Minor v. Happersett

Welcome to citizenship in the United States of America - you knew that you weren't guaranteed to get health care, housing, economic security, or education … but did you know that you ALSO aren't guaranteed the right to vote?!

A podcast where we dissect and analyze the Supreme Court cases that have killed off our civil liberties, like syphilis killed off the founding fathers

0:00:00.0 S?: You want to know what I'm nervous about? I'll tell you what I'm nervous about. I am in the dock here with all this legal crap, I have no idea what's going on, all is I know as you're screwing up and I can't help.

0:00:13.6 Leon Neyfakh: Hey, everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, the hosts are talking about Happersett v. Minor. This case is about whether or not women have the right to vote. It originates in the 1870s when a Missouri woman attempted to register to vote. When she was denied, her husband sued on her behalf under the Fourteenth Amendment. His argument was that the Amendment's Privileges or Immunities Clause should extend the privilege of voting to women as citizens. The Court didn't dispute that Happersett was a citizen, but it did decide that voting is not a privilege of citizenship.

0:00:52.7 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:02.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have killed off our civil liberties, like syphilis killed off the Founding Fathers. I am Peter, I'm here with Michael.

0:01:15.4 Michael: Hey, everybody.

0:01:17.7 Peter: And Rhiannon.

0:01:19.6 Rhiannon: Hi. You know, I half expected, Peter, your metaphor to be maybe poking a little fun at our executive producer, Leon Neyfakh, for some shenanigans that happened to his apartment last week.

0:01:36.8 Peter: Yes, that's right. Our condolences to Leon, who had to evacuate his apartment due to smoke damage because they over-boiled eggs, is that right?

0:01:50.7 Michael: He left a burner on.

0:01:51.8 Rhiannon: He left a burner on boiling the egg when he left the apartment and so...

0:01:56.6 Peter: He reduced eggs to ash. First time I've ever heard of such a thing in my life.

0:02:01.3 Rhiannon: Thoughts and prayers, Leon, thoughts and prayers.

0:02:07.7 Michael: When I heard syphilis, I thought... My first thing was, I don't know if you guys saw this, but that there was some speculation on Twitter about the new king of England, his sausage fingers... I don't know if you've seen his fingers are grotesque.

0:02:20.8 Rhiannon: Horrifying. What the fuck.

0:02:24.3 Michael: And that that is apparently a side effect of syphilis and that there's speculation that he's syphilitic.

0:02:30.3 Rhiannon: Gorgeous.

0:02:30.4 Michael: And that that's why he has sausage fingers. Not clear if it's just in-breeding or if it's something else, but that's the king of England.

0:02:38.1 Rhiannon: Sure. Wonderful.

0:02:41.9 Peter: Oh, man. Well, I think we can conclusively say that it is syphilis, the king of England does have syphilis, and you heard it here first.

0:02:50.2 Rhiannon: Yeah, we have enough information here.

0:02:51.6 Michael: I feel good about that.

0:02:52.3 Rhiannon: Three JDs.

0:02:53.3 Peter: They want to sue us under their bullshit defamation laws, we say bring it on.

0:03:00.3 Peter: Today's case, Minor v. Happersett, this is a case from 1875 about whether all citizens have a right to vote.

0:03:11.5 Rhiannon: Throw back.

0:03:12.3 Peter: In this case, a woman was denied the right to vote on the basis of her gender, and she brought suit claiming that she was being denied her right to vote under the newly passed Fourteenth Amendment. Now, the Court... And spoiler alert in case you're learning American history for the first time, the Court says, No way, you're out of luck.

0:03:36.5 Rhiannon: No, you're a freaking girl.

0:03:39.1 Peter: A girl voting? Not in America. This case is a quiet inflection point in American history, where the Court had an opportunity to sort of re-conceptualize the right to vote in this country, but instead it chose to go with the narrowest reading of the right possible, making it a seminal case to this day for people who oppose a broad view of the franchise. So Rhi, do you want to give us the background here?

0:04:07.7 Rhiannon: Sure thing. So Peter, you've already said this case is about the Fourteenth Amendment, it's also about voting, it's about gender discrimination, you kinda get a little piece of everything here, and of course, the Supreme Court fucking up the law for generations to come. So this case comes out of Missouri, and I don't know if you all saw this, but in researching and reading for the episode, a few things, like more than one thing, pointed out like Missouri had two cases of national importance, two Supreme Court cases of national importance, Minor v. Happersett and Dred Scott. Okay.

