0:00

March is women's history month. And to

0:02

celebrate, we're hosting a conversation exploring

0:05

the story of women's rights in

0:07

the nineteenth and twentieth century. Hello

0:13

friends. I'm Jeffrey Rosen, president and

0:15

CEO of the National Constitution Center,

0:17

and welcome to We The People. A weekly show

0:19

of constitutional debate. The National

0:21

Constitution Center is a non partisan nonprofit

0:24

chartered by congress increase awareness

0:27

and understanding of the constitution among

0:29

the American people. In this episode,

0:31

we're joined by two authors who have enlightening

0:34

new books, exploring different aspects

0:36

of the fight for women's rights in the nineteenth and

0:38

twentieth century. Sarah Chafield

0:40

is assistant professor of political science

0:42

at the University of Denver. She's here

0:44

to discuss her new book in her own

0:47

name, the politics of women's rights

0:49

before suffrage. Welcome, Sarah.

0:51

Do we the people?

0:52

Thank you so much, Jeff. I'm so happy to be

0:54

here. And Nicole Evelina is

0:56

here to discuss her new book, America's forgotten

0:59

suffragists,

1:00

Virginia and Francis Miner. Nicole,

1:03

it's wonderful to welcome you to the show.

1:05

Hi. Thank you for having me. Nicole,

1:07

in your wonderful new book, or

1:09

you tell the story of the minors, who

1:13

brought a case to the supreme court where the

1:15

court rejected the idea that the right to vote

1:17

was one of the privileges or immunities of

1:19

citizenship in eighteen seventy five

1:21

and they also fought to reform economic

1:24

rights for women. Tell us who Virginia

1:27

and Frances minor were and why

1:29

we the people listeners should learn

1:31

about something.

1:32

Virginia and Francis Miner were a husband

1:35

and wife who lived in St. Louis,

1:37

Missouri in the eighteen hundreds and

1:40

Virginia actually founded the

1:42

country's first and possibly the world's

1:44

first organization solely

1:46

dedicated to women's suffrage, which

1:48

was called the women's suffrage Association

1:51

of Missouri. And from there,

1:53

she went on with Frances to

1:55

come up with theory called the new departure

1:57

that basically said that the fourteenth

2:00

amendment already gave women the to vote

2:02

because it used gender neutral language of

2:04

citizens rather than Womens.

2:06

And that was the basis of her attempting

2:09

to register to vote and hundreds of other women

2:11

across the country. When

2:13

she was denied the right vote, she

2:15

was she and her husband sued the

2:17

registrar Reese Happer Set in

2:20

the St. Louis courts. That

2:22

case made it all the all the way to the supreme

2:24

court, and that

2:26

became the only time that women's suffrage

2:29

was ever argued before the a supreme court

2:31

in the United States. And during

2:33

their time, Francis and Virginia were actually

2:35

very well known. They were in papers

2:38

across the trade friends with Elizabeth Katie

2:40

Stanton and Susan b Anthony, but

2:42

they've been forgotten somehow in the last hundred

2:44

years. So I felt it was important to

2:46

restore them to the historical record and

2:48

they're really fascinating people.

2:51

They really are, and your book does such a wonderful

2:53

job in bringing them to

2:55

life. Sarah Chartfield,

2:58

in your wonderful

3:00

new book, you discuss how

3:04

was that women's property

3:06

rights governed by laws called

3:09

Kuvrecher were reformed in the nineteenth

3:11

century, a period when

3:13

women didn't have the right to vote. Tell

3:15

us why that was and how this remarkable

3:18

story evolved.

3:19

So this was definitely the puzzle that I kind

3:21

of started out with with this project.

3:23

We have these pretty massive transformations

3:26

in women's economic rights starting

3:28

in nineteen thirty five and continuing

3:31

all the way through the ratification of

3:33

the nineteenth amendment and beyond

3:36

where at the start of this period, after

3:39

women got married, they really had

3:41

no independent economic or

3:43

civic identity. According

3:46

to the common law, which

3:49

was in operation in most states at

3:51

that time. Women after

3:53

marriage became one person with their

3:56

husband and that one identity was

3:58

governed by the man. So they didn't

4:00

have the ability to own property or appearing

4:03

court under their own name, whole host

4:05

of legal and economic rates

4:07

that they didn't have. And over

4:09

this period, both state

4:11

legislatures and state constitutional conventions

4:14

granted women straight. So that's really my question

4:16

of how in the world did this happen when

4:18

women couldn't pressure them at

4:20

the ballot box And part

4:23

of the answer is that

4:25

this solution of granting married women's

4:27

property rights became seen

4:30

as serve this way to deal

4:32

with many, many social problems

4:34

that men were dealing with

4:37

at the time. So, for example,

4:39

in the pre civil war south. It

4:41

was a way to provide economic stability

4:43

to slaveholding families. In

4:46

the west, it was a way to attract women

4:48

to come out and be part of the subtler project.

4:51

It was a way to provide a social safety

4:54

net to struggling families, and I can

4:56

get into any of those explanations if you like.

4:58

But it starts out as sort of, okay, this

5:00

could be a way to solve XYZ

5:03

problem that we have, and then courts

5:06

start interpreting the laws and things kind of

5:08

cycle through state level institutions.

5:10

And the national government was not involved

5:12

in this at all. During this time period,

5:15

both marriage law and property law were

5:17

seen as pretty much exclusively things

5:19

that states should deal with. So

5:22

although they got there in different ways, every

5:24

single state adopted some

5:26

version of these reforms in

5:29

the eighteen hundreds and early nineteen hundreds,

5:32

It's such a fascinating reminder

5:34

of the fact that all sorts of people benefited

5:37

from the reform of these laws, including Yes.

5:42

Nicole, you you vividly paint the

5:44

story of of the miner's marriage,

5:46

which was very supportive. And

5:49

you begin by saying that Francis created

5:51

a trust for Virginia that allowed her to

5:53

be financially independent. How

5:55

does the miners early

5:58

financial arrangements relate to the story

6:00

of property rights of married women more broadly.

6:03

I think it relates very strongly. They

6:06

had what was called at the time a companion at

6:08

marriage, which we would call kind of a love match nowadays.

