CHAPTER 5
That Word “Male”
In late December 1865, while many of New York City’s citizens were celebrating their first Christmas in four years free from the taint of civil war, at the Stanton family home on West Thirty-Fourth Street Elizabeth Cady Stanton and Susan B. Anthony were preparing for battle. Anthony had arrived at the Stantons’ on December 11 after having come to New York to “commence W[omen’s] R[ights] work in earnest” and to resume the agitation for gender equality that she and Stanton had set aside during the war. Even Christmas did not interfere with the two activists’ plans. In typically pithy diary entries, Anthony described the work that she and Stanton had begun that clear and cold holiday: “Sunday, December 24, 1865. Writing and folding and addressing petitions. Monday, December 25, 1865. Christmas. Mrs. S. and I wrote all the A.M.”1
Stanton and Anthony sacrificed the 1865 Christmas holiday to their activism because they were deeply concerned that the newly seated Thirty-Ninth Congress would use gender-specific language to define voting citizens in the Constitution. Closely watching congressional actions and noting that three early amendment proposals identified voters as “male,” Stanton wrote to her abolitionist cousin Gerrit Smith on New Year’s Day 1866 that “the sons of the Pilgrims” were “trying to get the irrepressible ‘male citizen’ into our immortal Constitution.” “What a shame it would be,” she declared, “to mar that glorious bequest of the Fathers, by introducing into it any word that would recognize a privileged order.” Echoing both the paternal and martial political language of the congressmen themselves, Stanton urged her cousin to “unsheath your sword & [come] to the rescue” to save both “the mothers of the republic” and the nation’s sacred Constitution from “this desecration by the recreant sons of the Fathers.” For if these recreant sons were successful and “that word ‘male’ be inserted” into the Constitution’s text, Stanton declared, “it will take us a century at least to get it out again.”2
To prevent the introduction of “male” into the Constitution, Stanton and Anthony turned to a mode of political engagement that they had used successfully in the past—petitioning. As leaders of the Women’s Loyal National League’s massive petition drive for the Thirteenth Amendment, they became familiar with the process of petitioning Congress and aware of the impact a large number of citizens’ petitions could have on the political process.3 Drawing on this experience, the two activists and their allies followed the Loyal League model for their new women’s rights campaign. First, during their work in December the two wrote and had printed over a thousand copies of a petition requesting that Congress “prohibit the several States from disfranchising any of their citizens on the ground of sex.”4 They then disseminated the printed petition widely among their friends and allies, as well as having it duplicated in radical newspapers such as the Liberator, the National Anti-Slavery Standard, and the Independent. The papers’ readers were instructed to clip the petition text from the newspaper, attach a signature, and independently forward their own signed copies of the petition to Congress.5 Although these techniques for petitioning Congress were not new, the substance of Stanton and Anthony’s petition was. For the first time in the nation’s history, a group of citizens asked the national legislative body to “extend the right of Suffrage to Woman.”6
Although the underlying goal of this campaign was to advance women’s enfranchisement, Anthony told the abolitionist Wendell Phillips in January of 1866 that the petitions’ more immediate function was to “awaken the public to the fact that woman demands political recognition in the new order of things.”7 In particular, activists hoped these petitions would alert congressmen that women, like the African American men whose status so dominated national political discourse, were also disfranchised outsiders seeking access to the American political community.8 Despite the suffragists’ hopes, however, awakening Congress to women’s demands for the ballot did not translate into support for a gender-neutral franchise. Rather, Stanton and Anthony’s woman suffrage petitions alerted Congress that the whole political community no longer understood the long-held associations between gender and voting rights to be “natural.” These petitions directly challenged gendered congressional suffrage rhetoric and explicitly contested the connection between manhood and voting just as Republicans were using gender both to argue for black men’s enfranchisement and to define their own political actions. Most critically, however, the petitions helped push congressmen framing the Fourteenth Amendment to make their assumptions about gender and voting rights explicit in order to prevent the amendment from inadvertently enfranchising women.
Both the petitions’ fate in Congress and congressional discussions about women’s right to the ballot between January and June of 1866 demonstrate the impact of the early woman suffrage movement on the Fourteenth Amendment. From the moment the petitions arrived at the Capitol, they changed the way Congress approached suffrage rights. As soon as the targeted congressmen removed the glued-together and tightly rolled pages from their pigeonhole mailboxes and unrolled them enough to read their origins and purpose, they became aware that some people, at least, were challenging the connection between manhood and suffrage. That awareness likely spread to most of the rest of Congress when the petitions were presented to the House and Senate. But when Congress referred eight petitions to the Joint Committee on Reconstruction, it guaranteed that the politicians tasked with drafting the Fourteenth Amendment were fully alerted to women’s demands. But for this group of fifteen congressmen, knowledge did not inspire support. Rather, after they received the petitions, the members of the Joint Committee abandoned all amendment drafts with gender-neutral suffrage language and instead identified voters as male in all subsequent proposals, including the second section of House Resolution 127—the Fourteenth Amendment. The woman suffrage petitions that Stanton and Anthony had pinned both their hopes and their emerging movement on during the Christmas holiday of 1865 were partially responsible for creating the very outcome they sought to prevent—the introduction of that word “male” into the Constitution.
Manhood Suffrage Irrespective of Color
Preventing this outcome was a daunting task for supporters of woman suffrage. Outside of Congress, Republicans, at best, showed little interest in women’s rights in the early days of Reconstruction. At worst, the language they used to discuss suffrage explicitly excluded women from the political community they were beginning to re-create. In the Republican press, reporters and editors writing about suffrage in the mid-1860s consistently used gender-specific language to define suffrage rights. For example, throughout the summer and fall of 1865, Horace Greeley’s New York Tribune included in almost every issue an article or editorial advancing the enfranchisement of African Americans in the South. None mentioned woman suffrage, and most used gendered terms for voters. One editorial published on May 26 even acknowledged that vague suffrage language was a problem. When another paper declared that “President Johnson does not think the colored people ought to vote,” the Tribune’s editor subtly corrected his rival’s vague use of the term “people,” saying instead that he supported “earnest advocacy of Negro Suffrage—or rather of Manhood Suffrage irrespective of color.”9 Even if the rival paper was linguistically careless, the Tribune’s editor clearly understood the question of voting rights as a gendered issue, even to the point of recognizing that “negro suffrage” was a term so general it could include African American women.
Greeley’s paper was not the only partisan publication in late 1865 to envision the ideal voter as male. Other Republican-leaning periodicals also used gender-specific language when discussing suffrage. A June 1865 article in Harper’s Weekly discussing President Johnson’s Reconstruction policy asserted that although the states’ constitutions determined voting rights for their members, the essential spirit of the federal Constitution determined that the “adult male population [was] the constitutional ‘people’ of the State.”10 The editors of Harper’s implied that even the people of a state, the political actors in “We, the people,” were male.11 In an August 1865 editorial advocating an expanded franchise, the weekly magazine even more specifically defended the relationship between gender and political power. It declared that when Congress convened, it should “[entrust] the political power, according to the principle of our Government, to the whole adult male population.”12 These select examples, just a few among many, reveal that many Republicans outside Congress collectively assumed that manhood was a necessary component of a voter’s identity.
