| Minor v. Happersett
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100 U.S. 1
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[ Waite ] |
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WAITE, C.J., Opinion of the Court
SUPREME COURT OF THE UNITED STATES
88 U.S. 162
Minor v. Happersett
The CHIEF JUSTICE delivered the opinion of the court.
The question is presented in this case, whether,
since the adoption of the fourteenth amendment, a woman, who is a
citizen of the United States and of the State of Missouri, is a voter in
that State, notwithstanding the provision of the constitution and laws
of the State, which confine the right of suffrage to men alone. We
might, perhaps, decide the case upon other grounds, but this question is
fairly made. From the opinion we find that it was the only one decided
in the court below, and it is the only one which has been argued here.
The case was undoubtedly brought to this court for the sole purpose of
having that question decided by us, and in view of the evident propriety
there is of having it settled, so far as it can be by such a decision,
we have concluded to waive all other considerations and proceed at once
to its determination.
It is contended that the provisions of the
constitution and laws of the State of Missouri which confine the right
of suffrage and registration therefor to men, are in violation of the
Constitution of the United States, and therefore void. The argument is,
that as a woman, born or naturalized in the United States and subject to
the jurisdiction thereof, is a citizen of the United States and of the
State in which she resides, she has the right of suffrage as one of the
privileges and immunities of her citizenship, which the State cannot by
its laws or constitution abridge.
There is no doubt that women may be citizens. They
are persons, and by the fourteenth amendment "all persons born or
naturalized in the United States and subject to the jurisdiction
thereof" are expressly declared to be "citizens of the United States and
of the State wherein they reside." But, in our opinion, it did not need
this amendment to give them that position. Before its adoption the
Constitution of the United States did not in terms prescribe who should
be citizens of the United States or of the several States, yet there
were necessarily such citizens without such provision. There cannot be a
nation without a people. The very idea of a political community, such
as a nation is, implies an [p166]
association of persons for the promotion of their general welfare. Each
one of the persons associated becomes a member of the nation formed by
the association. He owes it allegiance and is entitled to its
protection. Allegiance and protection are, in this connection,
reciprocal obligations. The one is a compensation for the other;
allegiance for protection and protection for allegiance.
For convenience it has been found necessary to give a
name to this membership. The object is to designate by a title the
person and the relation he bears to the nation. For this purpose the
words "subject," "inhabitant," and "citizen" have been used, and the
choice between them is sometimes made to depend upon the form of the
government. Citizen is now more commonly employed, however, and as it
has been considered better suited to the description of one living under
a republican government, it was adopted by nearly all of the States
upon their separation from Great Britain, and was afterwards adopted in
the Articles of Confederation and in the Constitution of the United
States. When used in this sense it is understood as conveying the idea
of membership of a nation, and nothing more.
To determine, then, who were citizens of the United
States before the adoption of the amendment it is necessary to ascertain
what persons originally associated themselves together to form the
nation, and what were afterwards admitted to membership.
Looking at the Constitution itself we find that it was ordained and established by "the people of the United States," [n3]
and then going further back, we find that these were the people of the
several States that had before dissolved the political bands which
connected them with Great Britain, and assumed a separate and equal
station among the powers of the earth, [n4]
and that had by Articles of Confederation and Perpetual Union, in which
they took the name of "the United States of America," entered into a
firm league of [p167] friendship with each
other for their common defence, the security of their liberties and
their mutual and general welfare, binding themselves to assist each
other against all force offered to or attack made upon them, or any of
them, on account of religion, sovereignty, trade, or any other pretence
whatever. [n5]
Whoever, then, was one of the people of either of
these States when the Constitution of the United States was adopted,
became ipso facto a citizen -- a member of the nation created by its
adoption. He was one of the persons associating together to form the
nation, and was, consequently, one of its original citizens. As to this
there has never been a doubt. Disputes have arisen as to whether or not
certain persons or certain classes of persons were part of the people at
the time, but never as to their citizenship if they were.
Additions might always be made to the citizenship of
the United States in two ways: first, by birth, and second, by
naturalization. This is apparent from the Constitution itself, for it
provides [n6]
that "no person except a natural-born citizen, or a citizen of the
United States at the time of the adoption of the Constitution, shall be
eligible to the office of President," [n7]
and that Congress shall have power "to establish a uniform rule of
naturalization." Thus new citizens may be born or they may be created by
naturalization.
