Suffrage and States’ Rights: How Federalism Defeated Reconstruction’s Constitutional Revolution

 

The reinterpretation of federalism as it applied to suffrage constituted a constitutional revolution in the post-Civil War period. That reinterpretation could not be sustained, however, because the states retained significant power over voting rights.

The United States Constitution is very limited in what it says about voting. Article I, section 4 specifies that the state legislatures will set “the Times, Places and Manner of holding Elections of Senators and Representatives.” And Article IV, section 4 declares that “the United States shall guarantee to every State in this Union a Republican Form of Government.”[1] Left to the states by these provisions was the absolute right to set electors’ qualifications. During the early nineteenth century, states dropped most property qualifications; universal adult white male suffrage generally prevailed in the “era of the common man.” But the same period saw a loss of voting rights for African American men, who were disfranchised in Connecticut, North Carolina, and Pennsylvania. New York dropped its property requirement for white men, but retained one for black men. As new Western states were admitted, they confined the suffrage to white men. Aside from Connecticut, only the New England states allowed African American men to vote with the same requirements as white men.[2]

Before the Civil War, African American men and all women campaigned for enfranchisement with no success. In the same 1860 election in which New York pledged its electors to Abraham Lincoln, voters defeated a measure that would have dropped the property requirement for African American men.[3] The Civil War, however, gave new impetus to African American men’s claim to vote. Many factors contributed to this success, including the advantages Republicans saw in enfranchising a group largely expected to support the Republican party, but black men’s military service was crucial to their enfranchisement. Even Elizabeth Cady Stanton hoped that women, denied entry through the “Constitutional door” to suffrage, would “avail [themselves] of the strong arm and blue uniform of the black soldier to walk in by his side ...”[4] Her hope was dashed, but she correctly foresaw that African American military service would be acknowledged as having earned black men the vote.

In the aftermath of the Civil War, many northern states considered expanding the suffrage to include African American men. But in 1865, African American enfranchisement failed in Connecticut, Minnesota, and Wisconsin. And two years later, after a bitter campaign between advocates of African American and woman suffrage, Kansans voted down amendments to enfranchise both groups. The Wisconsin Supreme Court, however, had ruled in 1866 that African American men should have the vote; and both Iowa and Minnesota would adopt black suffrage in 1868.[5] Such contention over suffrage in the North, occurring as the Union demanded black enfranchisement in former Confederate states, created a strong impression of hypocrisy. Even Tennessee’s Unionist governor, William G. Brownlow, suggested Northerners remove the “beam” from their own eye “before taking the mote out of the eye of their Southern neighbors.”[6]

Although Brownlow insisted that “Congress has no right to fix the qualification of a voter within a State,”[7] advocates of African American suffrage in that body disagreed. Invoking the guarantee clause, Senator Charles Sumner told a Republican convention in Worcester, Massachusetts that “national peace and tranquility” required the institution of “impartial suffrage.”[8] Congress drafted the Fourteenth Amendment to encourage southern states to enfranchise African Americans. Section two asserted that when a state denied any of its adult male residents the “right to vote,” its representation in Congress would be proportionally decreased.[9] Supporters of African American suffrage disliked this provision that seemed to imply that black men could be denied the vote, but they nonetheless considered it an inducement to enfranchisement. None of the former Confederate states, except Tennessee, would ratify the amendment.[10]

In response—and also as part of their push to take control of Reconstruction away from President Andrew Johnson—Radical Republicans in Congress passed the Reconstruction Act. Regarded by opponents as completely unconstitutional, the Reconstruction Act required southern states to ratify the Fourteenth Amendment as a condition of readmission. It also set out a process for former Confederates to be readmitted: they would hold constitutional conventions, write new state constitutions, and apply for readmission. The Reconstruction Act enfranchised African American men as voters in the election of constitutional convention delegates, and it also required the new state constitutions to include universal manhood suffrage. African Americans made up more than a quarter of the delegates to the Radical Reconstruction constitutional conventions.[11]

In their 1868 party platform, Republicans insisted that the Union states still retained the power to set suffrage requirements, although Congress could impose African American suffrage on former Confederate states. Nonetheless, after the elections gave the party super-majorities in the House and Senate, congressional Republicans set about nationalizing African American suffrage through the Fifteenth Amendment. Although suffrage could not be curtailed on the basis of race, it could be limited by any number of non-racial factors, such as education, which might have a disparate impact on African Americans or other groups. The Republicans who enacted the Fifteenth Amendment knew of this weakness, but—given that many northern states imposed literacy or taxpaying requirements, and that Western states wished to disfranchise Chinese immigrants—they could not assemble a political coalition supporting a universal declaration of suffrage rights. In response to the objection that the amendment violated a state’s right to set suffrage requirements, Republicans contended that submission to a state for ratification satisfied that concern. Congress later required Georgia, Mississippi, Texas, and Virginia to ratify the amendment as a condition of their readmission to the Union.[12]

Northern and Upper South Democrats in Congress protested against the Reconstruction Act and the Fourteenth and Fifteenth amendments, often on the grounds that these measures unconstitutionally infringed a state’s right to set suffrage requirements. They simply lacked the numbers in Congress, however, to prevail. Republicans attained their goal of African American suffrage, but they could not permanently hold the overwhelming majorities in Congress they possessed in the immediate aftermath of the Civil War. Without those majorities, and facing divisions within their own party, Republicans could not sustain the federal power to maintain African American suffrage.