Throughout the summer and fall of 1865, some Republicans and abolitionists were privately conveying the same message to Stanton and Anthony. While Anthony visited her brother Daniel in Kansas, some prominent western politicians and activists warned her that women’s rights were not on the Republican Party agenda. On August 4 and 5, Anthony reported in her diary that she had met with the Kansas senator Samuel C. Pomeroy and the Republican representative Sidney Clarke to discuss the fact that “no class can be trusted to legislate for another though that other be wife, daughter, mother, etc.” Whereas Pomeroy generally supported woman suffrage, Clarke echoed the abolitionists’ and partisan press’s rejection of women’s enfranchisement and, Anthony wrote, “advised me not to bring in W. Rights.”13 Friends and abolitionist allies were also warning Stanton against raising the topic of women’s rights in Congress. In early January of 1866 as Stanton gathered petitions to send to Congress, Wendell Phillips quite plainly told her that the petition campaign could have unintended consequences that she had not foreseen. In response to Stanton’s request that he join in a spring lecture tour for woman suffrage, Phillips refused and suggested that any national activism for women’s voting rights could actually hurt both of their causes. “Indeed,” he wrote to Stanton, “do you need more than a few good sized petitions just to awaken Congress and block wheels that are only too willing to be blocked?”14
Despite such discouragement, the suffragists were cautiously hopeful that congressional action on African American voting rights would create a “universal” franchise that would also benefit women.15 With good reason—most of the early congressional suffrage-related proposals to expand the franchise used gender-neutral language to discuss voters. But three specific Republican resolutions offered in early December indicated that the suffragists’ hope for a gender-neutral franchise was a fragile one. On December 5, the former Union general and Ohio Republican Robert Schenck submitted a joint resolution that would base congressional representation on the number of voters in each state. The same day, the Pennsylvania Republican John Broomall also sought a constitutional amendment enumerating representatives by voters (House Resolution 6).16 Though these two proposals were disturbing enough because they failed to count women as members of the polity, to Stanton and Anthony the most egregious resolution was one submitted by the Rhode Island Republican Thomas Jenckes on December 11 (House Resolution 11) proposing that only literate “adult males” could vote.17
Jenckes’s proposal indicated that early in the Thirty-Ninth Congress Republicans were neither identifying universal suffrage as gender-neutral nor including women in the polity as they thought about voting and representation. Most critically, however, this resolution raised the prospect that as Congress amended the Constitution, it could actively create a new barrier to women’s enfranchisement by using the word “male” to identify voters. Stanton, for one, was particularly disturbed by this possibility. She denounced “Schenck & Jenckes & Broomall” to Wendell Phillips’s wife, Ann, in early January as “the guilty trio who have insulted the mothers of the republic by bringing such joint resolutions before the nation for consideration.”18 To Gerrit Smith, Stanton complained that even the politicians’ names reflected their flawed politics: “I’m glad that the men who are doing so base an act are named Schenck and Jenckes. Say their names slowly & see how indicative the sound is of pettiness & cruelty.”19 But whether their names or their politics were to blame, in the earliest days of the congressional session, some Republicans, at least, were already attuned to the possibility that if they were not linguistically careful any action they took could have significant consequences for the gender composition of the polity. And this is precisely what Stanton and Anthony, and their petition campaign, hoped to address.
The Broad Ground of Republicanism
To convince the Republican-dominated Thirty-Ninth Congress to enfranchise women or at least not to use the word “male” in the Constitution, the suffragists’ petition campaign had to make women’s claim to the ballot seem reasonable to their congressional audience. Further, their arguments had to be sufficiently persuasive that a majority of Republicans would reconsider their negative position on women’s voting rights.20 The suffragists sought to achieve these goals by appropriating the ideas and language Republicans were using to discuss suffrage, using rhetoric about citizenship, justice, the family, and protection to argue for women’s right to the ballot. Anthony’s correspondence reveals that this language was not merely a coincidence but a deliberate political and ideological strategy. In a letter to Caroline Healey Dall on December 26 Anthony described this rhetorical plan, proclaiming that for the suffragists, “the broad ground of republicanism is the one true place for all advance[d] minds to occupy.”21 By adopting “republicanism,” in both the partisan rhetorical sense and the broader theoretical sense, the suffragists crafted an appeal to the Republican-dominated Congress that they hoped would produce positive results.
Stanton initiated this strategy in December of 1865 in the National Anti-Slavery Standard, a forum Radical Republicans and abolitionists were likely to see. In a letter to the paper’s editor on December 26, 1865, she argued that the ballot was a vital tool for self-protection—but unlike abolitionists and Republicans, she claimed that it was a tool women should possess. She asked her readers, “As self-preservation is the first law of nature, would it not be wiser to keep our [women’s] lamps trimmed and burning, and when the Constitutional door is open, avail ourselves of the strong arm and blue uniform of the black soldier to walk in by his side, and thus make the gap so wide that no privileged class could ever again close it against the humblest citizen of the Republic?”22 Stanton’s argument shows the influence of Republican constructions emphasizing the masculinity of black men; she implies that strong black soldiers should help women achieve the goal of enfranchisement.
