Legal historians, such as Horwitz, Kahn, and Gillman, have contended that the practice of constitutional argument radically shifted around the turn of the twentieth century from legal formalism with a heavy dose of originalism (in which constitutional disputes are settled by reference to the intent of the Framers) to a pragmatic "living constitution" (in which constitutional provisions are unmoored from their originalist grounding and interpreted to ineet present societal needs).

Overlooked in these accounts is the first sustained effort to convince judges to adopt a pragmatic, evolutionary constitutional interpretive methodology. In the 1870s, a cadre of woman suffragists, including Virginia Minor, Elizabeth Cady Stanton, Susan Anthony, and other members of the National Woman Suffrage Association, put forward an early version of "living" constitutionalism when they mounted legal challenges to their continued disenfranchisement after the adoption of the Reconstruction Amendments.

Unable to convincingly use arguments of original intent -- women were purposefully omitted from the Fifteenth Amendment's extension of the franchise -- the suffragists constructed a novel interpretive approach we now recognize as commonplace living constitutionalism. Contending that the Constitution already protected their right to vote, suffragists attempted to persuade judges that the Reconstruction Amendments and the Guaranty clause should be read in light of modern conditions and emerging reconceptualizations of women's place in society.

The woman suffragists' experiment in evolutionary constitutionalism was short-lived due to the firm refusal of the courts, including the U.S. Supreme Court, to adopt their methodology. Nevertheless the constitutional debate, widely covered by the press, was a precursor to twentieth century constitutionalism. The story of the woman suffragists' interpretive method requires reconsideration of the timing of the rise of the living Constitution and recognition of the place of women suffragists in the constitutional canon.