0:04:51.9 Rhiannon: Yeah, way to go, I think. So Virginia Minor was born in 1824, in Virginia, actually. She she was educated at home, and at the age of 23, she married her cousin Francis Minor, note that they have the same last name already. She married her cousin, Francis Minor, who was a lawyer, and also he was for a time the Clerk of the Missouri Supreme Court, and the couple eventually moved to a farm in St. Louis, Missouri.

0:05:25.9 Peter: What was the westernmost state at the time?

0:05:28.5 Michael: The only contiguous states to the west of Missouri were Kansas and Texas, but after all the territories, Oregon, Nevada and California, were states at the time, so it was like bleeding edge of the contiguous states, but then there were all the territories and states beyond.

0:05:45.1 Peter: They're manifesting some destiny here.

0:05:46.5 Rhiannon: Oh, absolutely, and also, I'm going to talk about it in just a second, but Missouri is a confederate state, right? Okay, in 1866, note, of course, that this is just after the Civil War, Virginia Minor started the women's suffrage movement in Missouri. She was one of the founders of the Women Suffrage Association of Missouri, and she was elected that organization's first president.

0:06:09.2 Rhiannon: Now, in 1869, a year after the passage of the Fourteenth Amendment, her husband Francis drafted like these proposed resolutions that asserted the right of women to vote based on the wording of the Fourteenth Amendment. And you know, the argument was that under the Fourteenth Amendment, women were citizens of the US, and therefore entitled to all of the privileges of citizenship. And these resolutions that Francis and Virginia had drafted together, they were printed in pamphlet form and circulated all around the country.

0:06:43.1 Rhiannon: So in October 1872, a few years later, Virginia Minor attempted to register to vote for the upcoming presidential election, but she was refused by the registrar in St. Louis. That registrar's name is Reece Happersett, and just want to highlight, this process and lawsuit, it's a little different from what happened to Susan B. Anthony in New York, the famous women's suffrage movement leader. Susan B. Anthony was able to cast a vote in the 1872 election, but then afterwards she was arrested and she was jailed for voter fraud.

0:07:18.5 Rhiannon: In this instance, Virginia Minor was only disallowed from registering to vote and she never did cast a vote, so she was never criminally charged. Instead, she and husband decided to file suit against the registrar, Mr. Happersett, to challenge the refusal to allow her to register to vote. So note also that women were not allowed to file lawsuits in Missouri until 1889, so Virginia's husband did all of this.

0:07:52.1 Peter: Like, hey, you're violating my rights. It's like, Well, I've got bad news.

0:07:56.6 Michael: Like get yourself a man.

0:08:00.2 Peter: She's like, Don't worry, I've got my cousin/husband right here.

0:08:04.3 Rhiannon: Yeah, so Missouri courts did not agree with the Minors, they did not interpret the Fourteenth Amendment to give the right to vote to women.

0:08:13.1 Peter: Good heavens, no.

0:08:16.3 Rhiannon: Yeah, absolutely not. And so the case was appealed by Francis Minor all the way to the Supreme Court, where he also argued the case, he did oral arguments at the Supreme Court, but back then, it's my understanding that you could basically just walk into the Supreme Court and be like, "I have a matter to argue. I would like a word with the nine Justices." And they'd be like, "Yeah, we'll get you on the docket today at 2:00."

0:08:37.6 Michael: Do you know who argued for Missouri?

0:08:39.9 Rhiannon: Who?

0:08:40.8 Michael: Nobody, they didn't send anybody. They didn't even submit a brief.

0:08:45.5 Peter: They didn't even bother with this one.

0:08:49.1 Michael: They said in three sentences, they were just like, "No, we stand by our court." That's it.

0:08:55.2 Rhiannon: Oh, that's great.

0:08:56.7 Peter: Neal Katyal would have done it.

0:09:03.8 Rhiannon: Now, that's the story of how this case gets to the Supreme Court, but we would be remiss if we did not mention that Virginia Minor did live in Missouri, which was a part of the Confederacy. She cared for Confederate soldiers during the Civil War, and she was staunchly against enfranchisement of Black people and former slaves. She was a member of the National Women's Suffrage Association, which opposed ratification of the Fifteenth Amendment, and she was so against enfranchisement of non-whites that she had actually resigned from her position in the Missouri Association when they joined the faction of the Women's Suffrage Movement that supported the ratification of the Fifteenth Amendment, so you know just a little...