In addition to capitalizing on black men’s manhood, Stanton also adopted Republican arguments about citizenship and suffrage. In her letter to the Standard, she explicitly referenced the Republican assertion that suffrage was a fundamental right of citizenship, arguing that “in changing the status of the four millions of Africans, the women as well as the men should be secured in all the rights, privileges, and immunities of citizens.… The disfranchised all make the same demand, and the same logic and justice that secures Suffrage to one class gives it to all.” If, as Republicans were arguing, it was unjust to deny citizenship rights to southern black men, then it was equally unjust to deny those same rights to women. “If our rulers have the justice to give the black man Suffrage,” she claimed, “woman should avail herself of that newborn virtue to secure her rights.”23
Although newspaper articles generated important publicity for the suffragists’ cause, the best way to ensure that politicians saw their arguments was to petition Congress directly. To ensure that Republican politicians understood their claims, the suffragists appealed to the partisans on their own terms: the text of the woman suffrage petition adopted almost every rhetorical justification Republicans were wielding for black men to assert women’s right to the ballot. Every justification, that is, except manhood. First, the petition claimed that women were entitled to suffrage because they were citizens. It stated that the “undersigned, Women of the United States… represent… one half the entire population of the country—intelligent, virtuous, native-born American citizens; and yet stand outside the pale of political recognition.” If the government denied women this fundamental right of citizenship, then it would perpetrate a patent injustice: “The Constitution classes us as ‘free people,’ and counts us whole persons in the basis of representation; and yet are we governed without our consent, compelled to pay taxes without appeal, and punished for violations of law without choice of judge or juror.” In case the congressional recipients of the petition missed the connection between equal suffrage rights and justice, the last line made such a relationship specific, closing with the statement “For justice and equality your petitioners will ever pray.”24
Congressional Republicans often claimed that denying African American men the ballot violated Article IV, Section 4 of the Constitution, which declared that “the United States shall guarantee to every state in this union a republican form of government.”25 The woman suffrage petition also asserted that to fulfill this same constitutional obligation, Congress needed to expand the franchise to women. “As you [members of Congress] are now amending the Constitution,” it said, “and in harmony with advancing civilization, placing new safeguards round the individual rights of four millions of emancipated slaves, we ask that you extend the right of Suffrage to Woman—the only remaining class of disfranchised citizens—and thus fulfill your Constitutional obligation ‘to Guarantee to every State in the Union a Republican form of Government.’” If Congress refused to meet this obligation, it would endanger the nation because “all partial application of Republican principles must ever breed a… discontented people.”26
Paralleling the argument put forth by Radical Republican congressmen who claimed the safety of the nation depended on granting African American men citizenship rights, the 1866 petition suggested that woman suffrage was just as vital to the ideological and physical safety of the nation. “We would pray your Honorable Body, in order to simplify the machinery of government, and ensure domestic tranquility, that you legislate hereafter for persons, citizens, tax-payers, and not for class or caste.” This reference to domestic tranquility, engaging all possible interpretations of the term “domestic,” indicated that if women did not receive justice from the government, tranquility within the home, as well as outside it, would be disrupted. The petition also claimed that individual women’s safety was at risk as well: “The experience of all ages, the Declarations of the Fathers, the Statute Laws of our own day, and the fearful revolution through which we have just passed, all prove the uncertain tenure of life, liberty, and property so long as the ballot—the only weapon of self-protection—is not in the hand of every citizen.”27
The petition followed Republican suffrage rhetoric only so far: it simply could not argue that women’s manhood entitled them to the ballot. But it could awaken the public to women’s demand for suffrage rights and alert those amending the Constitution that the relationship between manhood and voting was being challenged. Although Anthony hoped that the petitions would bring woman’s voting rights into the public consciousness, she presumed that awareness would result in acceptance. Both she and Stanton seemed fairly confident that if congressmen, Republicans, and their abolitionist allies could simply see the logical links between the analogous, anomalous positions of women and African American men, then by reasonable principle they would move to enfranchise both. If only their claims could be expressed in the right way, the suffragists reasoned, then perhaps the majority party would support women’s enfranchisement. Instead, by pointing to the fact that women claimed the right to vote, the woman suffrage petition of 1865–66 indicated to Congress that a new degree of ideological caution and linguistic specificity would be required when addressing any change in the franchise.
Blocking Congressional Wheels
Charles Sumner, the History of Woman Suffrage reported, once recalled that he “wrote over nineteen pages of foolscap to get rid of the word ‘male’ [in the second section of the Fourteenth Amendment] and yet keep ‘negro suffrage’ as a party measure intact; but it could not be done.”28 In fact, for the first three months of the amendment’s lifetime in Congress the word “male” was not a permanent or an original feature of the Fourteenth Amendment’s early drafts. It did not appear as a sustained, recurrent component of the amendment’s language until Congress had received, introduced, and passed to committee the petitions for woman suffrage. But Sumner’s assertion was undoubtedly true. Republicans’ reliance on gender to justify black men’s enfranchisement meant that the only suffrage expansion consistent with party policy in the earliest days of reconstruction was universal manhood suffrage.
In early 1866, however, only the most radical Republicans, such as Sumner, were actually considering extending congressional control over suffrage nationally to directly enfranchise black men. The majority of Republicans were more concerned with the question of congressional representation. Constitutionally, Congress had complete control over how representation was apportioned, so linking suffrage rights to congressional representation seemed an ideal way to protect African Americans’ civil rights while encouraging southern states to enfranchise black men. Further, linking suffrage to representation enabled Republicans to avoid disrupting the long-established balance of power between the states and the federal government. But making this connection did require Congress to reconsider the nature of citizenship, to define civil and political rights, and to determine the limits of membership in the political community. The group charged with this task, and with determining the best plan for tying suffrage to congressional representation, was the Joint Committee of Fifteen on Reconstruction (JC15). As such, it was the primary recipient of the woman suffrage petitions.
The composition of the Joint Committee reflected the wide range of political opinions present in the Congress. The House cochair Thaddeus Stevens was the acknowledged senior statesman and representative radical on the committee. Dictatorial, hard-edged, and humorless, he was a passionate and often unyielding advocate for racial equality. Having shepherded the antislavery cause to fruition, he hoped to use his considerable congressional clout to shape a radical reconstruction policy.29 The Senate cochair and presiding officer of the committee, William Pitt Fessenden, on the other hand, was a far more moderate Republican, more political strategist than idealist. He had served as Lincoln’s secretary of the treasury and was one of the most powerful Republicans in the Senate. Although Fessenden was no radical, he did offer some qualified support for black suffrage.30 Perhaps influenced by a vehement personal hatred of his fellow New Englander Charles Sumner, Fessenden scorned the radical vision of Reconstruction favored by Stevens and Sumner, promoting instead what he viewed as more pragmatic policies that favored the federal balance of power over the goal of racial equality.31 The Senate’s choice of Fessenden to chair the committee indicated its more cautious approach to Reconstruction than the House’s.
Five senators and eight representatives joined Stevens and Fessenden on the Joint Committee. The wide-ranging political alignments of the committee members reflected broader coalitions within Congress. Following their chamber’s more conservative leanings, none of the committee’s senators were as fervent as Stevens about freedmen’s equality. The most radical were James Grimes of Iowa and Jacob Howard of Michigan. Howard was an early supporter of enfranchising African American men, but neither he nor Grimes always voted for the most radically egalitarian positions in roll call votes.32 The two other Senate Republicans were significantly more conservative: George Williams of Oregon had been a Democrat until 1864, and his voting record reflected this background.33 The New York lawyer Ira Harris also voted conservatively, perhaps reflecting his stronger commitment to legal issues than to partisan maneuvering.34 The only Democrat the Senate appointed to the committee was the attorney Reverdy Johnson, one of the most universally respected legal minds in the nation.35 Johnson generally opposed any expansion of the franchise but often argued his opposition in terms of legal precedent rather than the more blatant racial prejudice wielded by other Democrats.
