Equal Rights Comes to the Ballot Box
BUT THERE COULD BE NO DELAY. THE RECONSTRUCTION governments could not survive without the army to back them up, and the army would not remain in the South forever. Radicals had based their initiatives on the assumption that with time, white Southerners would grow accustomed to sharing power with African Americans; that freedmen would assimilate sufficiently that their presence in government, schools, theaters, and business would gain at least tacit acceptance. The rise of the Klan and other terror groups, and the enthusiasm with which they had been greeted, had tempered that hope, if not destroyed it. Reconstruction could only continue with equal access to the ballot box, and once the army withdrew, the only way black Americans would be able to ensure that access was through the federal court system.
Proponents had made several attempts to ensure voting rights during the drafting of the Fourteenth Amendment, but each had failed. John Henderson, a senator from Missouri, had introduced an amendment that read, “No state, in prescribing the qualifications requisite for electors therein, shall discriminate against any person on account of color or race.”1 Charles Sumner had tried to include “no denial of rights, civil or political, on account of color or race.”2 Finally, the Radicals gave up. When the committee issued its report, it read,
The committee were of the opinion that the States are not yet prepared to sanction so fundamental a change as would be the concession of the right to suffrage to the colored race. We may as well state it plainly and fairly, so that there shall be no misunderstanding on the subject. It was our opinion that three-fourths of the States of this Union could not be induced to vote to grant the right of suffrage, even in any degree or under any restriction, to the colored race.3
In addition, the second section of the amendment, which threatened Southern states with loss of House seats, had never been enforced, nor did it appear that it ever would be. In December 1868, Andrew Johnson, by then a lame duck president, pardoned everyone who had been either directly or indirectly associated with the Confederacy, thus rendering Section 3 of the Fourteenth Amendment moot.
There had been some victories. One month after the 1866 Republican landslide, Congress enacted a bill, over Johnson’s veto, enfranchising blacks in the District of Columbia. In January 1867, a bill was passed that enfranchised the African Americans living in the federal territories. Congress passed another bill requiring blacks to vote in Nebraska in order for it to be granted statehood. Still, the trends were clear. And so, after the 1868 elections, “Supporters of universal suffrage for blacks realized that time was short for their efforts to accomplish their goal in the form of the Fifteenth Amendment.”4
The process began during the Fortieth Congress, when on March 7, 1868, Senator Henderson introduced a proposed amendment, which read, “No State shall deny or abridge the right of its citizens to vote and hold office on account of race, color, or previous condition.”5 A similar proposal was introduced in the House. It became clear early on that most congressmen would only support a measure that broadly defined the goal and did not address some of the tactics that might be employed to disfranchise black voters, such as literacy tests, poll taxes, or property holding. In the House, John Bingham tried to persuade his colleagues to include more specific wording, as did Charles Sumner in the Senate. Bingham’s original proposal would have banned literacy tests, a poll tax, education requirements, or property ownership as reasons for denying someone the right to register to vote. It was rejected.
Sumner’s proposal was even more extreme, consisting of five sections, the first of which forbade denying or abridging the right to vote, or the right to hold office, “under any pretence of race or color”; the second mandated fines and prison sentences for violators; the third mandated similar fines and prison sentences for anyone refusing to register a potential voter on the basis of race or color; the fourth gave federal courts jurisdiction; and the fifth gave a wronged person the right to sue and collect damages.6 Sumner could not even garner ten votes in support.
Debate continued for the remainder of 1868, with Bingham and Sumner mustering sufficient allies to prevent a watered-down version from being adopted in either chamber. But in the 1868 elections, when Democrats picked up twenty House seats, part of those gains was due to increased popularity in Northern states, many of which did not allow black men to vote. Waiting until the Forty-First Congress was seated in March 1869 suddenly seemed like an unacceptable risk. So, in January 1869, the draft amendments, weaker than equal rights advocates proposed, finally reached the floor of both houses for final debate.
Bingham still did not give up. On January 29, he replied to a colleague who told him he was wasting the House’s time.
Sir, I have stood here the advocate of impartial suffrage when gentlemen who now put themselves forward as its special friends were on the other side of the question. It has been the rule of my political life. I never could see the propriety, under the Constitution of the United States, of any state disenfranchising any free citizen of the Republic by reason of his color from exercising this great privilege of freedom.7
The following day, he offered an amended version.
