The Federal Bar Council held its annual Fall Bench & Bar Retreat at the Minerals Hotel/Crystal Springs Resort in New Jersey from October 18-24, 2024. The retreat featured many enlightening continuing legal education programs, including:
- The New Department of Justice Whistleblower Program (moderated by Judge George Daniels);
- Examining Recent Decisions in Securities Litigation (moderated by Judge Victor Bolden);
- Recent and Future Developments in Personal Jurisdiction (moderated by Judge Pamela Chen); and
- Cyber Ethics and Artificial Intelligence (moderated by Magistrate Judge Marcia Henry).
But the award winner for “most theatrical program” was a reprise of a 2012 Inn of Court Program titled “Woman’s Suffrage: a Tale of Passion, Politics and Persistence.” The original performance preceded the hit show Suffs now on Broadway, but chronicled the same story line: the long and arduous fight for women to achieve the right to vote, culminating with passage and ratification of the 19th Amendment in 1920.
The Council’s performance featured twelve costumed actors drawn from attendees of the Retreat (including Judge Chen), a well-researched PowerPoint, and even two songs from SUFFS. While a written article cannot do justice to the live performance, the story is still worthy of re-telling here.
ABIGAIL ADAMS – IF YOU ONLY KNEW HOW LONG THE FIGHT WOULD BE
The performance began its historical story shortly after the signing of the Declaration of Independence in 1776, promising that all “Men” are created equal. Shortly afterwards Abigail Adams wrote a letter to her husband John Adams:
In the new Code of Laws which I suppose it will be necessary for you to make, I desire you would remember the ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember all Men would be tyrants if they could. If particular care and attention is not paid to the Ladies we are determined to foment a Rebellion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation.
Abigail’s letter was met with derision from her husband, who wrote back:
As to your extraordinary code of laws, I cannot but laugh. We have been told that our Struggle has loosened the bands of Government everywhere. . . . But your Letter was the first Intimation that another Tribe more numerous and powerful than all the rest were grown discontented. We know better than to repeal our masculine systems.
The theatrical journey continued with the ratification of the U.S. Constitution in 1788. The Constitution said almost nothing about voting, merely leaving the issue entirely to the states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
Post-ratification of the Constitution, many states (including New York) passed laws specifically defining voters as male. Only one state – New Jersey – permitted women and people of color to vote. But New Jersey also had property requirements that effectively nullified that right. For example, under the laws of Coverture, married women lost their legal identity and could not own property, control their own money or sign legal documents. So much for the right to vote.
ELIZABETH CADY STANTON – PICKING UP THE MANTLE
The issue was somewhat dormant for decades, until 1848, when women convened at the Seneca Falls Convention, under the leadership of Elizabeth Cady Stanton. There, they passed a Declaration of Sentiments:
We hold these truths to be self-evident: that all men and women are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.
Men have endeavored to destroy our confidence in our own powers, to lessen our self-respect, and to make us willing to lead a dependent and abject life. We now insist upon immediate admission to all of the rights and privileges that belong to us as true citizens of the United States. The vote will be ours!
Frederick Douglas, a well-known abolitionist, spoke at the convention:
In respect to political rights, we hold woman to be justly entitled to all we claim for man. We go farther, and express our conviction that all political rights which it is expedient for man to exercise, it is equally so for women. All that distinguishes man as an intelligent and accountable being, is equally true of woman; and if that government is only just which governs by the free consent of the governed, there can be no reason in the world for denying to woman the exercise of the elective franchise, or a hand in making and administering the laws of the land. Our doctrine is, that “Right is of no sex.”
THE CIVIL WAR ERA
The Civil War, which lasted from 1861-1865, stalled progress in the women’s suffrage movement, as the country was preoccupied with the war. After the war ended, the 15th Amendment was ratified in 1870. That amendment provided suffrage to Black men, but not to women of any race.
Many in the women’s suffrage movement opposed the 15th Amendment for this reason – not because of what it did say, but what it did not. And Frederick Douglas, along with other abolitionists, broke ties with the women’s movement over this issue.
POST-CIVIL WAR
Following the Civil War, efforts to establish women’s suffrage moved ahead with various legal challenges, many brought under the 14th Amendment, ratified in 1868. The program dramatized the most famous of these challenges, which was brought by Susan B. Anthony, following her arrest for illegally casting a vote. Anthony was charged with violating an 1870 federal statute providing that “any person who shall knowingly . . . vote without having a lawful right to vote . . . shall be deemed guilty of a crime.” She was tried on June 17, 1873 before a jury of – what else? – 12 men.
Not only was Anthony found guilty, but the judge actually directed the jury to find her guilty.
At sentencing, the judge ordered her to pay a fine of $100. But she refused. The court then declined to enforce the fine by placing her in custody until it was paid. This was not a gesture of kindness – but an effort to prevent her from appealing. Without an order committing her to custody until the fine was paid, there was no order to appeal. And so the case never came up for appellate review.
