Introduction

We, the People

The United States Constitution begins with an assumption of shared national identity, a recognition that government derives its power from those who consent to it, and a declaration of unity: “We, the people.”¹ Since those words were written, however, exactly which people were allowed to have their political voices heard has been the central problem of American participatory government. From property restrictions to grandfather clauses, from poll taxes to identification requirements, Americans throughout the nation’s history have continually grappled with determining the precise limits of the preamble’s “we” and have struggled to define who ideally constituted the nation’s political “people.”

In 1787, when the Constitution was written, the only people believed to be capable of participating in the political system were property-owning men over the age of twenty-one.² Given this, and given the colonies’ near-complete exclusion of poor men, women, African Americans, Native Americans, and other ethnic groups from most governmental processes, it is rather remarkable that the word “people” was used in the preamble at all.³ One might reasonably expect the preamble to have stated instead that the Constitution was endorsed by “we, the wealthy adult white men of the United States,” or even an easy shorthand for this group—“men.” But it did not. In the preamble, as in the full text of the Constitution, there was no gender-specific language to refer to the population of the newly forged nation.

Accustomed as we are today to gender-neutral terms, this word choice may seem unremarkable. However, in 1789, the term “men” was, in proper context, commonly understood as a reference for “humanity” rather than exclusively its male portion.⁴ Yet despite this common usage, the words “men” or “man” did not appear anywhere in the Constitution. In fact, the only gender-specific words in its text were a few male pronouns used to identify members of Congress and the president. Aside from these specific references, for the Constitution’s first seventy-nine years, its language remained genderless.

In 1866, however, the gender neutrality of the Constitution was eliminated when congressional authors of the Fourteenth Amendment opted to use the term “male” three times in the amendment’s second section.⁵ It stated:

By encouraging southern states to enfranchise black men, the Fourteenth Amendment’s second section passively sought to expand the newly reforming nation’s electorate. But there were distinct limits to this expansion. The amendment’s language plainly indicated that women were not understood to be legitimate voters. It explicitly outlined in the nation’s most fundamental political text its authors’ assumptions about the connection between manhood and political privilege.⁷ Thus, the Fourteenth Amendment declared that although women had the right to be counted as full persons for purposes of representation, they were to be deliberately excluded from “we,” the political “people.”

That gendered language was introduced to the United States Constitution with the ratification of the Fourteenth Amendment is well known to historians.⁸ But well known does not necessarily mean well understood. To date, no historian has closely examined the political decision-making process that resulted in the use of gendered language in the Fourteenth Amendment or carefully explored how women’s rights activists, those nineteenth-century Americans most attuned to the gender inequalities of the times, fought to oppose it.⁹ This book seeks to remedy this oversight. I ask why, in 1866, the authors of the Fourteenth Amendment deemed it necessary to specify with explicit language that the ideal, normative voter was “male.” The answer, I suggest, is found in the way Americans in the nineteenth century understood the connections between identity—specifically gender and race—and political action, and how that understanding adapted to the unique political circumstances of the post–Civil War Reconstruction.

From the nation’s founding until the late eighteenth century, the question of who “the people” were was handled by the states, most of which determined that possession of property was the best indicator of a person’s commitment to the democratic republic, of his or her stake in community, and of his or her ability to make responsible political decisions. But starting in 1790, states began to reassess the limits of the political community and redefine the qualities required by their voters.¹⁰ One by one, they abandoned property as a measure of voting fitness and instead deemed race and gender to be the best identifiers of a legitimate political participant. In the process, most states disfranchised the women and African Americans who had been able to vote, albeit in low numbers, under earlier laws. By 1855, few states still required their voters to possess property. Most permitted all adult white men to vote—but only adult white men.

The creation of the “white man’s government,” as contemporaries called it, did not go uncontested by those it excluded. Northern African American activists and leaders organized, petitioned, campaigned, wrote letters, and held conventions to protest their disfranchisement. Starting in the 1840s, women’s rights activists began to protest the laws that held women legally and socially subordinate and fully excluded them politically. They also engaged in letter writing, public speaking, petitioning, and convention organizing. For at least twenty years, the two activist groups challenged the political system that excluded them because of their identities. They had little success.

In the wake of the Civil War, however, Americans faced anew the question of how to define “we, the people.” With half of the nation’s states returned from open, violent revolt, and with four million formerly enslaved people’s legal status suddenly transformed by the Thirteenth Amendment, redefining the polity’s membership took on an urgency it had never had before. Emancipation called into question the antebellum laws, politics, cultures, and habits that had rendered African Americans either enslaved nonlegal persons in the South or free noncitizens in the North. It also raised vital legal questions that required a reassessment of the polity’s boundaries. Two issues in particular required immediate congressional attention: the problem of African American citizenship and the issue of congressional representation.