0:09:50.5 Peter: Classic white feminist.

0:09:52.5 Rhiannon: Yeah, just a little...

0:09:53.9 Peter: This is OG white feminism, I didn't know how far back it went.

0:09:55.9 Michael: I was going to say, white women bullshit all the way back.

0:09:58.0 Rhiannon: Exactly, exactly. This is a little bookmark, maybe, in European and American liberalism at once supporting individual liberties and the freedom of humans, while also supporting slavery.

0:10:14.8 Peter: Yeah, like rights, I support them, not in the sense that I have a broad view of why everyone deserves them, it's just like, I want them, me...

0:10:24.6 Michael: I should be able to vote. I should be able to.

0:10:27.7 Peter: Alright, so let's talk about the law. The Fourteenth Amendment is passed in 1868. It's only four years later, of course, that Virginia brings the complaint and seven years by the time it reaches the Supreme Court, so we're still in a period where the implications of the new Amendment, even in broad strokes, aren't entirely understood. So again, as Rhi mentioned, Minor is pointing to the Privileges and Immunities Clause, which says that no state can deny citizens the privileges and immunities of citizenship.

0:11:03.4 Peter: Her argument is very simple. Voting is a privilege of citizenship, I am a citizen, I should be able to vote, and the laws prohibiting women from voting violate the Constitution. But the Court, in a unanimous opinion written by some fucking cracker, Chief Justice Morrison Waite, does... They do sort of an originalist analysis, and they look at how women and the voting franchise have been handled historically. So first they say, Look, women are citizens just like men are, we're not denying that they qualify as citizens under the Constitution.

0:11:42.8 Peter: One of the artifacts of the era here is that when holding that women are citizens of the United States, the Court finds it necessary to explain its reasoning for five pages. The entire first half of the opinion is them being like, alright, well, women are citizens and going on at length, like, okay, hear me out, hear me out.

0:12:06.1 Rhiannon: Yeah. Give me some space. I mean, this is... Just follow me, okay.

0:12:14.2 Peter: However, they say it doesn't really matter that they are citizens, because voting has not historically been a privilege of citizenship, and the framers did not intend for it to be. They note that at the time of the founding, all of the colonies had discriminatory voting restrictions of various types, from sex to race, to land ownership. And so, while women are citizens, that doesn't mean they can vote. The Court is embracing a narrow reading of the Privileges and Immunities Clause, saying that the clause does not add to the privileges and immunities of citizenship, it simply gives an additional protection for those that already existed.

0:12:52.2 Peter: They state this pretty matter-of-factly, but it seems to fly in the face of at least some of the text in the historical context here. The Fourteenth Amendment says that states cannot deny the privileges or immunities of citizenship. Obviously, your right to vote is directly tied to your citizenship, right, you have to either be a citizen or, in some limited cases, be someone who is about to be a citizen in order to vote. So the right to vote and citizenship are inextricably linked. There may be other qualifications beyond that, but it's certainly a privilege of citizenship in the literal sense.

0:13:25.7 Peter: Also, this case is taking place in the wake of a civil war, by a wide margin, the most devastating conflict the country has ever seen, even to this date. In the immediate aftermath of the war, they pass the Reconstruction Amendments, including the Fourteenth. And you would think that contained in those Amendments is a recognition, implicit or otherwise, that the pre-existing framework had failed, that these states had not been restrained enough previously, and that enhanced federal protection for civil rights were necessary.

0:14:00.5 Peter: So to just blithely state that the Privileges and Immunities Clause doesn't really change anything is sort of wild when it's a safe assumption that the Reconstruction Amendments were meant to pretty dramatically overhaul a constitutional order that had plainly failed, and violently failed. So regardless of where you think the Court should have landed, it seems like it might have been appropriate to step back and think about what the holistic purpose of these Amendments actually was, because surely, they were not intended as reinforcement for the status quo that led to the Civil War.

0:14:33.4 Michael: Yeah, I was struck reading this case that if you weren't familiar with American history, you wouldn't know that the Amendment at issue here, the Fourteenth Amendment that's like being discussed, was a recent addition to the Constitution, and one that had been added in the wake of a civil war and, what's more, like what that civil war had been fought over, it's not mentioned, it's not contextualized.

