MINOR v. HAPPERSETT.
SUPREME COURT OF THE UNITED STATES
88 U.S. 162; 1874 U.S.
LEXIS 1354; 22 L. Ed. 627; 21 Wall. 162
OCTOBER, 1874, Term
PRIOR HISTORY: [**1]
ERROR to the Supreme Court of Missouri; the case being thus:
The fourteenth amendment to the Constitution of the United States, in its first
section, thus ordains; n1
"All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States, and of the State wherein
they reside. No State shall make or enforce any law, which shall abridge the
privileges or immunities of citizens of the United States. Nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction, the equal protection of the
laws."
n1 See other sections, infra, p. 174.
And the constitution of the State of Missouri n2 thus ordains:
"Every male citizen of the United States shall be entitled to vote."
n2 Article 2, § 18.
Under a statute of the State all persons wishing to vote at any election, must
previously have been registered in the manner pointed out by the statute, this
being a condition precedent to the exercise of the elective franchise.
In this state of things, on the 15th of October, 1872 (one of the days fixed by
law for the registration of voters), [**2] Mrs. Virginia Minor, a
native born, free, white citizen of the United States, and of the State of
Missouri, over the age of twenty-one years, wishing to vote for electors for
President and Vice-President of the United States, and for a representative in
Congress, and for other officers, at the general election held in November,
1872, applied to one Happersett, the registrar of voters, to register her as a
lawful voter, which he refused to do, assigning for cause that she was not a
"male citizen of the United States," but a woman. She thereupon sued
him in one of the inferior State courts of Missouri, for wilfully refusing to
place her name upon the list of registered voters, by which refusal she was
deprived of her right to vote.
The registrar demurred, and the court in which the suit was brought sustained
the demurrer, and gave judgment in his favor; a judgment which the Supreme
Court affirmed. Mrs. Minor now brought the case here on error.
OPINIONBY: WAITE
OPINION: [*165] [***627] The CHIEF
JUSTICE delivered the opinion of the court.
The question is presented in this case, whether, since the adoption of the
fourteenth amendment, a woman, who is a citizen of the United States and of the
State of Missouri, is a voter in that State, notwithstanding the provision of
the constitution and laws of the State, which confine the right of suffrage to
men alone. We might, perhaps, decide the case upon other grounds, but this
question is fairly made. From the opinion we find that it was the only one
decided in the court below, and it is the only one which has been argued here.
The case was undoubtedly brought to this court for the sole purpose of having
that question decided by us, and in view of the evident propriety there is of
having it settled, so far as it can be by such a decision, we have concluded to
waive all other considerations and proceed at once to its determination.
It is contended that the provisions of the constitution and laws of the State
of Missouri which confine the right of suffrage and registration therefor to
men, are in violation of the [**6] Constitution of the United
States, and therefore void. The argument is, that as a woman, born or
naturalized in the United States and subject to the jurisdiction thereof, is a
citizen of the United States and of the State in which she resides, she has the
right of suffrage as one of the privileges and immunities of her citizenship,
which the State cannot by its laws or constitution abridge.
There is no doubt that women may be citizens. They are persons, and by the
fourteenth amendment "all persons born or naturalized in the United States
and subject to the jurisdiction thereof" are expressly declared to be
"citizens of the United States and of the State wherein they reside."
But, in our opinion, it did not need this amendment to give them that position.
Before its adoption the Constitution of the United States did not in terms
prescribe who should be citizens of the United States or of the several States,
yet there were necessarily such citizens without such provision. There cannot
be a nation without a people. The very idea of a political community, such as a
nation is, implies an [*166] association of persons for the
promotion of their general welfare. Each one of the [**7] persons
associated becomes a member of the nation formed by the association. He owes it
allegiance and is entitled to its protection. Allegiance and protection are, in
this [***628] connection, reciprocal obligations. The one is a
compensation for the other; allegiance for protection and protection for
allegiance.
For convenience it has been found necessary to give a name to this membership.
