3
CONSTRUCTING AND DECONSTRUCTING THE VOTE
The policy that emancipated and armed the negro—now seen to have been wise and proper by the dullest—was not certainly more sternly demanded than is now the policy of enfranchisement.… It will be found that the nation must fall or flourish with the negro.
—FREDERICK DOUGLASS, 1866
Nearly a decade before the Civil War, controversy over slavery shattered the American party system with the Whig Party’s demise. The Whigs had united moderate but generally proslavery southerners with northern Protestants, who formed the vanguard of antislavery, temperance, and anti-immigrant movements. This alliance failed when southern Whigs deserted the party as northerners sought, in vain, to use antislavery to salvage the party in their region. Like Oliver Wendell Holmes’s one-horse shay that “went to pieces all at once,” the Whigs fell apart not gradually but quite abruptly and suddenly, after the party decisively lost the presidential election of 1852. “We are slayed. The party is dead-dead-dead!” said Whig representative Lewis Davis Campbell of Ohio.1
By 1856, two new parties had arisen to compete with the ruling Democrats. The American, or Know-Nothing Party, appealed to voters who feared that Catholics, blacks, and immigrants were debasing American culture and politics. One leader who denounced the Know-Nothing appeal was the former Whig turned Republican Abraham Lincoln. He wrote in 1855, “How can anyone who abhors the oppression of negroes, be in favor of degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that ‘all men are created equal.’ We now practically read it ‘all men are created equal, except negroes.’ When the Know-Nothings get control, it will read ‘all men are created equal, except negroes, and foreigners, and catholics.’ ”2
The Republican Party opposed the expansion of slavery and, like the defunct Whigs, backed an activist government that promoted industry, commerce, and education. Although the Republican nominee for president, the famed explorer John C. Frémont, lost to the Democrat James Buchanan in the election of 1856, he nevertheless finished in second place, well ahead of the Know-Nothing nominee, former president Millard Fillmore. The results of 1856 installed the fledgling Republican Party as the opposition to the still-surviving Democrats in a new two-party system.
Democratic Party leaders in the 1850s sought to apply their idea of a white man’s republic to resolve the conflict over the expansion of slavery. The Democrats would leave the decision up to the voters of each territory as it entered the union whether it would become a slave or free state. During the campaign of 1856, James Buchanan lauded this policy of popular sovereignty as “founded upon principles as ancient as free government itself,” which stemmed “from the original and pure fountain of legitimate political power, the will of the majority.” This expedient, however, satisfied neither the proponents nor the opponents of slavery’s expansion. As applied to the territory of Kansas, the doctrine led to a bloody civil war, termed “Bleeding Kansas,” between pro- and antislavery forces.3
The Democratic Party’s compromise position on slavery failed to prevent its regional splintering in the pivotal election of 1860, when the party fielded two presidential candidates, the regular Democrat, Senator Stephen Douglas of Illinois, and the bolting southern Democrat, Vice President John C. Breckinridge of Kentucky. Although Republican Party candidate Abraham Lincoln won only 40 percent of the popular vote, the split within the Democratic Party let him carry every northern state and sweep the Electoral College vote.
After his election through the dissolution of the old political order, Lincoln faced the cheerless task of presiding over the near dissolution of the nation itself. Many southerners refused to accept the legitimacy of a president from a party they perceived as committed to the extinction, not just the limitation, of slavery. Even before Lincoln took the oath of office on March 4, 1861, seven southern states had seceded from the union. Tensions were so high in America that president-elect Lincoln had to steal into the capital under cover of darkness. Just five weeks later, on April 12, 1861, the Civil War began with the bombardment of Fort Sumter in South Carolina.4
Unlike the Whigs, the Democrats withstood sectional divisions and endured to oppose Lincoln’s commitment to military victory and Republican efforts to establish political and civil rights for the freed slaves after the war. Partisan conflict over racial issues in the 1860s would give Republicans a sizable advantage in northern states, create a solidly Democratic South after the demise of Republican-run Reconstruction governments, and define voter loyalties for another seventy years. Republicans emerged as the party of activist government in the late nineteenth century, whereas Democrats continued to defend limited government and states’ rights, principles that party leaders invoked to oppose constitutional amendments that sought to provide federal guarantees of voting and other civil rights.
Four long and bloody years of Civil War had little effect on voting rights in Union states. Three new states entered the union from 1861 to 1865: Kansas in 1861 (just before the war), West Virginia in 1863, and Nevada in 1864. All three followed the model of a white man’s republic, limiting suffrage to white males with certain modest exclusions. These votes portended a long and bitter postwar struggle to jettison the ideal of a white man’s republic and secure voting rights for black Americans.5
In 1865, the ratification of the Thirteenth Amendment abolished slavery, but the final northern victory in the Civil War, shortly after Abraham Lincoln’s assassination, left unresolved the big questions of Reconstruction: Under what terms would states be restored to the union? To what extent would the federal government provide civil rights and liberties, economic security, and suffrage to newly freed slaves?