0:15:04.0 Michael: It's like it never happened, it's this bizarre anti-history where they are talking about the country, like nothing has happened since the Founding, literally, like the Fourteenth Amendment was just part of the Bill of Rights and the country is just chugging along uninterrupted for 70 years, 80 years, right? It's fucking bizarre. I don't know, I want to talk about it more later, but it's a very weird sort of histiography that's going on here.

0:15:39.3 Rhiannon: Yeah, I agree, and I also think it's like this early example of the Supreme Court immediately starting to hollow out the Fourteenth Amendment, right. Immediately starting to back-track and re-define and limit the scope of what the Fourteenth Amendment really clearly says. And over the course of American history, since this time, the specific clause at issue in the Fourteenth Amendment, the Privileges and Immunities Clause, has more or less become pretty obsolete, almost kind of written out of the Amendment.

0:16:17.6 Rhiannon: So when the Fourteenth Amendment was originally ratified, there were a few theories that kind of percolated to and through the Supreme Court about what the Privileges and Immunities Clause meant. First, there was this theory that the Privileges and Immunities Clause was a guarantee to the citizens of different states of equal treatment by Congress, and the Supreme Court eventually says, No, that's not what it means.

0:16:44.9 Rhiannon: Then there was this theory that the Privileges and Immunities Clause was a guarantee to the citizens of each state of the natural and fundamental rights inherent in the citizenship of people in a free society. This would have given really broad power to the Supreme Court to review restrictive state legislation, similar to how it does under the Due Process Clause and the Equal Protection Clause. This would have also given the Court power to review state legislation under the Privileges and Immunities Clause, but the Supreme Court also says, No, that's not what the Clause means.

0:17:19.9 Rhiannon: And then there's this theory that the Privileges and Immunities Clause represented a guarantee to the citizen of any state that she keeps the rights that she has in her state when she goes to another state. The Supreme Court also says, No, that's not what it means. Until finally, the interpretation that the Supreme Court settles on, and which is the interpretation that is still in place today, is that the Privileges and Immunities Clause, all it really does, it merely forbids any state from discriminating against citizens of other states in favor of its own residents, in favor of its own citizens.

0:17:58.4 Rhiannon: And so yeah, that doesn't mean much. There's not a lot of force there, it's like... Yeah. Glad we cleared that up, I guess. But yeah, just an example of the Supreme Court over time, starting immediately after the ratification of the Fourteenth Amendment and then over time, really sort of narrowing the scope, limiting the possibility and potential of this kind of ground-breaking new constitutional language.

0:18:25.2 Michael: Yeah, and you can see how they are walking back the promises of the Civil War Amendments in real time, reading this opinion. It's pretty remarkable, there's one point where they're saying like, obviously, you couldn't vote before, and you were a citizen before, therefore voting is not a privilege and immunity of being a citizen, and there's nothing, nothing at all to suggest that this Fourteenth Amendment changed that at all. And then in the next paragraph, they're like, and look at the Fifteenth Amendment, which says the right to vote, the right to vote, that's the exact phrase in the Fifteenth Amendment, you can't have your right to vote denied on account of your race.

0:19:13.2 Michael: And they're like, Look, they wouldn't need to pass this Amendment if the right to vote was part of being a privilege of citizenship.

0:19:23.5 Peter: It would be redundant, yeah.

0:19:29.4 Michael: The seamless transition from there's nothing to suggest that we have added the right to vote as a privilege of citizenship, to the very next Amendment talks about the "right to vote," not phased at all, like unreal, unreal cognitive dissonance going on there.

0:19:46.7 Peter: Right, and also you don't think that maybe the drafters of the Fifteenth Amendment would have meant to specify like, Okay, by the way, we need to be clear to the Southern states, the Confederate states, you can't discriminate on race. Does that not seem like perhaps it may feel redundant, but it is useful in instructing the Confederate states?

0:20:10.3 Michael: Right? Sometimes redundancy is good, if it increases clarity. It's actually more efficient to be redundant if it stops things before they get started.

0:20:22.7 Peter: Right, I mean, you could say that the Equal Protection Clause is redundant with the Fifteenth Amendment, right?

