THE ROAD TO THE SUPREME COURT’S ADJUDICATION OF voting rights was neither straight nor clear. As fundamental as the right to vote appears to be, as a legal or even a political matter, it is anything but. From the moment of its founding, this nation’s leaders, and its judges, have been wrestling with the issue of suffrage. The solutions and rules they applied, which have vastly changed over the course of American history, have reflected, and continue to reflect, the manner in which they viewed American democracy.
In the summer of 1787, when the fifty-five delegates to the Constitutional Convention in Philadelphia were pounding out rules for a new government, one of the most important questions was who should be allowed to vote and for what offices. If government was to be by the consent of the governed, as most everyone believed, just how was that objective to be realized? While it was relatively easy to identify the governed, what was not clear was which among them would be allowed to give their consent. Women, slaves, convicts, children, and Native Americans were out of the question, of course, but what other requirements should there be in order that a man—almost always a white man—be allowed to participate in government?
There were no clear rules, but the delegates seemed to agree that the franchise should be limited to those “with a stake” in the government they were choosing. But even that notion had a hazy first derivative. Large property owners certainly qualified, but did small farmers eking out a subsistence existence on a tiny plot of land? Or tenant farmers? What about those whose wealth did not include real property? Then there were the professionals—lawyers and doctors—and other service workers, all the way down to common laborers. What was their “stake” in the government?
The only other rule the delegates seemed to agree on was that a vote should be given freely and intelligently. The fear that a voter who was not sufficiently independent or sufficiently learned would cast a ballot, either for someone he was told to or someone not in the best interest of government, was widespread. Literacy, then, seemed to be a requirement, as was financial independence. And a voter should certainly be a resident of wherever it was he voted, but for how long and under what circumstances was unclear. What almost no one favored was universal suffrage, or anything close to it.
Although defining “property” remained thorny, very few of the delegates, all men of some sort of property themselves, favored allowing those who were not property holders to help choose the nation’s leaders. They did not always admit it publicly, however. James Madison, who would later write in Federalist 52, “The definition of the right of suffrage is very justly regarded as a fundamental article of republican government,” had a very different view in August 1787. In a Convention session, which was kept secret from the public, he said, “Viewing the subject in its merits alone, the freeholders [that is, landowners] of the country would be the safest depositories of republican liberty.”1
In Virginia’s ratification debates, Madison would go further in making the case for limited suffrage.
In future times, a great majority of the people will not only be without landed, but any other sort of property. These will either combine, under the influence of their common situation—in which case the rights of property and the public liberty will not be secure in their hands—or, what is more probable, they will become the tools of opulence and ambition; in which case there will be equal danger on another side.2
John Adams, then the nation’s chief diplomat in London, was not present at the Convention, but had previously made his views known. In a letter written only six weeks before he would sign the Declaration of Independence, Adams expressed a firm conviction that those without property should not be allowed to vote. “Such is the frailty of the human heart, that very few men who have no property have any judgment of their own,” he wrote. “They talk and vote as they are directed by Some Man of Property, who has attached their Minds to his Interest.”3
Alexander Hamilton, the only delegate from New York to sign the Constitution, was the most insistent that only men of real property could be trusted to vote in the best interests of the nation. In a 1775 pamphlet, “The Farmer Refuted,” Hamilton cited the great English legal theorist William Blackstone, who insisted that those “under the immediate dominion of others”—workers—or “persons of indigent fortunes”—the poor—could not be trusted to “give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty.”4 At the Convention, Hamilton, during a six-hour speech in which he proposed a system of government very much like a monarchy, added,
All communities divide themselves into the few and the many. The first are rich and well born; the other, the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government.5
Those favoring restricted suffrage had a problem, however. The revolution that had granted Americans sovereignty and the Constitution that would cement what would later be called “privileges and immunities of citizenship” was steeped in the Lockean concept of “natural rights,” and what right could be more natural than that of choosing the people who would make the laws under which one must live? But granting the vote to what many in the convention considered rabble seemed to guarantee the descent that Madison described later, or worse.
