Mary Philbrook's lawsuit

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Mary Philbrook's lawsuit

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Suffragists didn’t sue very often. After the Supreme Court scoffed at suffrage in 1874, court challenges to women’s disenfranchisement were few. But in 1911, New Jersey suffragists sued--based on the fact of their right to vote at the state’s founding. It didn’t go well. Thread.

Mary Philbrook brought the case on behalf of Harriet Carpenter, a teacher and property owner in Passaic Township who had tried to register to vote. 

Philbrook was the first woman lawyer in New Jersey. She passed the bar in 1895 after lobbying the legislature to let women sit for the exam. 

If you’re keeping score, this is 15-20 years after Myra Bradwell and Belva Lockwood campaigned for admission to the Illinois and federal bars. Progress in one jurisdiction meant progress in one jurisdiction.

Philbrook argued that because the 1776 state constitution allowed women to vote, subsequent restrictions were unconstitutional, and the 1844 constitutional convention was invalid. 

New Jersey’s Supreme Court mocked these claims as “inaccurate and fallacious.” The court not only rejected the argument, it denied that anything notable had ever happened in New Jersey.

Justice Samuel Kalisch insisted: “There is nothing in the constitution of 1776 which confers on women the right to vote.” As for the 1790 and 1797 amendments that explicitly referred to voters as “he or she,” Kalisch dismissed them as merely “a privilege emanating from a legislative act.” In other words, not a right.

The court went on to insist that the 1844 constitutional convention, further embedding all-male, all-white voting, was flawless. How? It represented the sovereign will of the people. The people chose the delegates, the delegates wrote the constitution, and the constitution was submitted to the voters. A closed loop of exclusion. 

The court could have acknowledged New Jersey’s unique history of enfranchisement and said its hands were tied, that the remedy was in the legislature. Instead, the decision directly attacked Philbrook, the most famous woman lawyer in the state, and insisted that voting rights past were a figment.

Three years later, New Jersey suffragists took their case to the voting men of the state, and lost. It took until the 19th Amendment for New Jersey women to win back what they lost in 1807.

The @amrevmuseum documents all of this beautifully in their exhibit When Women Lost the Vote.

The cautionary tale here -- voting rights need constant defense -- is as subtle as a neon sign. But in addition to looking ahead and continuing to fight voter suppression, it’s worth reflecting on what a massive loss this story represents.

One of the first states in this Union said voters could be “he or she” - acknowledged that women were citizens! And after 31 years we lost it, and fought for more than 100 years to get it back.

What if New Jersey had persisted? What if it had started a trend in the other direction? What if we told the story of the loss over and over again? What if everyone knew that some women voted in 1776?

Like Reconstruction, it was a moment of democratic expansion. Losing it, and then losing the memory of it, means that every time we try to move forward, we begin from square one. Expanding power beyond white men requires not just political strategy but imagination. In the year ahead, let us keep our history close. If we do, perhaps we won't have to repeat it afresh quite so often.

Creator

Daily Suffragist

Date

January 1, 2021

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Daily Suffragist, “Mary Philbrook's lawsuit,” Daily Suffragist, accessed October 3, 2022, https://dailysuffragist.omeka.net/items/show/544.

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