Like the Senate, the House also appointed mostly centrist members to the committee. Roscoe Conkling of New York, a rising politico who would move into Ira Harris’s Senate seat in the next Congress; John Bingham of Ohio, who would write the civil rights portion of the Fourteenth Amendment; and the Missouri abolitionist, a contributing financier to Dred Scott’s legal defense, Henry T. Blow, all voted in a mostly moderately fashion throughout the session.36 Elihu B. Washburne, an antislavery Whig and close Lincoln colleague, who would be critical in maneuvering Grant to the presidency, also held fairly moderate political views.37 The House Democrats, Henry Grider of Kentucky and Andrew J. Rogers of New Jersey, though not as temperate as the moderate Republicans nor as learned as their Senate colleague Reverdy Johnson, also lent their weight to the most conservative views.38 Rogers, in particular, was a volatile speaker with a penchant for a creative use of racist invective. All together, the conservatives and moderates outnumbered the House radicals on the committee—the former Massachusetts governor George Boutwell and the chair of the important Ways and Means Committee, Vermont representative Justin S. Morrill.39
In their confidential meetings, the committee members sorted through the various proposals brought to the floors of the House and Senate for apportioning representation.40 This was no easy task. Because there were such varied opinions about the best way to accomplish Reconstruction more broadly and how to replace the three-fifths clause and regulate apportionment particularly, many congressmen presented proposals for reapportioning representation.41 Between the Joint Committee’s first meeting on January 6 and its last meeting on April 30, before the final version of the Fourteenth Amendment (House Resolution 127) was submitted, its members considered seventeen different proposals for restructuring congressional representation. These can be broken down into two main categories: proposals that based representation on voters and those that based it on population but assigned penalties to states that withheld the franchise from African Americans.
In the Joint Committee’s first few meetings, the group favored plans that based representation on states’ voting populations. The first proposal came from Thaddeus Stevens on Tuesday, January 9, 1866. It determined representation on a state’s “legal voters” and so consequently had to carefully define exactly who was qualified to be a “legal voter.” Its full text declared that “Representatives shall be apportioned among the several States, which may be included within this Union, according to the number of their respective legal voters; and for this purpose none shall be considered as legal voters who are not either natural born or naturalized citizens of the United States, of the age of twenty-one years.”42 Identifying adult citizens as legitimate voters, Stevens recycled antebellum understandings of the franchise as determined by national membership and age, but he pointedly left off references to voters’ race or gender.43 This omission may have reflected his more liberal attitude toward women’s enfranchisement, or it may have been an oversight.44 In any case, the committee did not wait long to correct the problem. After some discussion, the New York Republican Roscoe Conkling offered an amendment to “[insert] the word ‘male’ between the word ‘naturalized’ and the word ‘citizens,’” which was immediately adopted.45 Though the clerk did not record the details of debate on this issue, the committee’s subsequent rejection of both Justin Morrill’s amendment to add a literacy qualification and George Williams’s suggestion to eliminate the definition of voters shows that the committee’s choice to include the word “male” in the proposal was deliberate.
The Stevens/Conkling proposal did not last long, however. It was soon replaced by an amendment that based representation on population but omitted any group from enumeration that was denied the franchise because of race or color. Resolutions of this type, unlike Stevens’s amended proposal, were mostly gender-neutral, perhaps because they did not require a clause to define voters. Instead, population-based amendments implicitly accepted the states’ existing populations of voters but determined that any race-based discrimination would be politically costly. At the committee’s third meeting on January 12, Justin Morrill proposed a substitute for the Stevens/Conkling voter-based representation plan. It stated that “Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers of persons, deducting therefrom all of any race or color, whose members or any of them are denied any of the civil or political rights or privileges.”46 Neither Morrill’s plan nor the four different amendments to and variations on this resolution that followed used gender-specific language.47
Given these two completely different methods for calculating representation and encouraging enfranchisement, it became clear by the end of the January 12 meeting that the committee’s members needed to find a way to evaluate their various options. With too many proposals on the table to vote on, the committee appointed a five-member subcommittee consisting of Stevens, Conkling, Fessenden, Howard, and Bingham to examine both the committee members’ representation plans and referred proposals from the House and Senate. On January 16, the subcommittee reported back their agreement upon a population-based model of representation. After some discussion and amendment, the committee adopted this text: “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed; provided that, whenever the elective franchise shall be denied or abridged in any State on account of race or color, all persons of such race or color, shall be excluded from the basis of representation.”48 On January 22, 1866, Stevens presented this plan to the House as Resolution 51.49 It did not use gendered language.
A Strife of Unbridled Suffrage
While the Joint Committee was developing Resolution 51, Congress as a whole was also considering the same ideas, debating which was a better solution to the representation dilemma, calculating representation based on a state’s voters or based on its full population. Population-based models seemed to offer the best of both worlds: they allowed states to count all their inhabitants toward congressional representation, including women and children, but did not allow them to count populations who were denied the ballot. But they also raised an ideological conundrum: why was it acceptable in principle to include some nonvoting groups of people in representation totals (i.e., white women and children) but not others who were similarly disfranchised (i.e., African American men, women, and children)? Voter-based models offered a way around this logical inconsistency as they counted only officially recognized political persons—men. But they were also problematic because of gender: states with skewed male-to-female gender ratios could either gain or lose representation if a voter model was adopted. Congressmen whose states’ political influence depended on the number of representatives they fielded in the House would be fairly reluctant to relinquish a population-based system if the number of male voters in their states was comparatively low.
The Republican James Blaine of Maine was the first congressman to point out that gender was a significant obstacle for reapportioning representation. On January 8, 1866, he argued that voter-based representation could shift the regional balance of power from the currently dominant eastern states with large proportions of women and children to the male-majority western states. Because, he said, “the ratio of voters to population differs very widely in different sections,… [from] a minimum of nineteen percent to a maximum of fifty-eight per cent [of the population]… the changes which this fact would work in the relative representation of certain states would be monstrous.”50 To prove his point, Blaine noted that although California and Vermont had roughly the same number of representatives under the current population-based system, if voters were “assum[ed]… as the basis of apportionment,” California’s 207,0000 voters would give the state eight representatives, while Vermont 87,000 voters would merit only three.51 Although Blaine’s central concern was the loss of congressional power in his region and state, he also argued that a voter-based representation model violated women’s and children’s right to be represented in the government: “As an abstract proposition no one will deny that population is the true basis of representation; for women, children, and other non-voting classes may have as vital an interest in the legislation of the country as those who actually deposit the ballot.”52 Although he acknowledged that women were not permitted to participate in the political system as actors, Blaine defended their stake in political decisions and used this as another reason to reject voter-based representation.