The object is to designate by a title the person and the relation he bears to
the nation. For this purpose the words "subject,"
"inhabitant," and "citizen" have been used, and the choice
between them is sometimes made to depend upon the form of the government.
Citizen is now more commonly employed, however, and as it has been considered
better suited to the description of one living under a republican government,
it was adopted by nearly all of the States upon their separation from Great
Britain, and was afterwards adopted in the Articles of Confederation and in the
Constitution of the United States. When used in this sense it is understood as
conveying the idea of membership of a nation, and nothing more.
To determine, then, who were citizens of the United States before the adoption
[**8] of the amendment it is necessary to ascertain what persons
originally associated themselves together to form the nation, and what were
afterwards admitted to membership.
Looking at the Constitution itself we find that it was ordained and established
by "the people of the United States," n3 and then going further back,
we find that these were the people of the several States that had before
dissolved the political bands which connected them with Great Britain, and
assumed a separate and equal station among the powers of the earth, n4 and that
had by Articles of Confederation and Perpetual Union, in which they took the
name of "the United States of America," entered into a firm league of
[*167] friendship with each other for their common defence, the
security of their liberties and their mutual and general welfare, binding
themselves to assist each other against all force offered to or attack made
upon them, or any of them, on account of religion, sovereignty, trade, or any
other pretence whatever. n5
n3 Preamble, 1 Stat. at Large, 10.
n4 Declaration of Independence, Ib. 1.
n5 Articles of Confederation, § 3, 1 Stat. at Large, 4.
Whoever, then, was one of the people [**9] of either of these
States when the Constitution of the United States was adopted, became ipso
facto a citizen -- a member of the nation created by its adoption. He was one
of the persons associating together to form the nation, and was, consequently,
one of its original citizens. As to this there has never been a doubt. Disputes
have arisen as to whether or not certain persons or certain classes of persons
were part of the people at the time, but never as to their citizenship if they
were.
Additions might always be made to the citizenship of the United States in two
ways: first, by birth, and second, by naturalization. This is apparent from the
Constitution itself, for it provides n6 that "no person except a
natural-born citizen, or a citizen of the United States at the time of the
adoption of the Constitution, shall be eligible to the office of
President," n7 and that Congress shall have power "to establish a
uniform rule of naturalization." Thus new citizens may be born or they may
be created by naturalization.
n6 Article 2, § 1.
n7 Article 1, § 8.
The Constitution does not, in words, say who shall be natural-born citizens.
Resort must be had elsewhere to ascertain [**10] that. At
common-law, with the nomenclature of which the framers of the Constitution were
familiar, it was never doubted that all children born in a country of parents
who were its citizens became themselves, upon their birth, citizens also. These
were natives, or natural-born citizens, as distinguished from aliens or
foreigners. Some authorities go further and include as citizens children born
within the jurisdiction without reference to the citizenship of their
[*168] parents. As to this class there have been doubts, but never
as to the first. For the purposes of this case it is not necessary to solve
these doubts. It is sufficient for everything we have now to consider that all
children born of citizen parents within the jurisdiction are themselves
citizens. The words "all children" are certainly as comprehensive,
when used in this connection, as "all persons," and if females are
included in the last they must be in the first. That they are included in the
last is not denied. In fact the whole argument of the plaintiffs proceeds upon
that idea.
Under the power to adopt a uniform system of naturalization Congress, as early
as 1790, provided "that any alien, being a [**11] free white
person," might be admitted as a citizen of the United States, and that the
children of such persons so naturalized, dwelling within the United States,
being under twenty-one years of age at the time of such naturalization, should
also be considered citizens of the United States, and that the children of
citizens of the United States that might be born beyond the sea, or out of the
limits of the United States, should be considered as natural-born citizens. n8
These provisions thus enacted have, in substance, been retained in all the
naturalization laws adopted since. In 1855, however, the last provision was
somewhat extended, and all persons theretofore born or thereafter to be born
out of the limits of the jurisdiction of the United States, whose fathers were,
or should be at the time of their birth, citizens of the United States, were
declared to be citizens also. n9
n8 1 Stat. at Large, 103.
n9 10 Id. 604.
