The Privileges and Immunities Clause of the Fourteenth Amendment Applied to Women's Rights Issues in the Nineteenth Century

Summary

Although the Fourteenth Amendment was designed to protect the rights of former slaves, two women brought challenges under the Privileges or Immunities Clause shortly after it passed, hoping to use it to claim new rights.

In 1871, Myra Bradwell challenged the denial of her application to practice law. The U.S. Supreme Court heard her case on a writ of error. Mrs. Bradwell had studied law with her husband and published a highly respected weekly legal newspaper, The Chicago Legal News. In 1869, she passed the Illinois bar exam and was certified to the Illinois Supreme Court for admission to the bar. The court rejected her application because she was a married woman. Mrs. Bradwell appealed the decision, arguing that the Fourteenth Amendment Privileges or Immunities Clause secured her right to pursue a career in law. At the time, the Court had not yet determined which privileges and immunities were to be protected against state action. However, before Mrs. Bradwell’s case was heard, the Court decided The Slaughterhouse Cases and found that only those privileges and immunities peculiar to United States citizens were protected by the Amendment, while trade and business regulation were in the state’s domain. In Bradwell v. Illinois, Mrs. Bradwell argued that the Privileges or Immunities Clause protects the pursuit of happiness, which includes pursuit of a vocation, but the Court held that admission to practice law in a state court is not among the privileges and immunities that belong to U.S. citizens. While Mrs. Bradwell continued to publish her legal newspaper, she lobbied the Illinois legislature to pass a bill that would permit women to practice law in that state. Illinois finally passed such a bill in 1873, but Mrs. Bradwell never reapplied for admission to the Illinois bar. In 1890, acting on her original application, the Illinois Supreme Court admitted her on its own motion. In 1892, she was admitted to practice before the U.S. Supreme Court.

Meanwhile, the efforts of some feminists to block passage of the Fourteenth Amendment (because it limited suffrage to men) had led to the formation of the more radical National Woman Suffrage Association (NWSA). The NWSA endorsed the claim that the Fourteenth Amendment had given women the right to vote, as a privilege of all U.S. citizens. To prove their point, 16 women from the NWSA registered and voted in the 1872 presidential election. Susan B. Anthony was convicted of unlawful voting and fined $100. The fine was not collected; however, foreclosing Anthony’s right to appeal, and prosecution of the other women voters was suspended. Virginia Minor, a young woman active in the suffrage movement, had also applied to vote in the upcoming presidential election. The local registrar refused her application and Minor sued in federal court, claiming that the registrar had deprived her of her constitutional right to vote. The case went before the U.S. Supreme Court, where she argued that voting was a privilege of all U.S. citizens, guaranteed by the Fourteenth Amendment, and because women were full citizens of the U.S., they could not be denied the right to vote. The Court agreed that women were citizens, but denied that suffrage was co-extensive with citizenship.

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