It would remain for lesser leaders than Lincoln to decide the future course of American democracy. During his reelection campaign in 1864, Lincoln had dumped his vice president, Hannibal Hamlin, and put a Democrat, Andrew Johnson, the wartime governor of Tennessee, on his ticket in a show of national unity. In his second inaugural address, Lincoln spoke of how the great and bloody war was a divine retribution for slavery, visited on a guilty people both north and south. If the bloody war “continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk,” he declared, “and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said, ‘the judgments of the Lord are true and righteous altogether.’ ” Andrew Johnson listened but failed to comprehend the meaning of Lincoln’s words.6
Johnson loved the union but not the black people that it had liberated from slavery. Although later in life a moderately wealthy slaveholder, Johnson had risen from the lower ranks of white society, what some at the time called “mudsills,” the humble white farmers, laborers, tradesmen, and mechanics that he championed in his political campaigns. However, like John C. Calhoun, Johnson believed that race transcended class and that any white man, however humble, could look down on any black man. If blacks were given the right to vote, Johnson said in 1844, that would “place every splay-footed, bandy-shanked, hump-backed, thick-lipped, flat-nosed, woolly-headed, ebon-colored Negro in the country upon an equality with the poor white man.”7
Johnson was an odd man in his time. He was an apostate Democrat assuming the incumbency of a Republican president. He lacked allies in either party and prided himself on being an outsider untethered to a capital city that he called “12 square miles bordered by reality.” By opposing efforts to reconstruct the nation and integrate newly freed slaves into American life, Johnson quickly fell afoul of a Congress controlled by Republicans with southern states still in limbo. He pardoned thousands of wealthy planters from the consequences of rebellion, including disenfranchisement, and pushed to restore southern states swiftly to the union with no controls on race relations and no federal guarantee of the right to vote. He lambasted the “Radical Congress” for giving blacks privileges “torn from white men.” He proclaimed himself to be protecting America not from ex-Confederates but from radical Republicans and their black allies. At an outdoor rally, Johnson told a crowd of cheering white men that he was their Moses who would lead “the emancipation of the white man” from his slavery under postwar Reconstruction. He forced Congress to override his vetoes on legislation aimed at protecting black rights and safety in the South, and exploited his powers as president to evade and obstruct the enforcement of these laws.8
In a remarkable White House colloquy held in February 1866 with a delegation of prominent African Americans led by George T. Downing of Washington, DC, and the renowned Frederick Douglass, Johnson justified his continued commitment to a white man’s republic and his disdain for African American suffrage. The end of slavery, Johnson said, was never a goal of the war and claimed that “Lincoln himself has pointed out” that abolition only arose “as an incident to the suppression of a great rebellion.” The freeing of the slaves, he insisted, did not mandate voting rights for black people, whom he continued to exclude from America’s political community. “The first great principle of government,” he said, “is the right of the people to govern themselves,” that is, implicitly white people. To include blacks as voters, he claimed apocalyptically, would be “to adopt a policy that I believe will end in a contest between the races, which if persisted in will result in the extermination of one or the other. God forbid that I should be engaged in such work!”9
After the disappointed delegates departed, Johnson reportedly disparaged in private what he called the “darkey delegation.” He said, “Those damned sons of bitches thought they had me in a trap! I know that damned Douglass; he’s just like any nigger, and he would sooner cut a white man’s throat as not.”10
Judging by the results of state-level referenda on black voting rights, most northern voters shared Johnson’s continued support for the white man’s republic. From 1865 to 1870, blacks gained voting rights through referenda only in three states: Iowa in its second referenda, and Michigan and Minnesota in their third. Black suffrage failed to win a popular majority in New York, Wisconsin, Connecticut, Ohio, Kansas, Nebraska, the Colorado Territory, Missouri, or Washington, DC.11 Faced with such futility, African Americans pressed Congress for a constitutional amendment that would override state suffrage restrictions. “Slavery is not abolished until the black man has the ballot,” Douglass said. He and his allies brushed aside objections that voting would lead down the slippery slope to social equality or even intermarriage across the races. Federal intervention to enfranchise African Americans, they argued, only guaranteed their rights as citizens and accorded no special privileges to black people. They compared themselves favorably to naturalized immigrants, who had voting rights across the nation.12
Despite the lack of voter support at home and misgivings about black inferiority, northern Republicans in the U.S. House and Senate eventually embraced racially neutral suffrage as a legacy of the war and emancipation. African American votes held out the only prospect for competitive Republican parties in the South, once the eleven former Confederate states rejoined the union. Congress took its first step toward guaranteeing black suffrage in late 1866 and early 1867 when it mandated black voting rights in the District of Columbia and required race-neutral suffrage for Nebraska’s and Colorado’s admission to the union. The Reconstruction Acts of 1867, which Congress enacted over President Johnson’s veto, required black suffrage within the former Confederate states.13
Still, adoption of the landmark Fourteenth Amendment to the Constitution disappointed African Americans because it failed to guarantee voting rights for members of their race. The amendment gained the requisite two-thirds vote in both chambers of Congress in June 1866, before the midterm elections. Ratification remained in doubt until Congress required its approval by former Confederate states as another condition for readmission to the union.
Although it fell short of protecting black voting rights, this complex, 435-word amendment—the most prolix of all constitutional additions—still had important implications for voting and representation. Section 1 reversed the Dred Scott decision that had declared slaves property, and granted national and state citizenship—in most states a prerequisite for voting—to “all persons born or naturalized in the United States.” Birthright citizenship in the United States applied not just to former slaves but also to the American-born children of immigrants, whether their parents were documented or not. It reinforced this citizenship status by declaring that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” with the phrase “privileges and immunities” borrowed from the original Constitution. This provision enshrined in the Constitution the guarantee of African American citizenship that Congress had established by law in the Civil Rights Acts.