As early as 1804 it was enacted by Congress that when any alien who had
declared his intention to become a citizen in the manner provided by law died
before he was actually naturalized, his widow and children should be considered
as citizens of the United [**12] States, and entitled to all rights
and privileges as such upon taking the necessary oath; n10 and in 1855 it was
further provided that any woman who might lawfully be naturalized under the
existing laws, married, or [*169] who should be married to a
citizen of the United States, should be deemed and taken to be a citizen. n11
n10 2 Id. 293.
n11 10 Stat. at Large, 604.
From this it is apparent that from the commencement of the legislation upon
this subject alien women and alien minors could be made citizens by
naturalization, and we think it will not be contended that this would have been
done if it had not been supposed that native women and native minors were
already citizens by birth.
But if more is necessary to show that women have always been considered as
citizens the same as men, abundant proof is to be found in the legislative and
judicial history of the [***629] country. Thus, by the
Constitution, the judicial power of the United States is made to extend to
controversies between citizens of different States. Under this it has been
uniformly held that the citizenship necessary to give the courts of the United
States jurisdiction of a cause must be affirmatively [**13] shown
on the record. Its existence as a fact may be put in issue and tried. If found
not to exist the case must be dismissed. Notwithstanding this the records of
the courts are full of cases in which the jurisdiction depends upon the
citizenship of women, and not one can be found, we think, in which objection
was made on that account. Certainly none can be found in which it has been held
that women could not sue or be sued in the courts of the United States. Again,
at the time of the adoption of the Constitution, in many of the States (and in
some probably now) aliens could not inherit or transmit inheritance. There are
a multitude of cases to be found in which the question has been presented
whether a woman was or was not an alien, and as such capable or incapable of
inheritance, but in no one has it been insisted that she was not a citizen
because she was a woman. On the contrary, her right to citizenship has been in
all cases assumed. The only question has been whether, in the particular case
under consideration, she had availed herself of the right.
In the legislative department of the government similar [*170]
proof will be found. Thus, in the pre-emption laws, [**14] n12 a
widow, "being a citizen of the United States," is allowed to make
settlement on the public lands and purchase upon the terms specified, and
women, "being citizens of the United States," are permitted to avail
themselves of the benefit of the homestead law. n13
n12 5 Stat. at Large, 455, § 10.
n13 12 Id. 392.
Other proof of like character might be found, but certainly more cannot be
necessary to establish the fact that sex has never been made one of the
elements of citizenship in the United States. In this respect men have never
had an advantage over women. The same laws precisely apply to both. The
fourteenth amendment did not affect the citizenship of women any more than it
did of men. In this particular, therefore, the rights of Mrs. Minor do not
depend upon the amendment. She has always been a citizen from her birth, and
entitled to all the privileges and immunities of citizenship. The amendment
prohibited the State, of which she is a citizen, from abridging any of her
privileges and immunities as a citizen of the United States; but it did not
confer citizenship on her. That she had before its adoption.
If the right of suffrage is one of the necessary [**15] privileges
of a citizen of the United States, then the constitution and laws of Missouri
confining it to men are in violation of the Constitution of the United States,
as amended, and consequently void. The direct question is, therefore, presented
whether all citizens are necessarily voters.
The Constitution does not define the privileges and immunities of citizens. For
that definition we must look elsewhere. In this case we need not determine what
they are, but only whether suffrage is necessarily one of them.
