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Abstract
From the late 1860s through the mid-1870s, woman suffrage activists developed an ingenious legal argument, claiming that the U.S. Constitution already enfranchised women citizens. The argument, first articulated by St. Louis activists Virginia and Francis Minor, precipitated rhetorical performances by movement activists on public platforms and in polling places, and the Minors pursued their line of reasoning to the Supreme Court. The Minors’ arguments enacted a hermeneutic practice that venerated foundational texts while at the same time subverting their conventional meanings. The rhetorical figure of the gender-neutral, race-neutral citizen provided a basis for imagining a new political subjectivity for women. In the infamous Minor v. Happersett decision of 1875, however, the Court formally dissociated citizenship from voting rights. This analysis of the Minors’ rhetoric illustrates the capacity of argument that “failed” in law to invigorate cultural movements, assisting in the production of new ways of imagining political selves and performing political identities.
Acknowledgements
The authors would like to thank Leslie Harris, Randall Iden, James Jasinski, Steven Mailloux, and David Zarefsky for thoughtful responses to earlier versions of this essay.
Notes
1. Scott v. Sandford, 60 U.S. 411 (1856). For a rhetorical analysis of black abolitionists’ responses to Dred Scott, see Todd F. McDorman, “Challenging Constitutional Authority: African American Responses to Scott v. Sandford,” Quarterly Journal of Speech 83 (1997): 192–209.
2. Sanford Levinson, Constitutional Faith (Princeton, NJ: Princeton University Press, 1988), 140.
3. Norma Basch, “Reconstitutions: History, Gender, and the Fourteenth Amendment,” in The Constitutional Bases of Political and Social Change in the United States, ed. Shlomo Slonim (New York: Praeger, 1990), 175 (Basch's focus here is Minor).
4. For an excellent history of these cases, see Ellen Carol DuBois, “Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820–1878,” Journal of American History 74 (1987): 836–62; Ellen Carol DuBois, “Taking the Law into Our Own Hands: Bradwell, Minor, and Suffrage Militance in the 1870s,” in Visible Women: New Essays on American Activism, ed. Nancy A. Hewitt and Suzanne Lebsock (Urbana: University of Illinois Press, 1993), 19–40.
5. For treatments by legal scholars, see, e.g., W. William Hodes, “Women and the Constitution: Some Legal History and a New Approach to the Nineteenth Amendment,” Rutgers Law Review 25 (1970): 26–53; Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women (New York: New York University Press, 1991), 151–91; Jules Lobel, “Losers, Fools, and Prophets: Justice as Struggle,” Cornell Law Review 80 (1995): 1364–75; Adam Winkler, “A Revolution Too Soon: Woman Suffragists and the ‘Living Constitution,’” New York University Law Review 76 (2001): 1456–526; Reva B. Siegel, “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” Harvard Law Review 115 (2002): 968–77; Gretchen Ritter, “Jury Service and Women's Citizenship before and after the Nineteenth Amendment,” Law and History Review 20 (2002): 486–92; Sandra F. VanBurkleo, “‘Words as Hard as Cannon-balls’: Women's Rights Agitation and Liberty of Speech in Nineteenth-Century America,” in Constitutionalism and American Culture: Writing the New Constitutional History, ed. Sandra F. VanBurkleo, Kermit L. Hall, and Robert J. Kaczorowski (Lawrence: University Press of Kansas, 2002), 307–48; and Jack M. Balkin, “How Social Movements Change (or Fail to Change) the Constitution: The Case of the New Departure,” Suffolk University Law Review 39 (2005): 27–65.
6. See Marouf Hasian Jr., Celeste Michelle Condit, and John Louis Lucaites, “The Rhetorical Boundaries of ‘the Law’: A Consideration of the Rhetorical Culture of Legal Practice and the Case of the ‘Separate but Equal’ Doctrine,” Quarterly Journal of Speech 82 (1996): 323–42.
7. See Robert M. Cover, Narrative, Violence, and the Law: The Essays of Robert Cover, ed. Martha Minow, Michael Ryan, and Austin Sarat (Ann Arbor: University of Michigan Press, 1993), esp. 203–38.