Debates in Congress indicate that members did not intend to include the right to vote among a citizen’s “privileges and immunities.” By a wide margin, the Joint Committee on Reconstruction rejected drafts of section 1 designed to assure political equality for citizens of color.14 The full Senate rejected by a vote of thirty-seven to ten a similar provision, which said that “no state, in prescribing the qualifications requisite for electors therein, shall discriminate against any persons on account of color or race.”15 In presenting the proposed draft of the Fourteenth Amendment, Republican senator Jacob Howard of Michigan quoted from Bushrod Washington’s 1823 opinion to explain that voting was a state-granted privilege, not an inherent natural right encompassed within the “privileges and immunities” of citizens. The Republicans still balked at mandating black suffrage nationwide and risking the wrath of the many voters in northern states hostile to black rights.16
Section 1 further prohibited the states from denying “to any person within its jurisdiction the equal protection of the laws.” At least indirectly this clause could be construed as prohibiting any racially discriminatory voting laws. However, it was not so understood by legislators at the time, and narrow court constructions limited its application to suffrage until well into the twentieth century. In recent years, however, this clause has assumed powerful meaning by protecting voting rights from intentional or purposeful voting discrimination by states or localities. In the second decade of the twenty-first century, for example, courts struck down voter photo identification laws and congressional redistricting plans adopted by state legislatures that were deemed as intending to suppress the votes of minorities.17
Still, some Republican legislators in the 1860s regretted a lost opportunity to rectify an omission in the Constitution and explicitly ensure voting rights through the Fourteenth Amendment. Representative James Garfield of Ohio, later the twentieth president of the United States, issued a ringing defense of the vote, which even “if it be not indeed one of the natural rights of all men is so necessary to the protection of their natural rights as to be indispensable, and therefore equal to natural rights.” Although he lamented Congress’s failure to “imbed” the right to vote “in the imperishable bulwarks of the Constitution,” Garfield supported the amendment as the only practical option at the time. “I am willing,” he said, “when I cannot get all I wish to take what I can take.18
Members of the House and Senate focused less on section 1 than on sections 2 and 3 of the proposed amendment. Section 2 had potentially weighty implications for suffrage and representation. Although it did not compel the former Confederate states to enfranchise blacks, it seemed to punish racial disenfranchisement through reduced representation. Under section 2, if the right to vote 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.”
This provision, proponents said, would keep the white South from unduly benefiting from the elimination of the three-fifths clause of the Constitution and the full counting of former slaves for purposes of representation in Congress and the Electoral College. The far-reaching effect of section 2, said Radical Republican representative Thaddeus Stevens, co-chair of the Joint Committee on Reconstruction, “will be either to compel the States to grant universal suffrage or so to shear them of their power as to keep them forever in a hopeless minority in the national Government, both legislative and executive.”19
Section 2, which was not limited to race but covered all forms of suffrage restriction other than sex, age, crime, and rebellion, had the potential to compel revolutionary changes in suffrage laws both in the South and across the rest of America. In principle, it would have docked the representation of states for denying the vote not just to people of color but also to paupers, the mentally ill, and those who failed to pay poll taxes or pass a literacy test. However, Congress never followed through with a mechanism for implementing this explosive section of the Fourteenth Amendment; it remains unenforced to date. The federal courts have rebuffed efforts to enforce the provision judicially, terming enforcement a “political question” outside their purview.20
Section 3 of the amendment punished secessionists by denying public office and voting rights for president to former U.S. government officials who had backed the southern rebellion. In 1872, under powers authorized by the amendment, Congress softened its impact by allowing nearly all secessionists, expect for several hundred former top officials, to hold public office and vote. It ultimately extended political rights to all former Confederates.
Paradoxically, while most northern states denied black people the ballot, in former Confederate states many southern blacks voted in the presidential election of 1868 under the protection of northern troops and the aegis of permissive southern state constitutions that Congress had required via the Reconstruction Acts. By this time, however, the North had lost much of its leverage over seven of the eleven rebellious states that Congress had restored to the union. Supporters of black suffrage worried that voting rights would not last in the South and had yet to take hold in the North.21
In January and February 1869, the lame duck session of the 40th Congress debated a Fifteenth Amendment to the Constitution proposed by the House Judiciary Committee for black voting rights. It asserted that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The fate of the amendment and many alternative versions was by no means certain. Republicans dominated both chambers of Congress, but not all were radicals committed to an advanced view of black rights.
Deliberations over the proposed voting rights amendment raised large philosophical and practical questions about the vote in America. What constitutional revision was needed to justify the sacrifices of the Civil War and secure rights for former slaves? What was the proper balance of sovereignty between the state and national governments? Should a voting rights amendment establish an affirmative right to vote or impose prohibitions on the states? Could a negative prohibition against race-based disenfranchisement truly protect black voting rights? If framed negatively, should an amendment transcend race and in effect mandate nearly universal male suffrage by prohibiting states from denying voting rights on the basis of religion, economics, literacy, or education? What form of an amendment would likely gain the assent of three-quarters of the states, with many skeptical of black suffrage?
