42d Congress, ) 
 2d Session. ) 
 
 SENATE. 
 
 < Report 
 i No. 21. 
 
 IN THE SENATE OF THE UNITED STATICS. 
 
 JANUARY 2o, 1S72.— Ordered to be printed. 
 
 Mr. C arpenter, from the Committee on the Judiciary, submitted the 
 
 The Committee on the Judiciary, to whom was referred the memorial of Eliza- 
 beth Cady Stanton, Isabella Beecher Hooker, Elizabeth S. Bladen, Olym- 
 pia Brown, Susan B. Anthony, and Josephine J. Griffing, citizens of the 
 United States, praying for the enactment of a law, during the present 
 session of Congress, to assist and protect them in the exercise of their 
 right, and the right of all women, to participate in the. elective franchise, 
 which the memorialists claim they are entitled founder the Constitution 
 of the United States, together with various other petitions and memorials 
 to the same effect, and various protests in opposition thereto, respectfully 
 submit the following report : 
 
 By the Constitution of the United States, prior to the fourteenth and 
 fifteenth amendments, the power to regulate suffrage, even in the elec- 
 tion of President and Vice-President, Senators and Representatives in 
 Congress, was possessed by tbe States composing the Union, so 
 that Congress could make no affirmative provision concerning the same; 
 nor could Congress alter or amend regulations made upon this subject 
 by the respective States. Article I, section 2, provides as follows: 
 
 The House of Representatives shall he composed of members chosen every second 
 year by the people of tbe several States; and the electors in each State shall have the 
 qualifications requisite for electors of the most numerous branch of the State legisla- 
 ture. 
 
 Section 3 of the same article provides : 
 
 The Senate of the United States shall be composed of two Senators from each State 
 chosen by tbe legislature thereof for six years ; and each Senator shall have one vote. 
 
 Article III, section 1, provides: 
 
 Each State shall appoint, in such manner as the legislature thereof may direct, a 
 number of electors equal to the whole number of Senators and Representatives to which 
 the State may be entitled in the Congress. 
 
 From these provisions of the Constitution it is apparent that the 
 States possessed the sole power of determining the qualifications of elec- 
 tors therein. And, so far as these provisions are concerned, it is mani- 
 fest that each State had the power to make such discrimination as it 
 pleased between its own citizens in regard to their participation in the 
 elective franchise. Each State might admit all citizens, male and fe- 
 male, over a prescribed age, or only some classes of them, or might 
 require a property qualification, which would, in effect, exclude all citi- 
 zens not possessing the required amount of property. Each State might 
 
 COLUMBIA LIBRARIES OFFSITE 
 
 AVERV C INE ARTS RESTRICTED 
 
 following 
 
 REPORT: 
 
2 
 
 KIGIir OK WOMKN TO VOTE. 
 
 discriminate in this particular between its citizens on account of nice, 
 color, servitude, or upon any other ground. And under this Constitu- 
 tion the several States established various and incongruous regulations 
 upon this subject . In Massachusetts no distinction on account of color 
 was recognized, while in other States all persons having even admixture 
 of African blood, however slight, were excluded; and some States re- 
 quired a property qualification, while others did not. 
 
 There is, however, another provision of the Constitution which merits 
 consideration in this connection. Article IV, section 4, provides: 
 
 The United States shall guarantee to every State in this Union a republican form of 
 government. 
 
 Under this provision it is insisted, with some plausibility, that a 
 State government which denies the elective franchise to a majority of 
 the citizens of such State is not "a republican form of government." 
 But your committee are not satisfied that this proposition can be main- 
 tained. In construing the Constitution we are compelled to give, it such 
 interpretation as will secure the result which was intended to be accom- 
 plished by those who framed it and the people who adopted it. The 
 Constitution, like a contract between private parties', must be read in tho 
 light of the circumstances which .surrounded those who made it. Tho 
 history of the colonies, the history of the Confederation, and the circum- 
 stances under which the Constitution itself was framed and adopted, must 
 all be taken into account; and then we must ascertain by reading the 
 whole instrument together the sense in which particular provisions 
 and phrases were employed. If any State government which to-day 
 excludes from suffrage a majority of its citizens is not in form a repub- 
 lican government, then a State government which did the same thing 
 at the time the Constitution was adopted was not in form a republican 
 government. The exclusion of all female citizens from the suffrage 
 cannot impair the republican form of an existing State government, 
 unless the same thing worked the same result upon the State govern- 
 ments in existence; when the Constitution of the United States was 
 ail op ted. 
 