0:20:28.3 Michael: Yeah, absolutely. Going back to what we were talking about earlier, and just this sort of casually ignoring the Civil War in the entire context of the Fourteenth and Fifteenth Amendments, right. Like, yeah, do I think that the people who wrote and ratified these Amendments were like, Yeah, we're giving the women the right to vote? No, but was it a radical reconstruction of American citizenship, of American identity, of the structure of our government? Yes. Undoubtedly, yes, right. And might that have had some unintended consequences that they didn't consider, but are sort of inherent in saying, Yeah, everybody born in the United States is a citizen, every citizen is equal, they all have the same rights and the same protections under the law. Might that have some maybe like, Wow, we didn't really think about it, but yeah.

0:21:22.3 Michael: There are some real hefty implications to rethinking the privileges of being a citizen in this country entirely, like restructuring the government entirely. And they were doing that purposefully, they were doing that intentionally, because they were making sure that freed slaves were full citizens, that's what they were doing is making damn sure that freed slaves were full citizens. And yeah, maybe that means that women get the right to vote too. That's sort of like how it works when you re-jigger your entire conception of equality.

0:22:03.7 Rhiannon: Yeah, it's hard to control your democracy.

0:22:07.8 Michael: Exactly, it's not a crazy argument.

0:22:09.1 Peter: No, it's not. The Court's analysis is not like senseless. I think the strongest parts of their analysis are when they point to the fact that other parts of the Fourteenth Amendment, like the Penalty Clause that refer to voting rights tend to refer to the rights of male inhabitants specifically. It's a sensible point, although again, worth noting that the Fifteenth Amendment refers to the right to vote without the gender qualifier. And I want to bring that up, because I've had some conversations with people about this in other contexts lately, where they're asking me what the correct analysis is, and this isn't always something we say explicitly, but there aren't correct answers to legal questions, there are just different answers depending on what your priorities are.

0:22:53.1 Peter: And if your analytical priorities are identifying the intent of the Founding Fathers, then the Court's right, women can't vote. But if you're prioritizing the text, the historical context, and a broad and deferential reading of individual rights, I think that's a different story. So it's a question of where you want to place the weight in these analyses. So moving past the can women vote issue, because at the end of the day, it is 1875, so it sort of does feel like an inevitability that they were going to say, No, women can't vote.

0:23:29.7 Rhiannon: Yeah, and I don't think we've mentioned this is unanimous. Oh, yeah, 9-0.

0:23:34.3 Michael: Although I do want to say that the women's suffrage movement wasn't new at this point right, it was like 27 years old, I think.

0:23:39.0 Rhiannon: Yeah, that's right.

0:23:41.2 Peter: It was pretty well-established, right? So yes, it was an inevitability, but it's not like this was out of nowhere, this is on the backs of decades of organizing.

0:23:51.8 Peter: Absolutely. What makes this case sort of resonate today is the ways in which the Court characterizes voting rights generally. It doesn't simply say that the right to vote is not a privilege of citizenship, and therefore women can't vote, the Court goes beyond that and expressly makes the argument that there is no right to vote inherent within the Constitution. The opinion somewhat famously ends by noting that "the Constitution of the United States does not confer the right of suffrage upon anyone."

0:24:25.2 Peter: We've talked about this before, about how there is nothing in the Constitution expressly saying you have the right to vote in those terms, but there are various clauses that imply it. You have the Guarantee Clause, which says that all states must provide a republican form of government. You have the Fifteenth Amendment, which again protects against racial discrimination in voting, and it expressly refers to the citizen's right to vote. You have the Equal Protection Clause, and then you have Privileges and Immunities. There are credible arguments that each or all of these confer a right to vote.

0:24:55.4 Peter: And this case is the first to effectively reject all of those arguments and just say, no, there's no real right to vote in the Constitution. That's it. And just to give an example of the reasoning, they talk about the Guarantee Clause, and they say, Well, yes, the Constitution does guarantee a republican form of government, but "no particular government is designated as republican," so literally saying like, Yeah, you get a republican form of government, but that can mean whatever we want it to mean.

0:25:28.4 Peter: And they do more originalism, and they say, Well, obviously at the Founding the Constitution didn't guarantee a right to vote, so whatever it means, it doesn't mean that. And I'm not saying this to be snarky, but then what does the guarantee of a republican form of government mean, then? What's the actual guarantee? To this day, the Court has never actually delineated what it means, and in fact, as recently as in 2019, in Rucho v. Common Cause, they punted the question by saying it's a political issue to be decided by the other branches, not the courts. So what does it mean that the Constitution guarantees a republican form of government? We can't tell you, but for some reason, we're very sure that it doesn't mean that women can vote.