In adopting the committee’s version of the Fifteenth Amendment, Congress compounded the framers’ mistake of passing on the opportunity to transform American politics by enshrining an affirmative right to vote in the Constitution as some Republicans proposed. Congress failed to safeguard against the de facto disenfranchisement of African Americans through devices such as poll taxes and literacy tests. Yet these criticisms may too harshly judge the legislators of the time. If Congress had expanded the committee’s draft amendment to mandate universal suffrage or even proposed safeguards beyond race, the amendment would likely not have passed muster with three-quarters of the states. Echoing James Garfield’s comments on the Fourteenth Amendment, the proposal’s Republican author, Representative George S. Boutwell of Massachusetts, said, “I believe that if we adhere to the proposition to protect the people of this country against distinction on account of race, color, or previous condition of slavery, we undertake all that is probably safe for us to undertake now.” The bloodshed in the war vindicated only the elimination of race-based suffrage restrictions, not broader extensions of voting rights.22
In defense of Boutwell’s draft, Republican senator William Stewart of Nevada said that “it is the only measure that will really abolish slavery” and redeem the promise of the war and the Thirteenth Amendment. With the new amendment, “we shall have peace. Until then there is no peace.” Opponents countered that Republicans had at most justified intervention in the former Confederate states only, not uniformly across all states. The Republican platform of 1868, said Senator James Dixon of Connecticut, a former Republican turned Democrat, called for only protecting suffrage rights in the South, in distinction to “the loyal states,” where voting qualifications would be left “to the people of those States.”23
However, Republicans could not credibly protect the voting rights of black people only in the formerly rebellious states. Backers of the amendment pointed to a broader platform provision that applauded the “immortal Declaration of Independence as the true foundation of Democratic Government” and favored making its “principles a living reality on every inch of American soil.”24 They cited the sacrifices of war made by black Americans and the opposition of Democrats to the Reconstruction laws and amendments. Republican senator Orris F. Ferry of Connecticut evoked the image of northern black soldiers “shattered and maimed” in defense of the union and asked whether anyone could “look these scarred veterans in the face and tell them that it is doing no wrong to deprive them of all share in the government for which they have made this horrible self-sacrifice.” Senator Oliver P. Morton, formerly Lincoln’s “war governor” of Indiana, charged that the Democratic Party “cherished slavery while it lived, and now that slavery is dead it has taken to its embrace its odious and putrescent corpse.” He said that “in defiance of that party we are about to plant in the Constitution the great principle of impartial suffrage.”25
Republicans insisted that given white people’s antipathy to African Americans across the country, principle, not politics, prompted them to protect black suffrage. “Our many struggles on behalf of the Negro,” said Republican senator Henry Wilson of Massachusetts, “has cost the party with which I act a quarter of a million votes. There is not today a square mile in the United States where the advocacy of the equal rights and privileges of those colored men has not been in the past and is not now unpopular.” Presciently, he added, “That the cause of the poor, wronged, and oppressed negroes has been, now is, and for some years will continue to be an unpopular cause.” Nonetheless, Republicans knew that the survival of their party in a post-Reconstruction South depended on black votes, which could also help Republicans in northern states with substantial black populations.26
Opponents assailed the committee’s amendment for intruding on the rights of the states. This controversy over state sovereignty blazed in 1869 because, unlike other emerging democracies and constitutional monarchies in the nineteenth century, America remained fixed in the eighteenth-century practice of defaulting voting qualifications to the states, rather than setting national standards. The states had retained sovereignty as “independent Republics” under a federal system of government, argued Senator Dixon. “Because the doctrine of State’s rights has been carried to an extreme, and a dangerous extreme at the South, shall we go to the other extreme and say there are no State rights?” An independent republic “must necessarily control the question of suffrage in its own elections. This lies at the very foundation of all government.”27
Senator Morton asked incredulously how anyone could claim that “after the culmination of a war that cost this nation six hundred thousand lives, that we were not a nation.” He said, “The states have certain rights guaranteed to them by the Constitution,” but “we have no state sovereignty,” and by propagating this canard, his opponents have declared “a war on the Constitution.” The antislavery veteran Republican senator Charles Sumner of Massachusetts expressed his “sense of sadness” that “after a bloody war with Slavery, and its defeat on the battle-field,” we must “be compelled to meet the champions of a kindred pretension.… Nobody ever vindicated Slavery” through states’ rights, and “now nobody can vindicate Caste, whether civil or political, the direct offspring of Slavery.” He warned that “the old champions reappear, under other names,” but the intent of “establishing a Caste and an Oligarchy of the skin” remained.28
Echoing arguments made in antebellum state constitutional conventions, Democrats and a few Republicans reached to history, common experience, science, and scripture to prove that African Americans lacked the fitness to vote. Senator James R. Doolittle of Wisconsin, the harshest Republican critic of black suffrage, proclaimed that “six thousand years and the whole history of the race” and “natural philosophy, all ethnologists, all historians” proved the “incompetency” of blacks for the vote. Any attempt to force “an amalgamation of the races [is] against nature and against the laws of God. Those who attempt to do it are warring against all history and warring against the laws of Him that made history and made the races of men.” The only solution, he said, to the eternal conflict of the races was to dispatch America’s former slaves to “the islands of the West Indies” where “the white race is not adapted to the climate and cannot live there.”29
Democratic senator Garrett Davis of Kentucky expressed his view that the black “is inferior in physical condition, in mental and moral endowment, to the white race or the yellow race. Every ethnologist knows it. Every man who is acquainted with the negro practically and from experience knows it.” The African American is “in a condition of brutalized, ferocious, and ignorant barbarism. That is the condition as proven by all history, and by the modern travelers in the interior of Africa.” Proposing an argument that has not yet died in America today, he even claimed that slavery was a blessing for blacks in America, insisting that “they are indebted to slavery for all that they know, all their intellectual and moral elevation from the condition of the most ignorant barbarism.”30
Senator Doolittle played on antiforeign sentiments, notably the hostility of West Coast legislators to the Chinese. If we establish equality of the races, he argued, “it may be hundreds of thousands of laboring men from China, and Japan, and the great fountain of human population in Asia, will be brought to the United States. In ten years, there may be as many Chinamen as there are white men on our western coast.… How can you contend in favor of giving this power [of political equality] to the African race if you deny it to the Chinese?”31
Despite this inflated rhetoric, the friends of black suffrage recognized the loophole in the committee’s draft that accorded too much, not too little, discretion to the states, which could disenfranchise blacks on grounds other than their race. Legislators cited such deceptively race-neutral suffrage qualifications as freehold possessions, poll taxes, and literacy tests that would in practice exclude most colored citizens. Even Representative Boutwell conceded this flaw:
MR. WALKER: I desire to inquire whether there is anything in this bill that will prevent any of the States from requiring of voters a property or educational qualification?
