June 2019 might become known in Illinois as the month the state legalized marijuana use, but I hope it remains better remembered as the 100th anniversary of Illinois’ ratification of the Nineteenth Amendment—the provision in the Constitution that prohibited discrimination in voting on account of sex. (Sometimes the Amendment is described as having given women the right to vote, but that’s not quite accurate. Not all women could vote even after the Amendment—poll taxes, literacy tests and other hurdles remained. And even before the Amendment many women were more or less protected against sexual discrimination in voting in many U.S. states, especially those in the far West.)
As the dean of its flagship public law school, I am proud that Illinois was the very first state to ratify the suffrage-and-sex amendment. (Illinois approved the measure on June 10, 1919, and for technical reasons then re-approved it a week later, but June 10 marks Illinois’ official adoption and serves to distinguish Illinois as the first state to sign on.) The measure had been contentious in D.C. before it was sent out to the states—each house of the U.S. Congress voted on a proposed federal amendment several times in the 18 months preceding submission to the states—and many observers were unsure of whether the proposal would obtain approval by the requisite three-fourths of the state legislatures. When Tennessee’s legislature became the 36thto adopt the Amendment, on August 20, 1920, the measure got over the top (remember that there were only 48 states then, so 36 legislative approvals were needed).
Given that a century has passed, it is worthwhile to reflect, first on what the measure says. The words of the Nineteenth Amendment (like those of the Fifteenth Amendment prohibiting racial discrimination in voting) are short and sweet. While the Nineteenth doesn’t affirmatively guarantee a right to vote, it does textually ensure that voting eligibility criteria—in both federal and state elections—shall not include sex. Section One straightforwardly provides:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Moving beyond the bare text, it is important, even (maybe especially) a hundred years later, to think more about what the Amendment really sought to constitutionally accomplish, and how its full import has not been deeply understood. While I obviously cannot do justice to such a big question in this space, today I want to focus on a relatively narrow issue: how the Nineteenth Amendment (and the Fifteenth Amendment whose text served as a format for the Nineteenth, as well as the Twenty-Fourth and Twenty-Sixth Amendments that followed the same textual pattern) were designed to protect not just voting at the ballot box, but voting in American civic life more generally, particularly as jurors.
The Voter-Juror Connection
In a case from the 1990s discussing a topic that remains hot today, peremptory exclusion of would-be jurors on account of criteria that implicate equal protection concerns, Justice Anthony Kennedy writing for the Court observed that voting in elections is but one of many markers of full political citizenship, noting that “with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.”Justice Kennedy then translated his populist observations about jury service into constitutional doctrine by tapping into the voting discrimination framework. Borrowing language from an earlier case, Kennedy affirmed that “[w]hether jury service be deemed a right, a privilege, or a duty, the State may no more extend it to some of its citizens and deny it to others on racial grounds than it may invidiously discriminate in the offering and withholding of the elective franchise.”
Later in the same term, Justice Kennedy, again writing for the Court, again invoked the similarity between jury service and voting, this time to support the proposition that peremptory challenges by private litigants may constitute state action. Relying on “white primary” cases in which states had delegated election administration responsibility to private associations that discriminated against black voters, Justice Kennedy’s opinion observed that just as government cannot escape from constitutional constraints by farming out the task of picking voters, neither can it free itself from constitutional norms by giving private parties the power to pick jurors.
This “juror as voter” theme in Justice Kennedy’s opinions has surface plausibility. After all, jurors vote to decide the winners and losers in cases. Thus, the plain meaning of various constitutional provisions concerning the “right to vote” literally applies to jurors. Beyond this plain meaning, jury service eligibility historically has been tied to voter registration as a general matter.
It turns out, however, the connection runs deeper still. The link between jury service and other rights of political participation such as voting is an important part of our overall constitutional structure, spanning three centuries and eight amendments: the Fifth, Sixth, Seventh, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth. The voting-jury service linkage was recognized by the Framers in the 1780s,by those responsible for drafting the Reconstruction amendments and implementing legislation,and still later by authors of twentieth-century amendments that protect various groups against discrimination in voting.Moreover, each of the groups the Supreme Court has already determined should be protected against discrimination in jury service is also protected by one of the voting discrimination amendments.
The Founding
Jury service was understood at the time of the founding by leaders on all sides of the ratification debate as one of the fundamental prerequisites to majoritarian self-government. Indeed, one of the sharpest attacks anti-federalists could make on the new Constitution was that it did not go far enough in the protection of the institution of juries.The federalists took this charge seriously and ultimately responded by, among other things, enacting the Fifth, Sixth, and Seventh Amendments.