8. Lobel, “Losers, Fools, and Prophets,” 1332–3, 1336–7. Jack Greenberg offers an alternative view, writing that lawyers “ought to try to avoid creating a new Plessy v. Ferguson”; Greenberg, “Litigation for Social Change: Methods, Limits, and Role in Democracy,” Record of the Association of the Bar of the City of New York 20 (1974): 349.
9. On audacity and accommodation in prudential action, see James Jasinski, “Idioms of Prudence in Three Antebellum Controversies: Revolution, Constitution, and Slavery,” in Prudence: Classical Virtue, Postmodern Practice, ed. Robert Hariman (University Park: Pennsylvania State University Press, 2003), 145–88.
10. This conception of enactment is drawn from Karlyn Kohrs Campbell and Kathleen Hall Jamieson, eds., Form and Genre: Shaping Rhetorical Action (Falls Church, VA: Speech Communication Association, 1978), 9.
11. Lobel, “Losers, Fools, and Prophets,” 1333; Hasian, Condit, and Lucaites, “Rhetorical Boundaries,” 323. We employ Reva B. Siegel's definition of constitutional culture as “the network of understandings and practices that structure our constitutional tradition, including those that shape law but would not be recognized as ‘lawmaking’ according to the legal system's own formal criteria”; Siegel, “Text in Contest: Gender and the Constitution from a Social Movement Perspective,” University of Pennsylvania Law Review 150 (2001): 303.
12. On hermeneutics and rhetorical action, see Steven Mailloux, “Rhetorical Hermeneutics,” in Interpreting Law and Literature: A Hermeneutic Reader, ed. Sanford Levinson and Steven Mailloux (Evanston, IL: Northwestern University Press, 1988), 345–62; Steven Mailloux, Rhetorical Power (Ithaca, NY: Cornell University Press, 1989); Steven Mailloux, “Rhetorical Hermeneutics Revisited,” Text and Performance Quarterly 11 (1991): 233–48; Alan G. Gross and William M. Keith, eds., Rhetorical Hermeneutics: Invention and Interpretation in the Age of Science (Albany: State University of New York Press, 1997); and Michael Leff, “Hermeneutical Rhetoric,” in Rhetoric and Hermeneutics in Our Time: A Reader, ed. Walter Jost and Michael J. Hyde (New Haven, CT: Yale University Press, 1997), 196–214.
13. The Minor arguments thus exemplified a commitment to an aspect of what Levinson calls a “protestant” approach to constitutional interpretation, one that prioritizes individual rather than institutional readings. Far from ensuring “national unity,” Levinson argues, a “sacred text” of a written constitution has the potential “to serve as the source of fragmentation and dis-integration”; Levinson, Constitutional Faith, 17, 27.
14. “Mrs. Francis Minor,” Revolution, October 28, 1869, pp. 258, 259. See also “The St. Louis Convention,” Revolution, October 21, 1869, pp. 250–1. Minor's birth name was Virginia Louisa Minor; her husband, Francis Minor, was a distant cousin. See Arnold J. Lien, “Minor, Virginia Louisa,” in Dictionary of American Biography, ed. Dumas Malone, vol. 7, Mills–Platner, pt. 1, Mills–Oglesby (New York: Charles Scribner's Sons, 1934), 29–30; and “Virginia L. Minor,” Woman's Tribune, August 25, 1894, p. 146. For information about early woman suffrage activism in Missouri, see Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, eds., History of Woman Suffrage, vol. 3, 1876–1885 (Rochester, NY: Susan B. Anthony, 1886), 594–611; Martha S. Kayser, “Woman-Suffrage Association of Missouri,” in Encyclopedia of the History of St. Louis, ed. William Hyde and Howard L. Conard (New York: Southern History Co., 1899), 4: 2529–31; Christine Orrick Fordyce, “Early Beginnings,” in “History of Woman Suffrage in Missouri,” ed. Mary Semple Scott, Missouri Historical Review 14 (1920): 288–99.
