DOES THE CONSTITUTION
PROHIBIT WOMAN SUFFRAGE?
AN OPINION BY JUDGE HENRY B. GIBSON.
The question is: Can the legislature constitutionally give women the right to vote?
It was decided by our supreme court
nearly one hundred years ago that our
"legislature can do all things not prohibited
by the constitution of this state or of the
United States." Bell vs. Bank, Peek, 269.
"This is a fundamental rule of construction
in all the states." Cooley's Const. Urns.,
87: and no court controverts it.—
Suppose, then, the legislature should pass
a law giving women the right to vote, and
the supreme court were called upon to decide whether the law was constitutional,
what would be the first question asked by
the court? In Cooley on Constitutional
Limitations, page 88, it is said, "In inquiring whether a given statute is constitutional it is for those who question its validity to show that it is forbidden."
Does, then, the constitution of our state
forbid woman suffrage? It does not. The
constitution says, (Article IV, Sec. I.).:
"Every male person of the age of 21 years, and a resident of this state for 12 months,
and the county wherein he may offer his
vote for 6 months, next preceding the day
of election, shall be entitled to vote." Now,
can any fair minded person say that this
language forbids the legislature to give
women the right to vote? It does not forbid the legislature to grant the right to
vote to any one.
It will be seen by the foregoing sections
of our constitution that it does not leave
it to the legislature to decide who shall
not vole. The constitution takes it upon
itself to determine that "every male person of the age of 21 years, a resident of
the state for 12 months, etc., shall be entitled to vote;" and forbids the legislature
to "deny the right of suffrage to any (such)
person, except on conviction by a Jury of
some infamous crime." Art. I, Sec. 5. But
note that the constitution, after declaring
that "every male person, of the age of 21
years, etc., shall be entitled to vote," does
not declare that nobody else shall ever
have the right to vote, and does not forbid
the legislature to enlarge the right of suff-
rage. It is silent on this matter; and, as
under the rule of construction laid down
above, the legislature can "do all things
not prohibited by the constitution of this
state or of the United States," the legis-
lature can enlarge the right of suffrage;
can, for instance, confer it on male persons
of the age of 20 years, or of any other
age; or may confer it on women.
In short, the legislature may pass any
law it chooses on the subject of suffrage
provided it does not deny suffrage to "male
persons of the age of 21 years "
The legislature that preceded the convention that framed our constitution had
passed various laws whereunder many
white men, of the age of 21 years, citizens
of the United States, and resident of this
state for 12 months, were denied the right
to vote; and the principal purpose of that
convention was to enfranchise the white
men of the state, and to prohibit the legislature from again denying them the right
of suffrage. See Caldwell's History of the
Constitution, 296. Had the constitutional
convention of 1870 wished or intended to
forbid the legislature from allowing anybody to vote but "male persons of the age
of 21 years," it would have been an easy
thing to have declared in the constitution
that no other persons shall ever be allowed
to vote. But this was not done, and, as a
result, the liberty was given to the legislature to enlarge the elective franchise in
any way they saw fit, provided they did
not interfere with the voting rights of male
persons of the age of 21 years.
Some opponents of female suffrage contend that the subject of votes for women
was not in the mind of the convention
when the constitution was written, in 1870.
That may be true, but it proves nothing
so long as the convention did not in any
way prohibit female suffrage. Many laws
have been enacted since 1870 that were
not in the mind of the convention that
framed the constitution; for example, our
various strenuous prohibition laws, the
laws whereunder various officers may be
removed on petition of citizens, the primary election laws, the law giving the
chancery court jurisdiction of cases triable
in the circuit courts, and many others, all
of which were bitterly fought upon the
ground that they were not authorized by
the constitution. But our courts replied
that it was not material whether these
laws were authorized, the question was
Whether they were forbidden by the constitution, as the legislature had power to
pass any law it was not forbidden to pass.
The constitution creates a great many
offices for the state and counties, and
their various subdivisions, all that the convention thought would be needed: but, as
the constitution does not forbid the creation of other offices, the legislature has
created many others, most of which have
been promotive of the public welfare, and
some of which were vainly objected to on
the very same grounds that woman suffrage
is objected to, to wit, that the constitution
did not authorize the legislature to create
them, ignoring the great fundamental rule
that the legislature can do anything in
the way of legislation that it is not forbidden to do; and it is under this same
rule that the legislature can grant woman
suffrage
And so we get back to the point front
which we started: Is the legislature forbidden to pass a law giving women the right
to vote? We have already fully shown that
there is not a line or a word in the constitution forbidding such a law. It follows
then, as a legal demonstration, that as woman suffrage is not forbidden by the constitution, a woman suffrage law would be
fully within the constitutional power of
our legislature.