There were those who saw less risk in widespread suffrage. One of the few who favored universal voting rights—at least among adult white males—was Thomas Jefferson, who in 1787 was representing the United States in Paris, and so also did not attend the Constitutional Convention. Jefferson had written in a 1776 letter, “I was for extending the rights of suffrage (or in other words the rights of a citizen) to all who had a permanent intention of living in the country. Take what circumstances you please as evidence for this, either the having resided a certain time, or having a family, or having property, any or all of them.”6 In a 1789 letter, he added, “Wherever the people are well-informed, they can be trusted with their own government; that whenever things get so far wrong as to attract their notice, they may be relied on to set them to rights.”7
At the Convention, of those few delegates who did favor an expansion of voting rights beyond real property owners, the most prominent was Benjamin Franklin, by then eighty-one years old and gout-ridden. Almost sixty years earlier he had penned a short anecdote, still famous as “Franklin’s jackass,” which jabbed at those who thought property owners were the only qualified voters.
Today a man owns a jackass worth 50 dollars and he is entitled to vote; but before the next election the jackass dies. The man in the meantime has become more experienced, his knowledge of the principles of government, and his acquaintance with mankind, are more extensive, and he is therefore better qualified to make a proper selection of rulers—but the jackass is dead and the man cannot vote. Now gentlemen, pray inform me, in whom is the right of suffrage? In the man or in the jackass?8
In the end, there seemed no path through the thicket, no set of rules that should apply across the nation. As a result, the Convention delegates chose to treat voting in the same manner as other intractable problems—the makeup of the federal judiciary, for example. They dodged the issue entirely. For the House of Representatives, Article I, Section 2 simply reads that it “shall be composed of Members chosen every second Year by the People of the several States,” without specifying which people, except that qualifications would be the same as those for “the most numerous Branch” of a state’s legislature. Senators were to be chosen entirely by state legislatures—which was changed to popular vote in 1913 by the Seventeenth Amendment—and the president would be chosen by “electors,” equal to a state’s total number of congressmen, chosen once again according to rules adopted by individual state governments. Other than “guarantee[ing] to every State in this Union a Republican Form of Government,” in Article IV, no further reference to the right to vote appears in the text of the Constitution.
Although most Americans had been tacitly left out of the voting process entirely, this was not a feature that Federalists wanted to publicize during ratification. Since the proceedings had been secret, with no record published until long afterward, those campaigning for ratification could say anything they pleased about what had transpired in Philadelphia. (Slave owners, for example, would portray Northerners as far more amenable to slavery as an institution than they had been during the debates.)
In New York, with ratification very much in doubt, Hamilton, Madison, and John Jay collaborated on the Federalist, eighty-five essays that portrayed the Constitution as vital to the future of both the state and the nation. In Federalist 52, Madison, in addition to terming the right to vote “fundamental,” wrote further,
It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress would have been improper for the reason just mentioned. To have submitted it to the legislative discretion of the States, would have been improper for the same reason; and for the additional reason that it would have rendered too dependent on the State governments that branch of the federal government which ought to be dependent on the people alone.
In fact, almost none of this was true. The right to vote was left almost entirely “to the legislative discretion of the States,” and they could and would exercise that power as they saw fit until after the Civil War, when the right to vote began to come under the authority of the Constitution with the enactment of the Fourteenth and Fifteenth Amendments.
In the meantime, suffrage was a muddle. Even a philosophical definition was lacking. Was voting a “natural” right, a “political” right, or a “constitutional” right? These distinctions were not academic. Just which of them should be adopted would prove crucial when voting rights cases came before the Supreme Court in the wake of the Reconstruction amendments. In addition, with no definition or statement in the Constitution, suffrage seemed to fall squarely under the aegis of the Tenth Amendment, which stated, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
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Because the Founders had been unwilling to take on the issue, voting across the thirteen states, and in all new states admitted to the Union, often varied as much as the states themselves. The only requirement common to all of the original thirteen, except New Hampshire, was that a voter needed to be a property holder—in most cases showing he owned land, but in some only that he paid taxes. Some states excluded certain religions—Jews or Catholics—while others charged a fee to vote. Some states excluded immigrants. Every state denied the franchise to slaves and Native Americans.
