McClellan on Early Women's Rights Activists and the 14th Amendment

Angus McClellan, Claremont Graduate University, has posted Early Women's Rights Activists and the Meaning of the 14th Amendment:

The purpose of this paper is to consider the meaning of the 14th Amendment as it applies to women in the United States through the perspective of the women’s rights litigants, advocates, and their allies in the 1860s and 1870s. Originalism as a method for constitutional interpretation can take many forms, including giving weight to the original intent of the drafters of the Constitution or its amendments, or deferring to the understandings of the ratifiers in state conventions and legislatures, or perhaps giving weight to the “public meaning” or “public understanding” of the documents by considering newspaper editorials, pamphlets, and dictionary definitions in use at the times of their ratifications. This paper is an originalist approach to understanding the 14th Amendment by turning to a group of people who were particularly active in the earliest debates on its meaning. Modern interpretations as well as those from contemporaneous statesmen and jurists will be considered as well to provide some orientation and comparison.

To map this argument broadly, modern scholars argue that the 14th Amendment protects some or all categories of individuals within the jurisdiction of the United States, and they variously claim that Section 1 protects substantive or procedural civil, political, natural, fundamental, or common law rights, or even social equality. Adding to this the variety of definitions of rights or “equality,” there is a wide spectrum of scholarly thought on what the 14th Amendment protects, and to whom it applies. Part II be divided between political efforts and legal efforts. It will focus first on the political efforts and the accompanying interpretations of the 14th Amendment from some of the most prominent activists during the 1860s and 1870s. It will then explore the legal arguments of women’s rights activists and their attorneys engaged in litigation from three notable cases in the earliest days of the 14th Amendment.

--Dan Ernst