Testimony at a Hearing of the
House Committee on the Judiciary
January 24, 1880 — US House Committee on the Judiciary, Washington DC
Mr. Chairman, and Gentlemen of the Judiciary Committee:
I am invited to speak of the dangers which beset us at this hour in the decision of the Supreme Court of the United States in Mrs. Minor’s case [Minor v. Happersett], which not only stultifies its previous interpretation of the recent constitutional amendments and makes them a dead letter, but will rank, in the coming ages, in the history of the judiciary, with the Dred Scott decision. The law, as explained in the Dred Scott case, was an infamous one, which trampled upon the most solemn rights of the loyal citizens of the government, and declared the constitution to mean anything or nothing, as the case might be. Yet the decision in that case had a saving clause, for it was not the unanimous voice of a Democratic judiciary. Dissenting opinions were nobly uttered from the bench. In the more recent case, under the rule of a Republican judiciary created by a party professing to be one of justice, the rights of one-half of the people were deliberately abrogated without a dissenting voice. This violation of the fundamental principles of our government called forth no protest. In all of the decisions against woman in the Republican court, there has not been found one Lord Mansfield, who, rising to the supreme height of an unbiased judgment, would give the immortal decree that shall crown with regal dignity the mother of the race: “I care not for the dictates of judges, however eminent, if they be contrary to principle. If the parties will have judgment, let justice be done, though the heavens fall.”
The Dred Scott decision declared as the law of citizenship, “to be a citizen is to have actual possession and enjoyment, or the perfect right to the acquisition and enjoyment of an entire equality of privileges, civil and political.” But the slave-power was then dominant and the court decided that a black man was not a citizen because he had not the right to vote. But when the constitution was so amended as to make “all persons born or naturalized in the United States citizens thereof,” a negro, by virtue of his United States citizenship, was declared, under the amendments, a voter in every State in the Union. And the Supreme Court reaffirmed this right in the celebrated slaughter-house cases, It said, “The negro, having by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State in the Union.”
But when the loyal women of Missouri, apprehending that “all persons beneath the flag were made citizens and voters by the fourteenth amendment,” through Mrs. Minor, applied to the Supreme Court for protection in the exercise of that same right, this high tribunal, reversing all its former decisions, proclaims State sovereignty superior to national authority. This it does in this strange language: “Being born in the United States, a woman is a person and therefore a citizen” — we are much obliged to them for that definition of our identity as persons — “but the constitution of the United States does not confer the right of suffrage upon any one.” And then, in the face of its previous decisions, the court declared: “The United States has no voters in the States of its own creation”, that the elective officers of the United States are all elected, directly or indirectly by State voters. It remands woman to the States for her protection, thus giving to the State the supreme authority and overthrowing the entire results of the war, which was fought to maintain national supremacy over any and all subjects in which the rights and privileges of the citizens of the United States are involved.
No supreme allegiance, gentlemen of the committee, can be claimed for or by a government, if it has no citizens of its own creation, and constitutional amendments cannot confer authority over matters which have no existence in the constitution. Thus, our supreme law-givers hold themselves up for obloquy and ridicule in their interpretation of the most solemn rights of loyal citizens, and make our constitutional law to mean anything or nothing as the case may be. You will see, gentlemen, that the very point which the South contended for as the true one is here acknowledged to be the true one by the Supreme Court — that of State rights superior to national authority. The whole of the recent contest hinged upon this. The appeal to arms and the constitutional amendments were to establish the subordination of the State to national supremacy, to maintain the national authority over any and all subjects in which the rights and privileges of the citizens of the United States were involved; but this decision in Mrs. Minor’s case completely nullifies the supreme authority of the government, and gives the States more than has hitherto been claimed for them by the advocates of State rights. The subject of the franchise is thus wholly withdrawn from federal supervision and control. If “the United States has no citizens of its own creation,” of course no supreme allegiance can be claimed over the various citizens of the States.
