EDITOR’S NOTE:  Pike County author Brent Engel is producing a play about John Brooks Henderson to be performed at 7 p.m. Oct. 19 at the Masonic Temple in Louisiana as part of Colorfest, and is contributing monthly articles about the legislator.
Most politicians would have considered co-authorship of a constitutional amendment as the crowning achievement of their careers.
Not John Brooks Henderson.
After penning many of the words used in the final draft of the 13th Amendment outlawing slavery, the Missouri U.S. Senator from Louisiana got involved in everything from acquitting a president facing impeachment charges to prosecuting tax cheats who tried to swindle the government out of revenues on whiskey.
But it was his stance on women’s suffrage, in addition to his work on the Constitution, that probably had the longest-lasting impact on the nation.
In 1872, Civil War hero Ulysses S. Grant sought a second term as president. In Grant’s former hometown of St. Louis, a suffragist named Virginia Louisa Minor went to the election office on Oct. 15 and asked to be put on the list of voters.
Registrar Reese Happersett denied the request, citing Missouri law that said only men were allowed to cast ballots.
The legal battle that followed would go all the way to the Supreme Court, where a unanimous ruling that seemingly discounted half of the nation’s 40 million residents would lay the groundwork for a major change.
 “The state laws of Missouri may only give men the right to vote, but the Fourteenth Amendment to the United States Constitution outweighs Missouri law,” Minor declared. “It says that anyone who is born in this country is a citizen, and that no state can take away any part of being a citizen.”
No pushover
As with Henderson, Minor was no wallflower.
Both had been born in Virginia, and both grew to despise what they saw as inequality under laws written by people who claimed a higher moral ground. Henderson and Minor both enjoyed pointing out societal norms they believed were corrupt.
In 1843, Minor married a distant cousin, Francis Minor. The couple moved to Missouri two years later. Despite their Southern heritage, both strongly supported the Union during the war.
Minor was active in the St. Louis Ladies Union Aid Society, which helped wounded and ill soldiers. In 1867, she co-founded the Woman’s Suffrage Association of Missouri and served as its first president.
During an 1869 convention in St. Louis, Minor made a comment that would be used as a basis for her later court cases.
“The Constitution of the United States gives me every right and privilege to which every other citizen is entitled,” she said.
Later that year, Minor and her husband took their case to the people, circulating fliers that argued for women’s suffrage and used as a foundation the 14th Amendment, which had been ratified in 1868.
In part, he amendment made clear that anyone born in the United States was considered a citizen, and that no state could “make or enforce any law which” deprived anyone of “life, liberty or property without due process.”
It also included the now-famous clause that said no one could be denied “equal protection of the laws.”
The battle begins
A little more than three weeks after Happersett declined to register Minor to vote, her husband filed a civil lawsuit.
Minor likely would have filed it herself, but in addition to denying women the vote, Missouri law at the time also prevented anyone with two X chromosomes from taking legal action.
Minor’s husband had graduated from Princeton and the University of Virginia law school, and had a strategy in mind as he prepared to argue his wife’s case in circuit court.
Even though the Missouri Constitution at the time said that only “male citizens” had the right to vote, Francis Minor decided to elevate the argument. He contended the state violated his wife’s rights under the federal Constitution, which he believed took precedence.
In a legal brief filed with the St. Louis County Circuit Court, Virginia Minor said she only wished to “exercise her privilege as a citizen of the United States” by casting a ballot.
The brief then incorporated themes used in the 14th Amendment to make the plaintiff’s case. It said Happersett knew Minor was “entitled to all the privileges and immunities of citizenship chief among which is the elective franchise” but that he had “knowingly, willfully, maliciously and corruptly refused to place her name upon the list of registered voters, whereby she was deprived of her right to vote.”
But Francis Minor, Henderson and another lawyer who had joined the plaintiff’s team also invoked the 13th Amendment’s clause outlawing slavery and involuntary servitude.
“We say that this Missouri law violates (the 13th Amendment) inasmuch as it places the plaintiff in a disenfranchised condition,” the document reads.
The brief went on to say that Virginia Minor was never given a chance to vote even “while at the same time she is taxed, and her property taken to pay the very men who sat in judgment upon and condemned her.”