15. “The St. Louis Resolutions,” Revolution, October 28, 1869, p. 259; see also “St. Louis Convention,” 250.
16. DuBois refers to this argument as “the weakest point” of the Minors’ argument “but also its lynchpin”; DuBois, “Outgrowing the Compact of the Fathers,” 852.
17. Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. (1823); Congressional Globe, 39th Cong., 1st sess., 2398, 2538 (1866). See also Earl M. Maltz, Civil Rights, the Constitution, and Congress, 1863–1869 (Lawrence: University Press of Kansas, 1990), 96–102, 106–20.
18. In the 1850s the poet, novelist, lyceum lecturer, and woman's rights advocate Elizabeth Oakes Smith made the link explicit in her popular public lecture “Dignity of Labor”: “You say that every male member of the Republic, twenty one years of age, is entitled to the rights of Citizenship, meaning the right to vote, and you call a woman a Citizen, while you deny her this right, which is a farce and an anomaly”; Elizabeth Oakes Smith, “The Dignity of Labor” (early 1850s), MS p. 16, in box 2, Papers of Elizabeth Oakes Prince Smith, Accession #38-707, Special Collections, University of Virginia Library, Charlottesville.
19. “St. Louis Convention,” 250; Francis Minor, “Make the Trial,” Revolution, October 21, 1869, p. 250. The circulation of information about the Missouri Woman Suffrage Association convention and the Minor Resolutions can be traced through the Revolution: see “Woman's Suffrage Convention in St. Louis—Ideas to Be Fought, Not Men,” October 14, 1869, p. 235; “St. Louis,” October 14, 1869, p. 236; “Principles, Not Policy,” October 21, 1869, pp. 248–9; Minor, “Make the Trial”; “St. Louis Convention”; “Mrs. Francis Minor”; “St. Louis Resolutions”; “A Good Determination,” December 23, 1869, p. 395; Francis Minor, “Fundamental Rights,” January 20, 1870, pp. 38–9. The significance of Francis Minor's claim that women could now reject the “status of petitioner” is illuminated by the work of Susan Zaeske, who examines the political roles created for women within antebellum antislavery petitions; see Susan Zaeske, “Signatures of Citizenship: The Rhetoric of Women's Antislavery Petitions,” Quarterly Journal of Speech 88 (2002): 147–68; Susan Zaeske, Signatures of Citizenship: Petitioning, Antislavery, and Women's Political Identity (Chapel Hill: University of North Carolina Press, 2003).
20. Notable among these were Victoria Claflin Woodhull's 1870 Memorial to Congress and the supportive minority report issued in 1871 by House Judiciary Committee members William Loughridge and Benjamin Butler, as well as the arguments of attorneys Albert G. Riddle and Francis Miller in support of a group of women in Washington, DC, who attempted to vote in 1871. See Elizabeth Cady Stanton, Susan B. Anthony, and Matilda Joslyn Gage, eds., History of Woman Suffrage, vol. 2, 1861–1876 (Rochester, NY: Susan B. Anthony, 1881), 443–8, 464–82, 587–600 (hereafter HWS 2).
21. Section 2 reads:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in 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.
22. Congressional Globe, 39th Cong., 1st sess., 2767 (1866).
23. Eleanor Flexner and Ellen Fitzpatrick, Century of Struggle: The Woman's Rights Movement in the United States, enlarged ed. (Cambridge, MA: Harvard University Press, 1996), 160–3; Sara M. Evans, Born for Liberty: A History of Women in America (New York: Free Press, 1989), 123–4; Aileen S. Kraditor, The Ideas of the Woman Suffrage Movement, 1890–1920 (1965; reprint, New York: Norton, 1981), 3–4; HWS 2: 400–1, 756–66.
24. William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca, NY: Cornell University Press, 1977), 249–75; Cover, Narrative, Violence, and the Law, 133–8; Lobel, “Losers, Fools, and Prophets,” 1358–64; Jasinski, “Idioms of Prudence,” 176–7; James Jasinski, “Intentions as Rhetorical Constraint/Resource: The Case of Lysander Spooner's The Unconstitutionality of Slavery (1845),” paper presented at the biennial meeting of the Rhetoric Society of America, Memphis, May 2006.