6:11

They were they were very much interested

6:13

in each other's intellect, in each other's interests,

6:16

and and as you said, very supportive of

6:18

each other. And Francis

6:21

was a lawyer, so he obviously had

6:23

access and knowledge that the average

6:26

person didn't. He used

6:28

that to, as she said, set up a series

6:30

of trusts that basically he

6:33

took on the role of a woman as

6:35

far as property rights does. And gave

6:37

the trust and through the trust of Virginia, the

6:39

role that a man would typically take.

6:42

And through that, she was able

6:44

to buy and sell lease property

6:46

at will. She was able to

6:49

say in her will if she wanted to that

6:51

the property would go to someone other than him

6:53

or their heirs, which was almost unheard

6:55

of. At that time. And

6:58

in at least Saint Louis, if not in the state,

7:00

she sold property to another woman

7:03

and bought property from another woman,

7:05

which again was almost unheard of.

7:07

And he was doing that so that she

7:09

had the most rights possible within

7:11

their marriage because he hated the system of cover

7:14

to her just as much as Virginia did. Both

7:16

of them fought against it throughout their

7:18

entire lives. And that was really a

7:20

first step for them to model

7:22

within their marriage the types of

7:24

rights that they were fighting for for all

7:26

women across the country. And

7:29

being supportive and giving Virginia those

7:31

rights gave her not

7:33

only personal courage

7:35

but, you know, a legal ability

7:37

to do the things that she went on to do later in

7:39

the suffrage movement. Sarah,

7:42

you identify five categories

7:44

that you see most important to economic

7:47

rights reform. I'll just put them on the table and

7:49

ask you to explain them, and then you'll help

7:51

our listeners understand what what covert laws

7:53

were and and how strong the disabilities for

7:55

women were. But they include a married

7:57

woman's ability to hold property separate

8:01

and free from her husband's debts, to control and

8:03

manage the property, to hold wages or earnings

8:05

as separate property, to write a will, to engage

8:07

in

8:07

business. Tell us more about that and how

8:09

Kooverter thwarted all of those

8:12

efforts. Howard Bauchner: Yeah, prior to this period,

8:15

generally, married women didn't have any

8:17

of those rights. And as Nicole mentions,

8:19

there could be these very individual

8:22

arrangements. Most commonly,

8:24

that happened because of women's father

8:27

wanted to leave her property, although actually

8:29

wonderful, a great example of a husband who was

8:31

wanting to empower his wife. But ultimately,

8:34

because of the legal situation, it had to

8:36

be on an individual level and initiated

8:39

by a man, typically

8:41

male relative of some

8:43

sort. So to kind of go through these different

8:45

categories of how things

8:47

change, typically the earliest loss to

8:49

be passed were what I

8:51

call debt free state laws. And

8:53

basically, what these did was

8:55

allow a married woman to hold

8:58

property to own property that she brought

9:00

into the marriage, typically

9:02

through a gift or a bequest. And

9:05

that property, she couldn't actually do anything

9:07

with it legally, but she could own it.

9:10

And it wouldn't be liable for

9:12

her husband's debts. And so

9:14

these laws in a lot of ways functioned

9:17

as debtor protection for families. Really,

9:19

what they were doing was saying, even

9:21

if husband fell into horrible

9:24

financial straits.

9:26

There would be a portion of family property

9:28

that his creditors couldn't seize that

9:30

portion. Brought to the marriage

9:33

by the wife. And then over

9:35

time, you start to see laws pass

9:37

that give women more ability

9:40

to do things with that property. So

9:42

control and management laws, as you'd

9:44

expect, those allow women to

9:46

actually sell mortgage, do

9:49

all the things we would typically expect that people

9:51

can in fact do, then

9:53

earnings laws allow them to

9:55

hold their earnings separately. And

9:58

The reason that comes in a different law,

10:00

there's a few reasons. One is

10:02

that wages at this

10:04

time were really seen as a

10:06

different type of property than

10:09

let's say land. It was seen as sort

10:11

of having a different character. Over time, not

10:13

starting to change and that's as you start

10:15

to get these new laws. But it has

10:17

to be enumerated separately in

10:20

legislation And the other piece

10:22

of that is that at this

10:24

time, part of Covichure is

10:26

this idea of marital service

10:29

which is that wives as

10:32

part of the marriage relationship owe

10:35

all of their labor unpaid

10:37

to their husband for household duties. So

10:40

things like doing the housework,

10:42

raising the children, making meals, not

10:45

just their property is in their own, but their

10:47

actions, their behavior, their labor is not

10:49

their own. And so earnings act

10:51

are what start to change that and say,

10:54

actually, women could work outside the home

10:56

and could opt to do so

10:58

on a separate account and then own

11:00

those wages as their own property.

11:03

So that's a piece of it. And then connected

11:05

to that is the right to run a business

11:07

to sign contracts to do all of those legal

11:10

things that one

11:12

would need to do to engage in independent

11:14

business things like being

11:16

able to appear in court under your own

11:18

name without your husband being part of

11:20

that lawsuit. And then finally,

11:23

the fifth category that I look at is

11:25

testamentary rights, which is the right to

11:28

will property to another person, which

11:30

as Nicole mentioned, that was a separate

11:33

economic

11:33

right, not just to own property, but to

11:35

decide what would happen to it after

11:38

you passed away. Nicole,

11:41

Sarah talks about the relationship between

11:43

married property, reform, and slavery

11:45

in the South. And how did the

11:47

miners become abolitionists? And and what

11:49

did they see as the relationship between slavery

11:52

and women's

11:52

suffrage? We don't

11:54

know exactly how the miners

11:56

became abolitionists or why. We

11:59

know that they were raised in slaveholding

12:01

families their family bibles exist

12:03

that have the list of the names of slaves

12:05

in the back of them. So we know that

12:08

they were raised in that type of culture. They

12:11

did after they left Virginia, lived

12:13

for three years in Mississippi with Francis's

12:16

brother, Dadmy, and his older brother,

12:18

So there could possibly have been something,

12:21

you know, that they witnessed there that

12:23

changed their minds or perhaps they already

12:25

had that mindset. The record doesn't tell us, unfortunately.

12:28

But we do know that there are no records

12:30

of them ever holding slaves

12:33

as property of purchasing or anything

12:35

like that. There are mentions of

12:38

a maid that Virginia had and her employee

12:40

who she left a very generous request

12:45

to in her will. So,

12:47

you know, we we know that they did have other servants.

