In St. Louis in 1869, Francis and Virginia Minor—Francis was a Princeton-educated attorney, Virginia the local NWSA president—devised a strategy for winning the vote called the New Departure. The startling idea was that women already had the right to vote. The Minors argued on Fourteenth Amendment grounds, despite the use of “male,” they were drawn to the first section’s generous language of citizenship, equal protection, and due process. The Constitution made all people born or naturalized in the United States citizens; women were people and therefore citizens; the Fourteenth and Fifteenth amendments protected the rights of all citizens, including the right to vote; ergo, women had the right to vote. Women were to go to the polls and exercise their right, defying voter registrars, courting arrest, and throwing the matter into the courts.56
The vote was women’s; they had only to take it. The contest was already in motion. Since 1868, groups of women had been trying to vote, in pairs, clumps, and crowds. They showed up at the polls in Passaic, New Jersey; Lewiston, Maine; White River, Washington; South Newbury, Ohio; Hyde Park, Illinois; and Detroit. African-American women participated in South Carolina; Washington, D.C.; Portland, Oregon; and Vineland, New Jersey. In 1868 in Vineland, 172 women, white and black, tried to vote, bringing their own ballot boxes with them. Two elderly sisters in Connecticut, a hotbed of protests, refused to pay local taxes, on the grounds of “no taxation without representation.” Their milk cows were pointedly named “Taxey” and “Votey.” In Johnson County, North Carolina, in 1871, two hundred black women dressed in men’s clothing registered and voted. Sojourner Truth went to the polls alone in Battle Creek, Michigan, in 1872; Angelina Grimké Weld and Sarah Grimké tried to vote with fifty others outside Boston.57
The New Departure offered a way to seize the attention of Congress. Independently of the suffragists, Victoria Woodhull testified before the House Judiciary Committee, presenting the Fourteenth Amendment argument at the behest of committee chair Benjamin Butler, a Republican supporter of women’s suffrage. Woodhull was a mysterious, magnetic outsider from the Midwest. Trailing rumors of blackmail, fraud, and prostitution, and gifted with a genius for attracting powerful men, Woodhull and her sister Tennessee Claflin had appeared out of nowhere in New York City, an entourage of dodgy relatives in tow. The two wended their way into the good graces of Commodore Vanderbilt, the richest man in the city, and set up shop on Wall Street in 1870 with his backing, becoming the first women stockbrokers. With Woodhull’s suspicious liaisons and shady background (her parents operated a traveling medicine show in the Midwest, selling the Elixir of Life), she scandalized the suffrage movement. But Stanton was charmed and saw the opportunity that Woodhull’s notoriety and testimony presented.
Woodhull’s appearance was the opening act for the appearance before the committee of Stanton, Anthony, and Isabella Beecher Hooker a few months later. They gave a sensational performance, offering “a dazzling fusion of constitutional theory and political oratory” to a packed room.58 There was reason to believe the New Departure could work. Eighteen seventy-two was an election year, and the Republican Party was actively courting suffragists. Henry Wilson, the Massachusetts senator who was the vice presidential candidate, advocated women’s suffrage, and the platform included a plank nodding to women without actually committing to the vote. If either a federal court could be convinced and its decision implemented nationwide or Congress passed a declaratory bill, the New Departure would lead to a quick victory without the bother of another constitutional amendment.59
New Departure tactics were not for the fainthearted. Going to vote required a steely will: Polling places were notoriously masculine, brimming with rowdiness and liquor. Generally women went in groups; Sojourner Truth was the exception when she went alone in Michigan. The largest urban demonstration was in Washington, D.C., where Belva Lockwood and Frederick Douglass went with seventy white and black women to the polls. In Missouri, the Minors brought suit after the registrar turned Virginia away. Francis pushed the case up through the appeals process and in 1873 the Supreme Court agreed to hear it.60
Excitement rippled through the ranks. In 1872, Chicago NWSA member Myra Bradwell sued Illinois when it rejected her application for admission to the bar because she was a woman. Bradwell’s battle was an offshoot of the New Departure and her appeal led to Bradwell v. Illinois (1873), which, along with Minor v. Happersett (1875), was the Court’s first consideration of women’s constitutional rights.