It certainly is nowhere made so in express terms. The United States has no
voters in the States of its own creation. The elective officers of the United
States are all elected directly or indirectly by State voters. The members of
the House of Representatives are to be chosen by the people of
[*171] the States, and the electors in each State must have the
qualifications requisite for electors of the most numerous branch of the State
legislature. n14 Senators are to be chosen by the legislatures of the States,
and necessarily the members of the legislature required to make the choice are
elected by the voters of the State. n15 Each State must appoint in such
[**16] manner, as the legislature thereof may direct, the electors
to elect the President and Vice-President. n16 The times, places, and manner of
holding elections for Senators and Representatives are to be prescribed in each
State by the legislature thereof; but Congress may at any time, by law, make or
alter such regulations, except as to the place of choosing Senators. n17 It is
not necessary to inquire whether this power of supervision thus given to
Congress is sufficient to authorize any interference with the State laws prescribing
the qualifications of voters, for no such interference has ever been attempted.
The power of the State in this particular is certainly supreme until Congress
acts.
n14 Constitution, Article 1, § 2.
n15 Ib. Article 1, § 3.
n16 Ib. Article 2, § 2.
n17 Ib. Article 1, § 4.
The amendment did not add to the privileges and immunities of a citizen. It
simply furnished an additional guaranty for the protection of such as he
already had. No new voters were necessarily made by it. Indirectly it may have
had that effect, because it may have increased the number of citizens entitled
to suffrage under the constitution and laws of the States, but
[**17] it operates for this purpose, if at all, through the States
and the State laws, and not directly upon the citizen.
It is clear, therefore, we think, that the Constitution has not added the right
of suffrage to the privileges and immunities of citizenship as they existed at
the time it was adopted. This makes it proper to inquire whether suffrage was coextensive
with the citizenship of the States at the time of its adoption. If it was, then
it may with force be argued that suffrage was one of the rights which belonged
to citizenship, and in the enjoyment of which every citizen must be protected. [*172]
But if it was not, the contrary may with propriety be assumed.
When the Federal Constitution was adopted, all the States, with the exception
of Rhode Island and Connecticut, had constitutions of their own. These two
continued to act under their charters from the Crown. Upon an examination of
those constitutions we find that in no State were all citizens permitted to
vote. Each State determined for itself who should have that power. Thus, in New
Hampshire, "every male inhabitant of each town and parish with town
privileges, and places unincorporated in the State, of twentyone
[**18] years of age and upwards, excepting paupers and persons
excused from paying taxes at their own request," were its voters; in
Massachusetts "every male inhabitant of twenty-one years of age and
upwards, having a freehold estate within the commonwealth of the annual income
of three pounds, or any estate of the value of sixty pounds;" in Rhode
Island "such [***630] as are admitted free of the company and
society" of the colony; in Connecticut such persons as had "maturity
in years, quiet and peaceable behavior, a civil conversation, and forty
shillings freehold or forty pounds personal estate," if so certified by
the selectmen; in New York "every male inhabitant of full age who shall
have personally resided within one of the counties of the State for six months
immediately preceding the day of election . . . if during the time aforesaid he
shall have been a freeholder, possessing a freehold of the value of twenty
pounds within the county, or have rented a tenement therein of the yearly value
of forty shillings, and been rated and actually paid taxes to the State;"
in New Jersey "all inhabitants . . . of full age who are worth fifty
pounds, proclamation-money, clear estate in the same, [**19] and
have resided in the county in which they claim a vote for twelve months
immediately preceding the election;" in Pennsylvania "every freeman
of the age of twenty-one years, having resided in the State two years next
before the election, and within that time paid a State or county tax which
shall have been assessed at least six months before the election;" in
[*173] Delaware and Virginia "as exercised by law at
present;" in Maryland "all freemen above twenty-one years of age
having a freehold of fifty acres of land in the county in which they offer to
vote and residing therein, and all freemen having property in the State above
the value of thirty pounds current money, and having resided in the county in
which they offer to vote one whole year next preceding the election;" in
North Carolina, for senators, "all freemen of the age of twenty-one years
who have been inhabitants of any one county within the State twelve months
immediately preceding the day of election, and possessed of a freehold within
the same county of fifty acres of land for six months next before and at the
day of election," and for members of the house of commons "all
freemen of the age of twenty-one years [**20] who have been
inhabitants in any one county within the State twelve months immediately
preceding the day of any election, and shall have paid public taxes;" in
South Carolina "every free white man of the age of twenty-one years, being
a citizen of the State and having resided therein two years previous to the day
of election, and who hath a freehold of fifty acres of land, or a town lot of
which he hath been legally seized and possessed at least six months before such
election, or (not having such freehold or town lot), hath been a resident
within the election district in which he offers to give his vote six months
before said election, and hath paid a tax the preceding year of three shillings
sterling towards the support of the government;" and in Georgia such
"citizens and inhabitants of the State as shall have attained to the age
of twenty-one years, and shall have paid tax for the year next preceding the
election, and shall have resided six months within the county."