The Constitution does not, in words, say who shall
be natural-born citizens. Resort must be had elsewhere to ascertain
that. At common-law, with the nomenclature of which the framers of the
Constitution were familiar, it was never doubted that all children born
in a country of parents who were its citizens became themselves, upon
their birth, citizens also. These were natives, or natural-born
citizens, as distinguished from aliens or foreigners. Some authorities
go further and include as citizens children born within the jurisdiction
without reference to the citizenship of their [p168]
parents. As to this class there have been doubts, but never as to the
first. For the purposes of this case it is not necessary to solve these
doubts. It is sufficient for everything we have now to consider that all
children born of citizen parents within the jurisdiction are themselves
citizens. The words "all children" are certainly as comprehensive, when
used in this connection, as "all persons," and if females are included
in the last they must be in the first. That they are included in the
last is not denied. In fact the whole argument of the plaintiffs
proceeds upon that idea.
Under the power to adopt a uniform system of
naturalization Congress, as early as 1790, provided "that any alien,
being a free white person," might be admitted as a citizen of the United
States, and that the children of such persons so naturalized, dwelling
within the United States, being under twenty-one years of age at the
time of such naturalization, should also be considered citizens of the
United States, and that the children of citizens of the United States
that might be born beyond the sea, or out of the limits of the United
States, should be considered as natural-born citizens. [n8]
These provisions thus enacted have, in substance, been retained in all
the naturalization laws adopted since. In 1855, however, the last
provision was somewhat extended, and all persons theretofore born or
thereafter to be born out of the limits of the jurisdiction of the
United States, whose fathers were, or should be at the time of their
birth, citizens of the United States, were declared to be citizens also. [n9]
As early as 1804 it was enacted by Congress that
when any alien who had declared his intention to become a citizen in the
manner provided by law died before he was actually naturalized, his
widow and children should be considered as citizens of the United
States, and entitled to all rights and privileges as such upon taking
the necessary oath; [n10] and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or [p169] who should be married to a citizen of the United States, should be deemed and taken to be a citizen. [n11]
From this it is apparent that from the commencement
of the legislation upon this subject alien women and alien minors could
be made citizens by naturalization, and we think it will not be
contended that this would have been done if it had not been supposed
that native women and native minors were already citizens by birth.
But if more is necessary to show that women have
always been considered as citizens the same as men, abundant proof is to
be found in the legislative and judicial history of the country. Thus,
by the Constitution, the judicial power of the United States is made to
extend to controversies between citizens of different States. Under this
it has been uniformly held that the citizenship necessary to give the
courts of the United States jurisdiction of a cause must be
affirmatively shown on the record. Its existence as a fact may be put in
issue and tried. If found not to exist the case must be dismissed.
Notwithstanding this the records of the courts are full of cases in
which the jurisdiction depends upon the citizenship of women, and not
one can be found, we think, in which objection was made on that account.
Certainly none can be found in which it has been held that women could
not sue or be sued in the courts of the United States. Again, at the
time of the adoption of the Constitution, in many of the States (and in
some probably now) aliens could not inherit or transmit inheritance.
There are a multitude of cases to be found in which the question has
been presented whether a woman was or was not an alien, and as such
capable or incapable of inheritance, but in no one has it been insisted
that she was not a citizen because she was a woman. On the contrary, her
right to citizenship has been in all cases assumed. The only question
has been whether, in the particular case under consideration, she had
availed herself of the right.
In the legislative department of the government similar [p170] proof will be found. Thus, in the pre-emption laws, [n12]
a widow, "being a citizen of the United States," is allowed to make
settlement on the public lands and purchase upon the terms specified,
and women, "being citizens of the United States," are permitted to avail
themselves of the benefit of the homestead law. [n13]
Other proof of like character might be found, but
certainly more cannot be necessary to establish the fact that sex has
never been made one of the elements of citizenship in the United States.
In this respect men have never had an advantage over women. The same
laws precisely apply to both. The fourteenth amendment did not affect
the citizenship of women any more than it did of men. In this
particular, therefore, the rights of Mrs. Minor do not depend upon the
amendment. She has always been a citizen from her birth, and entitled to
all the privileges and immunities of citizenship. The amendment
prohibited the State, of which she is a citizen, from abridging any of
her privileges and immunities as a citizen of the United States; but it
did not confer citizenship on her. That she had before its adoption.
If the right of suffrage is one of the necessary
privileges of a citizen of the United States, then the constitution and
laws of Missouri confining it to men are in violation of the
Constitution of the United States, as amended, and consequently void.
