In the course of an otherwise thoughtful post about a speech given by Justice Scalia, Ernie the Attorney said:
But while he is concerned about the politicization of the confirmation process, he is more concerned about how we go about deciding constitutional questions. He began by reference to the 19th Amendment to the Constitution. "Why did we need to pass that amendment?" he asked. He noted that it was adopted in the 1920's to recognize women's right to vote; the amendment was viewed as necessary because, at that time, people did not believe that the Constitution, as it was written, gave women that right. Today, of course, we would simply find that women were entitled to vote pursuant to the Equal Protection clause of the 14th Amendment.
What changed between 1920 and now? Obviously, our views about how we interpret the Constitution. We no longer feel bound by the original meaning of the words embodied in that document. We have come to believe that we have a fair amount of latitude in interpreting the Constitution, and that usually means that we simply apply our current socio-political views, even though those views may be at odds with the original intent of the Constitution's framers.
Is Ernie suggesting that the original understanding of the equal protection clause was that it guaranteed the right to vote to women? If so, then he is mistaken. The original understanding of the equal protection clause had nothing to do with the voting rights of anyone, not women, not even the recently freed slaves. At the time that it passed, Americans distinguished between principles of civil equality and those of political equality, and the universal understanding at the time was that the equal protection clause guaranteed only civil equality to blacks - the right to own property, the right to access to the courts and the other organs of government, etc. The intention not to cover the right to vote is made clear by the very wording of the other clauses of the 14th Amendment itself, as well as by the need to pass the 15th. Section 2 of the 14th Amendment expressly recognized the power of the states to deny the franchise to blacks, and it added a penalty for that action. In addition, by specifying "male inhabitants", it clearly expected that states could and would continue to deny the right to women:
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
It was not until the 15th Amendment was passed that blacks were "guaranteed" the right to vote -- on paper, of course, not in real life. The power of the states to deny the franchise to women, as memoralized in the language quoted above, continued until the adoption of the 19th Amendment in 1920.
Indeed, the idea that the equal protection clause would extend the right to vote to women, without reference to the 19th Amendment, would be an instance of "apply[ing] our current socio-political views, even though those views may be at odds with the original intent of the Constitution's framers." Not that there's anything wrong with that, when it comes to equal protection jurisprudence.
4:35:44 PM 
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