His concern resonated with many eastern congressmen but was not really borne out by the evidence. As soon as Thaddeus Stevens finished presenting Resolution 51, his fellow committee member Roscoe Conkling addressed the gender question. First, Conkling offered his fellow easterners some reassuring math. Having carefully analyzed the population in all states, he demonstrated that there would be little or no difference in the number of representatives apportioned to eastern states regardless of the way representation was calculated. He dismissed Blaine’s concern that “New England would lose very largely should men be made the basis of representation in place of including women and children,” claiming that it had “no foundation.”53 Given the census numbers from 1860, he noted that California was the only state whose population was so imbalanced that a voter-based enumeration system would impact its representation. But Conkling agreed with Blaine and objected to the voter-based model because it denied representation to those who did not vote: “Restricting the enumeration to male citizens of the United States twenty one years old and upward… would shut out four-fifths of the citizens of the country—women and children, who are citizens, who are taxed, and who are, and always have been represented.”54 In this way he identified women as vital members of the political community.
Conkling’s support for women’s representation did not mean that he favored their enfranchisement. Rather, to the man who first introduced “male” language to the Joint Committee on Reconstruction, the main downfall of the voter-based model was that it offered an incentive to states to expand their franchise to the unqualified, such as women. “If voters alone should be made the foundation of representation… one State might let women and minors vote. Another might—some of them do—give the ballot to those otherwise qualified who have been residents for only ten days. Another might extend suffrage to aliens. This,” he said, “would lead to a strife of unbridled suffrage.”55 Although Conkling defended women’s right to be enumerated as members of the political community for representative purposes, actually including them within the political community as decision makers would, he thought, lead to a disastrous breakdown in social relations. Where would such a suffrage expansion stop? If the Constitution structurally encouraged states to expand their franchise without limitation, what would prevent them from giving the right to vote to women, children, immigrants, Indians, or Chinese aliens in California?56 But there was a simple solution for preventing a reckless expansion of the ballot: gendered language. On January 23, the Wisconsin Republican Ithamar C. Sloan suggested an amendment to Resolution 51 to “get rid [of Conkling’s] objection… that some of the States may give the right of suffrage to women. The word “male” inserted will obviate that objection.… The amendment I propose is that “qualified male electors, citizens of the United States of the age of twenty-one years and upward, shall be the basis of representation.”57
Over the next two days two other congressmen pointed to gendered language as a way to prevent women’s enfranchisement. Moderate Ohio Republican William Lawrence rejected Resolution 51 because it lacked any explicit acknowledgment of the link between men and political power. By enumerating whole populations, it gave “representation to women, children, and unnaturalized foreigners, all declared by the laws of the States unsafe or unnecessary depositories of political power.”58 Conflating representation and political participation and ignoring the fact that women, children, and foreigners had been counted toward representation since the nation’s founding, Lawrence argued that if women were not voters, they should not be represented. “It has never been deemed necessary for the protection of females that they should be regarded as an element of political power,” he said, “and hence, they should not be an element of representation. If the necessity shall come, or, if our sense of justice should so change as to enfranchise adult females, it will be time enough then to make them a basis of representation.”59 Despite his incorrect interpretation of the current representation system, Lawrence’s sentiment that women were not legitimate members of the political community was a widely shared one. Moreover, his arguments indicate how intertwined many believed representation and the franchise already were.
For some congressmen, House Resolution 51’s gender neutrality remained a fundamental problem. The resolution proposed to allow states to count their female inhabitants who were not full members of the political community and yet punish states for failing to enfranchise the African American inhabitants who were also not full members of that community. Not everyone was comfortable with this inconsistency. As the Joint Committee member John Bingham declared, “I am by no means sure that the East is entitled to count its women and children in its basis of representation unless it gives them a voice in the Government, any more than the people of South Carolina ought to count their negroes without giving them a voice in the Government.” Yet despite his discomfort, Bingham, like his Republican colleagues, did not think that enfranchising women was a desirable outcome. Lest anyone mistake him as an advocate for woman suffrage, Bingham quickly followed his critique of Resolution 51 with a disclaimer: “But I am not here now to advocate that provision.”60 Most Republicans, like Bingham, had no interest in advocating women’s enfranchisement and so seemed fully prepared to overlook the resolution’s double standard if for no other reason than that it closely followed the existing formula for apportioning representation based on population while also simultaneously indirectly encouraging states to expand their franchises to African American men, a goal dear to many Republicans’ hearts.
In Behalf of the Fairest Portion of Creation
Democrats, on the other hand, were not willing to let this inconsistency pass unnoticed. They seemed delighted to point out Republicans’ ideological irregularity on this issue and adopted the cause of gender equality to do so. They did this in two ways: by occasionally advocating for women’s enfranchisement and by referencing the petitions of Stanton, Anthony, and their allies. For example, on January 23 the New York Democrat James Brooks critiqued House Resolution 51 because it excluded women from participatory citizenship yet still counted them toward representation.61 The fact that women were petitioning Congress for the right to vote, Brooks claimed, made the resolution even more problematic. As evidence, he asked the clerk of the House to insert into the record a recently received letter from Susan B. Anthony, along with the text of its accompanying petition.62 This was the first recorded woman suffrage petition in congressional history.63 In her letter, Anthony told Brooks that as a member of the minority party, he had the duty to “drive the Republicans to do good works… to hold the party to a logical consistency that shall give every responsible citizen in every State equal right to the ballot.”64 Brooks seemed to be taking Anthony’s advice by prodding the weakest point of House Resolution 51—its confusing position on voting rights: “In order to make [the] resolution consistent,” he declared, “I raise my voice here in behalf of fifteen million of our countrywomen, the fairest, brightest portion of creation, and I ask why they are not permitted to be represented under this resolution?”65
Roscoe Conkling rose to answer Brooks’s question and to defend the resolution. When Brooks asked why women were not represented under the provisions outlined by the resolution, Conkling interjected, “They are.”
BROOKS: Persons are.
CONKLING: I thought they were persons.
BROOKS: And so they are, but they are excluded from all voting.… This is a new era; this is an age of progress.… Why not, in a resolution like this, include the fair sex too, and give them the right of representation?66
Here Brooks confounded women’s status as legal persons and as voters, as well as equating representation with voting. But in so doing he noted that the resolution’s intent toward women was exclusionary at best. The resolution deemed women persons and counted them toward congressional representation totals but implicitly permitted their disfranchisement. It deemed unacceptable only race or color as a basis for denial of voting rights. In light of this exclusion, Brooks proclaimed Anthony’s suffrage claim legitimate and so worthy of support that he promised at a future date to offer an amendment to House Resolution 51 proportionally reducing the congressional representation of any state that did not enfranchise women.67 Strong words indeed. However, Brooks never did offer this amendment, which likely indicated that he was more interested in using woman suffrage to irritate Republicans than in actually giving women the ballot. Nevertheless, in the midst of the representation discussion woman suffrage had come to the forefront.