MR. BOUTWELL: I do not suppose there is.
MR. WALKER: Then the State may, under this bill require such a qualification?
MR. BOUTWELL: I suppose they may.32
As always in America, debates about race also transcended race. Some of those who had backed the war and equal rights for freed slaves now pushed the boundaries of “universal suffrage” beyond old limits. They swept aside concerns of the founding fathers about imposing suffrage rules on the states and enfranchising the dependent and the foolhardy. They would for the first time imbed an affirmative right to vote in the Constitution, either for all citizens or in the predominant view for all male citizens, with perhaps limitations only for age, residence, mental competence, and crime.
Republican representative Samuel McKee of Kentucky recognized the failure of the Constitution and its amendments to guarantee any American the right to vote. He said that the voting rights amendment under debate “should be affirmative and not negative, and by that means we will have the right of the citizen to the elective franchise clearly defined, and behind which no state can go.” Republican senator Willard Warner of Alabama agreed that “the question before us is not one of negro suffrage. It is the question of suffrage itself.… The sovereign power, belongs to the people, not to a portion of the people, not to the learned, not to the ignorant, not to the rich, not to the poor, not to the great, not to the weak, but to all the people.” Still, the idea of affirmative voting rights even for men only lay beyond the consensus of the time, and lawmakers rejected all such drafts of the amendment in preference for a negative prohibition detailing what states could not do.33
The Senate ultimately backed a negatively framed but still sweeping amendment that Senator Henry Wilson proposed. This self-made former shoemaker and early abolitionist, known as the “Natick Cobbler,” proposed to go beyond race and prohibit states from denying or abridging voting rights “on account of nativity, property, education, or religious belief.” Republican senator George Henry Williams of Oregon said in support that if “the white people of a state should be disposed to having the power to disfranchise the colored citizens of that State, could they not put the legislation accomplishing that purpose upon some other ground than upon race or color?” For example, a state might “provide that no person should vote or hold office who did not have a freehold qualification. Apparently, that would operate equally upon all citizens, but it might practically operate to exclude nine-tenths of the colored people from the right of suffrage.”34
Republican senator John Sherman of Ohio added, “We ought to deny to states the right to discriminate between citizens on account of anything except age, residence, and sex. In all other respects citizens should have an equal right to vote.” He asked, “Why should you protect only and seek to extend only the right of suffrage to the colored race?” On February 9, 1869, the Senate voted down Wilson’s amendment nineteen to twenty-four with twenty-three not voting; then on the same day it reversed itself to pass the amendment by an equally narrow vote of thirty-one to twenty-seven with eight not voting. The House rejected the Wilson amendment on February 15, but five days later adopted a more limited version that added “nativity, property, and creed” to the prohibited grounds for denying the vote. The Senate declined to adopt this amendment. Finally, after this odd and inconclusive back and forth, the House on February 25 and the Senate a day later took the path of least resistance and adopted by the requisite two-thirds vote Boutwell’s original proposal with no substantive changes.35
Republicans in Congress broadly agreed that the inherited color of a man’s skin should not bar him from voting and that black suffrage redeemed the sacrifices of war. However, most still believed that acquired abilities, especially literacy, remained legitimate qualifications for voting that could not be assailed by waving the bloody shirt of war. A literacy restriction “is no wrong done to the voter,” said Republican senator James W. Patterson of New Hampshire, “for it simply protects the purity and integrity of the Government under which all his rights are secured.” To deny suffrage “on account of race or color or want of property is doing violence to the civilization of our age, and insults Christianity, but to protect and guard it against floods of ignorant barbarism is simply to preserve the jewel of liberty.”36
Agreement by two-thirds of both chambers of Congress did not end the battle for the Fifteenth Amendment, which wended its tortuous way for a year through the states. Ironically, the obstacle that advocates of black suffrage faced in obtaining ratification by the necessary twenty-eight of thirty-seven states was not the South. The seven former Confederate states already admitted to the union had been compelled by Congress to establish voting rights for African Americans and were largely controlled by Republican officeholders. All but Tennessee ratified the amendment, and Congress made ratification a precondition for admission of the remaining four erstwhile Confederate states.
