Although social distancing demands kept people from gathering at the University of Colorado campus for the 28th Ira C. Rothgerber Jr. Conference, more than a dozen scholars and practitioners on April 3 spoke to a full audience via Zoom. Around 500 people signed up to attend via the videoconferencing platform, and another 80 or so watched from a virtual overflow room on YouTube.
The conference is hosted each year by the Byron R. White Center for the Study of American Constitutional Law at the CU Law School. This year’s theme, “Women’s Enfranchisement: Beyond the 19th Amendment,” was meant to explore “what the 19th Amendment did and did not do, the painful promises made and the fissures between women surrounding the amendment’s ratification,” said Suzette Malveaux, the center’s director.
This year marks the 100th anniversary of the ratification of the 19th Amendment. Keynote speaker Reva Siegel, a professor at Yale Law School, noted that COVID-19’s appearance during the centennial has “a very eerie antecedent” in the Spanish Flu pandemic, which was in its last months when the 19th Amendment was ratified in August 1920. That pandemic, combined with World War I, created imperatives for women to take on new roles in public life and the workplace, which helped shift attitudes in favor of giving women the right to vote.
Siegel made the case for a synthetic interpretation of the 19th Amendment — reading it along with the 14th and 15th amendments and the rest of the Constitution — so it can be understood as part of a larger body of anti-discrimination law. Reading it alone risks “artificially divid[ing] history,” Siegel said, by failing to capture the racial complexity of the suffrage movement and ignoring the historical struggles of women of color who have sought rights under all three amendments. Women’s suffrage wasn’t just a movement of the early 20th century, Siegel added, but a transgenerational struggle stretching from the 1840s to the 1965 Voting Rights Act and beyond.
Julie Suk, professor at the City University of New York Graduate Center, took up another generation-spanning constitutional effort, the Equal Rights Amendment, in her talk during a history panel at the day-long conference. Suk discussed how the fight for the ERA, which grew out of the suffrage movement, divided feminists in the early 20th century, as many feared the proposed amendment’s insistence on “equality of rights under the law” regardless of sex would strip women of certain legal protections, such as labor laws that treated women favorably compared to male workers.
Earlier this year, Virginia became the 38th state to ratify the ERA, and the U.S. House of Representatives passed a resolution to remove the amendment’s 1982 ratification deadline, renewing debate about whether the Constitution should be amended to guarantee legal rights regardless of sex. Some argue the ERA is no longer necessary because the rights it would guarantee are already provided under the 14th Amendment, Suk said. However, unlike that amendment, the ERA and 19th Amendment challenge the idea that the Constitution was only written by men, she said, and women’s role as “mothers of the Constitution” should be part of how we understand the document.
Although the conference acknowledged the suffragists’ successes, it also covered how the 19th Amendment and subsequent women’s movements fell short of achieving full rights for all. Atiba Ellis, a professor at Marquette University Law School, spoke about how, even as we celebrate the centennial of the 19th Amendment and the 150th anniversary of the 15th Amendment, there are still barriers to voting, especially at the intersection of race, gender and class.
Americans tend to view the historical trajectory of voting rights as forward-moving toward universal enfranchisement, Ellis said. But progress in securing voting rights under the 15th Amendment was soon undermined through tactics that weren’t explicitly race-based — poll taxes, literacy tests, grandfather clauses and felon disenfranchisement, among others — but disproportionately affected black voters. Ellis noted that around the time the 19th Amendment was ratified, Jim Crow laws to suppress the black vote were multiplying, as were lynchings and other forms of anti-black violence.
Panelists discussed other groups that have faced barriers to political participation, such as immigrants and LGBTQ people, as well as contemporary movements whose goals lie outside formal political rights. Colorado Law professor Ming Hsu Chen spoke about the tension between the right to political participation through elections, which is only granted to citizens, and the right to political representation through the census, which counts non-citizens as well as citizens.
Chinyere Ezie, staff lawyer at the Center for Constitutional Rights, talked about how black women vote reliably and in great numbers for Democrats, yet their votes haven’t translated to political power. Ezie argued that black women could bolster their political relevance by becoming “proverbial swing voters” whose votes couldn’t be taken for granted.
Diana Flynn, litigation director at Lambda Legal, discussed a Title VII case involving a transgender plaintiff pending before the U.S. Supreme Court. She said that, no matter how the court rules, constitutional arguments will become more important for protecting trans people than sex discrimination laws. That’s because actions taken by government entities are some of the biggest threats to trans people today, Flynn said, and “it is going to be necessary to interpose constitutional protections to face those threats and future threats.”
This year’s conference was co-sponsored by the Colorado Women’s Bar Association. CWBA President Sarah Parady said the organization “jumped at the chance” to co-sponsor the event because the theme aligned with the CWBA’s internal conversations about how to mark the anniversary while addressing the needs of its diverse members.
“A big part of that is always reexamining the ways in which the commonly received history of women’s rights and women in the legal system may gloss over all of that multifaceted experience,” Parady said during her opening remarks.