The direct question is, therefore, presented whether all citizens are
necessarily voters.
The Constitution does not define the privileges and
immunities of citizens. For that definition we must look elsewhere. In
this case we need not determine what they are, but only whether suffrage
is necessarily one of them.
It certainly is nowhere made so in express terms.
The United States has no voters in the States of its own creation. The
elective officers of the United States are all elected directly or
indirectly by State voters. The members of the House of Representatives
are to be chosen by the people of [p171] the
States, and the electors in each State must have the qualifications
requisite for electors of the most numerous branch of the State
legislature. [n14]
Senators are to be chosen by the legislatures of the States, and
necessarily the members of the legislature required to make the choice
are elected by the voters of the State. [n15]
Each State must appoint in such manner, as the legislature thereof may
direct, the electors to elect the President and Vice-President. [n16]
The times, places, and manner of holding elections for Senators and
Representatives are to be prescribed in each State by the legislature
thereof; but Congress may at any time, by law, make or alter such
regulations, except as to the place of choosing Senators. [n17]
It is not necessary to inquire whether this power of supervision thus
given to Congress is sufficient to authorize any interference with the
State laws prescribing the qualifications of voters, for no such
interference has ever been attempted. The power of the State in this
particular is certainly supreme until Congress acts.
The amendment did not add to the privileges and
immunities of a citizen. It simply furnished an additional guaranty for
the protection of such as he already had. No new voters were necessarily
made by it. Indirectly it may have had that effect, because it may have
increased the number of citizens entitled to suffrage under the
constitution and laws of the States, but it operates for this purpose,
if at all, through the States and the State laws, and not directly upon
the citizen.
It is clear, therefore, we think, that the
Constitution has not added the right of suffrage to the privileges and
immunities of citizenship as they existed at the time it was adopted.
This makes it proper to inquire whether suffrage was coextensive with
the citizenship of the States at the time of its adoption. If it was,
then it may with force be argued that suffrage was one of the rights
which belonged to citizenship, and in the enjoyment of which every
citizen must be protected. [p172] But if it was not, the contrary may with propriety be assumed.
When the Federal Constitution was adopted, all the
States, with the exception of Rhode Island and Connecticut, had
constitutions of their own. These two continued to act under their
charters from the Crown. Upon an examination of those constitutions we
find that in no State were all citizens permitted to vote. Each State
determined for itself who should have that power. Thus, in New
Hampshire, "every male inhabitant of each town and parish with town
privileges, and places unincorporated in the State, of twentyone years
of age and upwards, excepting paupers and persons excused from paying
taxes at their own request," were its voters; in Massachusetts "every
male inhabitant of twenty-one years of age and upwards, having a
freehold estate within the commonwealth of the annual income of three
pounds, or any estate of the value of sixty pounds;" in Rhode Island
"such as are admitted free of the company and society" of the colony; in
Connecticut such persons as had "maturity in years, quiet and peaceable
behavior, a civil conversation, and forty shillings freehold or forty
pounds personal estate," if so certified by the selectmen; in New York
"every male inhabitant of full age who shall have personally resided
within one of the counties of the State for six months immediately
preceding the day of election . . . if during the time aforesaid he
shall have been a freeholder, possessing a freehold of the value of
twenty pounds within the county, or have rented a tenement therein of
the yearly value of forty shillings, and been rated and actually paid
taxes to the State;" in New Jersey "all inhabitants . . . of full age
who are worth fifty pounds, proclamation-money, clear estate in the
same, and have resided in the county in which they claim a vote for
twelve months immediately preceding the election;" in Pennsylvania
"every freeman of the age of twenty-one years, having resided in the
State two years next before the election, and within that time paid a
State or county tax which shall have been assessed at least six months
before the election;" in [p173] Delaware and
Virginia "as exercised by law at present;" in Maryland "all freemen
above twenty-one years of age having a freehold of fifty acres of land
in the county in which they offer to vote and residing therein, and all
freemen having property in the State above the value of thirty pounds
current money, and having resided in the county in which they offer to
vote one whole year next preceding the election;" in North Carolina, for
senators, "all freemen of the age of twenty-one years who have been
inhabitants of any one county within the State twelve months immediately
preceding the day of election, and possessed of a freehold within the
same county of fifty acres of land for six months next before and at the
day of election," and for members of the house of commons "all freemen
of the age of twenty-one years who have been inhabitants in any one
county within the State twelve months immediately preceding the day of
any election, and shall have paid public taxes;" in South Carolina
"every free white man of the age of twenty-one years, being a citizen of
the State and having resided therein two years previous to the day of
election, and who hath a freehold of fifty acres of land, or a town lot
of which he hath been legally seized and possessed at least six months
before such election, or (not having such freehold or town lot), hath
been a resident within the election district in which he offers to give
his vote six months before said election, and hath paid a tax the
preceding year of three shillings sterling towards the support of the
government;" and in Georgia such "citizens and inhabitants of the State
as shall have attained to the age of twenty-one years, and shall have
paid tax for the year next preceding the election, and shall have
resided six months within the county."