The problem was in the North and border regions, where Senator Wilson had predicted the cause of African Americans would languish. Early in the ratification struggle an editorial in the New York Times warned that “in Indiana as well as in Ohio, New York, and perhaps some others of the larger and more powerful old states the sentiment of the people is opposed to the amendment.” Republicans won ratification in barely enough northern and border states through support from newly elected president Ulysses S. Grant and by uniting in a fragile party coalition. Republican leaders whipped together radicals committed to racial justice with moderates who recognized the amendment’s limited scope. Republican leaders sought to deprive Democrats of a wedge issue by putting black suffrage behind them. They also hoped to benefit from an influx of black voters.37
Still, ratification was precarious. The New York legislature ratified the amendment on April 14, 1869; rescinded its ratification on January 5, 1870; and ratified it again on March 30, 1870, after the amendment had already won approval nationwide. The amendment languished for more than two months in the Indiana legislature and passed only after a failed effort by Democratic legislators to prevent a voting quorum by resigning their seats. The northern states of California, Delaware, New Jersey, and Oregon and the border states of Kentucky, Maryland, and Tennessee first rejected and then post-facto ratified the amendment. Except for New Jersey, these states ratified the amendment only in the twentieth century, with Tennessee delaying until 1997.38
African American activists embraced even a flawed Fifteenth Amendment as the only practical option at the time and a landmark achievement for black freedom. The Christian Recorder, an influential black newspaper, hailed the amendment as the “crowning one” among all constitutional amendments, saying that at last “the nation has proclaimed political freedom.”39 African Americans expected the federal government to enforce the amendment, but they could not have been expected to foresee “the return to power of the Democrats in the southern states and the U.S. House of Representatives, the Republican retreat from Reconstruction, and the resurgence of Jim Crow, with its inventive and unjust measures designed to deny blacks the vote on grounds other than race, color, or previous condition of servitude.”40
A riot in 1874 foreshadowed the end of Reconstruction and the beginning of black disenfranchisement in the South. In the majority-black Barbour County, Alabama, black voters had been electing local Republican officials since the early years of Reconstruction. Then on election day in 1874, a mob of armed whites stormed the county polling place near the town of Eufaula. The men fired their weapons at the black voters, killing at least seven, wounding some seventy more, and driving many others from the polls. The election supervisor Elias M. Keils heard the white men shouting, “kill him, damn him, kill him.” But they misfired and killed Keils’s sixteen-year-old son, who was standing at his side. The murderers escaped conviction by silencing witnesses, and few blacks dared to vote again in Barbour County, defaulting control of its government to white Democrats. In that same election, Democrats regained control of the Alabama state government when they added a Democratic governor to their majority in the state legislature.41
The effective end of Reconstruction came just a year later with the failure of an election bill in 1875 designed to protect black political rights. Republicans in the 1870s could not prevent the unraveling of Reconstruction and the “redemption” of southern states by Democrats committed to the extinction of black voting. The harsh depression that began in 1873 and endured until 1876 made it difficult for Reconstruction administrations in the states to govern effectively. In every southern state by the mid-1870s, white supremacists predominated in numbers of voters and economic power. White vigilante groups like those that perpetrated the Eufaula massacre terrorized and intimidated black voters and their white allies, assuring so-called Redeemer control of elections. The self-styled “Redeemers” were the white Democrats who sought to overthrow the Reconstruction governments and suppress the black vote.
Public opinion in the North lacked the will for continued intervention in southern affairs on behalf of blacks. In the early 1870s, Congress passed a series of enforcement acts designed to curb violence perpetrated by the Ku Klux Klan. Despite the suppression of the Klan, white violence and intimidation of black voters continued while enforcement waned. In early 1875, after Republicans had lost control of the U.S. House and Democrats were surging into power in southern states, Ulysses Grant and the lame-duck Republican Congress worked to enact a new election bill that would protect voters from violence and coercion.42
Members of Congress knew that they stood at a turning point in their nation’s democracy. The great question before them was whether the federal government would redeem the promise of the Fifteenth Amendment by acting to assure access to the vote across racial lines. Opponents of the proposed election law turned reality on its head and blamed Republican Reconstruction and unruly blacks for racial turmoil in the South. They said that racial harmony and the rule of law would prevail under the benevolent and watchful eyes of white people fit to vote and hold public office. Democrats are “more sincere in caring for the real interests of the lowly and colored,” claimed Democratic representative Samuel Cox of New York, “than those who use them to their hurt and to the distress, impoverishment, and dishonor of southern people and State governments.” Democratic representative John K. Luttrell of California charged that “the whole scheme of securing Federal interference was gotten up by the leaders of the Republican Party in manufacturing outrages that did not exist, or where they did exist, it was only in the camps of the Republicans.” An editorial in the Atlanta Constitution blamed the Eufaula massacre on violence not by whites but by black Republicans against black Democrats. “The affair in Eufaula and other occurrences,” the editorial said, “have taught the negro that he can no longer safely resort to intimidation. The whites have resolved to protect the colored democratic voters.”43
Opponents challenged any robust construction of the Reconstruction amendments, arguing that they did not authorize federal interference in the affairs of sovereign states. “These amendments, if rightly construed, as they have been by the United States Supreme Court, are only intended to deny powers to the States and not to grant or enlarge the Federal powers,” said Representative Cox. “They furnish no authority for such bills as the present one.”44 Cox was referring to the Court’s 1873 decision in the Slaughter-House Cases, which narrowly construed the Fourteenth Amendment as protecting only a very few rights of national citizenship and none of the broader rights of state citizenship. Even some allegedly sympathetic voices insisted that racial equality in the South could not be achieved by the force of law. “Let the general government refrain from all further legislation or interference on behalf of the negro as such,” said the editors of the Chicago Tribune. “A taste, a sentiment, a feeling, an instinct, a prejudice, these pass the bounds of all legislation, and the attempt to rectify or regulate these by law serves only to irritate opposition.”45