Married to a prominent Chicago attorney who taught her the law, Myra Bradwell was a successful professional, already a force in the Midwestern legal community as the founder, chief analyst, and editor of the Chicago Legal News, the most important legal publication west of the Alleghenies. Her husband, James, was a member of the state legislature and a woman’s rights man, the moving force behind several bills that secured legal remedies for Illinois women. Politically adept and well connected, Myra Bradwell nonetheless failed to gain entrance to the bar—despite the Iowa bar’s first-ever admission of a woman, Arabella Mansfield, earlier that year.61
The Bradwell decision is famous, or infamous, as a textbook case of the Court’s beliefs about the special nature of women. When the case reached the Supreme Court, the justices were already considering Fourteenth Amendment arguments in the Slaughterhouse Cases and they knew that a women’s suffrage case was in the making. The justices were undoubtedly thinking ahead when, in 1873, they upheld the lower court’s decision, declaring the question of Bradwell’s qualifications for the bar to be under state jurisdiction. In his concurrence, Justice Joseph P. Bradley proceeded to a more sweeping judgment, denying that the Constitution guaranteed a married woman the right to pursue lawful employment of any sort. Justice Bradley summoned up the Founding Fathers to affirm coverture and women’s subordination to male governance: The common law established that “a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state.”
The civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.… The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.62
Ruth Bader Ginsburg, arguing before the Court a hundred years later, cited Bradwell as an example of the faulty reasoning that justified sex discrimination, wryly observing that the 1873 Court did not explain how God communicated His views to the justices: “Laws delineating ‘a sharp line between the sexes,’ were sanctioned on the basis of assumptions unnecessary to prove, and impossible to disprove, for their lofty inspiration was an article of faith.”63
Bradwell set the stage for Minor two years later. In that decision, the justices rejected Virginia Minor’s claim that voting was one of the rights of national citizenship. The states conferred suffrage and the states alone could determine if sex disqualified a citizen from voting. The decision crushed the New Departure strategy. Moreover, it lent the Court’s authority to the increasingly popular view that the federal government bore no responsibility for enforcing voting rights. Minor’s understanding of the Fifteenth Amendment was so narrow it did not even protect the freedmen. All this was a prelude to the end of Reconstruction and the collapse of biracial democracy in the South.64
In 1877, the federal government withdrew U.S. troops from the South, opening the door for the unrestrained reimposition of white rule. Retrenchment in the South galvanized disenfranchisement politics nationwide, fueling hostility to blacks’, immigrants’, and workers’ rights and as a result throwing up nearly insurmountable obstacles to women’s suffrage. At the cutting edge of disenfranchisement campaigns were Southern Democrats, who organized across the former Confederacy to “redeem” their states from biracial democracy. But in the North and West,
too, grave doubts about popular democracy joined with Social Darwinist rationales to legitimate suffrage restrictions on workingmen and immigrants. “Universal suffrage can only mean in plain English the government of ignorance and vice,” wrote the Bostonian Charles Francis Adams, grandson of one president, great-grandson of another. “It means a European, and especially Celtic, proletariat on the Atlantic coast; an African proletariat on the shores of the Gulf, and a Chinese proletariat on the Pacific.”65 The numbers of the voteless everywhere increased in the 1880s, not just in the South. Despite nominal enfranchisement, voting men were still in the minority in the United States. Well over half the country’s adults could not vote, including all women, large sections of the male immigrant population, and most Southern black men.