Fundamentally, African American suffrage was overturned by violence. Terrorist organizations, operating as the military arm of the Democratic Party, formed throughout the South, the most well-known being the Ku Klux Klan. Attacking both African Americans and white southern Republicans, they targeted political leaders and African American veterans. Through the Reconstruction Act, Republicans had used the military to oversee the process of reconstruction. But once the states were readmitted, the military had a limited ability to counter insurgents. Rapid demobilization of the army after the Civil War had reduced the number of troops available. And those troops were often quartered in cities, far from sites of massacres in the countryside.[13]

Congress passed the Enforcement Acts in 1870 and 1871, permitting federal officials and the military to supervise congressional elections in the South (and urban centers in the North) to control fraud. The Constitution only authorized supervision of congressional elections. But since state and local elections often happened at the same time, the legislation was drafted with the idea that supervision would also prevent fraud at those elections. This had some temporary success, and successive administrations brought cases under the Enforcement Acts, but long-term suppression of the Klan required political will that Congress could not sustain. In addition, the Supreme Court invalidated portions of the Enforcement Acts. By 1890, with all the former Confederate states controlled by Democrats, even the Republican party could not agree on new enforcement legislation. It failed to pass because some Republicans now prioritized economic issues. After Democrats gained control of Congress, they repealed the Enforcement Acts in 1894. As white Southerners realized that federal oversight was no longer a threat, they sought to institutionalize disfranchisement and make violence unnecessary. Accordingly, they wrote new state constitutions or amended existing ones to institute poll taxes, literacy tests, and other measures to disfranchise African Americans and much of the lower-class white population.[14]

It required a second Reconstruction for African Americans to exercise what, in Martin Luther King Jr.’s words to President John F. Kennedy, were simply their “constitutional rights.”[15] Civil Rights leaders such as King could call for the fulfillment of those rights, however, because the first Reconstruction had added three amendments to the Constitution. As Michael W. Fitzgerald has written, despite Reconstruction’s “catastrophic overthrow…the postwar amendments stayed on the books, and there was always the possibility that someday enforcement would resume.”[16] That enforcement would come for suffrage in the form of the 1965 Voting Rights Act (VRA), which provided federal supervision of suffrage requirements and registration, vastly expanding African American voting after its passage. Although the VRA was reauthorized without controversy into the first decade of the twenty-first century, the Supreme Court’s 2013 ruling in Shelby County v. Holder held that jurisdictions should no longer have their voting measures precleared by the federal government. Critics have maintained that the Shelby decision opened the door for the states to disadvantage certain constituencies, including minorities, by enacting voter identification laws, redrawing districts, purging voter rolls, and manipulating polling places.[17]

Despite expanding the federal government’s involvement in the state’s right to set suffrage requirements, the Fifteenth Amendment did not repeal federalism or even assert a positive right of suffrage. In an 1875 case arising out of a Missouri woman’s efforts to vote, the Supreme Court unanimously declared that “the Constitution of the United States does not confer the right of suffrage upon any one.” Chief Justice Morrison Waite wrote, “The United States has no voters in the States of its own creation.”[18] Only states could create voters. After 1890, the former Confederate states weaponized the federalist nature of the Fifteenth Amendment to suppress the African American vote. In 1898, the Supreme Court upheld Mississippi’s disfranchising constitution of 1890, holding that disparate impact did not prove an intent to discriminate. That ruling in Williams v. Mississippi held until the Voting Rights Act.[19]

Section two of the Fourteenth Amendment offered a solution to disfranchisement: representation could be reduced in states that denied the vote to a certain portion of their adult male population. The last African American congressman of the Reconstruction era, George H. White of North Carolina, called for this in his 1901 farewell speech. After the 1900 census, Indiana Congressman Edgar D. Crumpacker sought to enact legislation carrying out section two’s provisions. This did not receive universal support from African Americans because some feared it would acknowledge the southern states’ right to disfranchise. Although “Crumpackerism” attracted some attention in the first decade of the twentieth century, it never received more than minimal support, even in the Republican party.[20]

When we speak of the balance of power between the states and federal government as having shifted during the Civil War, it is often understood to mean that the Union victory invalidated the states’ rights doctrine of secession. That is certainly the case. However, the states still maintained certain rights. The Radical Republicans, seeking to institute their vision of a reconstructed South with universal manhood suffrage, attempted to work around federalism. They did this, first, through a Reconstruction Act which mandated certain suffrage qualifications that previously had been the purview of the states. And secondly, they enacted constitutional amendments that often achieved ratification through compulsion. The federal government, however, never succeeded in protecting African American voters from violence. With waning popular support for enforcement, the executive branch grew hesitant to use the powers granted by the Enforcement Acts; Congress failed to pass new enforcement legislation or to implement section two of the Fourteenth Amendment; and the Supreme Court interpreted the amendments and supporting legislation restrictively. The Civil War may have brought about a constitutional revolution, but the full reconstruction of the South was halted and long delayed.

