Class 2: Descent Into Jim Crow

I found myself in a sour mood midway through Monday. It lasted most of the day.

And I knew exactly why: I had spent the morning reviewing the gut-wrenching history when the high hopes of the post-Civil War Amendments were so brutally dashed in the late decades of the 19th century….playing out exactly as some advocates had warned.

It doesn’t matter how many times I re-read that history—the horror and pain of it never ebb. And the lessons remain so important through today, as do too many parallels. (Which is why this history should be taught and fully understood…not censored).

So today’s Voting Right’s/Election Law Class will walk through that stomach-churning history, particularly as it relates to voting rights and election law then and now.

1. XIV Amendment

The abolition of slavery by way of the Thirteenth Amendment, ratified in 1865, opened immediate and enormous new questions for America’s democracy:

First, how were newly emancipated slaves and Black Americans more generally to be treated in the post-XIII world, especially when both violence and new “Black Codes” so quickly and brutally brought back many of the conditions of slavery from which they had just been freed?

Second, how could the nation mitigate the short-term prospect that, now counted as whole persons, the new population of “freedmen” in the South would give Southern politicians more power in Congress—an especially twisted result given that those Southern politicians would do all they could to keep those freedmen from voting.

These questions led to the drafting of new laws and, ultimately, the Fourteenth Amendment.

For a full accounting of the drafting, passage and ratification of the Amendment, I highly recommend Eric Foner’s “Second Founding.” And for a sweeping review of this era, I also recommend “The Right to Vote,” by Alexander Keyssar.

But to summarize, the Amendment, ratified in 1868, enshrined key principles that offered the hope of revolutionary change along a number of fronts, along with legal language and standards that we have wrestled with ever since.

Among them:

• the declaration of birthright citizenship in Section 1: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

• the prohibition on states from making or enforcing any law:

  • abridging “the privileges or immunities of citizens of the United States”;

  • depriving “any person of life, liberty, or property, without due process of law”;

  • “deny[ing] to any person within its jurisdiction the equal protection of the laws.”

  • needless to say, each of these commitments changed American democracy in critical ways, and would do so in the future.

• Section 5 introduced another dramatic change: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.” Given the deference to the states in the original Constitution, this enforcement clause also was revolutionary.

We will study each of these phrases for the rest of this course; what they meant/mean, how wide their scope is; what were their limitations; and so on.

But amid all this change, the long negotiation and many compromises that winnowed 70 proposed Amendments into the Fourteenth Amendment left many advocates—including long-time abolitionists and “radical” Reconstructionists—unsatisfied, and warning of future risks left by the ultimate language.

What concerns did they raise?

• That language was too vague—did the term privileges and immunities include such things as protection from violence, or education?

• That key specific protections and rights they’d hoped would be affirmatively established—such as suffrage, the right to serve on juries, and the right to run for office—were not enumerated;

• That the core operative clause was framed as a prohibition on states and state laws in particular—so what about non-state actors?

• And then there was Section 2, meant to address the concern of the South gaining power after emancipation. It reads, in part: “when the right to vote at any election…is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

  • On the one hand, this is the first time a “right to vote” is mentioned in the Constitution;

  • On the other hand, in a pattern that will continue going forward, it’s introduced as a negative right—and a right to be defined by the states and not affirmatively or explicitly spelled out as a federal right;

  • The Section also allows that “the right” can be abridged generally (for which a state will be penalized—although there has never been a penalty levied under this section) and for participation in “rebellion” or “other crime(s)” (for which there would be no penalty at all);

  • And by explicitly referencing the right to vote for “male inhabitants,” the Section crushes the hopes of the growing women suffrage movement.

Amid these warnings of loopholes and pitfalls, and with the forceful push of Congress (the Reconstructon Act 1867) requiring Southern states to ratify the Fourteenth Amendment (and also requiring that newly freed slaves be granted the right to vote in those states) in order to rejoin the Union, the Amendment was ratified in 1868.

2. The Fifteenth Amendment.

The fact that Black men could now vote in the South, but still lacked the franchise in most Northern states, along with momentum from 1868 elections (where Grant prevailed, as did referenda granting Black suffrage in some states), kickstarted the drafting of the 15h Amendment.

Prohibiting the denial of the “right” to vote on account of race emerged as the baseline of the Amendment; the question that dominated the ensuing conversation was how the “right” should be framed—positive/affirmative or negative—and what other ways could voting be protected beyond race.

WATCH:

While some proposed to protect voting rights broadly (for anyone of “sound mind,” for example) and others proposed that the vote should not be denied on account of nativity, property, wealth, education, or creed, this additional language was stripped out of the Amendment late in the process. As with the Fourteenth Amendment, critics denounced the ultimate compromise as too narrow, warning that the final language opened wide loopholes for devices such as poll taxes, property requirements and literacy tests to be used to discriminate without explicit reference to race. They also warned, again, that the risk remained that actions by non-state actors were not prohibited….