Proponents of the election bill pointed to the findings of federal investigations and the petitions of black southerners as proof that white supremacists intended to wipe out black suffrage by all available means, including terror. “We cannot shut our ears against the testimony that comes up from the South,” said Republican representative Lyman Tremain of New York. “We cannot shut our ears against the appeals made by Representatives on this floor of four millions of emancipated freedmen asking us for protection of lives, property, and their political rights.” The election bill was necessary, he insisted, to protect “the rights of the people, the preservation of law and order, and the protection of the ballot-box and its purity. It is to secure to men who have been emancipated and to their political friends the right to enjoy the elective franchise.”46
Supporters claimed that section 2 of the Fifteenth Amendment, which granted Congress the “power to enforce this article by appropriate legislation,” and the constitutional authority to regulate elections provided ample grounds for federal protection of voting rights. The adoption of the Reconstruction amendments, said Republican representative Joseph Gurney Cannon of Illinois, “implies necessarily the duty to do all things by legislation or otherwise necessary to enforce the same,” including “appropriate legislation.” Republican representative Charles G. Williams of Wisconsin asked, “Will we protect these men [African Americans] or will we leave them to be overborne and butchered? … If the sacred right of choice through the ballot-box may be ruthlessly trampled underfoot, what vestige of free government remains in this country that is worth preserving?” The House eventually passed the election bill but too late in the lame-duck session for a Senate vote.47
Reconstruction died with this failed effort to enforce the Fifteenth Amendment. “The colored men, who compose the body of the Republican Party, have been made ‘peaceful’ by the shot-gun of the raiding white leaguer, the bowie-knife of the southern desperado or the whip-lash of the ex-slave master,” said Representative Charles Hays of Alabama, a former Confederate soldier turned Republican. If this continues, “Our doom is sealed.… What we do want is a fair chance to express ourselves at the ballot-box for the men of our choice.”48
A year later, the U.S. Supreme Court further undercut efforts to protect black voters and their allies from white vigilantes. The Court ruled that only the states, not the federal government, could protect private citizens from denying the rights of other citizens. It said that the Fourteenth Amendment “adds nothing to the rights of one citizen as against another.… The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the States, and it still remains there.” White terrorists could thus intimidate black voters without fear of retribution from federal authorities and with the knowledge that white supremacist governments supported efforts to suppress the black vote by any necessary means.49
The disputed presidential election of 1876 symbolically ended the already doomed Reconstruction of the South. Although Democratic candidate Samuel J. Tilden, the governor of New York, won the popular vote against Republican governor Rutherford B. Hayes of Ohio, the outcome of the election turned on disputed Electoral College votes in Florida, South Carolina, and Louisiana. With the Constitution silent on the resolution of such disputes, Congress improvised by forming a special electoral commission that ultimately consisted of eight Republicans and seven Democrats. The commission voted along party lines to award all disputed electoral votes to Hayes, which gave him a one-vote victory in the Electoral College.
Democrats derided the president-elect as “Rutherfraud B. Hayes” or “Old 8 to 7,” and claimed that Republicans had stolen the election by altering returns and stacking the electoral commission. Hayes’s backers countered that they had thwarted a Democratic plot to steal the election by suppressing the black vote. A similar scenario would unfold 124 years later in the disputed election of 2000, after the partisan affiliation of blacks and whites had flipped in the South. This time, Democrats accused Republicans of suppressing black votes in the disputed state of Florida and benefiting from a partisan-driven Supreme Court decision that, again by a one-vote margin, prematurely stopped the recount in that state.
Upon assuming the presidency, Hayes withdrew federal troops from the South and ended efforts to protect black voting rights. By the 1880s, white Democrats in every southern state firmly controlled their U.S. House and Senate seats, their state legislatures, and their governorships, creating a solidly Democratic South. Politics in the late nineteenth century revolved around a regional division of power growing out of Civil War alignments and a national stalemate between Republicans, who dominated the North, and Democrats, who controlled the redeemed South. The stalled politics of America’s late nineteenth-century “Gilded Age” resulted in a seesaw series of close elections: with neither party gaining a firm hold on government or the electorate, the White House changed hands in every contest of the era except 1880, when Republican James A. Garfield won by fewer than ten thousand votes. During this period, the difference between Democratic and Republican percentages of the national popular vote for president averaged only about 1 percent; differences in the vote between the North and South averaged about 25 percent.50
Freed from the shackles of federal enforcement of the Fifteenth Amendment, white supremacists in the South attempted to wipe out the gains of Reconstruction for black voters, through repeated acts of terror and economic coercion, claiming the need to protect peaceable whites from bloodthirsty blacks. As the New York Times observed in 1880, “Singularly enough, the propensity to riot, incendiarism, and murder which was charged against the negroes never alarmed the ‘defenseless white people,’ except during political campaigns and on the eve of important elections. Still more singularly, every ‘negro uprising’ on record in the South resulted in the butchery of from five to one hundred and fifty of the ‘bloodthirsty blacks,’ while not one hair of the head of any of the ‘peaceable and defenseless whites’ was ever harmed.”51
Although black voting declined after redemption, it is a testament to the courage and determination of African Americans in the South that many continued to vote through the Gilded Age despite the very real threat of ongoing state-tolerated or -sponsored violence and intimidation by the white majority. Some African Americans continued to win election to state legislatures, and three African Americans served in Congress in 1890.