12:49

As far as abolition, they were very

12:52

outspoken. They were part of

12:54

several abolition groups and

12:58

they they just didn't care who knew.

13:00

We were pretty sure that they followed the the dred

13:02

Scott case, which happened in Saint Louis, oddly

13:04

enough in the exact same room that their court

13:06

case would take place in

13:09

the first level of it. And they

13:11

felt like everyone should have

13:14

the right to vote. Francis gotten

13:16

a heck of a lot of trouble for advocating

13:18

for universal women's suffrage, which meant

13:21

not only the white women but black women as

13:23

well. And so they believe that everyone

13:25

should have the right to vote. And

13:27

during their court case, they also

13:30

compared the state of women under

13:32

coverage. Her to the state

13:34

of slaves because

13:36

they were basically put under the same legal

13:38

status. A lot of people said that that

13:41

was a bit of a stretch. You know, that Virginia

13:43

by no means was under the same

13:45

type of distress

13:47

that a slave would be

13:49

but I mean legally speaking, they

13:51

they weren't wrong. Sarah, you'd describe

13:53

how, in in some cases, reform

13:56

of women's property

13:58

acts was in the interests of enslaving

14:01

men. Tell us about the relationship between

14:04

women's rights reform and and slavery.

14:06

Yeah. So before the civil war,

14:09

five slave states explicitly identified

14:12

and slave people in married women's

14:14

property laws. Enumerating them

14:16

as a type of property that a wife

14:18

might be able to own. And

14:20

they often treated them differently than other

14:23

sorts of property in particular really

14:25

specifying that oversight

14:28

of enslaved people would be done by the

14:30

husband and that if they

14:32

were to work off the plantation, any

14:34

of their wages would go to

14:37

the husband, not the wife. So

14:39

lot of what this is doing is providing

14:41

an ongoing revenue stream for

14:43

families that own enslaved people

14:45

and may be in economic

14:47

distress. So these laws

14:50

are typically those type of debt relief

14:52

laws. That I was talking about earlier.

14:54

And so what they're doing is saying, enslaved

14:57

people that a white married

14:59

woman brings into a marriage cannot

15:02

be seized for her husband's debts,

15:05

yet any profits from

15:07

those people's labor is going to

15:09

the husband. So it's providing ongoing

15:12

money to prop up families

15:15

that own enslaved people. And

15:17

one of the interesting things is that

15:20

white women during this period were

15:22

especially likely to own

15:24

enslaved people, to receive them as gifts,

15:28

parents, slave owning parents were especially

15:30

likely to think this was an appropriate gift for

15:33

celebrations like birth, a birthday,

15:36

marriage, from a lot of different state

15:38

scholars have gathered evidence to

15:40

show that they really commonly

15:43

did own enslaved people

15:45

and that these laws then were

15:48

kind of propping up the slave economy

15:51

in a lot of ways.

15:54

Nicole, tell us about the birth of

15:56

the women's suffrage movement after the civil

15:58

war, the thirteenth fourteenth and fifteenth

16:00

amendments are ratified And

16:04

Virginia Minor, here's a speech by

16:06

a Missouri senator senator

16:08

Brown in eighteen sixty six,

16:10

where he says that universal

16:13

suffrage is a matter of fundamental, principle,

16:15

and intrinsically unnatural

16:17

right. Tell us about how that speech inspired

16:19

her and and how that launched her crusade for

16:21

women's effort. Yeah.

16:23

When she read that speech in the

16:25

newspaper and was very, very

16:28

inspired because she felt like they had an

16:30

ally and not only an ally that

16:32

was a man, but a very powerful

16:34

man. So she actually wrote to

16:36

him and thanked him for having holding

16:38

those views and being willing to speak them publicly.

16:41

And we don't know, you know, what kind

16:43

of response she got back from him,

16:45

but that inspired her to

16:48

write the first petition in the state

16:50

of Missouri asking

16:52

for women to get the right to vote

16:54

and and several of her of her friends

16:57

and family members and Saint Louis signed

16:59

it and it was sent on to him.

17:01

Of course, nothing came of it and a lot

17:03

of the the subsequent Womens. But

17:06

that was kind of rallying point for those

17:09

women who after the civil

17:11

war, they were used to doing so much

17:13

work, they were suddenly thrust back

17:15

into this life of quiet domesticity and

17:17

didn't really know what to do with themselves. Virginia

17:20

was doubly unfortunate because she was grieving

17:23

the loss of her fourteen year old son that was her only

17:25

child. So she lost that part

17:27

of her identity as well. And

17:31

so in eighteen sixty

17:33

seven, she and a group of other women

17:35

formed the the Missouri Womens

17:38

Association in Saint Louis and

17:40

came together and said, what can we do? You

17:43

know, we we really like this first petition that

17:45

we sent. It didn't work. How can we gather

17:47

more signatures? And the

17:49

as as they did their work, the organization

17:51

grew. Eventually Susan B anthony

17:54

and Elizabeth Katie Santen found out about

17:56

it, and they became part of

17:58

the National suffrage Association, which

18:00

was formed two years later. Interesting

18:02

that we remember that one and not for Jiggas, which

18:05

was the first one. And

18:07

later on, they split from that organization for

18:10

a variety of reasons. But

18:12

having that national organization behind

18:14

them gave them even more power,

18:17

more ability to do things, more

18:19

visibility than they had just

18:21

on the state level. So that

18:24

union was was very fruitful for

18:26

the women's suffrage movement

18:28

in the Midwest. The other big state in the Midwest

18:31

West Kansas. We tend to think of the suffrage

18:33

movement as a territorial

18:35

and eastern thing, but it it

18:37

took place all over the country. Sarah

18:40

tell us about the movement

18:42

for reform of women's economic

18:45

rights in the Midwest around

18:47

this time, which was different as you mentioned,

18:49

from that, in the south, and

18:51

give us a sense of the complex relationship

18:55

between reform and state

18:57

legislatures in constitutional

18:59

conventions and in the courts around

19:02

this time?

19:03

Yeah. So outside of the pre civil war south,

19:05

obviously, the issue of slavery is not

19:07

the one driving what's going on here.

19:09

And you do definitely get

19:12

more we'll set activism from

19:14

feminist organizations around this issue.