In this condition of the law in respect to suffrage in the several States it
cannot for a moment be doubted that if it had been intended to make all
citizens of the United States voters, the framers of the Constitution
[**21] would not have left it to implication. So important a change
in the condition of citizenship as it actually existed, if intended, would have
been expressly declared.
[*174] But if further proof is necessary to show that no such
change was intended, it can easily be found both in and out of the
Constitution. By Article 4, section 2, it is provided that "the citizens
of each State shall be entitled to all the privileges and immunities of
citizens in the several States." If suffrage is necessarily a part of
citizenship, then the citizens of each State must be entitled to vote in the
several States precisely as their citizens are. This is more than asserting
that they may change their residence and become citizens of the State and thus
be voters. It goes to the extent of insisting that while retaining their
original citizenship they may vote in any State. This, we think, has never been
claimed. And again, by the very terms of the amendment we have been considering
(the fourteenth), "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
[**22] 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 the rebellion, or other crimes, 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." Why this, if it was not in the
power of the legislature to deny the right of suffrage to some male
inhabitants? And if suffrage was necessarily one of the absolute rights of
citizenship, why confine the operation of the limitation to male inhabitants?
Women and children are, as we have seen, "persons." They are counted in
the enumeration upon which the apportionment is to be made, but if they were
necessarily voters because of their citizenship unless clearly excluded, why
inflict the penalty for the exclusion of males alone? Clearly, no such form of
words [**23] would have been [*175] selected to express
the idea here indicated if suffrage was the absolute right of all citizens.
And still again, after the adoption of the fourteenth amendment, it was deemed
necessary to adopt a fifteenth, as follows: "The right of citizens of the
United States to vote shall not be denied or abridged by the United States, or
by any State, on account of race, color, or previous condition of
servitude." The fourteenth amendment had already provided that no State
should make or enforce any law which should abridge the privileges or
immunities of citizens of the United States. If suffrage was one of these
privileges or immunities, why amend the Constitution to prevent its being
denied on account of race, &c.? Nothing is more evident than that the greater
must include the less, and if all were already protected why go through with
the form of amending the Constitution to protect a part?
It is true that the United States guarantees to every State a republican form
of government. n18 It is also true that [***631] no State can pass
a bill of attainder, n19 and that no person can be deprived of life, liberty,
or property without due process of law. n20 [**24] All these
several provisions of the Constitution must be construed in connection with the
other parts of the instrument, and in the light of the surrounding
circumstances.
n18 Constitution, Article 4, § 4.
n19 Ib. Article 1, § 10.
n20 Ib. Amendment 5.
The guaranty is of a republican form of government. No particular government is
designated as republican, neither is the exact form to be guaranteed, in any
manner especially designated. Here, as in other parts of the instrument, we are
compelled to resort elsewhere to ascertain what was intended.
The guaranty necessarily implies a duty on the part of the States themselves to
provide such a government. All the States had governments when the Constitution
was adopted. In all the people participated to some extent, through their
representatives elected in the manner specially provided. [*176] These
governments the Constitution did not change. They were accepted precisely as
they were, and it is, therefore, to be presumed that they were such as it was
the duty of the States to provide. Thus we have unmistakable evidence of what
was republican in form, within the meaning of that term as employed in the
Constitution. [**25]
As has been seen, all the citizens of the States were not invested with the
right of suffrage. In all, save perhaps New Jersey, this right was only
bestowed upon men and not upon all of them. Under these circumstances it is
certainly now too late to contend that a government is not republican, within
the meaning of this guaranty in the Constitution, because women are not made
voters.