25. Flexner and Fitzpatrick, Century of Struggle, 161; HWS 2: 313–44. Winkler identifies Stanton as an innovator of a mode of judicial reasoning in which constitutional interpretation evolves in response to cultural change; Winkler, “Revolution Too Soon,” 1473–501. The rhetoric of the Minors did not forecast this conceptual leap; instead, they argued from the text of the Constitution and from an interpretation of the framers’ intent. Throughout this essay we refer to the legal arguments of “the Minors”—referring to Virginia and Francis Minor—although Francis, an attorney, drafted the legal briefs. By referring to “the Minors,” we recognize their shared status as plaintiffs in the case, and we also respond to evidence that suggests a partnership in political action as well as marriage. See, e.g., Virginia Louisa Minor and Francis Minor to Susan B. Anthony, May 7, 1874, Ida (Husted) Harper Collection, Henry E. Huntington Library, San Marino, CA, in The Papers of Elizabeth Cady Stanton and Susan B. Anthony, ed. Patricia G. Holland and Ann D. Gordon, microfilm (Wilmington, DE: Scholarly Resources, 1991), reel 18, frames 1–3.
26. Angela G. Ray, “The Rhetorical Ritual of Citizenship: Women's Voting as Public Performance, 1869–1875,” Quarterly Journal of Speech 93 (2007): 1–26; Lobel, “Losers, Fools, and Prophets,” 1332. Not all the voting efforts postdated the Minor Resolutions, and DuBois persuasively argues that the voting campaign of 1869–75 arose from “a genuinely popular political faith”; DuBois, “Taking the Law into Our Own Hands,” 23.
27. A list of known efforts by women to vote appears in Ann D. Gordon, ed., The Selected Papers of Elizabeth Cady Stanton and Susan B. Anthony, vol. 2, Against an Aristocracy of Sex, 1866 to 1873 (New Brunswick, NJ: Rutgers University Press, 2000), 645–54. On Anthony, see, e.g., Gordon, Selected Papers 2: 524–7; An Account of the Proceedings on the Trial of Susan B. Anthony, on the Charge of Illegal Voting, at the Presidential Election in Nov., 1872, and on the Trial of Beverly W. Jones, Edwin T. Marsh and William B. Hall, the Inspectors of Election by Whom Her Vote Was Received (Rochester, NY: Daily Democrat and Chronicle Book Print, 1874).
28. The text of Anthony's speech appears in Karlyn Kohrs Campbell, comp., Man Cannot Speak for Her, vol. 2, Key Texts of the Early Feminists (New York: Praeger, 1989), 279–316. See also Karlyn Kohrs Campbell, “Contemporary Rhetorical Criticism: Genres, Analogs, and Susan B. Anthony,” in The Jensen Lectures: Contemporary Communication Studies, ed. John I. Sisco (Tampa: University of South Florida, 1983), 117–32; Karlyn Kohrs Campbell, Man Cannot Speak for Her, vol. 1, A Critical Study of Early Feminist Rhetoric (New York: Praeger, 1989), chap. 7. A recently edited text of Anthony's speech, reporting variations in extant versions, appears in Gordon, Selected Papers 2: 554–83.
29. U.S. Supreme Court, Virginia L. Minor and Francis Minor, Her Husband, Plaintiffs in Error, vs. Reese Happersett, Transcript of Record, no. 182, filed August 16, 1873, Petition, p. 3 (hereafter cited as Minor, Transcript of Record).
30. The court documents presented in Virginia Minor's favor are typically signed by all three of her attorneys. Scholars have assumed that Francis Minor authored the briefs, and the briefs’ similarity to other documents written by him makes this assumption plausible.
31. The Circuit Court ruled in 1850 that the Scotts were free because of their extended residencies in Illinois and Wisconsin Territory. The Missouri State Supreme Court and the U.S. Supreme Court later overturned the lower court's decision. See Scott v. Sandford, 60 U.S. 393 (1856).