In this condition of the law in respect to suffrage
in the several States it cannot for a moment be doubted that if it had
been intended to make all citizens of the United States voters, the
framers of the Constitution would not have left it to implication. So
important a change in the condition of citizenship as it actually
existed, if intended, would have been expressly declared.
[p174] But if further proof is necessary to
show that no such change was intended, it can easily be found both in
and out of the Constitution. By Article 4, section 2, it is provided
that "the citizens of each State shall be entitled to all the privileges
and immunities of citizens in the several States." If suffrage is
necessarily a part of citizenship, then the citizens of each State must
be entitled to vote in the several States precisely as their citizens
are. This is more than asserting that they may change their residence
and become citizens of the State and thus be voters. It goes to the
extent of insisting that while retaining their original citizenship they
may vote in any State. This, we think, has never been claimed. And
again, by the very terms of the amendment we have been considering (the
fourteenth), "Representatives shall be apportioned among the several
States according to their respective numbers, counting the whole number
of persons in each State, excluding Indians not taxed. But when the
right to vote at any election for the choice of electors for President
and Vice-President of the United States, representatives in Congress,
the executive and judicial officers of a State, or the members of the
legislature thereof, is denied to any of the male inhabitants of such
State, being twenty-one years of age and citizens of the United States,
or in any way abridged, except for participation in the rebellion, or
other crimes, the basis of representation therein shall be reduced in
the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State."
Why this, if it was not in the power of the legislature to deny the
right of suffrage to some male inhabitants? And if suffrage was
necessarily one of the absolute rights of citizenship, why confine the
operation of the limitation to male inhabitants? Women and children are,
as we have seen, "persons." They are counted in the enumeration upon
which the apportionment is to be made, but if they were necessarily
voters because of their citizenship unless clearly excluded, why inflict
the penalty for the exclusion of males alone? Clearly, no such form of
words would have been [p175] selected to express the idea here indicated if suffrage was the absolute right of all citizens.
And still again, after the adoption of the
fourteenth amendment, it was deemed necessary to adopt a fifteenth, as
follows: "The right of citizens of the United States to vote shall not
be denied or abridged by the United States, or by any State, on account
of race, color, or previous condition of servitude." The fourteenth
amendment had already provided that no State should make or enforce any
law which should abridge the privileges or immunities of citizens of the
United States. If suffrage was one of these privileges or immunities,
why amend the Constitution to prevent its being denied on account of
race, &c.? Nothing is more evident than that the greater must
include the less, and if all were already protected why go through with
the form of amending the Constitution to protect a part?
It is true that the United States guarantees to every State a republican form of government. [n18] It is also true that no State can pass a bill of attainder, [n19] and that no person can be deprived of life, liberty, or property without due process of law. [n20]
All these several provisions of the Constitution must be construed in
connection with the other parts of the instrument, and in the light of
the surrounding circumstances.
The guaranty is of a republican form of government.
No particular government is designated as republican, neither is the
exact form to be guaranteed, in any manner especially designated. Here,
as in other parts of the instrument, we are compelled to resort
elsewhere to ascertain what was intended.
The guaranty necessarily implies a duty on the part
of the States themselves to provide such a government. All the States
had governments when the Constitution was adopted. In all the people
participated to some extent, through their representatives elected in
the manner specially provided.[p176] These
governments the Constitution did not change. They were accepted
precisely as they were, and it is, therefore, to be presumed that they
were such as it was the duty of the States to provide. Thus we have
unmistakable evidence of what was republican in form, within the meaning
of that term as employed in the Constitution.
As has been seen, all the citizens of the States
were not invested with the right of suffrage. In all, save perhaps New
Jersey, this right was only bestowed upon men and not upon all of them.
Under these circumstances it is certainly now too late to contend that a
government is not republican, within the meaning of this guaranty in
the Constitution, because women are not made voters.