Fortunately for the suffragists, the petition drive did not end with Brooks. Because he read the woman suffrage petition only in debate, it was not registered for consideration at that time. Nor was it ever. Other members of the House, however, did officially submit the petitions they received throughout the weeks that Congress debated House Resolution 51. Between January 22 and January 31, three different congressmen and two different senators presented petitions to the clerk of the House or Senate; they were then entered into the congressional journals and passed on to the appropriate committees. In the weeks between these January discussions and March 14, when the Senate rejected House Resolution 51 and returned the problem of representation to the Joint Committee on Reconstruction, fourteen more congressmen officially presented woman suffrage petitions. By the time the Joint Committee introduced House Resolution 127 (the Fourteenth Amendment), a total of sixteen different congressmen had submitted twenty-seven petitions for woman suffrage. Half of those were presented on days that Congress was debating House Resolution 51.68 Table 2 shows where the petition originated, which congressman presented it, what his party affiliation was, and the committee to which it was referred.
During the Thirty-Ninth Congress, the Senate referred almost all petitions relating to the apportionment of representation and reconstruction to the Joint Committee on Reconstruction. Twenty-five of the Senate’s twenty-six general petitions on representation sent before April 30, 1866, were referred to that committee. The Senate also sent most petitions it received about black men’s enfranchisement to the same committee. Between January and April of 1866 sixteen petitions were introduced in the Senate advocating black men’s suffrage rights alone, as well as nineteen additional petitions that discussed enfranchisement in connection with other Reconstruction issues. Of those thirty-five petitions, twenty-nine were referred to the Joint Committee on Reconstruction.69 Thus by early 1866, the Senate had established a consistent pattern of referring any suffrage- or representation-related petition to the Reconstruction committee.
On January 24, Benjamin Gratz Brown of Missouri officially presented the first copy of Stanton and Anthony’s woman suffrage petition to Congress.70 The Senate, following established precedent, forwarded it to the Joint Committee. It did not vary this pattern for the remaining five petitions presented before April 30. By referring woman suffrage petitions to the Joint Committee on Reconstruction, the Senate both indicated its belief that there was a fundamental connection between suffrage rights for women and black men and representation and ensured that those congressmen responsible for determining the limits of that connection understood that suffrage was a question with unclear gendered boundaries. The petitions must have prompted the committee to take gender into account as it made further decisions about representation.71
Because the chamber rules permitted senators time to comment on the petitions they were presenting and allocated time for questions, the petitions sparked some of the Thirty-Ninth Congress’s most direct discussions about women’s rights.72 In these, the senators revealed both their biases about enfranchising women and their faith in the link between gender and voting rights. Primarily, those who presented petitions took care to reject women’s enfranchisement even as they brought the suffrage movement’s first efforts to the attention of their colleagues. For example, Charles Sumner presented two woman suffrage petitions to the Senate on February 14, 1866, but claimed that he did so under protest: “I present this petition at this time, as it has been sent to me for this purpose; but I take the liberty of saying that I do not think this is a proper time for the consideration of that question.”73
When the Republican Senator John Henderson of Missouri presented a petition on February 21, 1866, his initial comments may have led listeners to believe he advocated the women’s cause: “I present this petition without any apology. Indeed, I present it with pleasure. It is respectful in its terms, and is signed by ladies occupying so high a place in the moral, social, and intellectual world, that it challenges at our hands at least a respectful consideration.” However, as he continued, he undermined his initial support: “The petitioners claim, that as we are proposing to enfranchise four million emancipated slaves, equal and impartial justice alike demands the suffrage for fifteen million women. At first view the proposition can scarcely be met with denial, yet reasons ‘thick as blackberries’ and strong as truth itself may be urged in favor of the ballot in the one case, which cannot be urged in the other.”74 Although Henderson did not fully elaborate on what those abundant reasons were, he did assert that his primary objection to woman suffrage was that “it is wholly unnecessary as a means for their protection.”75 Perhaps perplexed by this mixed message, one of his colleagues asked the senator if he supported the petition’s cause. Henderson took refuge in procedure, replying that debating the merits of a petition was not in order. Concluding the exchange, the president pro tempore asked him what he would wish to do with the petition: Henderson requested that it be tabled.76
Just as Republican senators presented Stanton and Anthony’s petitions half-heartedly, House Republicans’ treatment of the petitions likewise demonstrated their party’s lack of interest in women’s enfranchisement. Some representatives even disguised the women’s petitions as ones supporting black men’s enfranchisement. Eleven of the nineteen House petitions from women were submitted and identified in the House Journal and Congressional Globe merely as petitions for “universal suffrage,” a term most congressmen were using to mean “universal male suffrage.” (Those petitions are shown in italics in table 2.)77 The actual petitions that were submitted, housed in the committee records at the National Archives, show that these eleven petitions were copies of the petition that Stanton and Anthony had printed—most likely they were a few of the thousand copies they had disseminated.78 Whether the members of Congress presenting these petitions sought to deliberately obfuscate their nature in order to add the weight of those signatures for universal manhood suffrage or whether this was a simple legislative oversight is unclear. Nevertheless, it is plain that as a rule congressional Republicans did not have any great passion for presenting woman suffrage petitions, just as they had no great passion for enfranchising women.
However reluctantly presented, those petitions that were properly submitted and referred pushed Republicans to change their suffrage rhetoric. Prior to the presentation of the petitions, Republicans could safely refer to “black suffrage” and know that they meant “black male suffrage.” After the presentation of Stanton and Anthony’s petitions, however, that generalization was no longer safe. The senator James Lane of Kansas demonstrated this potential danger on January 31. In submitting a woman suffrage petition, Lane first drew upon the rhetorical and collegial masculinity of the Senate, expressing his pleasure in presenting a petition from “one hundred and twenty-four beautiful, accomplished, and intelligent ladies of the city of Lawrence, Kansas” and asking that “a gallant Senate may hear it read.”79 After reading the petition into the record, Lane then suggested it be referred to “the committee that is considering the subject of extending the right of suffrage to the blacks, the male blacks of the United States… the proper one to which to refer the petition of the white women of the United States on that subject.”80 Here Lane stumbled. By initially declaring that the committee was considering black suffrage, he adopted typical suffrage language to discuss the ballot—language that did not mention gender. But catching himself, he realized that he had to rephrase exactly which blacks were being considered for suffrage (i.e., only the males). Lane’s blunder was revealing. Had there been no women formally asking for the ballot, he and the rest of his congressional colleagues could have blithely continued imagining that universal suffrage applied only to men. They could then have drafted a constitutional amendment like House Resolution 51 that did not explicitly define legitimate voters as male. But woman suffrage petitions had made both this linguistic nonchalance and a gender-neutral representation provision impossible.
