Angus McClellan (Claremont Graduate University) has posted Early Women's Rights Activists and the Meaning of the 14th Amendment on SSRN. Here is the abstract:
The purpose of this paper is to consider the meaning of the 14th Amendment as it applies to women in the United States through the perspective of the women’s rights litigants, advocates, and their allies in the 1860s and 1870s. Originalism as a method for constitutional interpretation can take many forms, including giving weight to the original intent of the drafters of the Constitution or its amendments, or deferring to the understandings of the ratifiers in state conventions and legislatures, or perhaps giving weight to the “public meaning” or “public understanding” of the documents by considering newspaper editorials, pamphlets, and dictionary definitions in use at the times of their ratifications. This paper is an originalist approach to understanding the 14th Amendment by turning to a group of people who were particularly active in the earliest debates on its meaning. Modern interpretations as well as those from contemporaneous statesmen and jurists will be considered as well to provide some orientation and comparison.
To map this argument broadly, modern scholars argue that the 14th Amendment protects some or all categories of individuals within the jurisdiction of the United States, and they variously claim that Section 1 protects substantive or procedural civil, political, natural, fundamental, or common law rights, or even social equality. Adding to this the variety of definitions of rights or “equality,” there is a wide spectrum of scholarly thought on what the 14th Amendment protects, and to whom it applies. Part II be divided between political efforts and legal efforts. It will focus first on the political efforts and the accompanying interpretations of the 14th Amendment from some of the most prominent activists during the 1860s and 1870s. It will then explore the legal arguments of women’s rights activists and their attorneys engaged in litigation from three notable cases in the earliest days of the 14th Amendment.
And from the paper:
Francis and Virginia Minor were the first members of the women’s rights movement to make arguments that female United States citizens had the constitutional right to vote and that the 14th Amendment provided additional, explicit protection for that right under the privileges and immunities clause. They did so at the annual NWSA convention in St. Louis, Missouri, in October 1869, just nine months after leaders of the movement had denounced the 14th Amendment. Based on their legal arguments, the NWSA shifted focus away from agitating for a 16th amendment that would secure female suffrage to instead relying on the 14th Amendment as it stood. It was primarily a textualist position supported by the letter of the Constitution and case law, but secondary arguments also appealed to higher law and the spirit of the document. The strength of their claims led to their adoption by the NWSA and were “afterward adopted by many leading lawyers of the American bar,”36 as Stanton and others reflected in later years.
And from the conclusion:
Modern scholars largely have lost sight of the original understanding of the 14th Amendment as interpreted by early women’s rights advocates. In recent times, they have tended to focus on the privileges or immunities, due process, or equal protection clauses as stand-alone, self-contained principles of constitutional law, and they have argued that the amendment allows states to limit certain rights of women based on their different circumstances. By contrast, it appears that the early women’s rights advocates considered the privileges or immunities, due process, and equal protection clauses to be secondary to the citizenship clause, at least at first. Repeatedly they pointed to their status as natural-born or naturalized citizens as upholding the necessary implication that they were entitled to equal rights and equal protection, and even equal opportunity, by whatever definitions.