The filing concluded with the lawyers saying it was “impossible” that a government “in which one half the citizens thereof are forever disfranchised” could defend keeping the vote from women.
They said that “a citizen disfranchised is a citizen attainted” and challenged the court to find “any warrant or authority for such discrimination.”
One other argument made for Minor was based upon the 10th Amendment. Her husband proclaimed that the right to vote was not among rights reserved to the states because it came from the federal government.
Happersett’s lawyer, Smith Galt, countered that the 14th Amendment was written to apply only to black men.
Happersett “was simply doing his job” in rejecting Minor’s bid to register, Galt said, adding that even if the 14th Amendment applied to the case, “women do not have the right to vote” in Missouri” and so “Virginia Minor has no right to register.”
The circuit court sided with Happersett, as did the Missouri Supreme Court, which said that the “almost universal practice of all of the States…from the adoption of the Constitution to the present time” left voting rights strictly to men.
The court also accepted Galt’s contention that the intent of the 14th Amendment was to give citizenship rights to blacks. The justices added that the second section of the amendment penalizing states which denied the right to vote was specifically aimed at men.
The court ruled that “this clearly recognizes the right, and seems to anticipate the exercise of the right, on the part of the States to restrict the right of suffrage to the male inhabitants.”
Despite the verdict, the drama was far from over.
Supreme test
The Minors appealed the case to the U.S. Supreme Court.
The legal team that included Henderson used many of the same citations as in the state case. Henderson infused the debate with some of the same arguments he had used for passage of the 13th Amendment.
Minor and Henderson admitted that the “popular idea” was that the states “have uniformly claimed and exercised the right to act as to the matter of suffrage as they pleased – to limit or extend it, as they saw proper.”
“Men accept it as a matter of fact, and take for granted it must be right,” they wrote. “So, in the days of African slavery, thousands believed it to be right – even a Divine institution. But this belief has passed away, and, in like manner, this doctrine of the right of the States to exercise unlimited and absolute control over the elective franchise of citizens of the United States must and will give way to a truer and better understanding of the subject.”
The two argued that the Constitution left the regulation of elections to the states, but not the authority to restrict voting.
“There can be no division of citizenship, either of its rights or its duties,” according to the legal brief.  “Woman, as a citizen of the United States, is entitled to all the benefits of that position, and liable to all its obligations, or to none.”
The lawyers pointed to the nation’s founders as examples of people who knew the value of limited government without paying heed to privileges.
“In the new political sovereignty thus created, the feudal idea of dependence gave way to that of independence, and the people became their own sovereign rulers in a government of their own creation,” they wrote.
The brief went on to outline the idea that the Constitution should be the only source for limitations on people’s political rights, and that no lower court could take away the rights guaranteed at the federal level.
   “A limitation not found (in the Constitution), or authorized by that instrument, cannot be legally exercised by any lesser or inferior jurisdiction,” it reads.
Minor and Henderson sarcastically asked the government to show legitimate reasons for blocking women’s voting rights.
“We call upon the state to show its warrant for doing so – for inflicting upon the plaintiff and the class to which she belongs the bar of perpetual disenfranchisement, where no crime is alleged or pretended, and without due process of law,” they said.
The lawyers continued that if the state were allowed to take away one right, government could then be allowed to remove others.
“There is no security for freedom if this be denied,” the brief reads.
Minor and Henderson gave examples of women who had cast ballots in the past, even as early as 1648, when Margaret Brent petitioned the Maryland Assembly for the right to vote in its proceedings and got permission. Women had voted in community elections in Rhode Island and New York, and the same year that the Declaration of Independence was signed, references to gender had been eliminated from suffrage laws in New Jersey.
Just three years before Minor tried to register in St. Louis, the Wyoming Territory had granted universal voting rights. Utah followed in 1870, and a year later, a Michigan woman was able to cast a ballot because election officials did not question her right to do so.
Missouri did not send anyone to represent Happersett’s side of the case, but it didn’t matter. The Supreme Court justices said that the only point of contention was whether the Constitution gave women the right to vote despite the state law against it.
On March 29, 1875, Chief Justice Morrison Waite issued the court’s unanimous judgment. The justices agreed that women were citizens, but rejected the argument that the 14th Amendment applied to the Minor case.