Given these petitions, the problem of women’s representation, and Democratic opposition rhetoric as Congress debated House Resolution 51, hardly any congressman could fail to realize that the resolution had a gender problem. But in early 1866, gender was the least of the resolution’s troubles. Although the House had passed it on January 31 over the objections of radicals who thought it too vague about suffrage rights and of Democrats who thought it imposed overly harsh conditions on southern states, it did not fare so well in the Senate. First, the Senate tabled the resolution until it had finished debating the Civil Rights Act. Then, when it did begin to debate House Resolution 51 on February 5, the problems the proposal had faced in the House were amplified. Most important, Senate radicals such as Sumner opposed the resolution because it tacitly permitted states to disfranchise African Americans and most likely disregard their basic civil rights as well, with only a loss of congressional representatives as punishment. To object to this permissive approach, some radicals argued that the resolution fundamentally violated the link between taxation and representation because it permitted states to collect tax revenues from disfranchised African Americans who were not included in the basis of representation.81
This concern with taxation and representation brought gender directly into the Senate discussions of representation. In these debates moderate congressmen used women’s status to reject the radicals’ critique of House Resolution 51. They argued that the resolution did not violate any fundamental democratic principle because there already existed a separation between taxation and representation as women were disfranchised taxpayers who were nevertheless represented. William Pitt Fessenden offered the best example of this argument in early February, using women to rebut Charles Sumner’s lengthy and passionate objections to the resolution:
The [theory that the] honorable Senator from Massachusetts argued… that taxation and representation should go together, would just as well apply to women as to men; but I noticed that the honorable Senator dodged that part of the proposition very carefully.… When it came to the question whether females should vote or not, I did not hear that he expressed any opinion upon that subject whatever; and yet his argument goes to that extent. If a necessary connection between taxation and representation applies to the individuals in a State.… I should like to have him tell me why every female that is taxed ought not to vote.82
Common practice since the ratification of the Constitution, Fessenden argued, both taxed and represented women even though they did not vote. Certainly anyone elected to represent others, he claimed, did not envision himself as representing only voters. “I do not know how the honorable Senator from Massachusetts feels, but I could hardly stand here easily if I did not suppose I was representing the ladies of my State. [Laughter.] I know, or I fancy I know, that I have received considerable support from some of them, not exactly in the way of voting, but in influencing voters. [Laughter.]”83 Fessenden used gender here primarily to embarrass a colleague who supported all manner of radical changes short of woman suffrage, posing himself in stark contrast to Sumner as a manly and gallant protector of women. But he also adopted an approach to women’s political engagement that would be wielded with greater frequency in the next fifty years, contending that women did not require enfranchisement because they already had vast political power in their ability to influence men.
Radical and Democratic senators allied on March 9, 1866, to defeat House Resolution 51 by a vote of twenty-five to twenty-two, falling well short of the two-thirds required for passage.84 This returned the problem of representation to the Joint Committee on Reconstruction and inspired new representation proposals from the floor. Unlike the reapportionment proposals submitted in the earlier months of the congressional session, these new proposals prominently featured gendered language.85 Even population-based models with suffrage restrictions that had until this point been articulated in gender-neutral terms now contained language identifying voters as male. For example, on March 12 James Grimes, a moderate Republican and member of the Joint Committee on Reconstruction, offered a gendered population-based representation resolution:
Representation shall be apportioned among the several States which may be included within this Union according to their respective numbers, counting the whole number of persons in each States, excluding Indians not taxed; but whenever in any State the elective franchise shall be denied to any portion of its male citizens above the age of twenty-one years, except for crimes or disloyalty, the basis of representation of such State shall be reduced in the proportion which the number of male citizens so excluded shall bear to the whole number of male citizens over twenty-one years of age.86
Grimes’s proposal upheld the notion that representation was gender-neutral, but his use of the word “male” in the resolution simultaneously affirmed that voting rights were not; “persons” were counted toward representation, but only male citizens could not be denied the right to vote. Grimes’s plan connected a gendered definition of voters with the population-based model of representation. When it returned to representation in April, the Joint Committee on Reconstruction also began to make this connection.
Mature Manhood
On April 21, Thaddeus Stevens proposed to the Reconstruction committee that a Fourteenth Amendment incorporate civil rights, representation, repudiation of Confederate debt, and suffrage rights for the emancipated. This multipart amendment did not use gendered language in any of its provisions, referring to voters as “persons,” rather than as men or males.87 But on April 28, George Williams offered a substitute means of apportioning representation, identifying voters as male:
Representatives shall be apportioned among the several states which may be included within this Union according to their respective numbers, counting the whole number of persons in each State excluding Indians not taxed. But, whenever in any State the elective franchise shall be denied to any portion of its male citizens, not less than twenty-one years of age, or in any way abridged, except for participation in rebellion or other crime, the basis of representation in such State shall be reduced in the portion which the number of such male citizens shall bear to the whole number of male citizens not less than twenty-one years of age.88
Following Grimes’s earlier lead and echoing Conkling’s January 12 proposal for House Resolution 51, Williams’s representation provision blended the gendered specification of the voter-based models with the population-based means of determining representation.89 It thus offered the committee a way to base representation on a state’s population and yet convey its preference for a political community of male participants. The committee adopted the amendment—only Stevens, Washburn, and Jacob Howard opposed it. Two days later Williams’s proposal was sent to the House as section 2 of House Resolution 127.
This representation provision was not all that radicals had hoped for. Like the earlier House Resolution 51, it steered a middle course between population-based and voter-based representation, and compromising significantly on the question of suffrage, it failed to enfranchise the emancipated. Thus, like most compromise measures, House Resolution 127 garnered little passionate support. Those Republicans supporting it in the two-day House debate most frequently expressed their disappointed resignation that the resolution was so moderate. Thaddeus Stevens, the first to speak on the resolution in the House, set the tone when he acknowledged that the committee had hoped for a more radical measure but settled on this as a compromise, one that he privately had called “shilly-shally” and “bungling.”90 “This proposition is not all that the committee desired,” Stevens publically declared. “It falls far short of my wishes, but it fulfills my hopes. I believe that it is all that can be obtained in the present state of public opinion.”91 Like Stevens, other members of the House seemed resigned to the compromise representation provision. When they discussed it specifically, they recognized that public opinion would not support direct congressional enfranchisement, and they conceded that the proposed measure was the best they were likely to achieve. The Massachusetts Republican Thomas Eliot’s statement is representative of most House members’ feelings: “The second section, Mr. Speaker, is, in my judgment, as nearly correct as it can be without being fully, in full measure, right.” With statements like these for the most part, House members showed little interest in debating representation; it was an issue they had already thoroughly covered. After two days of relatively uneventful debate, the House passed Resolution 127 by a vote of 128 to 37, with nineteen abstentions.92
On May 23, 1866, the Senate began its more extensive discussions of House Resolution 127. In these debates, the senators explicitly connected woman suffrage and the proposals’ gendered language, indicating that the word “male,” as the primary critical difference between Resolution 51 and Resolution 127, had been deliberately adopted to prevent women’s enfranchisement. The first incident illustrating the connection between woman suffrage and Resolution 127’s gendered language was an exchange between the Reconstruction Committee members Jacob Howard and Reverdy Johnson when the resolution was first presented to the Senate. Their conversation shows the assumptions that members of the Joint Committee were making about the relationship of women to the new American polity.