In 1857, the United States Supreme Court, led by Andrew Jackson’s appointee, Roger Taney, ruled in Dred Scott v. Sanford that African Americans in the United States were not citizens. Taney argued that the enslaved Missourian Dred Scott did not have a right to sue because African Americans had not formed a part of the original social compact of the Constitution. Therefore, Taney wrote, they could not share in the benefits of that Constitution, nor were they entitled to the basic rights of citizenship it guaranteed. With the Dred Scott ruling, the nation’s highest court had declared black Americans to be permanent outsiders in their own country.¹¹

However, emancipation after the Civil War made the Dred Scott decision untenable. Furthermore, changing postwar public opinion about the status of African Americans made it increasingly unpalatable. To overturn Taney’s ruling and acknowledge African American citizenship, Congress passed the Civil Rights Act of 1866. It declared that all African Americans were citizens of the United States with the same civil rights and immunities as any other citizen: the rights to own property, to sue and testify in court, to make and enforce contracts, and to benefit from the equal protection of the laws.¹² It did not include the right to vote.¹³ Nevertheless, conservative president Andrew Johnson vetoed the act, prompting Congress to incorporate its provisions into the first section of the Fourteenth Amendment.

The second major legal problem caused by emancipation was the issue of congressional representation. During the Constitutional Convention of 1789, southern and northern states had clashed over questions of both taxation and congressional representation, trying to determine whether or not the enslaved should be included in states’ population totals as persons or exempted from them as property. The solution the convention delegates arrived at was the Constitution’s infamous “Three-Fifths Compromise.” It declared that for both taxation and representation, only three-fifths of the enslaved populations would be counted.¹⁴ But the Thirteenth Amendment eliminated all enslaved populations in the United States, rendering the compromise null and void. This raised the very real possibility that when southern states returned to Congress, with the addition of four million newly freed people to their population totals, they could gain representatives. If they aligned with northern conservatives, the defeated Confederates could possibly even achieve a congressional majority. To prevent this, congressional Republicans needed to replace the three-fifths provision with an alternate model for apportioning representation.

For the Radical Republicans, who favored full and equal citizenship for African Americans and severe consequences for southern rebels, voting rights offered a tidy solution to the representation problem. If southern states returning from rebellion gained representation, they reasoned, letting the freed African American men vote would ensure that at least some of those new representatives would be Republican. As the party of Abraham Lincoln and emancipation, Republicans were fairly certain they would capture black voters’ loyalties. But the Radicals were in a minority. Moreover, even they were unsure in 1865 and ’66 that the national government should override the traditional bounds of federalism, which granted states the power to determine voter qualifications. Compromising all around, Moderates and Radicals arrived at the Fourteenth Amendment’s second section—which did not tell states who to enfranchise but merely offered penalties, in the form of reduced representation, for those states that did not include all “male citizens” in their voting populations.

Whereas the Fourteenth Amendment’s first section, as the foundation of all modern rights-based jurisprudence, has received intense scholarly and legal scrutiny, its second section has been mostly neglected. And perhaps rightly so. After the amendment’s passage, the second section went no further. Its main purpose, to push the enfranchisement of African American men, was supplanted in 1869 by the Fifteenth Amendment, which prohibited states from restricting voters on the basis of race, color, or previous condition of servitude.¹⁵ Consequently, the Fourteenth Amendment’s second section was never enforced. However, in 1866 the authors of the amendment could not have anticipated that section’s lackluster future; they spent far more time and energy on its language than they did on the language of the more enduring first section. More critically, the gender-specific language that they chose to define legitimate voters was unprecedented in American constitutional history.

Although the second section ultimately proved inconsequential, it was not without immediate consequences. For women’s rights activists, in particular, its timing could not have been worse. Just as the amendment was being drafted, advocates of gender equality were moving into national politics for the first time, narrowing the movement’s focus to prioritize the franchise. Throughout the winter of 1865–1866, women’s rights advocates petitioned Congress for women’s voting rights. But the amendment’s authors were focused on protecting the emancipated and so saw little connection between black men’s need for the ballot and women’s demands.