0:26:10.5 Michael: That's right, that's right.

0:26:12.2 Rhiannon: We can tell you what it's not, that's for sure.

0:26:16.6 Michael: This feels like a good time to take a break.

0:26:20.1 Michael: And we're back.

0:26:21.2 Peter: To get a little bit specific about what flows from this opinion, the refusal to recognize a broad right to vote is what allowed for much of Jim Crow. What happened was that the Court says, Okay, well, the Fifteenth Amendment, of course, says you can't discriminate in voting rights on the basis of race. So what do those Southern governments do? They create various proxies for race and then discriminate on those bases: Grandfather clauses, literacy tests, poll taxes, all designed to suppress the Black vote. If the Court had held here or elsewhere that the Reconstruction Amendments did in fact established a broad right to vote, none of that would have been possible, and Jim Crow would have had to take a very different form.

0:27:05.6 Peter: If they had said, Well, hey, everyone gets the right to vote, with some exceptions for criminals, etcetera, then all of a sudden the former Confederate states don't have this avenue for suppressing the Black vote, and I mean, what happens? What happens to political power in the South? It's a completely different country if the Court goes that route.

0:27:26.8 Michael: Yeah, no, I think that's right. And I think one of the reasons why this is a good case to discuss is because this is happening right at the beginning of elites sort of walking back on the promises of Reconstruction. And what we're seeing is one of the first windows into that period where after the Civil War, there was a brief period in which the South were like full-fledged multiracial democracies. And that period did not last, and Southern states were functionally not democracies for pretty much all of the early 20th century, from 1890s to 1960s, in effect. We're talking Black voter participation under 10% in some states, right.

0:28:23.2 Michael: And the ground work for that is being laid in the 1870s and the 1880s in cases like this, in elites sort of blanching and saying, You know what, this is a whole lot of work and a whole lot of change, and we're not really fully comfortable with it, and maybe it's time we just let the South do their thing. It feels actually very appropriate that this is a Confederate state that we're talking about here, that this case arose under, not that the Northern states were all that great on women's rights, but it just feels sort of like a good... I don't know, metonym, is that the right word?

0:29:00.6 Rhiannon: I have no idea.

0:29:03.0 Peter: No, that's right.

0:29:07.9 Michael: It feels very like literary and symbolic, that it's a Confederate state that this is happening under, because this is really the beginning of the end of Reconstruction, the end of an ambitious attempt to rethink citizenship and rethink equality and rethink democracy in America, and the beginning of the "redemption" in the retrenchment of the Southern powers and all that lost cause bullshit that we're still living with today. It's sort of a depressing case to read, when you think about it like that, like seeing this moment sort of slipping away and how different the country could have been.

0:29:51.2 Peter: Yeah. And to add a little bit of historical context concerning women's rights movement at the time, 'cause I think this is probably an era that our average listener is going to be a little bit less familiar with, it's obviously a time when history is moving quickly. In a span of a few years, right, you go from Black people being property to being citizens whose rights are expressly protected by the Constitution, and with that comes some reasonably emboldened progressives of various types who want to see the broad view of civil rights carried forward into other areas of American life.

0:30:30.1 Peter: And women's rights is one of those areas. In 1873, there's a case called Bradwell v. Illinois, where a woman sued because she was denied admission to the Illinois bar, she wanted to be a lawyer. The Illinois bar admissions folks said essentially that women were too fragile for the practice of law, and so no, which by the way, I do, as I mentioned to you guys, I do agree with. I just also think that men are as well, that no-one should be allowed to the bar. And the argument there was like, it was actually the same one that had violated the Privileges and Immunities Clause, but the Court said that those privileges and immunities did not include the right to practice a chosen profession, so, no, thanks. So yeah, very shortly after the passage of the Fourteenth Amendment, you are seeing pushback from the Court against the idea that it might be used to advance gender equality.