   “The Constitution does not define the privileges and immunities of citizens,” Waite wrote for his colleagues. “In this case, we need not determine what they are, but only whether suffrage is necessarily one of them.”
Waite went on to say that “the Constitution has not added the right of suffrage” to those that “existed at the time it was adopted.”
“If the law is wrong, it ought to be changed; but the power for that is not with us,” he said. “No argument as to woman’s need of suffrage can be considered. We can only act upon her rights as they exist. It is not for us to look at the hardship of withholding. Our duty is at an end if we find it is within the power of a state to withhold.”
Waite added that his fellow justices agreed the Constitution “does not confer the right of suffrage upon anyone, and that the constitutions and laws of the several states which commit that important trust to men alone are not necessarily void.”
The Minors never gave up. The two remained devoted suffragists the rest of their lives. The couple joined others in campaigns to change state constitutions, and the groups were particularly successful in the West.
Virginia Minor testified before the U.S. Senate Committee on woman suffrage in 1889, but got nowhere.
However, in 1890, Wyoming entered the Union with no voting restrictions. That same year, Virginia Minor joined another voting rights advocate, Susan B. Anthony, in the National American Woman Suffrage Association. In 1893, Colorado allowed women the right to vote, and three years later, Idaho and Utah came in the Union with the same laws.
Washington, California, Oregon, Arizona and Kansas followed over the next 16 years, and the 19th Amendment outlawing voting restrictions based upon gender was finally ratified in 1920.
Virginia Minor did not live to see it happen. She died in St. Louis on Aug. 14, 1894. Since Minor believed clergymen were generally opposed to women’s rights, she mandated that no minister be allowed at the funeral.
She was buried in Bellefontaine Cemetery, just a stone’s throw from Smith Galt, the lawyer who had initially represented her opponent, Reese Happersett, who is buried elsewhere in the cemetery.
   In her will, Minor left $1,000 to Anthony. And, since the couple’s only child had died at age 14 in 1866, Minor agreed to provide $500 each to her two nieces – as long as neither got married. If one did, her share went to the other.
Upon the death of Francis Minor in 1892, Anthony wrote that “no man has contributed to the woman suffrage movement so much valuable constitutional argument and proof as Mr. Minor.”
During Waite’s 14-year term as chief justice, almost 3,500 cases were resolved – an average of 250 a year. The Supreme Court now hears 75 to 80 cases annually.
While he had written in the Minor case that voting rights were not part of citizenship, Morrison’s comments in a couple of other 14th Amendment cases may have prompted a growth in federal regulation and helped form the basis for the legal recognition that corporations have the same rights as a person.
Despite the rulings, he remained a strong supporter of states’ rights, and sympathized with women’s rights. He even supported allowing women lawyers to argue cases before the Supreme Court.
Morrison refused to sit on the commission that decided the electoral votes of Florida in the 1876 election because he was a close friend of Republican nominee Rutherford Hayes and had been a Yale classmate of Democrat candidate Samuel Tilden.
Morrison declined to retire, and died in 1888 of pneumonia after not telling his wife how sick he was because he didn’t want to worry her.
One of his most famous quotes could have been written today, and seems the opposite of what a long-time jurist would say: “For protection against abuses by legislatures, the people must resort to the polls, not the courts.”
As with the Minors, Henderson and his wife, Mary Foote Henderson, the daughter of a judge, would continue to speak out for women’s voting rights.
Mary Foote Henderson, a graduate of what is now Skidmore College and Ashgrove Seminary, served as president of the Missouri State Suffrage Association, founded the St. Louis School of Design and set up the St. Louis Women’s Exchange.
She wrote several books on health and diet, and was such an advocate of temperance that in 1906, she had her husband’s entire 30-year collection of expensive wines dumped onto the street at their Washington, D.C., home.
Henderson died in 1931, having outlived her husband and their only surviving child, John Brooks Henderson Jr.
The 14th Amendment remains one of the most litigated parts of the Constitution, and was cited in such landmark decisions as the Brown vs. Board of Education civil rights case in 1954, the Roe vs. Wade abortion case in 1973 and the Bush vs. Gore presidential election decision in 2000.
The Hendersons and Minors were part of an effort to change American attitudes, and they, along with others, succeeded.
Though they could never have envisioned the abuses that would follow, for better or worse, states’ rights gave way to a powerful centralized government.