32. See Truman A. Post, Reports of Cases Argued and Determined in the Supreme Court of the State of Missouri, vol. 53 (St. Louis: W. J. Gilbert, 1873), 58–65; John William Wallace, Cases Argued and Adjudged in the Supreme Court of the United States, vol. 21, October Term, 1874 (Washington, DC: W. H. and O. H. Morrison, 1875), 162–78; Charles Fairman, History of the Supreme Court of the United States, vol. 7, Reconstruction and Reunion, 1864–88, pt. 2 (New York: Macmillan, 1987), 222–3; and “Woman Suffrage,” New York Times, February 10, 1875, p. 8. On Waite and the other Justices who decided the case, see Balkin, “How Social Movements Change,” 63.
33. This concept is articulated in Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 37.
34. See Winkler, “Revolution Too Soon,” 1457; H. Jefferson Powell, “The Original Understanding of Intent,” Harvard Law Review 98 (1995): 885–948. In addition to tracing the emergence of originalism—understood as inquiry into the expectations of individuals involved in framing and ratifying the Constitution—as an interpretive philosophy in the nineteenth century, Powell observes that “the Philadelphia framers’ primary expectation regarding constitutional interpretation was that the Constitution, like any other legal document, be interpreted in accord with its express language” (903). In this sense, it would appear that the textualist reading strategies of the Minors were closer to the legal hermeneutic advocated by the Philadelphia framers than were the nineteenth-century methods of originalism.
35. Jay Fliegelman, Declaring Independence: Jefferson, Natural Language, and the Culture of Performance (Stanford, CA: Stanford University Press, 1993), 186. Fliegelman uses the term “subversive reverence” to describe the invocation of a prior text in order to use it for new purposes.
36. In note 13, we observed that the Minor arguments demonstrated one aspect of what Levinson calls a “protestant” approach to constitutional interpretation: they prioritized individual rather than institutional readings. In relation to the other aspect of Levinson's conceptual approach to the Constitution—that is, what counts as the “text” to be read—the Minor arguments cannot be classified accurately as “protestant” or “catholic.” By taking as their text the language of the Constitution as well as written history, the Minors embodied neither a “protestant” commitment (to reading the constitutional text alone) nor a “catholic” position (that the source of doctrine is the Constitution plus unwritten tradition). See Levinson, Constitutional Faith, 29.
37. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 11.
38. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 4.
39. “Mrs. Francis Minor,” 259; Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 13. Note that the brief here subtly supports women's obligations to perform military service. Women's presumed incapacity or inappropriateness for such service was a frequent aspect of arguments against their voting.
40. “Mrs. Francis Minor,” 258; Minor, “Fundamental Rights,” 38.
41. HWS 2: 729 (the microfilmed version of the Transcript of Record that we consulted is missing pp. 30–1 of the Minors’ brief; the contents of those pages are reproduced in HWS 2: 729–30).
42. Minor, Transcript of Record, Opinion of Missouri State Supreme Court, 10–11.
43. HWS 2: 461–64; Balkin, “How Social Movements Change,” 43.
44. Cf. Steven Knapp and Walter Benn Michaels, “Intention, Identity, and the Constitution: A Response to David Hoy,” in Legal Hermeneutics: History, Theory, and Practice, ed. Gregory Leyh (Berkeley: University of California Press, 1992), 193–4.
45. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 11.
46. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 12.
47. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 12.
48. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 13–14.
49. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 33.
50. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 16, 36.
51. The history of New Jersey women voters offered significant rhetorical resources for woman's rights advocates. A year before the Minors presented their arguments in St. Louis, Lucy Stone and her mother-in-law, Hannah Blackwell, attempted to vote in Roseville, New Jersey, arguing that because women in their state had never voted on their own disenfranchisement, prohibitions were illegal. See “Woman Suffrage in New Jersey,” Revolution, November 12, 1868, p. 300; Judith Apter Klinghoffer and Lois Elkis, “‘The Petticoat Electors’: Women's Suffrage in New Jersey, 1776–1807,” Journal of the Early Republic 12 (1992): 159–93.
