Monopoli on A "New" New Departure

Paula A. Monopoli, University of Maryland School of Law, has pulished A "New" New Departure at 102 Washington University Law Review 1961 (2025). Here is the abstract.

In the wake of enactment of the Fourteenth and Fifteenth Amendments, women’s rights activists embarked on an exercise in popular constitutionalism known as “the New Departure.” Frustrated by the failure of Congress to include women in the Reconstruction Amendments, suffragists turned to a strategy based, in part, upon republican theory. They argued that women had an inherent right to vote grounded in natural law and in their status as citizens of the United States under the Fourteenth Amendment. They operationalized that theory by engaging in mass-voting events and were prosecuted for illegal voting. These activist efforts came to an end in 1875 when the U.S. Supreme Court rejected that theory in Minor v. Happersett. This paper situates the New Departure at the beginning of a historical continuum that includes two subsequent periods in feminist legal history—the Progressive Era and the period which began in the wake of the Court’s decision in Dobbs v. Jackson Women’s Health. It explores how women’s rights activists in each of these three periods have rejected originalism as an interpretive methodology that, by its very terms, has a subordinating effect on women’s constitutional status. Such activists have proposed alternative interpretive methods which centered women and their legal, economic, and social status. Feminist constitutional advocacy in the post-Dobbs period continues in this tradition by resisting the dominant interpretive method and arguing for a “new” New Departure toward interpretive methods which elevate rather than subordinate women’s constitutional status. Exploring feminist constitutional strategies across time illuminates a history and tradition that may have a generative effect for current efforts to restore the right to abortion and establish a broader reproductive justice.

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Magliocca on "Right in Theory, Wrong in Practice": Women's Suffrage and the Reconstruction Amendments

Gerald N. Magliocca, Indiana University School of Law, is publishing "Right In Theory, Wrong In Practice": Women's Suffrage And The Reconstruction Amendments in the Journal of American Constitutional History. Here is the abstract.

This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge of Iowa dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon. They pioneered the belief that the Fourteenth Amendment gave women equal citizenship and that legal distinctions based on sex can be irrational. They made the first textual and structural arguments for the right to vote. The Loughridge Dissent also defended an interpretive stance that rejected original meaning and tradition in favor of a panoramic construction of the Constitution as "right in theory but wrong in practice." Lastly, recognizing the creative work of the suffragists and their fellow travelers is a vital first step toward filling the between constitutional practice, which cares about women's rights, and constitutional theory, which generally does not. The Woodhull Petition and the Loughridge Dissent also advanced textual claims that challenge modern assumptions. For instance, they said that the Fifteenth Amendment affirmatively recognized a "right of citizens of the United States to vote" instead of merely proscribing a certain kind of voting discrimination. Loughridge relied on the Constitution's Preamble as authority for the proposition that women's suffrage could not be denied, instead of treating the "We the People" paragraph as purely ceremonial. Finally, he argued that the text is sometimes best read descriptively or agnostically rather than prescriptively; an approach which could lead to a fresh of view of constitutional issues such as voting rights for ex-felons and the death penalty.

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