No State shall make or enforce any law which shall abridge or deny to any male citizen of the United States of sound mind and twenty-one years of age or upward the exercise of the elective franchise at all elections in the State wherein he shall have actually resided for a period of one year next preceding such election, (subject to such registration laws and laws prescribing local residence as the State may enact,) except such of said citizens as shall engage in rebellion or insurrection, or who may have been, or shall be, duly convicted of treason or other infamous crimes.
Bingham’s proposal was defeated 160–24, with 38 not voting. Sumner offered his version once more and it was defeated 46–9.
Although the House reported out an abbreviated version, “The right of any citizen of the United States to vote shall not be denied or abridged by the United States or any State by reason of race, color, or previous condition of slavery of any citizen or class of citizens of the United States,” Sumner had more luck in the Senate. Their draft read, “No discrimination shall be made in any State among the citizens of the United States in the exercise of the elective franchise or in the right to hold office in any State on account of race, color, nativity, property, education, or creed.” But the House rejected the Senate’s draft overwhelmingly, and a conference was called. In the meantime, the clock was ticking. There were only three weeks to pass the amendment before Democrats, allied with reluctant Republicans, might be in a position to block it.
After some back and forth, a final version was agreed to. It was identical to the first Senate version, which had read, “The right of citizens of the United States to vote and to hold office shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude,” except “and to hold office” was eliminated. Some senators bristled at the office-holding guarantee being eliminated, but it was that or nothing. On February 26, 1869, just one week before the new Congress would be sworn in, both houses approved the amendment and sent it on to the states. Although John Bingham grudgingly went along, Charles Sumner abstained, unable to bring himself to support such a lukewarm proposition.
It took almost an entire year, but in early February 1870, the required twenty-eight states had ratified, and the Fifteenth Amendment became law. This included nine of the eleven Confederate states that still, for the moment, had Republican legislatures. Never again, proponents proclaimed, would a person be legally denied the right to vote because of the color of his, and eventually her, skin.
Weakened language or no, the ratification of the Fifteenth Amendment was met with a sense of triumph in many quarters. To inscribe in the Constitution a guarantee that color or race could not be a bar to the ballot box seemed to many the coup de grace to racial inequality. William Lloyd Garrison, whose view of black suffrage had changed, gushed over four million human beings transferred from “the auction block to the ballot box.”8 In the North, African Americans rejoiced. “In Boston, about 3,000 blacks, including the veterans of the 54th and 55th Massachusetts regiments, participated in the procession held in Boston Public Park. In Detroit, blacks carried portraits of Abraham Lincoln, Ulysses S. Grant, and John Brown, and sang verses which rang, ‘The ballot-box has come, now let us all prepare to vote/With the party that made us free.’”9 The American Anti-Slavery Society disbanded in March 1870, feeling there was no longer any reason for its existence. President Grant, in a message to Congress, called the amendment “a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present time.”10 Finally, the amendment infuriated Democrats, which in and of itself seemed ample justification to many for its inclusion in the Constitution.
Ratification of the amendment engendered a good deal of relief as well. The nation might finally have moved past “the Negro question,” as it was called. Ohio congressman and future president James A. Garfield asserted that the amendment “confers upon the African race the care of its own destiny. It places fortunes in their own hands.”11
Others, however, took a more circumspect view. To them, the wording of the amendment was evidence of a decreasing commitment among white Americans to ensuring equal rights for African Americans. For one thing, as Charles Sumner continued to protest, the Fifteenth contained no guarantee that black Americans could hold office. Nor were uniform standards of eligibility included, which would prevent white governments from excluding potential voters through arbitrary literacy tests, or poll taxes, or tortuously formulated property requirements. The shrinking contingent of Northern Radicals decried the “lame and halting language,” or noted that the amendment was “more remarkable for what it does not than for what it does contain.”12
Negative sentiment came from other quarters. An editor at the New Haven News wrote portentously, “. . . the question of the elective franchise is one that [the states] will never surrender at the dictation of congress or any other power seeking to arbitrarily wrench it from [their] constitutional grasp.”13
But for most, both the intent and the impact could not have been clearer: the Fifteenth Amendment was to add cement to an edifice of democracy built on American virtue. Naysayers, like the New Haven editor, were reminded that any attempt by unscrupulous white legislators to end-run the Fifteenth Amendment through, say, bogus literacy tests would certainly also run afoul of the equal protection clause of the Fourteenth. And, to ensure that the Constitution was adhered to by any who would seek to contort its aims, there stood the federal judiciary and ultimately the justices of the Supreme Court.