As a result, at the time of the first presidential election, which took place from Monday, December 15, 1788, to Saturday, January 10, 1789—Congress did not establish a national election day, “the Tuesday after the first Monday in November,” until 1845—only six out of every one hundred Americans were eligible to vote.
In some cases, that six included African Americans. After ratification, while no state allowed a slave to vote, the voting rights for free men of color who met a state’s property requirement were surprisingly widespread. They could vote by law in Maryland, Massachusetts, Pennsylvania, and New Hampshire, and were not specifically restricted from voting in Connecticut, New York, New Jersey, Delaware, Rhode Island, and, surprisingly, North Carolina. The only states legally barring blacks from voting were Virginia, South Carolina, and thinly populated Georgia.
Because each state was free to make its own rules, a number of quirks worked their way into the system. One of the oddest was in New Jersey, where the 1776 state constitution granted all “persons” who met the property requirement the right to vote. As a result, to the horror of many men, widows and other women who owned property regularly cast ballots.
In 1790, Pennsylvania, with a new constitution, took the immense step of eliminating the property requirement. It did, however, require that a voter have paid state or county tax within two years before an election, except for the sons of qualified voters twenty-one or twenty-two years old. That same year, Congress began to define national citizenship, which would also impact access to the ballot box. The 1790 Naturalization Act allowed free white immigrants “of good character” to become United States citizens, provided they lived in the nation for two years and in their state of residence for one. Immigrants of color and Asians were excluded. In 1795, the residence requirement was extended to five years, and in 1798 to fourteen. In 1802, under President Thomas Jefferson, who wished to encourage small farmers to immigrate, the residence requirement was returned to the five-year standard, where it remains today.
In the wake of Pennsylvania’s action, other states began to expand suffrage, and certain trends became manifest. By the first decades of the nineteenth century, some uniformity began to appear in voting regulations across the nation. Property restrictions were steadily eliminated in the original states, and most newly admitted states allowed adult men without property to vote as well. By the 1820s, only three states—Rhode Island, Virginia, and North Carolina—still had landholding requirements. Each of those was repealed in the ensuing decades. By 1856, both religious and property-holding requirements had been eliminated in every state in the Union, although six states continued to require that voters also be taxpayers.
But there were new restrictions as well. In 1807, for example, at the same time it granted the vote to all adult white males regardless of property holdings, New Jersey ended voting by women. Most of the narrowing, however, was for men of color. In 1792, Delaware stripped the vote from free black men, and in 1799, when Kentucky joined the Union, it did as well. Tennessee broke the trend when it was granted statehood in 1796, allowing every free male twenty-one or older to vote, but it instituted a race restriction in 1834. Ohio restricted the vote to white men when it joined the Union in 1803, as did Connecticut in its new constitution in 1818. In 1821, New York removed its property requirements for whites, but kept them in place for men of color. In 1842, Rhode Island removed a property requirement for native-born citizens only. While newly admitted slave states of Louisiana, Mississippi, Alabama, Florida, and Missouri did not even consider allowing free African Americans to vote, neither did free states California, Illinois, Indiana, Michigan, Iowa, and Oregon. Many states that had allowed black voting—Maryland, New Jersey, Delaware, and North Carolina—either outlawed African American voting or passed laws that achieved the same end. By 1860 only Maine, Vermont, Massachusetts, New Hampshire, and Wisconsin opened the ballot to men of color.
Since there were no national standards, there were no grounds for appealing voting restrictions to the federal judiciary. Free Americans of color, then, as the war that would define whether or not, as Thomas Jefferson wrote, “all men were created equal” became terrifyingly close, had little or no say in deciding whether the statement would be true or false.