52. In 1854, in an argument against the Kansas-Nebraska Act, Abraham Lincoln cited the Founding Fathers in order to abstract from their words a dedication to the principle of equality and to claim it in support of his argument. This strategy enabled Lincoln to invoke the Founders while shifting the focus of the debate from contentious questions regarding their silence about—and participation in—slavery and the suppression of equal self-government. Cindy Koenig Richards, “Reformulating Prudence: Conflict and Creation in Abraham Lincoln's Peoria Address,” unpublished manuscript, Northwestern University, 2003. See Abraham Lincoln, “The Repeal of the Missouri Compromise and the Propriety of Its Restoration: Speech at Peoria, Illinois, in Reply to Senator Douglas,” in Abraham Lincoln: His Speeches and Writings, ed. Roy P. Basler (1946; reprint, New York: Da Capo Press, 2001), 283–323.
53. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 34, 35.
54. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 12.
55. HWS 2: 174, 185.
56. See Kraditor, Ideas of the Woman Suffrage Movement, 14–42.
57. In the Minors’ argument to the Supreme Court, Virginia Minor is a representative vehicle for the enfranchisement of “all womanhood.” She is identified as a “native-born free white citizen” in the petition to the St. Louis Circuit Court and in the statement to the U.S. Supreme Court. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 39, Petition, 3, Statement and Brief, 3.
58. Other woman's rights activists during Reconstruction, such as Mary Ann Shadd Cary, Sojourner Truth, Frances Ellen Watkins Harper, Frances Dana Gage, Susan B. Anthony, and Elizabeth Cady Stanton, referred specifically to African American women's need for the self-protection of the ballot. Yet vituperative debates among woman's rights activists during Reconstruction often rhetorically pitted black men against white women, questioning which group had greater need of enfranchisement or which group deserved suffrage more.
59. For a discussion of the creation of a symbolic woman during the same period, especially in relation to class and race, see Angela G. Ray, “Representing the Working Class in Early U.S. Feminist Media: The Case of Hester Vaughn,” Women's Studies in Communication 26 (2003): 1–26.
60. “Mrs. Francis Minor,” 259.
61. Minor, Transcript of Record, Opinion of Missouri State Supreme Court, 11.
62. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 26.
63. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 18, 28; cf. Slaughter-house Cases, 83 U.S. 36 (1872), 71.
64. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 28.
65. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 32, 38–9.
66. “Mrs. Francis Minor,” 258–9.
67. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 29.
68. See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000).
69. Minor, Transcript of Record, Statement and Brief of Plaintiff in Error, 40.
70. Minor v. Happersett, 88 U.S. 162 (1874), 165, 166.
71. Minor, Transcript of Record, Opinion of Missouri State Supreme Court, 10; Minor v. Happersett, 88 U.S. 162 (1874), 178.
72. Minor v. Happersett, 88 U.S. 162 (1874), 170, 171, 176–7.
73. See Slaughter-house Cases, 83 U.S. 36 (1872); Bradwell v. Illinois, 83 U.S. 130 (1872).
74. Hoff, Law, Gender, and Injustice, 175. In 1889 Susan B. Anthony noted the evisceration of the Fourteenth Amendment by Minor, which directly harmed African American men as well as all women; Susan B. Anthony, “History of the Amendment,” Woman's Tribune, February 16, 1889, p. 79. The following year, in an address to the Senate Committee on Woman Suffrage, Elizabeth Cady Stanton cited a Georgia case in which Minor v. Happersett was used as a precedent to argue against the voting rights of a black male citizen; Stanton, “Hearing before the Woman-Suffrage Committee,” Woman's Tribune, February 15, 1890, p. 50.
75. Ritter, “Jury Service and Women's Citizenship,” 489.
76. Hodes, “Women and the Constitution,” 42–6.
77. Balkin, “How Social Movements Change,” 37–8.
78. She calls the Supreme Court brief “a brilliant argument, a dazzling reconstitution of law as it ought to be, and a trenchant indictment of the way it was”; Basch, “Reconstitutions,” 179. Compare suffragists’ eulogizing of Francis Minor: Susan B. Anthony, “In Memoriam,” Woman's Journal, March 5, 1892, p. 79; “Francis Minor,” Woman's Tribune, March 5, 1892, p. 68; “Francis Minor and Benjamin F. Butler,” Woman's Tribune, January 28, 1893, p. 28.