 It was assumed on all hands that the governments of the thirteen 
 States which framed and adopted the Constitution were in form repub- 
 lican; and this provision was intended to keep them so, and make.it 
 impossible for any State to change its government into a monarchy. 
 The construction of this provision now contended for would have 
 made it the duty of the Government of the Union, during the Brsl year 
 of its existence, to enter upon the reconstruction or remodeling tho 
 governments of the States by which the Union itself had been spoken 
 into existence. In view of the history of those times, it cannot lie main- 
 tained that the States or the people intended to confer such a power 
 upon the Government of the Union; and no one can doubt that such an 
 attempt on the part of the Union, in regard to the thirteen States, would 
 have been condemned by the unanimous voice, and resisted by the united 
 force of the people. If such a power did not then exist under the Con- 
 stitution of the United States, it does not now exist under this provision 
 of the Constitution, which has not been amended. A construction which 
 should give the phrase "a republican form of government" a meaning 
 differing from the sense in which it was understood and employed by 
 the people when they adopted the Constitution, would be as unconstitu- 
 tional as a departure from the plain and express language of t lie Consti- 
 tution in any other particular. Tins is the rule of interpretation adopted 
 by all commentators on the Constitution, and in all. judicial expositions 
 of that instrument ; and your committee are satisfied of t he entire sound- 
 
RIGHT OF WOMEN TO VOTE. 
 
 3 
 
 ness of this principle. A change in the popular use of any word em- 
 ployed in the Constitution cannot retroact upon the Constitution, either 
 tj enlarge or limit its provisions. 
 
 There is another provision of the Constitution which is generally re- ' 
 ferred to in this connection, but which, in the opinion of your committee, 
 has no application to the subject. Article IV, section 2, provides : 
 
 The citizens of each State shall be entitled to all privileges ami immunities of citi- 
 zens iu the several States. 
 
 It has been much discussed whether the right to vote and hold otlice 
 in a State was within the privileges and immunities protected by the 
 provision above quoted. But it is unnecessary to consider that question 
 here, because, even if the right to vote and hold office be considered as 
 embraced within this provision, still it was in the power of the State to 
 which a citizen might remove to determine what class of citizens should 
 or should not vote or hold office in such State; and the citizen remov- 
 ing to such State was only entitled to the privileges and immunities 
 possessed by the class of citizens to which such removing citizen be- 
 longed under the Constitution and laws of the State to which he had 
 removed. 
 
 We come now to consider the fourteenth and fifteenth amendments to 
 the Constitution, under which, also, the right of female suffrage is 
 claimed. The fourteenth amendment, so far as applicable to this sub- 
 ject, is as follows : 
 
 All persons born and naturalized in the United States, &c, are citizens of the United 
 States, and of the State wherein they reside. No State shall make or enforce any la\T 
 which shall abridge the privileges or humanities of citizens of the United States, nor 
 Khali any State deprive any person of life, liberty, or property, without due process of 
 law, nor deny to any person within its jurisdiction the equal protection of the laws. 
 
 The second section of this amendment provides that — 
 Representatives shall be^ apportioned among the several States according to their 
 respective numbers, counting tbe whole number of persons in each State, excluding 
 Indians not taxed. Bat when the rii/ht to vote at any election, &c, is denied to any of 
 the male inhabitants being twenty-one years of' age, &:•., the bads 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 iu such State. 
 
 It is evidt nt from the second section of this amendment above quoted 
 that the States are considered to possess the power of excluding a por- 
 tion of their male citizens from the right to vote, upon grounds or rea- 
 sons to be determined by themselves ; because this section determines 
 that, in case the State shall exercise this right so as to exclude citizens 
 of the United States, except for commission of crime, the basis of repre- 
 sentation for snch State shall be correspondingly reduced. 
 
 It was argued before your committee by the memorialists — who, by a 
 departure from the usual practice of the committee, were admitted to a 
 public discussion of the principles involved in the memorial — that the 
 right of every citizen, male or female, to vote was secured by that 
 clause of the first section of the fourteenth amendment which provides: 
 "No State shall make or enforce any law which shall abridge the priv- 
 ileges or immunities of citizens of the United States;'' and that the 
 second section was designed to fix a penalty upon the State for a viola- 
 tion of the former provision. 
 