The Framers expected the jury to act as a mediating body to insulate individuals from government overreaching. Coming from a pool of ordinary citizens and owing no financial allegiance to the government, juries had the power to the thwart the excesses of powerful and overly ambitious government officials.Nowhere was this more true than in criminal cases, where the grand jury could terminate any prosecution it deemed “unfounded or malicious,” and the petit jury could interpose itself on behalf of the defendant if the executive sought to trump up charges against a political critic.
But the jury’s function in the federal constitutional scheme was not limited to the protection of individual litigants. Rather, the jury was an essential democratic institution because it was a means by which citizens could engage in self-government. As the anti-federalist historian Herbert Storing has eloquently stated, “[t]he question was not fundamentally whether the lack of adequate provision for jury trial would weaken a traditional bulwark of individual rights (although that was also involved) but whether it would fatally weaken the role of the people in the administration of government.”And in the words of the Federal Farmer on whose writings Storing draws, “[i]t is true, the laws are made by the legislature; but the judges and juries, in their interpretations, and in directing the execution of them, have a very extensive influence . . . for changing the nature of the government.”
Once we see the important way in which juries provide avenues for political participation, the connections people of the time drew between voting and jury service make more sense. Alexis de Tocqueville, whom the Court has quoted extensively in recent jury exclusion cases,keenly understood these linkages. Commenting on the overall jury system, he wrote:
[The jury] puts the real control of affairs into the hands of the ruled, . . . rather than into those of the rulers.
The jury system as understood in America seems to me as direct and extreme a consequence of the dogma of the sovereignty of the people as universal suffrage. They are both equally powerful means of making the majority prevail. . . . .
Tocqueville later added, albeit with some qualification, that “[i]n America all citizens who are electors have the right to be jurors.”
Jury Service and the Nineteenth Amendment
This idea that voting and jury service go hand in hand carried over to the Reconstruction epoch and the Populist era in which the Nineteenth Amendment was finally ratified. With regard to the Nineteenth Amendment in particular, there is much support for the proposition that the struggle for women’s suffrage was, from the outset, as leading scholar Barbara Babcock has put it, “also about the right to serve on juries [and that] . . . [t]he two causes were the twin indicia of full citizenship” for those who favored the elimination of gender discrimination at the polls.Professor Deborah Rhode has powerfully documented the persistent and unsuccessful efforts by early feminists to gain jury service for women.Moreover, the linkage between voting and jury service was well understood by those who opposed women’s suffrage; indeed, many opponents thought that jury service would flow inexorably from the vote.In California, for example, a leading opponent of the women’s vote movement tried to defeat the legislative suffrage effort by pointing out the harm that would flow to women from having to hear evidence in court and being sequestered with male jurors.Other opponents to suffrage, also assuming it meant equality in jury service, objected to the possibility that women might vote only for handsome men, in both elections and on juries.
Despite widespread recognition of the link between these two aspects of public service, women’s access to juries did not follow the adoption of the Nineteenth Amendment as a matter of course. Many states and counties continued to exclude women from juries as a matter of law. Activists took three distinct approaches in litigation, with varying success. Some argued from Nineteenth Amendment plain meaning: jurors vote. Some argued that because state law made jury service dependent on voting eligibility, the Nineteenth Amendment effectively amended state laws. And some argued that if women were qualified for the franchise, they were a fortioriqualified for jury service—that it was nonsensical, constitutionally irrational if you will, to allow women to vote but not serve on juries. While some state courts embraced one or more of these notions, most rejected them during the 1920s, 30s, and 40s.Notably, the United States Supreme Court did not rule on the issue, perhaps in part because the jury trial requirements of the Bill of Rights were not understood at that time to apply against the states.
Even today, diligence is required to solve the problem of gender exclusion on juries. The Supreme Court in J.E.B. v. Alabama ex rel. T.B.over two decades ago forbad use of gender in peremptory challenges, but peremptories remain nearly impossible to police. Perhaps equally if not more importantly, the practical demands of jury service and the conflicts they create with family and child-care responsibilities that fall disproportionately on women suggest the need for fundamental reforms in many states concerning how easy it is for many women to serve in these states. The short of it is that, even a century later, and focusing only on juries (to say nothing about holding office), we need to reflect deeply on the meaning of full, equal citizenship without regard to sex, beyond formal bans on ballot-box discrimination.