19:17

One of the things that a lot of those groups

19:19

are actually fighting for is an idea of

19:21

joint property rights where because

19:23

women's labor in the home is uncompensated,

19:26

but still contributing to the good

19:28

of the family, they should have an equal

19:30

share of all property in the

19:32

marriage, not just property that they themselves

19:35

personally brought into it. And

19:37

you'll be unsurprised to learn that no

19:40

legislature or court in the country

19:42

ever bought into that theory, but

19:45

that's a lot of what many women's

19:47

organizations were actually fighting for.

19:49

So we see different motivations outside

19:52

of the pre civil war south. We

19:54

still see a lot of this

19:56

serve debt relief motivation. But one

19:58

of the big things on the frontier is

20:01

also trying to encourage

20:04

women to move west

20:06

and become part of

20:08

settlement of the west because you

20:10

have these huge gender imbalance among

20:13

white men and white women in

20:15

southern states. In some cases,

20:18

it was as extreme as only

20:20

eight percent white women in

20:22

terms of gender balance in the territories.

20:25

So this is very extreme. And because

20:27

this is a subtler project, as

20:30

opposed to just trying to extract

20:32

resources. It's really seen

20:34

as women are crucial to

20:36

that happening. You can't set up a

20:38

society that's eight percent women. You

20:41

need women to be there to

20:43

sort of make this work long term. As

20:45

well as women are seen as this kind of

20:48

civilizing force. Right? That

20:50

they're going to bring things

20:52

like temperance and feminine

20:54

values, and this different very

20:57

gendered perspective of what they're gonna kinda

20:59

bring to the frontier. And

21:01

so as part of that, you see these arguments,

21:04

for example, a great one I

21:06

love from the California constitutional

21:09

convention. One of the delegates

21:11

basically saying, there's nothing we could

21:13

do to get ourselves wives that

21:15

would be better than enacting

21:18

a married women's property protection as

21:21

part of our state constitution. So

21:24

really seeing this as a way to

21:26

encourage wealthy, single

21:28

women to move west and

21:30

become part of the subtler project.

21:33

Definitely different things going on depending

21:36

what time period and what part of the country you're looking

21:38

at.

21:39

Nicole, tell us about the

21:41

new departure and the fight for suffrage.

21:43

This is a period where Virginia

21:46

and France's minor decide that

21:48

the right to vote is one of the privileges or immunities

21:51

of citizenship protected by the

21:53

newly past fourteenth amendment, and

21:55

Virginia gives a series of important

21:58

speeches, including one to the state

22:00

convention of publishers and editors in St.

22:02

Louis in eighteen sixty nine asking them to

22:04

use their influence to support the right of

22:06

suffrage. Tell us about this period.

22:09

Yeah, eighteen sixty nine is when

22:11

Virginia and Francis first

22:13

made their theory of the new departure public.

22:15

They did it at the National Women's Suffrage Association

22:18

Convention here in St. Louis and

22:20

because Virginia was considered a host

22:23

because it was in her hometown. She

22:26

was given a platform that, you

22:28

know, on a state level, a lot times

22:31

really wasn't normal

22:33

and was able to say to every woman

22:35

from across the country that, hey, we already have

22:37

the right to vote. And, you know, they

22:39

explained why with the language. And

22:41

in addition to that, they urged women to go

22:44

out and exercise this right.

22:46

So over the next four

22:48

years or so, especially in the presidential election

22:51

of eighteen seventy two, which

22:53

just as a historical note, we had our first

22:55

woman run for president than that year. Victoria

22:57

Woodhall, she she

22:59

obviously didn't win. But women

23:02

had the chance to vote for another or attempt

23:04

to vote for another woman on top of, you

23:07

know, exercising a right that not everyone believed

23:10

that they actually had. So it was historic in many, many

23:12

ways. The new departure was

23:14

very empowering because it

23:17

brought women together and it gave them

23:19

something that they could do that wouldn't necessarily

23:22

get them in legal trouble. Now Susan B anthony

23:24

did get in legal trouble on voting day

23:26

November eighteen seventy two

23:28

for attempting to vote because there

23:30

was an action there versus

23:33

which made it criminal versus Virginia.

23:36

She was just turned away from the

23:38

the registrar's office when she went to try to register,

23:40

which made there's a civil case The

23:43

whole idea of the fourteenth amendment as

23:45

the case passed through the courts really

23:47

brought up an issue of state's rights versus

23:50

national law. In in that time,

23:52

Sarah alluded to this earlier, the

23:55

the state's rights were much, much more powerful.

23:58

You know, we nowadays tend to think of voting

24:00

as something that is a right given to

24:02

us on our eighteenth birthday from

24:05

the national government. But back then, that's

24:07

that's not how it was viewed. A

24:09

lot of states were afraid that

24:12

the national government would

24:14

basically do something really monstrous,

24:16

you know, basically start another civil war,

24:19

that type of thing. So they were afraid of giving

24:21

the national government too much power.

24:23

And what Virginia and Frances

24:25

were doing was saying that the national government

24:28

was giving women this right instead

24:30

of the state government. They argued

24:33

that the constitution superseded

24:36

the state constitution of Missouri,

24:38

which upset a lot of people. And

24:41

they they did everything that they could

24:43

to convince the

24:46

supreme court justices in the end

24:48

that that their theory

24:50

was correct even though they were

24:52

basically saying things that nobody else had ever

24:55

said. They were going against what

24:57

a lot of people believed was the founder's original

25:00

intent they believed that the constitution

25:02

was a living document that needed to be

25:05

reinterpreted over time rather

25:07

than set in stone, which is an argument we're

25:09

still having today. Which is is

25:11

very interesting and very relevant. And,

25:14

you know, in the end, the court found

25:16

against them and basically

25:18

said that, you know, there there nothing that

25:20

they said had a legal basis. But

25:23

even though that happened, it brought a lot of publicity

25:25

to the suffrage Womens. And got

25:28

people thinking about the law in a completely different

25:30

way and and led to a lot of changes

25:32

that we've seen obviously since that

25:34

case passed and are still affecting our

25:36

legal them today? Howard

25:37

Bauchner: Very much so.

25:41

Sarah, we're talking about state

25:44

constitutional reform. Tell

25:47

us about the state by

25:49

state reforms of Womens

25:50

rights, and in particular, the role of state

25:52

conventions and state constitutions. Yeah.