The same may be said of the other provisions just
quoted.Women were excluded from suffrage in nearly all the States by the
express provision of their constitutions and laws. If that had been
equivalent to a bill of attainder, certainly its abrogation would not
have been left to implication. Nothing less than express language would
have been employed to effect so radical a change. So also of the
amendment which declares that no person shall be deprived of life,
liberty, or property without due process of law, adopted as it was as
early as 1791. If suffrage was intended to be included within its
obligations, language better adapted to express that intent would most
certainly have been employed. The right of suffrage, when granted, will
be protected. He who has it can only be deprived of it by due process of
law, but in order to claim protection he must first show that he has
the right.
But we have already sufficiently considered the
proof found upon the inside of the Constitution. That upon the outside
is equally effective.
The Constitution was submitted to the States for
adoption in 1787, and was ratified by nine States in 1788, and finally
by the thirteen original States in 1790. Vermont was the first new State
admitted to the Union, and it came in under a constitution which
conferred the right of suffrage only upon men of the full age of
twenty-one years, having resided [p177] in
the State for the space of one whole year next before the election, and
who were of quiet and peaceable behavior. This was in 1791. The next
year, 1792, Kentucky followed with a constitution confining the right of
suffrage to free male citizens of the age of twenty-one years who had
resided in the State two years or in the county in which they offered to
vote one year next before the election. Then followed Tennessee, in
1796, with voters of freemen of the age of twenty-one years and upwards,
possessing a freehold in the county wherein they may vote, and being
inhabitants of the State or freemen being inhabitants of any one county
in the State six months immediately preceding the day of election. But
we need not particularize further. No new State has ever been admitted
to the Union which has conferred the right of suffrage upon women, and
this has never been considered a valid objection to her admission. On
the contrary, as is claimed in the argument, the right of suffrage was
withdrawn from women as early as 1807 in the State of New Jersey,
without any attempt to obtain the interference of the United States to
prevent it. Since then the governments of the insurgent States have been
reorganized under a requirement that before their representatives could
be admitted to seats in Congress they must have adopted new
constitutions, republican in form. In no one of these constitutions was
suffrage conferred upon women, and yet the States have all been restored
to their original position as States in the Union.
Besides this, citizenship has not in all cases been
made a condition precedent to the enjoyment of the right of suffrage.
Thus, in Missouri, persons of foreign birth, who have declared their
intention to become citizens of the United States, may under certain
circumstances vote. The same provision is to be found in the
constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas,
Minnesota, and Texas.
Certainly, if the courts can consider any question
settled, this is one. For nearly ninety years the people have acted upon
the idea that the Constitution, when it conferred citizenship, did not
necessarily confer the right of suffrage. If [p178]
uniform practice long continued can settle the construction of so
important an instrument as the Constitution of the United States
confessedly is, most certainly it has been done here. Our province is to
decide what the law is, not to declare what it should be.
We have given this case the careful consideration
its importance demands. If the law is wrong, it ought to be changed; but
the power for that is not with us. The arguments addressed to us
bearing upon such a view of the subject may perhaps be sufficient to
induce those having the power, to make the alteration, but they ought
not to be permitted to influence our judgment in determining the present
rights of the parties now litigating before us. No argument as to
woman's need of suffrage can be considered. We can only act upon her
rights as they exist. It is not for us to look at the hardship of
withholding. Our duty is at an end if we find it is within the power of a
State to withhold.
Being unanimously of the opinion that the
Constitution of the United States does not confer the right of suffrage
upon any one, and that the constitutions and laws of the several States
which commit that important trust to men alone are not necessarily void,
we AFFIRM THE JUDGMENT.
1. See other sections, infra, p. 174.
2. Article 2, § 18.
3. Preamble, 1 Stat. at Large, 10.
4. Declaration of Independence, Ib. 1.
5. Articles of Confederation, § 3, 1 Stat. at Large, 4.
6. Article 2, § 1.
7. Article 1, § 8.
8. 1 Stat. at Large, 103.
9. 10 Id. 604.
10. 2 Id. 293.
11. 10 Stat. at Large, 604.
12. 5 Stat. at Large, 455, § 10.
13. 12 Id. 392.
14. Constitution, Article 1, § 2.
15. Ib. Article 1, § 3.
16. Ib. Article 2, § 2.
17. Ib. Article 1, § 4.
18. Constitution, Article 4, § 4.
19. Ib. Article 1, § 10.
20. Ib. Amendment 5.
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