Women's Suffrage and Original Expected Application

The Loughridge/Butler report is the Plessy dissent of sex discrimination. In other words, their dissenting report shows that some people in the 19th century did read the Fourteenth Amendment broadly using arguments that make sense to us. But the Loughridge/Butler report is unknown, in part because the dissent came from the House of Representatives rather than from the Court.

In my prior post, I shared an excerpt where the dissenting report argued that sex discrimination for voting was an arbitrary classification no different from denying suffrage to redheads. Now let's turn to another passage that addresses original expected application:

[I] is said in opposition to the "citizen's right" of suffrage that at the time of the establishment of the Constitution, women were in all the States denied the right of voting, and that no one claimed at the time that the Constitution of the United States would change their status; that if such a change was intended it would have been explicitly declared in the Constitution or at least carried into practice by those who framed the Constitution, and therefore, such a construction of it is against what must have been the intention of the framers. This is a very unsafe rule of construction. As has been said, the Constitution necessarily deals in general principles; these principles are to be carried out to their legitimate conclusion and result by legislation, and we are to judge of the intention of those who established the Constitution by what they say, guided by what they declare on the face of the instrument to be their object.

I added the italics to make this section clearer. Next time I'l take about how Loughridge and Butler used the Preamble and why the Preamble is no longer used much in constitutional argument.