25:56

So one of the interesting things here

25:59

is that although every state

26:01

passes a statute and

26:03

typically many statutes on the

26:05

topic of married women's economic

26:08

rights. Only some states choose

26:10

to elevate this to a constitutional

26:13

guarantee in their state constitutions.

26:16

And largely the place that that's happening

26:19

is in the south in

26:21

their reconstruction and post reconstruction

26:24

constitutions or

26:26

in the west in statehood constitutions

26:30

and that's because they obviously have to they're

26:32

forced to have conventions. And

26:35

as they're having these discussions about

26:37

fundamentally how do we want to organize

26:39

our societies, but not

26:41

all states choose to include some type

26:43

of guarantee for married women's

26:45

economic rights. In those

26:47

fundamental documents. And one of the things

26:50

I think is interesting here is that

26:52

we really see different types

26:54

of rights included in state constitutions

26:57

as compared to the US constitution.

27:00

The people will often talk about

27:02

the US constitution as being

27:04

that is primarily about negative

27:06

rights. It's about telling us

27:09

things that the government can't do to us

27:12

And a scholar Emily Zakken has

27:14

a really interesting book looking at how

27:16

state constitutions in general are

27:19

much more full of positive rights, telling

27:21

us things that the state needs to do

27:23

for us, that it must proactively

27:26

do. And

27:28

in this book, I really take look at the type

27:30

of rights that married women are

27:33

guaranteed in state constitutions And

27:35

I'd say they almost fall in between,

27:38

but they have more of a positive rights

27:41

aspect to them. So rather than saying

27:43

just the government can't seize

27:45

your property without due process

27:47

of law. They're saying

27:50

government needs to do things

27:52

to help married women have

27:55

these rights. So you'll see directives

27:58

in some state constitutions that

28:00

say State governments must

28:03

pass legislation protecting married

28:05

women's property rights. In

28:07

some states, you'll also see requirements

28:10

that states set up registration

28:12

lists where married women can

28:15

in a public office list

28:17

out a registry of all

28:19

of their property that then is going

28:21

to be protected from

28:24

seizure by state courts. So

28:27

you really have a more proactive role

28:29

that these constitutions are envisioning

28:33

for states to play. Not

28:35

just a prohibition on states

28:37

coming into the marriage

28:39

relationship. And that was quite controversial because

28:42

there was a concern that this should be

28:45

maybe a private relationship, right, that the state

28:47

shouldn't be intervening into marriages.

28:50

Across whole host of issues. And

28:52

you're starting to really see that breakdown across

28:55

this period and of course continuing into

28:57

the twentieth century, that Yes,

28:59

the state can get involved concerning

29:01

things like property relationships within marriage,

29:03

but also violence within marriage, and

29:06

other issues within marriages that that's

29:08

not just a bubble that the state can't enter.

29:11

Nicole, let's now talk about the minor and

29:13

the happers case from eighteen seventy four,

29:16

you mentioned that the court held

29:18

that the idea that the right to vote

29:20

was one of the privileges or immunities of citizenship

29:23

could not be justified as a matter of

29:25

original understanding because

29:29

the right to vote was a political right

29:31

and the fourteenth amendment was originally understood

29:34

to protect only civil rights.

29:36

And in fact, the author of the fourteenth

29:39

amendment, as you know, John Bingham, said

29:41

as much when he rejected the

29:43

claim that Womens suffered should be

29:45

covered by the fourteenth amendment, and

29:47

he and others noted that section

29:50

two of the fourteenth amendment itself anticipates

29:53

that southern states might deny the

29:55

right to vote, but that they would suffer

29:58

a penalty in having your apportionment in

30:00

congress proportionately reduced. Is

30:02

is it fair to say that the court was

30:05

accurate as matter of original understanding and

30:07

that and that Virginia minor was making an

30:09

argument, as you said, involving a living

30:12

constitution, and tell us more about the relevance

30:14

of of of that

30:15

debate. You know, it's

30:17

hard to say for sure if the court was

30:19

accurate or if the minors were

30:22

were were right because we don't know the true intent.

30:25

Of the founding fathers. Those

30:27

who believe in that the

30:30

constitution should be interpreted

30:33

as generally believed

30:35

that it was meant to be by the

30:37

founding fathers way back when did not

30:39

change, pretty

30:41

much thought that you

30:43

know, if they if they intended women

30:45

to vote, they would have flat outside women

30:48

in the in the document somewhere, and and nowhere

30:50

does that word actually appear,

30:53

They do talk about citizens and citizenship

30:56

in the constitution, but that's not actually

30:58

defined in the constitution. That was part

31:01

of the all of the theories

31:03

surrounding this case is, you know,

31:05

were women citizens of the

31:07

United States? And there there's a lot of

31:09

of political background to that that we don't have time

31:11

to go into today. But one

31:13

of the positive things that came out of the minor

31:15

versus half percent case is that the

31:18

judge very clearly or judges

31:20

very clearly said that, yes, women are

31:22

citizens of the United States. It's

31:24

just that suffrage is not. One

31:26

of the rights that are given to them

31:29

as citizens. The idea

31:31

of living constitutionalism that

31:33

the constitution should be reinterpreted was

31:36

considered very radical at the time

31:39

and is still now that

31:42

as times change, the

31:45

interpretation of the constitution should change

31:47

as well because, you

31:49

know, culture changes people's

31:51

beliefs and understandings of certain

31:53

things change. And

31:56

the miners were basically saying

31:58

that the

32:00

world is it was so different here after the

32:02

civil war, you know, the amendments have

32:05

since come through that have given former

32:08

slaves, male slaves, the right

32:10

to vote So why can't

32:12

other amendments come through to give women

32:14

the right to vote? And they

32:17

used the founding fathers own words, some

32:19

of them. To justify

32:21

this, you know, even though those words didn't end

32:23

up in the constitution, and it becomes a

32:25

question of intent

32:28

versus what is actually in the final

32:30

Womens. And that's an argument

32:32

that don't know we're ever that we're ever going to

32:34

be able to settle regardless of

32:36

the issue that we're talking about because

32:39

we don't the the founding fathers didn't,

32:41

you know, lay out anywhere this is

32:43

exactly what we mean by this and why.