0:31:27.3 Rhiannon: Yes, absolutely. And you mentioned Bradwell v. Illinois, Peter, which is about the right of a woman to practice as a lawyer, and then we have this case just a couple of years later from the Supreme Court, which is about the rights of women to vote and the opinions, the decisions that come out of these cases really solidify this doctrine or ideology of what's called separate spheres, that men and women occupy different areas of citizenship, that citizenship confers rights and certain privileges and immunities on the genders differently, because the two genders as they would have are separate in their purpose, and what they're capable of, right?

0:32:12.4 Rhiannon: This is also called the public versus domestic spheres, so you see the Supreme Court advancing here extremely patriarchal, extremely men supremacy vibes, that is based on the idea that a woman is a citizen, sure, but that means something different than a man being a citizen. A woman is a citizen, but still only occupies an area of life that is domesticated, whereas men enjoy rights in the public space, rights as to their civil participation that women just don't have, they're not capable of.

0:32:54.7 Michael: Yeah, and we still, even to this day, it feels like we live in this legacy where the Fourteenth Amendment still doesn't fully recognize women and gender the way it does race and other sort of "suspect" classifications, and what I mean is under the sort of classic equal protection architecture, the way it goes is if a law explicitly classifies groups based on race, right, that law gets what's called strict scrutiny, which means it's going to be struck down almost 95% of the time. And the Court's going to be like, that law is unconstitutional, you can't do that.

0:33:40.2 Michael: If a law explicitly classifies on the basis of gender, on the other hand, you only get intermediate scrutiny, which is an easier burden for the government to meet. And I had one professor say it's more like a coin toss. It's like 50-50. You might get... The law might get struck down or it might not. But so even to this day, under the Fourteenth Amendment, women are... Classifying people based on gender is just not as serious a constitutional problem legally as it is to classify them based on race, national origin...

0:34:21.4 Rhiannon: That's right.

0:34:23.0 Michael: Marital status of their parents. You cannot discriminate against someone for being a bastard, that is a big no-no in the American Constitution. In American jurisprudence, it was a...

0:34:36.8 Rhiannon: That's a case we should cover.

0:34:39.1 Peter: I think it's worth noting that the hardcore conservative view of the Equal Protection Clause is still that it doesn't apply to women at all, not just that they get a lesser level of scrutiny, but like Robert Bork was a proponent of the view that it just doesn't apply to women, that the Fourteenth Amendment was about race and race relations, and it doesn't apply to gender. That's something that Antonin Scalia embraced to varying degrees at different times during his tenure. And considering we are looking at a 6-3 Court, it's not crazy to think that this comes back in some form or fashion, right?

0:35:17.7 Peter: Now, 30 years ago, this was something that like the hardcore originalists were openly stating. And 30 years pass, and maybe it gets a little bit less politically tenable to say out loud that you don't think the Equal Protection Clause protects women. So they don't say it, but there are a lot of things they're saying now that they weren't saying a few years ago. And if you look in right-wing political spaces, the idea that women should not just be caretakers and home-bound, but that perhaps there should be social and political restrictions in place to ensure that, those views are on the rise on the far right.

0:36:02.6 Peter: And you look at a case like this, and you can draw direct lines between what this Court was thinking, what the conservatives were saying 30 years ago and what the fringe right is saying right now, when it comes to gender equality under the Constitution, and it's some scary shit.

0:36:23.0 Michael: Absolutely. There's a point I've made, I've definitely made it when we've done Zoom Q&As with our subscribers and with law school people, I'm not sure I've made it on an episode before, but a point I want to make here is, there's a common idea you hear in law school if you're law student that is popular among liberal law professors, this was put to us by a liberal law professor at the University of Virginia when we did a Q&A with them, which is the idea that an aggressive liberal Court invites an aggressive conservative backlash, in that a lot of the... In this telling, a lot of the conservative backlash we're living in today to Roe v. Wade and whatever was basically brought upon by the left itself, by going to the courts rather than trying to use the people's method of change, which is, I guess, passing laws or amendments.

0:37:29.8 Michael: And I think it's bullshit. I think that argument is total bullshit, and I don't think it's something people really consider, because there have been a lot of periods of reactionary backlash, conservative backlash in American history, and not all of them were sparked by runaway liberal courts, like the Warren courts of the 1960s and this is... This era in this case are a perfect example of that, this is a conservative Court doing a very reactionary thing, reading the Fourteenth and Fifteenth Amendments extremely narrowly, right?