[1] “The Constitution of the United States: A Transcription” https://www.archives.gov/founding-docs/constitution-transcript#4-4.

[2] Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000), 23-28, 43-45; Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997), 213-216.

[3] James Oakes, The Radical and the Republican: Frederick Douglass, Abraham Lincoln, and the Triumph of Antislavery Politics (New York: Norton 2007), 118.

[4] E. Cady Stanton, "This Is the Negro's Hour," National Anti-Slavery Standard, December 30, 1865.

[5] Richard White, The Republic for Which It Stands: The United States during Reconstruction and the Gilded Age, 1865-1896 (New York: Oxford University Press, 2017), 62; Ellen Carol DuBois, Feminism and Suffrage: The Emergence of an Independent Women's Movement in America, 1848-1869 (Ithaca: Cornell University Press, 1978); Faye E. Dudden, Fighting Chance: The Struggle over Woman Suffrage and Black Suffrage in Reconstruction America (New York: Oxford University Press, 2011); Leslie A. Schwalm, Emancipation’s Diaspora: Race and Reconstruction in the Upper Midwest (Chapel Hill: University of North Carolina Press, 2009), 181-82.

[6] Governor’s Message, Oct. 2, 1865, Brownlow's Knoxville (Tenn.) Whig, and Rebel Ventilator, Oct. 11, 1865, pp. 2-3.

[7] Ibid.

[8] “Speech of Hon. Charles Sumner at the Republican State Convention in Worcester, September 14, 1865,” National Anti-Slavery Standard, Sept. 23, 1865.

[9] Fourteenth Amendment, National Constitution Center, https://constitutioncenter.org/the-constitution/amendments/amendment-xiv.

[10] Eric Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 (New York: HarperCollins, 1988), 252-55; James E. Bond, No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment (Westport: Praeger, 1997), 5.

[11] Foner, Reconstruction, 276-79; Steven Hahn, A Nation under Our Feet: Black Political Struggles in the Rural South from Slavery to the Great Migration (Cambridge, Mass.: Belknap Press, 2003), 205. For the act’s unconstitutionality, see Chicago Tribune, March 12, 1867.

[12] Foner, Reconstruction, 337-38, 446-47; Congressional Globe Appendix, 40 Cong., 3 sess., pp. 158-65; David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776-1995 (Lawrence: University Press of Kansas, 1996), 179-82.

[13] Allen W. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction (New York: Harper & Row, 1971), xi, 64, 115-17; Gregory P. Downs, After Appomattox: Military Occupation and the Ends of War (Cambridge, Mass.: Harvard University Press, 2015).

[14] Foner, Reconstruction, 454-59; Xi Wang, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860-1910 (Athens: University of Georgia Press, 1997), 119-22, 209-10, 236-37, 241-45, 259; Michael Perman, Struggle for Mastery: Disfranchisement in the South, 1888-1908 (Chapel Hill: University of North Carolina Press, 2001), 18-22, 29, 313-17, 322.

[15] Keyssar, Right to Vote, 207-11; Martin Luther King Jr. to the President [John F. Kennedy], Atlanta, GA, Dec. 17, 1961, in The Papers of Martin Luther King, Jr., vol. VII: The Save the Soul of America, January 1961-August 1962, ed. by Clayborne Carson (Berkeley: University of California Press, 2014), 349.

[16] Michael W. Fitzgerald, Splendid Failure: Postwar Reconstruction in the American South (Chicago: Ivan. R. Dee, 2007), 210.

[17] Daniel McCool, “Meaningful Votes” in The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act, ed. by Daniel McCool (Bloomington: Indiana University Press, 2012), 3-35; Shelby County, Alabama v. Eric J. Holder, Jr., Attorney General, et al., Supreme Court of the United States, 570 U.S. (2013); Carol Anderson, One Person, No Vote: How Voter Suppression Is Destroying Our Democracy (New York: Bloomsbury, 2018), 1-2, 42.

[18] Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875).

[19] Lawrence Goldstone, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903 (New York: Walker & Company, 2011), 171-76.

[20] Eric Anderson, Race and Politics in North Carolina, 1872-1901: The Black Second (Baton Rouge: Louisiana State University Press, 1981), 293; Rayford Logan, The Negro in American Life and Thought: The Nadir, 1877-1901 (New York: Dial Press, 1954), 94-96; Robert J. Norrell, Up from History: The Life of Booker T. Washington (Cambridge, Mass.: Harvard University Press, 2009), 186-87; Perman, Struggle for Mastery, 224-31.