Chapter 4.0. Women and the Constitution: The Apportionment Clause
This chapter presents Jan E. Lewis’s provocative argument that the Constitution did include women, in one very significant way. Her analysis focuses on the wording of the apportionment clause (C1.2.3), which requires that representation in the House of Representatives be based on population–with certain well known exceptions (Indians not taxed) or qualifications (three-fifths of “other persons”). By looking at the original wording that was proposed for this clause, she shows that in it “persons” included everyone (with only the limitations just noted), that is, it included men, women, and children as part of the citizenry that were to be represented, even if many of them could not vote.
Moreover, as Lewis argued in later work, the inclusive meaning of the word “person” in the apportionment clause must be assumed, barring any explicit statement to the contrary, in other sections of the Constitution that use the same word, such as the Bill of Rights.
The text below is from Lewis’s essay, “’Of Every Age, Sex, and Condition’: The Representation of Women in the Constitution,” Journal of the Early Republic 15 (1995): 359-387.
It is commonly believed that women are nowhere mentioned in the American Constitution. Although the absence of women from the Constitution has seemed quite clear, scholars have not known what to make of this silence. Some argue that the authors of the Constitution intentionally framed it in a gender-neutral language so that women might be encompassed by its provisions, perhaps at some future date if not just then. It is no accident, such scholars suggest, that the Constitution repeatedly uses such words as “persons,” “inhabitants,” and “citizens” instead of “men.”
Other scholars believe that the omission of women, if not intentional, reflected the patriarchal assumptions of the Founders and their belief that women had no role to play in government. These debates go to the heart of a larger question which is the relationship of women to the liberal state that the Constitution created. Is there a place for women within liberalism? Or have they always stood outside it, excluded from its inception? These questions would be easier to answer had the authors of the Constitution been more explicit about the place they envisaged for women in the polity. As Richard B. Morris once remarked, “it would have been very helpful” if the Framers ” had given us a hint” about why they were so vague in their discussion of gender.
But in fact, the Framers have left us a hint, in an amendment that James Wilson suggested to the resolutions then being debated in the Philadelphia Convention in the summer of 1787. Curiously, these words have attracted little attention from scholars of the Constitution and, so far as I can tell, none at all from historians of women. Although these words require careful interpretation, once they are placed in the context of contemporary thinking about representation and about women, it becomes evident that the Constitution does include women, although the role it set out for them was different than the one designed for most men.
It was Monday, June 11, and the delegates who had convened in Philadelphia to revise the Articles of Confederation were now into their second week of secret meetings. The issue before the convention was who should vote for each branch of the proposed federal legislature. According to James Madison’s notes, Roger Sherman of Connecticut had begun the day’s session by proposing that “the proportion of suffrage” in the lower house of the national legislature, which would eventually be known as the House of Representatives, ”should be according to the respective numbers of free inhabitants.” Two South Carolinians, John Rutledge and Pierce Butler, immediately proposed that representation in the lower house should be based not upon the population of free persons, but upon each state’s contribution to the national government. As Butler put it, “money was power.”
It was in this context, a debate about whether representation should be based upon population or wealth, which would include slaves, that Pennsylvania’s James Wilson suggested language that would make clear that representation in the lower house would be,
in proportion to the whole number of white & other free Citizens & inhabitants of every age sex & condition including those bound to servitude for a term of years and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes, in each state.
This wording was voted upon, approved, and incorporated into the resolutions that the group would continue to debate and refine throughout the summer.
Wilson’s wording, only slightly modified, but with the words of interest to us here–“of every age, sex, and condition”–was included in the resolutions referred to the Committee of Style (chaired by William Samuel Johnson, of Connecticut, and including Alexander Hamilton, Rufus King, James Madison, and Gouverneur Morris) on September 10.
The Committee of Style, reporting back on September 12, compressed Wilson’s language into the words that actually appear in the Constitution. The relevant clause–now the third paragraph in Article I, Section 2–specified that both representatives and direct taxes were to be “apportioned among the several states … according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to servitude for a term of years, and excluding Indians not taxed, three-fifths of all other persons” (C1.2.3).
This change in the wording seems to have been purely stylistic, rather than a change in meaning. The delegates voted many times over the course of the summer to change particular wordings, even on August 20 to remove the words ”white & other” in the same clause as “superfluous.” Later, on September 13, they would replace the ward “servitude” for “service,” “the former being thought to express the condition of slaves, & the latter the obligations of free persons.” Presumably, then, when the Committee of Style dropped the words “of every age, sex, and condition,” neither they nor the delegates who accepted the revision thought that the meaning of the clause had been changed.
In fact, if we follow the debate on this clause, we can see that throughout the deliberations the delegates assumed that women, as well as children, were to be included whenever the question came up of who should be counted for purposes of apportionment. Wilson’s original wording was part of the resolutions that the Convention was considering on June 19, and, as we have seen, most of this wording was still in the resolutions referred to the Committee of Style on September 10. But over the summer, when the delegates debated the issue of apportionment, they rendered Wilson’s words in a kind of shorthand.
All subsequent discussion about the question of apportioning representatives would focus on the explosive issue of how to count slaves. The term “inhabitants”–later changed to “free persons”–now included women and children. Thus we can see what the Committee of Style probably had in mind when it dropped Wilson’s original wording about age and sex. Women, then, certainly were considered by the Constitutional Convention, and although Wilson’s reference to “sex” was ultimately excised, it seems clear that the Framers intended that women be included among those who were to be represented by the new government. The Constitution included women.
Because no one objected to Wilson’s insertion of the word “sex,” and because women seem so readily to have been comprehended by the other delegates in the terms “inhabitants” and “person,” we might be tempted to think that Wilson was simply inserting words that reflected the common practice of the day. Even though no one raised an objection to Wilson’s terminology, it seems to have represented a genuine innovation, and because so few have noticed since, the genuine radicalism of the Constitution’s doctrine of representation has been obscured.
Although in the revolutionary period democrats were beginning to insist that persons, not property were the proper basis for representation, not until the Federal Constitution had any government based representation upon inhabitants rather than taxpayers or adult men. When Massachusetts and Pennsylvania, for example, revised their constitutions, they defined “population” as “rateable polls” or “taxable inhabitants,” rather than the total number of inhabitants, whether eligible to vote or not. In fact, none of the new state constitutions enacted at the time of the Revolution numbered women and children as among those who were to be represented. Similarly, the Northwest Ordinance of 1787 specified that representation was to be based upon the number of “free male inhabitants, of full age.”
To include female inhabitants when apportioning representatives, then, was a significant extension of democratic trends that were reshaping representation in the states. Wilson took this logic further than others had taken it until now and, in fact, further than those who would frame state constitutions in the near future would be willing to go. Kentucky’s constitution of 1792 based representation on ”an enumeration of free male inhabitants above twenty-one years of age,” and Tennessee’s, framed four years later, on “an enumeration of the taxable inhabitants.”
But because Wilson’s additional language about sex was uncontested, it is not immediately clear what he and the other delegates intended by their innovation. When we examine Wilson’s wording in the context of the convention’s debate about the issue of representation, however, we may begin to understand what he and the other authors of the Constitution had in mind.