On the first day of the Senate’s debate, Howard presented the resolution for the Senate committee chair Fessenden, who was indisposed. After briefly discussing the first section on civil rights, Howard confessed that the second section was not all that he would have wanted: “It is very true and I am sorry to be obliged to acknowledge it, that this section of the amendment does not recognize the authority of the United States over the question of suffrage in the several States at all.… If I could have had my own way… I certainly should secure suffrage to the colored race to some extent at least.”93 But, Howard, like Stevens, acknowledged that the state legislatures were “not yet prepared to sanction so fundamental a change as would be the concession of the right of suffrage to the colored race.” Because of this lag between congressional and public opinion, he suggested that the representation provision outlined in the proposed amendment’s second section was the best that the committee could do.94 Thus Howard did not dismiss the provision as a mere compromise measure. He argued instead that House Resolution 127 offered an optimal way of organizing apportionment that was consistent with the founders’ understanding of representative democracy. To support this assertion, he cited James Madison’s discussion of suffrage in his then recently published writings: “It seems indispensable that the mass of citizens should not be without a voice in making the laws which they are to obey, and in choosing the magistrates who are to administer them.” If, Howard claimed, one applied this principle broadly and consistently, “how can any man of true republican feeling, attached to the essential principles of our system of government, refuse the right of suffrage to the whole negro population as a class?”95
Howard’s sweeping interpretation of Madison’s principle prompted Reverdy Johnson to interrupt to ask if the principle applied to all citizens, to the whole class of the “negro population.” He tersely asked Howard, “Females as well as males?” Howard dismissed this question out of hand: “Mr. Madison does not say anything about females.” The fact that Madison did not say anything specific about African Americans either did not seem to bother Howard. Johnson’s reply was pointed and simple: “Persons.” Howard seemed exasperated by having to explain on record what must have seemed obvious: the difference between men, whatever their race, and women.
I believe Mr. Madison was old enough and wise enough to take it for granted that there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children were not regarded as the equals of men. Mr. Madison would not have quibbled about the question of women’s voting or of an infant’s voting. He lays down a broad democratic principle, that those who are to be bound by the laws ought to have a voice in making them; and everywhere mature manhood is the representative type of the human race.
With this, Howard ended his defense of the resolution’s representation provision, perhaps deeming it wise to move on before he found himself ensnared by the controversial woman suffrage issue. No great supporter of women’s rights, Johnson did not press Howard further.96
What to Howard seemed patently obvious was also clear to most members of the Senate chamber: women and infants were equivalently qualified as voters. No matter how broad an interpretation was given to the principle of representative democracy, no matter how Congress sought to delimit the boundaries of the franchise, they believed that a higher “law of nature” precluded women from political participation.
To Throw Out the Ladies
On June 8, the Senate passed House Resolution 127, 33 to 11.97 The radicals supported the amendment despite their principled objections; some conservative Republicans, despite their partisan affiliation, did not. There were 10 votes to spare for its required two-thirds majority. A few days later, the House overwhelmingly agreed to the few Senate amendments by a vote of 128–36. On June 15, the resolution was enrolled and sent to the states for ratification as the Fourteenth Amendment to the Constitution.98 The second section’s language had been finalized in the Senate Committee of the Whole by George Williams on June 7. It declared:
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 of 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 rebellion, or other crime, 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.99
Given how similar this provision was to the one in House Resolution 51, why had members of Congress rejected the earlier resolution but accepted its gendered replacement? Certainly there were many complex partisan and political reasons. Between dissatisfaction with the president, pressure from constituents, fear of further party schism, the need for a comprehensive Reconstruction policy, and the looming end of the congressional session, there were significant pressures for senators to accept House Resolution 127’s arrangement of representation, though they had previously rejected the earlier version.100
But what role did gender play? Did congressmen reject House Resolution 51 solely because it lacked gendered language? It would be a stretch to say so. Did they prefer the representation provision in House Resolution 127 because it was gendered? It seems likely that this was at least a contributing factor, as the language of the resolution better reflected the way members of the Thirty-Ninth Congress were defining the limits of their political community.101 Moreover, the issue of women’s voting rights in particular, and gender more broadly, was never far from Congress’s collective consciousness as it debated suffrage and representation. Adopting the political rhetoric that had linked manhood and the ballot for decades, members of the Thirty-Ninth Congress conceptualized political action, theirs and others, as explicitly gendered. They defined the newly reforming American political community as a male family consisting solely of fathers, sons, and brothers. They deemed political actions they approved of as manly acts, those they opposed as unmanly. They argued that African American men’s wartime military service, their newly acquired roles as household heads in the South, and their fundamental personal identity as independent men—all duties or rights of men—entitled them to the ballot. And they articulated deep disapproval of the woman suffrage petitions they received. The Fourteenth Amendment’s language reflected all of this, demonstrating that the members of Congress believed that manhood and voting were, and should be, synonymous. In this way, members of Congress definitively declared that gender, and not race, would be the central criterion for membership in the postbellum body politic.
Yet the ultimate question remains: Was the use of “male” to refer to voters in the second section of the proposed Fourteenth Amendment a deliberate attempt to exclude women who were starting to explicitly ask Congress for the franchise, or was it simply a reflection of the politicians’ generalized belief in a natural law that deemed men more qualified for political thought and action? The arguments of one conservative senator from Pennsylvania hint at an answer. While complaining about Congress’s redefinition of political rights, the Republican Edgar Cowan revealed his belief that gendered suffrage language was intended to prevent women’s enfranchisement. Unlike most of the Republican senators who conceded that some sort of constitutional change linking enfranchisement and representation was necessary, Cowan disagreed. All the Constitution required, he argued, was that the states have a republican form of government. But because congressmen could not seem to agree on how to define “republican,” Cowan, like his fellow Democrats, argued that the states should determine the matter themselves: “Now we are told that a republican form of government is this, that, and the other. One man says it is ‘universal suffrage’; another man says it is ‘universal manhood suffrage,’ so as to throw out the ladies; another says it is ‘universal white suffrage,’ and so on. Who can agree as to what a republican form of government is?”102 Although Cowan’s discomfort with the varying ways that Congress sought to define a republican form of government is interesting, his statement hints at some of his colleagues’ motivations as they made critical linguistic choices. He implies that gendered language was used to reference suffrage in order to prevent women’s inclusion in the postwar community of voters. At the very least, he strongly suggests that congressmen fully understood that using “that word ‘male,’” as Stanton put it, would have the consequence of throwing out the ladies and making gendered distinctions between Americans a permanent part of the United States Constitution.