Elizabeth Cady Stanton and Susan B. Anthony, two of the nation’s most prominent women’s rights activists, were especially disturbed by the amendment’s gendered language.¹⁶ Blaming their ostensible allies—Republicans and abolitionists—for this deliberate rejection of women’s rights, they began to seek new political alliances and new constituencies.¹⁷ In the process Stanton and Anthony began to make arguments for white women’s enfranchisement that relied heavily on racist rhetoric, themes, and imagery. Particularly in their 1868 newspaper campaign against the Fifteenth Amendment, which implicitly permitted discriminating against voters on the basis of sex, the two activists wielded racist arguments based on the ugliest stereotypes their culture had to offer.¹⁸

The two central questions of this book—why the word “male” was used in the Fourteenth Amendment and why some key woman suffrage activists embraced racism as a political tool—inevitably lead to broader questions about race, gender, and American democracy. How did nineteenth-century Americans understand the limits of their political community, and how did they justify expanding or contracting it? Why did Americans at certain moments expand the franchise to include some people but not others? How did identity, particularly race and gender, become the central determinant of one’s voting status in the antebellum period, and why was race then abandoned (however temporarily) as a marker of voting citizenship in the postwar period? Why, in the political, social, and cultural upheaval after the Civil War, were some outsiders’ claims to the ballot understood as legitimate whereas others’ were not? In other words, how and why did Americans reconstruct their suffrage?

To address these questions, I examine six decades of franchise-related debates that took place in public forums—in constitutional conventions, in state legislatures, in Congress, and in activists’ public conventions and meetings. The public debate reveals much about what politically engaged Americans believed about their franchise and how they shared those beliefs with each other. Politicians’ public statements were consciously and deliberately designed to resonate with particular constituencies and so reflected specific regional, religious, political, and partisan cultures.¹⁹ Likewise, activists’ public statements were carefully crafted to appeal to their audiences and to those politicians controlling access to the state. Thus public forums where the franchise’s boundaries were discussed openly, debated passionately, and decided legally offer a fascinating window into the process by which ideas about democracy were transformed into real restrictions imposed on some American citizens.

Drawing on these public debates, in the first third of Suffrage Reconstructed I consider how Americans both defined and contested their democracy in the decades between the American Revolution and the Civil War. In chapter 1 I ask why, as states transitioned from property-based franchises to “universal” white male suffrage, African Americans and women who had previously voted under earlier laws were deemed unsafe voters. Examining key states’ public legislative and constitutional convention debates in the decades before the Civil War, I argue that gender and race became rhetorical and ideological substitutes for property in antebellum suffrage expansions. But legislators and politicians were not working in isolation, nor did their actions go uncontested. In chapter 2 I consider the multiple ways that northern African Americans and women’s rights activists opposed their own disfranchisement. I focus on how those groups sought access to the rights granted to white American men, aligned their claims for rights with mainstream political rhetoric, and re-imagined the legal relationship between gender, race, and suffrage.

In the next third of the book I explore how Congress, influenced by abolitionists, African American activists, and women’s rights advocates, re defined antebellum suffrage restrictions in the postwar period. In chapter 3 I examine how congressional politicians envisioned the political community as a collection of male family members—fathers, sons, brothers—using gender to define postwar political actors. I argue that Republican congressmen used this familial metaphor to explain their right to alter the Constitution and justify expanding rights to the newly emancipated, claiming themselves as worthy sons of the founding fathers and black southern men as legitimate political brothers. In chapter 4 I investigate how congressmen recast black men as legitimate voting citizens only decades after they had been deemed too dangerous to permit safely into the polity. I argue that gender was the key to reconstructing black men’s political identities and depicting them as proper voting citizens.

In the last third of the book I focus on the Fourteenth Amendment and the woman suffrage movement. In chapter 5 I offer a close reading of the legislative processes by which the word “male” became a part of the Fourteenth Amendment’s text and argue that as the amendment’s language evolved, congressmen deliberately added gender-specific language in order to prevent the inadvertent enfranchisement of women. In the book’s final chapter I consider how Elizabeth Cady Stanton and Susan B. Anthony reacted to the failure of their congressional petition campaign. I argue that partisan politics, and the linguistic culture it created, constrained both the political choices and the political rhetoric of the postwar moment, making partisan racist speech seem like a viable strategic choice to these two activists.

In Suffrage Reconstructed I offer four key contributions to the history of voting rights in the United States. First, I show that from the early Republic through the antebellum period, Americans, through deliberate expansions and contractions of the franchise, situated gender and race as the primary foundation of suffrage rights. Second, I describe how that foundation shifted in the postwar period as some politicians and activists sought to limit suffrage exclusions to gender alone.²⁰ For advocates of women’s enfranchisement, this effort proved extremely difficult to counter. Third, I demonstrate the significant impact that both African American activists and supporters of woman suffrage had on mainstream partisan politics during Reconstruction, despite their legal exclusion from the polity. Finally, I uncover the political rhetoric crafted by partisan elites and political outsiders in both ante- and postbellum America.²¹ Tracing public suffrage rhetoric, I reveal Americans’ evolving assumptions as they reconstructed their suffrage to define exactly who they meant by “we, the people.”