By the 1890s, however, white southerners had devised new means for disenfranchising black people through revisions of their state constitutions and election laws. Between 1890 and 1910, every former Confederate state purposely disenfranchised black voters through measures that appeared racially neutral on their face but were anything but in practice. The states adopted stringent residency requirements, poll taxes, white-only primaries, and literacy tests with discretion for interpretation by white registrars. Some states adopted “Grandfather Clauses” that exempted individuals from literacy tests whose ancestors had previously voted, essentially ruling out black people. Even earlier, the southern states began adopting and expanding laws disenfranchising felons and ex-felons, with applicable crimes often tailored to African American offenders, such as larceny and “moral turpitude.” These suffrage restrictions not only burdened African Americans but to a lesser extent poor whites too, whom southern elites feared could join insurgent movements that challenged the dominant Democratic Party in their states.52
As advocates of black suffrage had warned, court rulings immunized these laws from the Fifteenth Amendment because they did not on their face explicitly target voters “on account of race.” In 1870, a federal district court judge in Oregon ruled that the Fifteenth Amendment “does not take away the power of the several states to deny the right of citizens of the United States to vote on any other account than those mentioned therein.” The judge said that “any State may deny the right of suffrage to citizens of the United States on account of age, sex, place of birth, vocation, want of property or intelligence, neglect of civic duties, crime, &c.”53
The U.S. Supreme Court further affirmed that “the Fifteenth Amendment does not confer the right of suffrage upon any one.” Rather, it only protects individuals from explicit “discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” Laws that applied equally to all races, like poll taxes and literacy tests, regardless of their de facto discriminatory effects, fell outside the amendment’s scope, as legislators recognized when they enacted the amendment in 1869.54
In 1884, the Alabama Supreme Court upheld the catchall provision of the Alabama constitution that disenfranchised people convicted of specified crimes, including petit and grand larceny, and any “crime punishable by imprisonment in the penitentiary.” The court ruled that “political suffrage is not an absolute or natural right, but is a privilege conventionally conferred upon the citizen by the sovereignty. There can be practically no such thing as universal suffrage.” Rather, the right to vote “is one conferred by constitutions and statutes, and is the subject of exclusive regulation by the State, limited only by the provisions of the Fifteenth Amendment to the Federal Constitution.” Thus, the state had the prerogative to disenfranchise criminals through a race-neutral provision “to preserve the purity of the ballot box, which is the only sure foundation of republican liberty.”55
Under the leadership of President Benjamin Harrison, Republicans in Congress made another push in 1890–1891 to defend the voting rights of African Americans. Legislation introduced by Representative Henry Cabot Lodge and Senator George Frisbee Hoar, both of Massachusetts, would have authorized federal district courts, upon petition from a small number of constituents, to appoint federal supervisors of registration and voting in congressional elections—anticipating a provision of the landmark Voting Rights Act of 1965. “There is absolutely nothing in this bill except provisions to secure the greatest amount of publicity in regard to elections and to protect the ballot-box by making sure the punishment of those who commit crimes against the suffrage,” wrote Representative Lodge. Although the House passed the bill, proponents could not overcome a Senate filibuster led by Democrats and joined by a few Republicans. This was the first major legislation to date supported by the president and a majority of both Houses to be killed in the Senate by filibuster. With the failure of the Lodge Bill, Congress would not enact new voting rights legislation until the 1950s.56
The historian J. Morgan Kousser found that although white terror had reduced black suffrage in elections before the adoption of legal disenfranchisement in the 1890s, it declined much more steeply thereafter, accompanied by a less dramatic decline in turnout by poor whites. Another study by Kent Redding and David R. James finds that black presidential turnout in the eleven former Confederate states tumbled from an average of 61 percent in 1880 to but 2 percent in 1912.57
African Americans in the South did not passively concede this dismissal from southern politics. Black activists united to press for the restoration of the vote and other civil rights and liberties. In 1890, T. Thomas Fortune, editor of the preeminent black newspaper New York Age, rallied other prominent African Americans to form the National Afro-American League, America’s first national civil rights organization. The league dissolved in 1893, but its leaders reestablished it in 1898 as the National Afro-American Council, which brought men and women together in the struggle for black rights. “We are not to be eliminated,” declared the council’s first statement. “Suffrage is a federal guarantee and not a privilege to be conferred or withheld by the States.” The council too proved to be short-lived and collapsed in 1907.58
These path-breaking civil rights groups and other organizations such as the Niagara Movement, founded in 1905, sought to sponsor litigation, move public opinion, educate voters, and lobby and petition political leaders. Although the groups suffered from meager funding, internal dissension, neglect by the Republican Party, and a lack of mass support, they established a protest tradition that culminated in the founding of the interracial National Association for the Advancement of Colored People (NAACP) in 1909 and its strategy of battling discrimination in the courts.
The NAACP’s most prominent African American cofounder, the intellectual and writer W. E. B. Du Bois, had said in his 1903 book of essays, The Souls of Black Folk, that “Negroes must insist continually, in season and out of season, that voting is necessary to modern manhood.” Du Bois and the NAACP dissented from the approach taken by Booker T. Washington, founder of the Tuskegee Institute, who advocated for black progress through entrepreneurship and education instead of directly challenging legal segregation and disenfranchisement. The NAACP’s 1911 charter listed among its goals “impartial suffrage” for black people.59
The disenfranchisement of southern blacks had profound implications for policy and politics in the South and across the United States. It established southern and border states as an essentially one-party system dominated by the nearly all-white Democratic Party. Southern blacks’ lack of the vote or leverage within the Democratic Party left them incapacitated to stop or even slow down the far-reaching imposition of the Jim Crow racial caste system of discrimination across education, religion, transportation, employment, law enforcement, and access to public facilities and accommodations. White southern Democrats came to dominate seniority-based committee assignments in Congress, with their tenure uninterrupted by competition from the minority Republicans in their states. The nonenforcement of section 2 of the Fourteenth Amendment also meant that the white Democratic South would benefit from the counting of the disenfranchised black population for congressional seats and membership in the Electoral College.
Meanwhile, in the opening decade of the twentieth century, both in the United States and internationally, there remained the question of whether the political community of voters included women. At the time that Congress passed the Fifteenth Amendment to prohibit voting discrimination against blacks, America’s political leaders had never seriously considered suffrage for women, creating a breach between the struggles for racial and gender rights. Women went on to pursue the achievement of suffrage independently through movements of their own.