32:45

And I think they did that intentionally because,

32:49

you know, things do change, the needs of

32:51

the country changes. But yet,

32:54

there's the question of they

32:56

said what they said for a reason. So you've got

32:59

two sides of that argument And

33:01

it comes down to

33:03

personal opinion, really, as

33:05

to which is the correct way of looking

33:07

at it. Sarah, tell us

33:09

about the role of the courts in the

33:11

reform of Womens property

33:13

rights and whether there was any connection between

33:16

the court cases involving suffrage and those involving

33:18

economic

33:19

roads? Yeah. Kind of as Nicole

33:21

is saying, you're interpreting a shorter

33:23

document. Right? And that's true of interpreting

33:26

the constitution at a very high level. But

33:28

of course, it's also true when courts are interpreting

33:31

statutes. These statutes at most

33:33

might be a page and a half, two pages.

33:36

Sometimes they're really only a paragraph, but

33:39

they obviously don't cover every single

33:41

possible thing that could arise. Right?

33:43

And so courts are now in the position of

33:45

taking these laws that are trying to do

33:47

a whole bunch of different things, accomplish a whole bunch

33:49

of different goals and apply them to

33:52

specific situations. And the

33:54

majority of the state

33:56

court cases that we see here don't

33:58

deal with husbands and wives fighting against

34:01

each other. They deal with husband and wife

34:03

as sort of a unit, fighting against a creditor,

34:06

or someone else that they're trying to

34:08

have maybe an employer,

34:10

someone who's injured the wife, but some

34:12

third party. There are

34:15

some, of course, divorce cases or separation

34:17

cases, but the majority, our husband

34:19

and wife, versus a third

34:21

party. And as courts start

34:24

to interpret these laws, what

34:26

they find is that the way that

34:29

state legislatures have kind of tried to balance

34:31

all of these different goals of giving

34:33

women some more rights, but also

34:36

still trying to protect them and

34:38

maybe not trying to get them too many rights.

34:41

This creates this really confusing

34:44

legal atmosphere. One of the cases

34:46

that I find incredibly

34:48

interesting. It's from Mississippi visor

34:51

v Scruggs from eighteen seventy four.

34:53

Miss Delta, with a woman taking

34:55

out a loan under married

34:57

women's property right in Mississippi that

35:00

at the time allowed women to

35:02

mortgage their property for some

35:04

reasons, that the state legislature

35:06

thought were appropriate. So

35:08

for things like educating her children, but

35:11

did not allow them to take out loans

35:13

and mortgage property for purposes

35:16

like land speculation, things that

35:18

the state legislature thought were too

35:20

risky Womens would be taken advantage of.

35:23

We don't want them getting too much into

35:25

those sort of inappropriate activities.

35:27

And so in this case, basically,

35:30

the court is unsympathetic to

35:33

a creditor who, literally,

35:35

what they've done is they've drawn up a loan document

35:38

with this married woman that expressly

35:40

laid out the way she would use the funds

35:43

she said it would be for purchasing family supplies,

35:45

and necessary, and clothing for herself

35:48

and her children. Yeah, that's

35:50

not enough for the court. They

35:52

say, the creditor has to actually

35:54

prove she did spend the money on those things. It's

35:56

not enough that she signed a document saying she

35:58

would. They have to prove that's actually

36:00

what the money went to. In order

36:02

to recover. So over time,

36:05

in many states, you see

36:07

similar patterns and this leads

36:10

to increasingly bands

36:12

of laws because state legislatures

36:14

and state constitutional conventions are seeing

36:17

this is just a legal nightmare. The

36:20

level of documentation required

36:23

of predators and debtor

36:25

is it's just too much. It's creating

36:28

these legal issues that legislators really

36:30

didn't necessarily foresee, but

36:32

that develop as courts

36:34

try to interpret these sort

36:36

of piecemeal complex laws. In

36:39

South Carolina, at their post reconstruction

36:41

convention becomes a major

36:43

issue. You see conventional and get

36:46

same things like, this is the worst legal

36:48

problem in our our state. This has

36:50

led just to a nightmare. And we need

36:52

to use the convention to reform

36:54

this. So that's one

36:56

of the things that's happening in courts

36:59

is trying to interpret these laws really

37:02

ending up with a very confused

37:04

reality in practice and then

37:06

legislators and conventions responding

37:08

and saying, Well, maybe we could

37:10

go all the way back to Covidure. It doesn't seem

37:12

like that's the way the country's going. That's the direction

37:15

we're going. So we're gonna have to liberalize THINGS

37:17

FURTHER SO THAT OUR ECONOMY

37:19

CAN ACTUALLY FUNCTION.

37:22

Reporter: Nicole, AFTER THEIR DEFEAT

37:24

IN THE SUPREME COURT CASE, The

37:26

miners continued to fight and Virginia,

37:29

in particular, organized tax

37:31

boycotts in the grounds that taxation with representation

37:34

was tyranny and also set out with Susan anthony

37:37

to Nebraska to stump for one in

37:38

suffrage, tell us about what she did after

37:41

the Supreme Court case. Yeah,

37:43

a lot of people, if they have heard of

37:45

the miners, don't hear of anything

37:47

of their lives after that court case. It's it's

37:50

like things just came to a halt and that

37:52

couldn't be further from the truth. Virginia

37:55

going all the way back before the the court

37:57

case firmly believed that

37:59

she shouldn't have to pay, and not only her, all

38:02

all women shouldn't have to pay their

38:04

property taxes because they

38:06

were not allowed to vote for their representatives. So

38:08

it was taxation without representation. And

38:11

she sent some scathing letters in

38:14

the paper to the different

38:16

auditors and financial

38:19

controllers in the state of Missouri

38:21

basically saying, hey, we

38:23

have x number of women in Saint

38:25

Louis alone that hold property

38:28

and that equates to millions of

38:30

dollars that we can withhold

38:32

from you, you know, in order to

38:35

make statements, you know, about the

38:38

the right to vote and that that women in

38:40

order to be treated equally

38:42

to men need they need

38:44

to have that right. And so

38:47

she and many many other people

38:50

across the

38:50

country, especially women, they

38:53

they joined in

38:55

and chose to not pay their

38:57

taxes, which for a lot of people had very

38:59

serious consequences. Women had

39:02

property seized. They had farm

39:04

animal seized, household implements,

39:07

some ended up in jail, some ended up

39:09

sentenced to hard labor, just depending

39:11

on their location and the

39:14

personalities of the

39:16

authorities that they were involved with.