 But such a construction is at war with all the theories of constitutional 
 government. An unconstitutional act is void. In other words, an un- 
 constitutional act is no act. The legislature of a State may attempt to 
 pass a law impairing the obligation of contracts; but, as the legislature 
 cannot pass such an act, the attempt is void, and the obligation of the 
 contract is not impaired. It would, therefore, be absurd to punish a 
 
4 
 
 lilGHT or WOMEN TO VOTE. 
 
 State for the vain, inclfectual attempt to impair the obligation of a eon 
 tract, a thing it could not do, and therefore had not done. So, if by 
 the first section of the fourteenth amendment no State could make or ea- 
 1 force any law to deny the right of suffrage -to any portion of its male 
 citizens over twenty-one years of age not guilty of crime, then an at- 
 tempt to do so would be merely void, wholly inoperative, and it would 
 be absurd to punish such State for doing what it could not do. and, 
 therefore, had not done. 
 
 The remedy under the Constitution against any attempted, but un- 
 constitutional legislation of a State is by application to the judicial 
 courts of the Union, which have jurisdiction in all causes arising under 
 the Constitution and laws of the United States, and a supervisory con- 
 trol by writ of error over State courts in regard to causes in which 
 either party asserts a right or privilege, under the Constitution or laws 
 of the Union which is denied or overruled b.\ the State court. 
 
 The positions maintained, first, that no Stale can deny to a citizen 
 the right to vote ; and, second, that in case the State; shall do what it 
 cannot do, certain consequences shall follow, would degrade the four- 
 teenth amendment to the level of compounding, or granting indulgence 
 for, the commission of unconstitutional acts. It would make the amend- 
 ment say, first, no State shall do a certain thing ; but, second, if a State 
 shall do what it cannot do, it shall forfeit certain rights. It is hardly 
 to be supposed that the fourteenth amendment, intended to say that a 
 State was forbidden by the Constitution to do a certain thing, but might 
 do so by submitting to a reduction of its basis of representation in Con- 
 gress. 
 
 But there is another reason, equally conclusive, against the construc- 
 tion contended for. By the fourteenth amendment Congress is empow- 
 ered to enforce all the provisions of that amendment, by appropriate 
 legislation. Therefore, if a State should attempt to exclude from the 
 right of suffrage any persons entitled under the fourteenth amendment 
 to participate therein, it would be the undoubted duty of Congress to 
 defeat such attempt by appropriate legislation. So that to regard the 
 second section of this amendment as imposing upon the State a penalty 
 for denying this right, includes tin; absurdity of imposing such penalty 
 for an attempt of the State to do what it is the duty of Congress to 
 prevent. 
 
 Again, the right of female suffrage is infcrentially denied by the second 
 section of the fourteenth amendment, which provides that in case a State, 
 in the exercise of a right conceded to exist, shall exclude a portion of the 
 male inhabitants specified, " the basis of representation therein shall be re- 
 duced in the proportion which the number of such (excluded) male citizens 
 shall bear to the whole number of male citizens twenty-one years of age 
 in such State.'" The basis is not to be reduced in the proportion which 
 the number of the excluded male citizens shall bear to the whole popu- 
 lation of the State, male or female, but only in the proportion which 
 they bear to the number of male citizens twenty-one years of age in such 
 State. It is evident, from this provision, that females are not regarded 
 as belonging to the voting population of a State. 
 
 The fifteenth amendment is equally decisive. It provides: 
 
 The right of citizens of the United States to vote shall not l>e abridged or denied fay 
 the United Stales or by any State on aeeount of race, color, or previous eondition of 
 
 servitude. 
 
 This amendment would have been wholly unnecessary if the four- 
 teenth amendment had secured to all citizens the right to vote. It 
 must be regarded as recognizing the right of every State, under the 
 
RIGHT OF WOMEN TO VOTE. 
 
 5 
 
 Constitution as it previously stood, to deny or abridge the right of a 
 citizen to vote on any account, in the pleasure of such State; and by the 
 fifteenth amendment the right of States in this respect is only so far 
 restricted that no State can base such exclusion upon "race, color, or 
 previous condition of servitude.'' With this single exception— race, 
 color, and previous condition of servitude — the power of a State to make 
 such exclusion is left untouched, and, indeed, is actually recognized by 
 the fifteenth amendment as existing. 
 
 Your committee have confined themselves to the precise question in- 
 volved in the memorial, namely, the present constitutional right of 
 female citizens to vote, as to which your committee are unanimous, 
 and have not considered the broader question, whether the constitution 
 ought to be so amended as to permit female suffrage, a report upon 
 which might develop a difference of opinion among the members of your 
 committee.