Undeterred, Anthony carried on with her efforts. She was aided by other women dramatized in the program, including Myra Bradwell, a married attorney who had passed the Illinois bar exam but was denied the right to join the Illinois bar. The Illinois Supreme Court deemed her “disabled” for that purpose, since she had no legal existence separate from her husband. Bradwell appealed her case all the way to the U.S. Supreme Court. But she lost in Bradwell v. Illinois, 83 U.S. 130 (1873), and the program dramatized Justice Chase delivering his majority opinion:
The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.
Anthony and her colleagues persevered. In 1878, a Women’s Constitutional Suffrage Amendment – called the Anthony amendment – was introduced in Congress. It was soundly defeated. Prospects seemed dim, but the work went on.
ALICE PAUL AND LUCY BURNS TAKE COMMAND
As dramatized, the suffrage movement gained momentum – and got more militant – between 1910 and 1920. That was when Alice Paul came on the scene. While working on suffrage rights in England, Paul met another American, named Lucy Burns. There, they learned militant protest tactics, including picketing and hunger strikes.
After they returned to the United States, Paul and Burns joined the National American Woman Suffrage Association (NAWSA) in 1912. NAWSA focused on state-by-state campaigns, but Paul preferred to lobby Congress for a constitutional amendment. Eventually, those differences led Paul and others to split with NAWSA and form the National Woman’s Party.
In March 1913, on the day before Woodrow Wilson’s inauguration, 8,000 women descended on Washington, D.C., for a suffrage parade. The procession was led by the socialist lawyer Inez Milholland, dressed like Joan of Arc and riding a horse.
The parade however, quickly turned into a mob scene as observers threw garbage, shouted obscenities and attacked the marchers. It was pandemonium.
Following the parade, the leadership at NAWSA increasingly found Paul’s tactics too “militant.” NAWSA officially broke all ties with Paul and her supporters in 1914. In a New York Times article in January 1914, NAWSA denounced Paul and Burns as women “tinged with militancy.”
By late 1916, Paul and her supporters created their own political party – the National Women’s Party, which had only 50,000 members – compared to 2 million in NAWSA.
The movement was dealt another blow when the United States entered World War I in April 1917. Protesting against a war-time president was unpopular. It became a perilous effort, seen by many as unpatriotic and treasonous.
ARRESTS AND IMPRISONMENT
In January 1917, Paul and over 1,000 “Silent Sentinels” began eighteen months of picketing the White House, standing at the gates with such signs as, “Mr. President, how long must women wait for liberty.” As picketing tactics continued, the police began to arrest picketers. In October 1917, Alice Paul was arrested for picketing and charged with the simple offense of blocking the sidewalk. She and others stood trial in Washington, D.C., and were found guilty.
They were sentenced to pay a fine of $25, or in the alternative, to be committed to seven months’ imprisonment. Yet again, the suffragists refused to pay the fine, and were sent to prison. In all, 168 women were arrested and sent to prison for picketing.
Most of the women were sent to Occoquan Prison in Virginia, which was known for having dehumanizing conditions, including rats and disease. While in prison, the women demanded to be treated as political prisoners. When they were refused that status, they went on a hunger strike in violation of prison rules.
For that civil disobedience, these courageous women endured brutal treatment. The women were placed in solitary confinement, beaten, knocked unconscious and denied medical attention. But the hunger strike persisted despite the punishments imposed. That was when the prison amped up the brutality: the women were force-fed eggs through a feeding tube. Alice Paul was so resistant it took five people to hold her down, and when she refused to open her mouth, they shoved the feeding tube up her nostrils.
Despite the effort to keep these women quiet, they found a way to inform the press of their mistreatment. When the news broke, there was a public outcry in support of their cause.
In late November 1917, all of the women still in prison were released, thanks to a habeas corpus petition filed by their attorney. He argued that they were being subjected to cruel and unusual punishment. Ultimately, the District of Columbia Court of Appeals ruled that the women had all been illegally arrested, convicted and imprisoned. The mistreatment of Alice Paul and others helped bring public support their way, and ultimately prompted President Wilson to move from his state-by-state position to advocate for a constitutional amendment for women’s suffrage.
VICTORY IN CONGRESS AND BRINGING THE VOTE TO THE STATES
President Wilson addressed the Senate directly on the subject in 1918, while World War I was still raging. The program dramatized his speech:
Mr. Vice President and gentlemen of the Senate, the unusual circumstances of a world war in which we stand in view of all nations and peoples will, I hope, justify the message I have come to bring you. I regard the concurrence of the Senate in the constitutional amendment proposing the extension of suffrage to women as vitally essential to the successful prosecution of the great war for humanity in which we are engaged. Plain, struggling, workaday folk are looking to the great, powerful, famous Democracy of the West to lead them to the new day for which they have so long waited; and they think, in their logical simplicity, that democracy means that women shall play their part in affairs alongside men and upon an equal footing with them.