The constitutional amendments cannot confer authority over a matter which has no existence in the constitution. If it has no voters, it can have nothing whatever to do with the elections and voting in the States; yet the United States invaded the State of New York, sent its officers there to try, convict, and sentence Miss Anthony for exercising a right in her own State which they declared the United States had no jurisdiction over. They send United States troops into the South to protect the negro in his right to vote, and then declare they have no jurisdiction over his voting. Then, mark the grave results which may and can follow this decision and legislation. I do not imagine that the Supreme Court, in its cowardly dodging of woman’s right to all the rights and privileges which citizenship involves, designed to completely abrogate the principles established by the recent contest, or to nullify the ensuing legislation on the subject. But it certainly has done all this; for it must logically follow that if the United States has no citizens, it cannot legislate upon the rights of citizens, and the recent amendments are devoid of authority. It has well been suggested by Mr. Minor, in his criticism of the decision, that if members of the House of Representatives are elected by State voters, as the Supreme Court has declared, there is no reason why States may not refuse to elect them as in 1860, and thus deprive congress of its power. And if a sufficient number could be united to recall at their pleasure these representatives, what authority has the federal government under this decision, for coërcing them into subjection or refusing them a separation, if all these voters in the States desired an independent existence? None whatever. Mr. Garfield, in the House, in his speech last March, calls attention to this subject, but does not allude to the fact that the Supreme Court has already opened the door. He says:
There are several ways in which our government may be annihilated without the firing of a gun. For example, suppose the people of the United States should say, we will elect no representatives to congress. Of course this is a violent supposition; but suppose that they do not. Is there any remedy? Does our constitution provide any remedy whatever? In two years there would be no House of Representatives; of course, no support of the government and no government. Suppose, again, the States should say, through their legislatures, we will elect no senators. Such abstention alone would absolutely destroy this government; and our system provides no process of compulsion to prevent it. Again, suppose the two houses were to assemble in their usual order, and a majority of one in this body or in the Senate should firmly band themselves together and say, we will vote to adjourn the moment the hour of meeting arrives, and continue so to vote at every session during our two years of existence—the government would perish, and there is no provision of the constitution to prevent it.
The States may inform their representatives that they can do this; and, under this position, they have the power and the right so to do.
Gentlemen, we are now on the verge of one of the most important presidential campaigns. The party in power holds its reins by a very uncertain tenure. If the decision shall favor the one which has been on the anxious bench for lo! these twenty years, and in probation until hope has well-nigh departed, what may be its action if invested again with the control of the destinies of this nation? The next party in power may inquire, and answer, by what right and how far the Southern States are bound by the legislation in which they had no part or consent. And if the Supreme Court of a Republican judiciary now declares, after the war, after the constitutional amendments, that federal suffrage does not exist and never had an existence in the constitution, it follows that the South has the right to regulate and control all of the questions arising upon suffrage in the several States without any interference on the part of an authority which declares it has no jurisdiction. An able writer has said:
All injustice at last works out a loss. The great ledger of nations does not report a good balance for injustice. It has always met fearful losses. The irrepealable law of justice will, sooner or later, grind a nation to powder if it fail to establish that equilibrium of allegiance and protection which is the essential end of all government. Woe to that nation which thinks lightly of the duties it owes to its citizens and imagines that governments are not bound by moral laws.
It was the tax on tea — woman’s drink prerogative — which precipitated the rebellion of 1776. To allay the irritation of the colonies, all taxes were rescinded save that on tea, which was left to indicate King George’s dominion. But our revolutionary fathers and mothers said, “No; the tax is paltry, but the principle is great”; and Eve, as usual, pointed the moral for Adam’s benefit. A most suggestive picture, one which aroused the intensest patriotism of the colonies, was that of a woman pinioned by her arms to the ground by a British peer, with a British red-coat holding her with one hand and with the other forcibly thrusting down her throat the contents of a tea-pot, which she heroically spewed back in his face; while the figure of Justice, in the distance, wept over this prostrate Liberty. Now, gentlemen, we might well adopt a similar representation. Here is Miss Smith of Glastonbury, Conn., whose cows have been sold every year by the government, contending for the same principle as our forefathers — that of resistance to taxation without representation. We might have a picture of a cow, with an American tax-collector at the horns, a foreign-born assessor at the heels, forcibly selling the birthright of an American citizen, while Julia and Abby Smith, in the background, with veiled faces, weep over the degeneracy of Republican leadership.
But there are those in authority in the government who do not believe in this decision by the Supreme Court of the United States. The attorney-general, in his instructions to the United States marshals and their deputies or assistants in the Southern States, when speaking of the countenance and support of all good citizens of the United States in the respective districts of the marshals, remarks:
It is not necessary to say that it is upon such countenance and support that the United States mainly rely in their endeavor to enforce the right to vote which they have given or have secured.
You notice the phraseology. Again, he says:
The laws of the United States are supreme, and so, consequently, is the action of officials of the United States in enforcing them.
Secretary Sherman said in his speech at Steubenville, July 6:
The negroes are free and are citizens and voters. That, at least, is a part of the constitution and cannot be changed.
And President Hayes in his two last messages, as Mrs. Blake recited to you, has declared that —
United States citizenship shall mean one and the same thing and carry with it all over our wide territory unchallenged security and respect.
And that is what we ask for women.
In conclusion, gentlemen, I say to you that a sense of justice is the sovereign power of the human mind, the most unyielding of any; it rewards with a higher sanction, it punishes with a deeper agony than any earthly tribunal. It never slumbers, never dies. It constantly utters and demands justice by the eternal rule of right, truth and equity. And on these eternal foundation-stones we stand.
Crowning the dome of this great building there stands the majestic figure of a woman representing Liberty. It was no idealistic thought or accident of vision which gave us Liberty prefigured by a woman. It is the great soul of the universe pointing the final revelation yet to come to humanity, the prophecy of the ages — the last to be first.
Source: The History of Woman’s Suffrage, Vol. III, pp. 170-173.