a textual home for Monopoli’s argument regarding the centrality of reproductive freedom to women’s rights. Similar to Steven Calabresi and Julia Rickert’s piece on originalism and sex discrimination, this article will engage with originalist theory to debunk any claim that the Nineteenth Amendment’s relevance can only be based on living constitutionalism. However, whereas Calabresi and Rickert were focused on saving sex discrimination cases like U.S. v. Virginia (VMI) from originalist attacks, this article will focus on the Nineteenth Amendment’s effect on how the term “liberty” would be understood under the Due Process Clause. Therefore, I present a unique avenue and a new set of arguments for the emerging understanding of the Nineteenth Amendment as a source of women’s rights.
This article criticizes originalist theory, as applied by the Supreme Court, for its reliance on early American history to set the limits of liberty at a time when the liberty interests of racial minorities, women, and Native Americans were not recognized. Siegel and Jack Balkin have argued that the Court in Dobbs used an overly narrow historical analysis of due process rights that focused only on whether an asserted right had been regulated in the past. The Dobbs opinion appears to leave no room to argue that the regulation of an asserted right was enabled by an oppressive governmental regime. Like Siegel and Balkin, this article argues for a wider historical analysis of due process rights. If originalist theory is to be considered a legitimate approach to constitutional interpretation, it cannot look only at laws enacted during times when significant portions of various American communities were disenfranchised. Instead, originalism must allow a role for the voices of the oppressed who dissented and fought for their civil and political rights. In fact, when courts are interpreting constitutional provisions that aim to bring excluded populations into our democracy—like the Fourteenth and Nineteenth Amendments—the prior existence of oppressive laws should support, rather than refute, the existence of a right. While the Dobbs decision relied on past restrictions of abortion to disprove a right, the history that this article presents situates historical abortion restrictions as institutionalized backlash against the suffrage movement. Indeed, the connection between control over women’s reproductive functions and oppression remains unbroken from slavery, through coverture, to today’s regression of reproductive rights on the heels of the #MeToo movement. This history casts doubt on the legitimacy of restrictions on reproductive freedom, and this article contends that the centrality of reproductive freedom to feminist movements is strong evidence of its fundamental importance to women.
Prior Nineteenth Amendment scholarship has focused on the suffragists, which is a natural and important starting point for interpreting the Amendment. This article extends the historical analysis to demonstrate that bodily autonomy has continued to dominate women’s rights movements as society has moved through periods of progress in women’s liberty, with each period of progress followed by subsequent backlash. Women’s experience with oppression has differed by race and social status—minority and lower-income women have faced repression of their fertility and lack of access to health care—whereas mainstream feminist movements have historically focused on resisting restrictions on birth control and abortion. But despite differences in the battles they have had to fight, women’s rights movements have always shared an agenda of reproductive freedom. Based on analogous reasoning in originalist court opinions and scholarship, the history of women’s exclusion and later enfranchisement through the Nineteenth Amendment must play an important role in the analysis of women’s due process rights. Specifically, originalists recognize the process of amending the Constitution as a valid tool for constitutional change, and interpret amendments based on their meaning at the time of ratification. In a similar vein, the broader story of women’s fight against the conscription of their bodies into state, economic, or social projects includes laws and practices that compelled pregnancy, restricted reproductive decision-making, or treated women’s reproductive capacity as a resource for societal interests. This history should be the most compelling argument for understanding reproductive autonomy as a fundamental due process right.
Without conceding that either originalism or the history and tradition test are meritorious approaches to constitutional interpretation, I seek to secure a place for the history of oppression of women and the voices of those who fought for their liberation within these doctrines. To that end, I explore relevant historical sources and analyze how they can fit within an originalist framework. Part I will provide a brief history of the evolution of the current originalist approach to due process analysis. Part II will construct an originalist-friendly analysis of why the Nineteenth Amendment affects the meaning of liberty under the Due Process Clause and will introduce a two-step framework for engaging in that proposed analysis. The framework will first investigate the historical themes of subordination of women and then consult the voices of women’s rights advocates in defining the rights that are fundamental to their post-enfranchisement liberty. Parts III and IV will apply the proposed framework to identify interference with reproductive freedom as a pillar of patriarchy and the removal of this form of oppression as a core element of women’s liberty. Finally, Part V will cover the significance of the proposed framework in reproductive rights and suggest other possible uses for the framework, including intersectional analysis of rights and connections to attacks on the liberty of transgender individuals.
Some scholars have documented the selective use of originalism as a political tool to preserve conservative values. While it might be naïve to believe that originalists would engage with an argument that counters their social agenda, framing arguments in their theoretical framework can help expose Justices’ true motives and highlight inconsistencies. And when Justices reject an originalist argument, that rejection can provide precedent in future litigation where strict originalism might lead to unjust results. Ruth Bader Ginsburg devised a similar long game when she used male plaintiffs to convince male judges to recognize sex as a suspect classification, enabling her to later write the pivotal women’s rights victory in United States v. Virginia. Appealing to Justices’ sense of responsibility for consistent methodology can work to promote more consistent application of originalist principles. In any event, originalism is currently the dominant Supreme Court theory, so engaging with it is not an option—it is a necessity.
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