Are we alone to ask and take the utmost that our women can give, service and sacrifice of every kind, and still say we do not see what gives them title to stand by our sides in the guidance of the affairs of their nation and ours? We have made partners of the women in this war; shall we admit them only to a partnership of suffering and sacrifice and toil, and not to a partnership of privilege and right? I now urge the Congress to pass this Amendment and grant women the right to vote.
While President Wilson’s address in 1918 failed to win the day (the proposed Constitutional amendment was defeated), his efforts were finally rewarded in 1919, when both houses of Congress approved the 19th Amendment. While a major victory for the suffragist movement, that passage was only a new beginning, as the amendment required ratification from three-quarters of the 48 states.
By that time many states, led by those in the West, had already granted suffrage to women in state elections, but other states were fiercely opposed. By the summer of 1920, 35 states had approved the amendment and 12 had rejected it. Its fate was to be decided that summer, in the hot, humid air of the Tennessee House. That body had stalled voting on the amendment until August 18, 1920.
On that fateful day, the votes were tied. There was one final vote to be cast – by 22 year old Harry Burn, the youngest member of the Tennessee House. Although he was inclined to vote “no,” just before casting his vote he pulled out from his jacket a letter he had received from his “mama.’” As dramatized at the program, the letter read:
Dear Son, Hurrah and vote for Suffrage and don’t keep them in doubt. I notice some of the speeches against. They were bitter. I’ve been waiting to see how you stood but have not seen anything yet. Don’t forget to be a good boy . . . No more from mama this time. With lots of love, Mama.
The letter worked its magic and turned Burn around. He voted “yea” and explained his vote to the Tennessee House:
Reasons . . . I changed my vote in favor of ratification. First, because I believe in full suffrage as a right; second, because I believe we have a moral and legal right to ratify the amendment; and third, because everyone knows that mother knows best and my mother wanted me to vote for ratification. My mother was a college woman, a student of national and international affairs who took an interest in all public issues. She could not vote. On that roll call, confronted with the fact that I was going to go on record for time and eternity on the merits of the question, I had to vote for ratification.
With Burn voting “yea” ratification was complete. The 150 year battle for woman’s suffrage was finally over. Of the moment, Alice Paul said:
American women stand with the vote won at the cost of millions of dollars, of priceless energy, health and even of life, ready at last to take their share in the burdens and the responsibilities of self-government.
AFTERMATH
On November 2, 1920, over 8 million women voted in the United States for the first time. It took over 60 years for the remaining states to ratify the 19th Amendment, even though it was already in effect. Mississippi was the last of the 50 states to do so, but that was not until 1984.
Of course, the fight for equality continues to this day. For Alice Paul, after passage of the 19th amendment, and after graduating from law school, she turned her attention to the Equal Rights Amendment , which she first proposed in 1923. She lived to see it pass in Congress in 1972 but not its ratification (none of us have yet). Paul passed away in 1977.
Lucy Burns, exhausted from the fight, retired from public campaigns with the success of the 19th Amendment. In 2020, the Lucy Burns Museum opened at the site of the Occoquan Prison.
Following casting his deciding vote, Harry Burn hid in the attic of the Tennessee legislature while anti-suffrage crowds subsided from the capitol. He faced a strong challenge in the next election, but was ultimately re-elected. He later became a lawyer and remained active in Tennessee state politics. In 2018, a statue was erected in Knoxville, Tennessee, honoring Harry Burn and his mother for their historic role in securing suffrage for women.
MORE ABOUT THE FALL RETREAT AND THE PROGRAM
The retreat was co-chaired by Danielle Izzo and Abena Mainoo. Judicial guests included U.S. District Judges Victor Bolden, Pamela Chen, George Daniels, and Ramon Reyes and Magistrate Judge Marcia Henry. Participants in the theatrical program were Judge Chen (Elizabeth Cady Stanton); Margie Berman (Narrator); Sheila Boston (Narrator); Lauren DiChiara (Alice Paul); Colleen Faherty (Lucy Burns); Jerome Robinson (Frederick Douglas); Larry Krantz (President Wilson); David Shanies (Harry Burn); and Danielle Izzo, Phyllis Malgieri, Rowena Moffett, Sharon Nelles (Pro/Anti Women’s Suffrage Players). Shawn Patrick Regan ran the PowerPoint.
The program ended on a high note as the cast performed a rendition of “Keep Marching” from Suffs, a forceful tribute to the power of forging on for justice. An excerpt from those lyrics is below:
The path will be twisted and risky and slow
But keep marching, keep marching
Will you fail or prevail? Well, you may never know
But keep marching, keep marching