It was a changed climate, an almost impossible environment in which to hold firm to the call for universal democracy that distinguished the NWSA in 1869, even though that call was compromised by the belief in white women’s superiority. Stanton often veered off course, yet she did not reverse herself: She stuck to calling for universal suffrage and a stringent insistence on the obligation of the federal government to uphold the Fourteenth and Fifteenth amendments. The United States must protect the humblest citizen, she insisted—although in her rage at women’s exclusion, her description of that humble citizen often fell into the class-driven language of the times.66 She did not call for any group of men to be disenfranchised, but she did insist that women were more than worthy, compared to the less than worthy men who could already vote.
In crowning all men with this dignity, denying it to all women, we have established here the most odious form of aristocracy the world has ever seen—an aristocracy of sex, that exalts vice and ignorance, above virtue and intelligence, the unwashed, unlettered foreigner, who knows nothing of the grandeur of our free institutions, just landed on our shores, above the thousands of educated women in our public schools, who have taught American history and the United States constitution for near a century, an aristocracy that exalts brute force above moral power, the son above the mother who bore him.67
Such polemics—and none were better than Stanton’s—attacked the use of sex to naturalize a profoundly antidemocratic theory that legitimated the exclusion of one class of citizens from political rights. Yet it was the anger of both sex and class—and thus implicitly race—that delivered the emotional punch: outrage that middle-class women like herself should be excluded. The politics of outrage could build on its own logic, ignoring inconvenient facts. Who, exactly, were those women schoolteachers who supposedly taught the Constitution for a hundred years? Were all immigrant men unwashed and unlettered? And for those who were, did that mean prima facie that better-bathed and -educated women should be before them in line? In an age when the call for educated suffrage was so widespread that even middle-class black reformers adopted it as a way to hold on to some sliver of enfranchisement, there was no one to argue with Stanton about the political costs or alternatives. Were there alternatives?
Meanwhile in the South, the vote was the linchpin of the freedpeople’s struggles. There black women participated directly and indirectly in the battle for the franchise. At least three times, in an unspecified place in South Carolina in 1870, in Charleston in 1871, and later that year in Johnson County, North Carolina, freedwomen mounted their own direct actions at the polls, a little-noticed initiative that overlapped with the New Departure. More often, they acted in consort with men. In Richmond, Virginia, they attended the state constitutional convention in the fall of 1867, chiming in from the gallery. In Mississippi, they flaunted Republican campaign buttons during the 1868 election, incurring employers’ anger and risking vigilante attacks when they walked to meetings. In South Carolina, where black voters took their lives in their hands, they accompanied men to the polls, both sexes armed for self-defense. But men did not always welcome them. In some places, Republicans white and black wanted to ban them from meetings. They should stay home and hoe cotton, one hostile man maintained.68
Some women may have seen the vote as their possession as much as men’s, although men were the ones to do the voting: “It was that sense of suffrage as a collective, not an individual, possession that was the foundation of much of women’s political activities,” suggests historian Elsa Barkley Brown. “These women were speaking, however, not of whether they each individually had voice and representation but of whether their community had a voice.”69 Their support for manhood suffrage was an affirmation of the community’s political rights, not a compromise driven by necessity.
If Brown is right, then freedwomen did not see virtual representation as exclusionary. Certainly all evidence from the immediate postwar years shows that the sense of self for both men and women was inseparable from the black political community; women saw membership in the polity as continuous with membership in families and households. Families were the ground of race solidarity and integrity, sanctuaries of desire and possibility, living repudiation of the slaveowners’ haughty pretensions to being parents and protectors of a childlike race. The overwhelming desire was to be bound to and with others in freedom, with kin and also lovers, orphans, friends, and old people. “They began by attempting to assemble their immediate families and close kin, to lend those relations civil legitimacy, and to find circumstances in which those relations could establish meaningful and useful foundations,” writes Steven Hahn about the aftermath of the war.70
An ethos of common concern drawn from enmeshment in the lives of others suffused the freedwomen’s lives as it did all women’s, but the extraordinary circumstances gave the family a democratic charge it did not carry for Northern suffragists. The communal associations complicated the meanings of women’s rights in the Southern context, distancing black women from the possessive individualism of the Northern movement. Northern suffragists tried to untangle women’s civic identity from their families, because it was their family position that disabled them from voting. The freedwomen viewed themselves as political actors by virtue of their family positions: Wives and mothers were leaders in race work.