39:18

We don't have any record of anything like

39:20

that ever happening to Virginia, but

39:22

there are a lot of documents

39:25

that are still being processed by

39:27

our officials here at Saint Louis. So it's possible

39:30

that something could have that we just don't know about.

39:33

She was definitely not the first person

39:35

to do a form

39:37

of tax civil disobedience.

39:40

It went back before her, but she was one

39:42

who was able to bring it into the suffrage

39:44

movement because of her position within

39:48

the the higher ranks of the National suffrage

39:50

Association and, of course, in the state

39:52

of Missouri. She and Susan B.

39:54

Anthony did travel to

39:56

the state of Nebraska to stump

39:58

for suffrage. It it it it's

40:01

one of those things that's in history that so

40:03

crazy. You you would really think it was

40:05

made up. They survived a tornado while

40:07

they were there. They spoke

40:09

at what was called at the time a woman's

40:12

lunatic asylum and

40:14

the inmates said, yeah, we, you know, we believe

40:16

that women should have the right to vote, you know,

40:18

and and she show she

40:21

was able to witness that not all

40:23

of those institutions were horrible.

40:25

Like, you know, the ones that Nelly Blythe went to,

40:28

and kind of provide a counterpoint.

40:31

She also spoke at

40:33

school houses where there was barely enough light

40:36

to see the the audience that she spoke

40:38

to. And in general, she

40:41

really felt like they were getting

40:43

their point across because they had this really

40:45

neat custom at the end of every speaking

40:47

engagement, they would hold a mock vote

40:50

amongst the people who were there of if women

40:52

should be given the right to vote, and it almost

40:55

it was almost unanimous at most

40:57

of the locations that women

40:59

were like, yeah, we totally should be. So

41:01

that was their way of publicly demonstrating

41:03

against the women who were in the

41:05

anti suffrage movement and, you know, just

41:08

said, you know, women don't need it, we don't want

41:10

it. That was a very, very common argument

41:12

that that women just they had no need for the right to

41:14

vote. They had other things to do. And

41:16

they were basically, you know, using a real

41:18

life case to say, no, you're

41:20

wrong.

41:22

Sarah, between the

41:24

HEPLISADE case in eighteen seventy four and

41:26

nineteen twenty, a

41:28

range of reforms of economic

41:31

rights spread across the state. You

41:33

describe the influence

41:36

of reforms in one state on

41:38

another. And by nineteen twenty, when the nineteen amendment

41:40

was passed, you say, much of the economic

41:43

reform had substantially taken

41:45

place, although it wasn't complete. Were

41:47

the voting reforms and the economic

41:49

reforms taking place around

41:52

the same time

41:54

and describe this final push toward

41:56

the reform of economic rights leading up to nineteen

41:59

twenty. Yeah. So,

42:01

of course, some states did give women

42:03

the right to vote prior to nineteen twenty and

42:05

a national right to vote. And

42:09

sometimes, women had the right to

42:11

vote before legislatures were

42:13

passing these laws at the state level, but

42:16

it was unusual. By and large,

42:18

economic rights were coming first, and

42:20

then voting rights were coming second in

42:22

most states. Of course, we have a lot of states. There's

42:24

variation there. But by and large,

42:27

that's what what you're seeing here.

42:29

And I would say in terms

42:31

of thinking about nineteen twenty as an inflection

42:33

point, You do still see states

42:35

passing the sort of basic economic

42:38

rights, property rights, laws. After

42:40

nineteen twenty, although the context looks

42:42

different, Florida is a case I'm

42:44

really interested in, in that regard, they

42:46

don't pass the more expansive

42:49

version of married women's property

42:51

laws until the nineteen forties, but

42:54

it's then a really different context

42:56

than what we saw in earlier

42:58

years. woman wrote the law

43:01

of Womens, introduced it into the state legislature.

43:05

When it was challenged in court, a woman

43:07

was the one who's successor they defended it before

43:09

the Florida Supreme Court, fifty

43:11

three state level women's organizations advocated

43:14

for the passage of the law. So

43:16

what women had been involved prior

43:18

to nineteen twenty, I think it's clear

43:20

they have a more active role

43:22

and voice after nineteen twenty when

43:24

reforms are happening then. And

43:27

I would really say the story continues

43:29

in a lot of ways up through the seventies

43:31

when we see the fight against gender

43:34

discrimination in the granting of credit.

43:36

Especially as relating to married women.

43:38

There are what I think now

43:41

looking back on are these pretty shocking

43:43

cases of loan officers.

43:46

For example, demanding that

43:49

a married woman sign a document saying

43:51

if she got pregnant during the term of the loan,

43:53

she would get an abortion so

43:55

that her income wouldn't be affected by

43:58

having a baby. If you're interested

44:00

in this, I really recommend Chloe

44:02

Thirsten has a great book at the boundaries

44:04

of home ownership, and there's a chapter

44:06

in there that goes into all the details

44:09

on the amazing sources she found on this.

44:11

But that push again

44:13

involves women and women's organizations in

44:17

every venue really

44:19

working to get this passed. So I think it's just a very

44:21

different political context than

44:24

in this period where women are

44:26

more limited in

44:28

their ability to really access

44:30

and exert power over political

44:32

institutions.

44:34

We really helpfully illuminate this

44:36

counterintuitive dynamic between

44:39

political reform and economic reform. One of

44:41

your many surprising and important conclusions

44:44

is, in most cases, the economic

44:46

reform came first, which is which is not intuitive

44:48

at all. Well, it's

44:50

time for closing thoughts in this great discussion.

44:54

Thank you both for teaching us so much about

44:56

the expansion of women's economic and voting

44:58

rights in the in in the nineteenth

45:00

century. And Nicole,

45:03

you end your book by saying that

45:06

Virginia Miner received finally

45:09

national recognition around the time

45:11

of the hundredth anniversary of the nineteenth amendment around

45:14

around twenty nineteen and twenty, tell

45:16

us what what is she recognized

45:19

for? And and why should

45:21

we, the people listeners, celebrate the

45:23

remarkable achievements of Virginia

45:25

Meyer? Yeah. It was it

45:27

was an absolutely wonderful event.

45:30

The National Women's History Alliance

45:33

recognized Virginia is a they

45:35

have a kind of hall of fame. They don't actually call

45:37

it that, but they kind of inducted

45:39

her into theirs, one of their honorees.