The same may be said of the other provisions just quoted.Women were excluded
from suffrage in nearly all the States by the express provision of their
constitutions and laws. If that had been equivalent to a bill of attainder,
certainly its abrogation would not have been left to implication. Nothing less
than express language would have been employed to effect so radical a change.
So also of the amendment which declares that no person shall be deprived of
life, liberty, or property without due process of law, adopted as it was as
early as 1791. If suffrage was intended to be included within its obligations,
language better adapted to express that intent would most certainly have been
employed. The right of suffrage, when granted, will be protected. He who has it
can only be deprived of it by [**26] due process of law, but in
order to claim protection he must first show that he has the right.
But we have already sufficiently considered the proof found upon the inside of
the Constitution. That upon the outside is equally effective.
The Constitution was submitted to the States for adoption in 1787, and was
ratified by nine States in 1788, and finally by the thirteen original States in
1790. Vermont was the first new State admitted to the Union, and it came in
under a constitution which conferred the right of suffrage only upon men of the
full age of twenty-one years, having resided [*177] in the State
for the space of one whole year next before the election, and who were of quiet
and peaceable behavior. This was in 1791. The next year, 1792, Kentucky
followed with a constitution confining the right of suffrage to free male
citizens of the age of twenty-one years who had resided in the State two years
or in the county in which they offered to vote one year next before the
election. Then followed Tennessee, in 1796, with voters of freemen of the age
of twenty-one years and upwards, possessing a freehold in the county wherein
they may vote, and being inhabitants of the [**27] State or freemen
being inhabitants of any one county in the State six months immediately
preceding the day of election. But we need not particularize further. No new
State has ever been admitted to the Union which has conferred the right of
suffrage upon women, and this has never been considered a valid objection to
her admission. On the contrary, as is claimed in the argument, the right of
suffrage was withdrawn from women as early as 1807 in the State of New Jersey,
without any attempt to obtain the interference of the United States to prevent
it. Since then the governments of the insurgent States have been reorganized
under a requirement that before their representatives could be admitted to
seats in Congress they must have adopted new constitutions, republican in form.
In no one of these constitutions was suffrage conferred upon women, and yet the
States have all been restored to their original position as States in the
Union.
Besides this, citizenship has not in all cases been made a condition precedent
to the enjoyment of the right of suffrage. Thus, in Missouri, persons of
foreign birth, who have declared their intention to become citizens of the
United States, may under [**28] certain circumstances vote. The
same provision is to be found in the constitutions of Alabama, Arkansas,
Florida, Georgia, Indiana, Kansas, Minnesota, and Texas.
Certainly, if the courts can consider any question settled, this is one. For
nearly ninety years the people have acted upon the idea that the Constitution,
when it conferred citizenship, did not necessarily confer the right of
suffrage. If [*178] uniform practice long continued can settle the
construction of so important an instrument as the Constitution of the United
States confessedly is, most certainly it has been done here. Our province is to
decide what the law is, not to declare what it should be.
We have given this case the careful consideration its importance demands. If
the law is wrong, it ought to be changed; but the power for that is not with
us. The arguments addressed to us bearing upon such a view of the subject may
perhaps be sufficient to induce those having the power, to make the alteration,
but they ought not to be permitted to influence our judgment in determining the
present rights of the parties now litigating before us. No argument as to
woman's need of suffrage can be considered. We [**29] can only act
upon her rights as they exist. It is not for us to look at the hardship of
withholding. Our duty is at an end if we find it is within the power of a State
to withhold.
Being unanimously of the opinion that the Constitution of the United States
does not confer the right of suffrage upon any one, and that the constitutions
and laws of the several States which commit that important trust to men alone
are not necessarily void, we
AFFIRM THE JUDGMENT.