It was a very different account of marriage and family from suffragists’ emphasis on men’s privileges and women’s disadvantages. Yet it was undeniable that the sexes were in different positions in the South, too, and the extent and degree of men’s authority and women’s submission was by no means decided. Everything was in flux after the war, including the terms of marriage. What did freedom mean for women? To the freedmen, it was authority over the labor and persons of household members that signified their recovery of a manhood crushed in slavery. But when family conflicts came before Southern courts and Freedmen’s Bureau agents, a woman might call that very understanding into question. Did the precious “marriage right” really mean submitting to a husband’s authority? Sometimes a woman said no. Could a husband assign the labor of his wife without her consent and take her wages as his own? Black women might object, but Freedmen’s Bureau authorities, all men, tended to think so.71
The powerful disposition to honor family solidarities and emphasize manhood as the centerpiece of race pride meant that freedwomen’s difficulties were submerged in public discussions. As hedged-in as freedom was for a man, it was still polyvalent: It meant self-ownership, the ability to work for wages and make contracts and to do the same for his family, and the right to vote and run for office. Freedom for a woman was stingier. Bodily integrity was the bedrock for her, too—freedom from physical coercion, corporal punishment, and rape—yet the law was averse to confirming the principle. Even in terms of family violence, freedwomen—like white women—had no legal recourse against marital abuse, a grievance that cropped up when women asked bureau agents to stop husbands from whipping them.
Black men filtered women’s problems through a discourse of moral and sexual honor. Given the long history of masters’ abuse of enslaved women, it was paramount that they ensure women’s safety. Sexual violence was exploding, with white vigilantes everywhere in the South us
ing rape as a weapon of terror. Honorable black men, then, had a pressing duty to protect women from degradation and humiliation. In this way, an assertion of racial integrity also involved an assertion of women’s dependency. The mission of protecting women, defined ideologically, suppressed other gender tensions and rifts.72
No Northern women’s rights leader grasped the embattled and precarious situation of black citizens in the South, the political assertiveness of women, or the ferocity of the violence. The same indifference afflicted much of the Northern Republican Party, but in the case of suffragists, the abstract opposition they made between men and women exacerbated the inattention: By inserting the generalities of patriarchy into a context driven above all by white revanche, the suffragists plastered over their ignorance with faux knowledge. The logic of the NWSA idea of the aristocracy of sex, if extended, lumped all men together, black and white, freedmen along with, say, members of the Ku Klux Klan. The category was thus inadequate to describe, let alone illuminate, the situation. The indifference to facts on the ground lent a touch of demagoguery to suffragists’ pronouncements whenever they touched on the topic of black men. The chasm between reality and ideology is evident in an 1874 NWSA written protest to the Senate asking for federal laws protecting women’s freedom of movement, free from intimidation, in public space. The operative stereotype was the man plump with liberty, with black men folded into the cartoonish depiction. The memorial harped on black men’s merry, easeful lives as compared to the restricted, fearful lives of women: Oh that women could walk the streets, go to the theater alone, or “ramble in the forests, or beside the lakes and rivers, as do colored men, without fear of molestation or insult from any white man whatsoever” (emphasis added).73 The caricature was grotesquely out of touch: In the North black men risked beatings if they ventured into white theaters and hotels, and in the South those out alone at night courted lethal attacks. For these reasons and more, the dichotomy of powerful man/powerless woman did not resonate with Southern black women. It was not that they were immune to men’s power or their own powerlessness; it was that they knew how variable it was, and how powerless black men themselves were in the face of white supremacy.
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