0:38:07.6 Michael: And in response to what? In response to some runaway Supreme Court of the 1850s? No, in response to fucking Reconstruction, in response to the North winning the Civil War and passing amendments, that's what the reaction is to. That's what the "redeemers" were reacting to, that's what the white supremacist backlash was reacting to. You see it again in the 1920s, in the Lochner era of the Court, conservative courts. They are not reacting to some liberal runaway Court, they are just conservative reactionaries, and there will be backlash to progress in whatever form it takes, and they will pursue... They will pursue their goals in every possible avenue.

0:38:54.3 Michael: That includes paramilitary organizations, it includes militias, it includes state governments, it includes federal governments, it includes the courts, right, that's just the way political movements work. Yeah, I do not think fear of backlash is a reason to shy away from seeking change through the courts.

0:39:15.4 Peter: It's also worth noting that a Constitutional Amendment is like the most "official" to do reform. If you ask conservatives or debate conservatives on these issues, sometimes they'll say, Well, if you want a right to abortion, you have to pass an Amendment, that's the constitutional process.

0:39:37.0 Rhiannon: Exactly, yes.

0:39:39.4 Peter: This is them not giving a shit whether you pass an Amendment or not, right. There's no form that the progress can take that they will accept. It doesn't matter what you do, it doesn't matter if you win a war and then pass a Constitutional Amendment, they will still oppose it and do what they can to whittle away at it, because that's what reactionaries do. It's the scorpion and the frog. There's nothing that you can do to avoid reaction, and fretting about it is just a way to weaken your own position.

0:40:13.3 Michael: Yeah, that's right. Which ties back to what we were saying earlier, I think just to sort of put a little bow on it, about the Court writing this, pretending like the Civil War never happened, and completely de-contextualizing the Fourteenth and Fifteenth Amendments, that's the way to understand these rhetorical moves the Court is making here. This is precisely what reactionary backlash looks like, they do not want to grapple with the Civil War, losing the Civil War, and the real ramifications of the Fourteenth and Fifteenth Amendments, and this opinion is written as if those things never happened.

0:40:49.6 Peter: Right, right. And one thing before we go out, and I had this idea for a Patreon episode in a couple of months on the Penalty Clause, 'cause I think it's under-discussed. But one of the things that the Court discusses here is the Penalty Clause, which is in the Fourteenth Amendment and says that if you deny voting rights to any male inhabitants of a state, then your representation in Congress is reduced proportionally. Now, the Court is using that in two ways, one is to say, Look, it says male inhabitants, which I think is a reasonable enough argument, and the other is to say, Well, look, this proves that states can take away the voting franchise because there's a penalty for it, right.

0:41:35.6 Peter: So states are given a choice. You can give everyone the vote and you get your representation, or you can deny the vote and you don't get representation, but it's functionally a choice, and therefore the states, it's sort of their prerogative, and that's the argument the Court is putting forth here. But we are 150 years later, and the Penalty Clause has never been enforced, so what does that argument mean now? What does it mean that there is a unenforced remedy for the denial of the vote in the Constitution, and yet states are still denying the vote? Just something to contemplate when you're thinking about voting rights holistically, when whatever horrific cases surrounding the mid-terms get handed down by the Supreme Court.

0:42:31.8 Peter: Right, next week, premium episode, Ketanji Brown Jackson. As you all know, the next Supreme Court term is coming, and Ketanji Jackson, it'll be her first full term on the Supreme Court, and so we're going to sort of give a little Ketanji preview, talk about her career, her jurisprudence, what we think you can expect and what we want to see from her. How many of her opinions do you guys think we should read for this?

0:43:01.9 Michael: I'll read all of them.

0:43:06.8 Peter: You read 10. I'm going to read two.

0:43:10.5 Peter: Alright, follow us on Twitter @fivefourpod, subscribe to our Patreon, patreon.com/fivefourpod, all spelled out, to support us and get premium episodes, ad-free episodes, access to our Slack special events, all sorts of shit. See you next week.

0:43:31.8 Michael: Bye-bye.

0:43:33.0 Rhiannon: Byee.

0:43:36.3 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin, and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

0:44:01.9 Peter: So just kind of blithely... Right. Is it blithely or...

0:44:06.0 Michael: Blithely, I think.

0:44:08.0 Peter: Blithely, okay. I was... I started thinking of Blake Lively, like lively, and then I... [0:44:15.0] ____.