45:42

And she was recognized for

45:44

her contributions to the State of

45:46

Missouri with the National Women's

45:49

suffrage Association, but also

45:51

for her National punishments as well through

45:53

all of the things we've been talking about. And

45:57

to to actually see her name,

45:59

you know, put in the same context as

46:01

the other grades is, to

46:04

me, a dream come true, obviously, as

46:06

her biographer. I I feel

46:08

like a lot of people don't

46:10

realize that the suffrage movement was

46:13

way bigger than the way we portray

46:15

it when you learn it in school. You know, we've we've

46:17

heard about handful of greats and, you

46:19

know, they were very, very important people. There is

46:21

no denying that. You know, they they deserve

46:23

all of the attention that they get. But

46:26

there were hundreds of thousands of women across

46:28

the country without whom the

46:30

movement wouldn't be successful or wouldn't have gone

46:32

the way it did. For some reason or

46:34

another. And Virginia

46:36

and Francis are just a

46:39

small portion of those people.

46:41

And I feel like the more we learn,

46:43

the true story, the

46:46

well rounded story, the

46:48

more we can be grateful to

46:50

those who came before us and

46:53

allowed, you know, me as a woman, Sarah,

46:55

as a woman to be able

46:57

to exercise the right to vote, which is

46:59

something we so often take for granted in

47:02

society today. So

47:04

I feel like recognizing Virginia

47:07

is it's a way to

47:11

to say thank you and to express

47:15

our, you know, our our debt

47:17

of gratitude to all of the women who came

47:19

before us, you know, someday hopefully our

47:22

history will be completely rounded out. Our

47:24

being women rounded

47:26

out to where we have people, you

47:28

know, placement

47:31

in textbooks. And, you know,

47:33

we know who we have to to

47:35

look to as examples in the past as we

47:37

try to fight for our own rights moving

47:39

forward. And hopefully, eventually we, you

47:41

know, won't have to be fighting anymore that we

47:43

will have the rights that that

47:45

we deserve as people. So it's a

47:48

it's a very important story I believe

47:50

in in kind of putting together that puzzle that

47:52

is women's history.

47:53

It is an important story and it's an inspiring

47:56

one and you tell it so vividly and

47:58

so well. Sarah last word

48:00

in this great discussion are to you.

48:03

It's hard to sum up the the complicated and

48:05

important story that you tell.

48:08

It is a counter intuitive story,

48:10

but you remind us that political

48:13

and legal change comes not only

48:15

from great figures

48:18

like Virginia minor, but from a complicated

48:21

interrelationship of courts,

48:23

legislators, constitutional reform, and

48:25

and also from the joint efforts of

48:27

men as well as women. What what can we

48:29

learn from the checkard history

48:31

of economic reform for women's property

48:33

rights in the nineteenth

48:35

century. Yeah. I'm so happy for the opportunity

48:37

to kind of share this story

48:39

because I think often it's

48:41

one we don't learn about or talk about in

48:43

school and women's history tends to start with the

48:46

fight for self suffrage. And

48:48

not this, I touch on some of these

48:50

economic rights that really were crucial

48:53

in providing women with the resources

48:55

and the voice Nicole spoke

48:58

about how Virginia getting these

49:01

economic rights, although in her case, not

49:03

through statute, through her husband, but

49:05

that was part of what empowered her to

49:07

do this work. Right? And

49:09

I think more broadly, there are a

49:11

lot of connect options there in economic

49:13

rights. Being necessary for

49:16

women to be able to do things, like going

49:18

on independent tours and having

49:20

the ability to engage in this work. So

49:22

I guess one thing would just be I'm

49:25

really happy to be able to spread knowledge about

49:27

this. And I also think it's important

49:29

to think about rights expansions, not

49:32

only as, oh,

49:35

great, rights work expanded. That's

49:37

wonderful, which of course, you know, there's an

49:39

aspect of it that is. But also

49:41

thinking about the aspects of rights

49:43

expansions that don't include

49:45

everybody and that leaves people

49:47

behind where

49:49

we see in many

49:51

of the ways that these laws operated, it's

49:55

increased property rights, increased

49:57

economic rights for, for example,

49:59

white women in the pre civil war south.

50:02

That doesn't mean increased property rights

50:04

for enslaved Womens, the people being

50:06

acted upon by these laws.

50:09

We see, simultaneously, oh,

50:11

we wanna attract wealthy white women out

50:13

west. We'll give them these rights. Great.

50:16

But what's missing from that picture is

50:18

that need of women and men are being

50:21

stripped of their property so

50:22

that

50:25

the white women who were trying to attract can

50:27

move west and settle. And

50:30

I think a lot of the ways that States

50:32

used these laws was to kind

50:34

of define who is our ideal citizen?

50:36

Who we want? Who are we gonna grant rights

50:39

to? Although a lot of the laws don't

50:41

necessarily have race specific

50:44

language or class

50:46

specific language. It's also

50:48

clear from these discussions who

50:51

state legislatures are aiming

50:53

to grant rights to and

50:55

who these laws are maybe treating as property

50:58

or stripping rights from. And

51:00

so I think that's an important piece of the story

51:03

too to think about rights

51:05

expansions, but also think about who those

51:07

apply to and

51:09

who's benefiting and who's losing out as

51:11

kind of the march of rights

51:13

moves forward.

51:15

Thank you so much. Nicole Evan

51:17

Molina and Sarah Chaffield for

51:20

an illuminating and

51:22

superb discussion in commemoration of women's

51:24

history about the complicated

51:27

and important fight for women's

51:29

rights in the nineteenth century. Nicole

51:31

and Sarah, thank you so

51:32

much. For joining.

51:34

Thank you. Thank you. Today's

51:36

episode was produced by Lana O'Rourke, Bill

51:39

Pollock, and Sam Desai. Was engineered

51:41

by Dave Stottz. Research was provided

51:43

by Sofia Gerdau, Emily Campbell, and Lana

51:46

Oates. Please recommend the show to friends,

51:48

colleagues, or anyone, anywhere who's eager for a

51:50

week dose of constitutional elimination and

51:52

debate. And always remember the National

51:54

Constitution Center's a private nonprofit who

51:57

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51:59

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52:01

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52:03

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donate. On behalf of the National Constitution

52:24

Center, I'm Jeffrey Rosa. And happy

52:26

women's history.

52:46

Panoply.