79. DuBois, “Outgrowing the Compact of the Fathers,” 853. See also Karlyn Kohrs Campbell and Angela G. Ray, “‘No Longer by Your Leave’: The Impact of the Civil War and Reconstruction Amendments on Women's Rhetoric,” in A Rhetorical History of the United States, vol. 4, Public Debate in the Civil War Era, ed. David Zarefsky and Michael C. Leff (East Lansing: Michigan State University Press, forthcoming).
80. Winkler, “Revolution Too Soon,” 1473–501; VanBurkleo, “Words as Hard as Cannon-balls,” 307–8, 314, 326, 347–8.
81. Hoff, Law, Gender, and Injustice, 151–91.
82. Writing of disciplinary approaches and interdisciplinary possibilities, David Zarefsky notes that “by studying important historical events from a rhetorical perspective, one can see significant aspects about those events that other perspectives miss”; Zarefsky, “Four Senses of Rhetorical History,” in Doing Rhetorical History: Concepts and Cases, ed. Kathleen J. Turner (Tuscaloosa: University of Alabama Press, 1998), 30.
83. Balkin, “How Social Movements Change,” 53.
84. Lobel, “Losers, Fools, and Prophets,” 1333.
85. Lobel, “Losers, Fools, and Prophets,” 1332–3, 1336–7, 1355.
86. Levinson, Constitutional Faith, 77.
87. See Levinson, Constitutional Faith, 46–8.
88. Isabella Beecher Hooker, The Constitutional Rights of the Women of the United States: An Address before the International Council of Women, Washington, D.C., March 30, 1888 (Hartford, CT: Hartford Press, 1900); “Hearing before House Committee,” Woman's Tribune, February 9, 1889, p. 1; Stanton, “Hearing before the Woman-Suffrage Committee,” 50, 52–3.
89. “Women on the Registry List: An Organized Attempt to Secure the Privilege of Voting,” New York Times, October 21, 1885, p. 5; “The Inspectors Were Agitated: Lillie Devereux Blake Describes Her Visit to the Polls,” New York Times, November 6, 1885, p. 5. See also, e.g., “As the Votes Went In,” Philadelphia Inquirer, November 7, 1888, p. 2; “Progress of the Voting,” New York Times, November 3, 1897, p. 4.
90. Francis Minor, “Woman's Legal Right to the Ballot,” Forum, December 1886, pp. 351–60 (reprinted as a pamphlet: Francis Minor, Woman's Legal Right to the Ballot, An Argument in Support Of [New York: Forum Publishing Co., 1886]); Francis Minor, “The Right of Women to Vote at Congressional Elections,” Woman's Tribune, January 28, 1888, p. 1; Francis Minor, The Law of Federal Suffrage, An Argument in Support Of ([St. Louis], 1889); Francis Minor, “Woman's Political Status,” Forum, April 1890, pp. 150–8; Francis Minor, “Citizenship and Suffrage: The Yarbrough Decision,” Arena, December 1891, pp. 68–75. See Clara Bewick Colby, “Report of Federal Suffrage Committee,” National Bulletin, January 1893, pp. 1–3; Clara Bewick Colby, “Report of Federal Suffrage Committee,” Woman's Tribune, February 11, 1893, p. 33; Congressional Record, 52nd Cong., 1st sess., April 25, 1892, 3639. Clark's bill was referred to the Judiciary Committee, where it died.
91. See, e.g., “Federal Suffrage,” Woman's Tribune, May 9, 1903, p. 53; Olympia Brown to Emma Smith DeVoe, February 18, 1913, in Emma Smith DeVoe Collection, Washington State Library, Olympia; “Are Women People?” Woman Citizen/Woman's Journal, April 12, 1919, pp. 962, 966.
92. Lobel, “Losers, Fools, and Prophets,” 1348.