1868, Constitutional Issues Surrounding Black Suffrage – Guest Essayist: Professor Forrest Nabors
How should we understand the laggard steps of the United States towards the legal enforcement of equal civil and political rights for black Americans? A prevailing sense among Americans today is that the end of legal discrimination was the result of historical evolution. That is, beginning from a morally retrograde starting point, the nation grew and gradually shed its impure prejudices. Partial victories opened new opportunities for more victories, until this evolution culminated in the Civil Rights Act of 1964 and the Voting Rights Act of 1965.
Many scholars have reinforced this view by denying that the achievement of equal citizenship after the constitutional abolition of slavery in 1865 was plausible. Their judgment rests upon an assumption, a philosophy of history, dogmatically demanding that moral and political change must follow a linear path of historical development. Hence, for them, we should not wonder whether the the United States might have vindicated the equal civil and political rights of black Americans after slavery, or to put the question another way, we should not ask why the 1860s did not realize the achievements of the 1960s. The American people were not ready. History had to prepare them first.
This is wrong. First, we should recognize that the facts from the past do not support the philosophy of historical change that only recognizes linear patterns. In short, the prospects for racial equality were relatively brighter during America’s Founding Era, dimmed after 1820, then brightened brilliantly after the Civil War. But the high hopes for equality were dashed and a long, dark night of racial segregation and discrimination followed, from which the United States only began to emerge in the mid-Twentieth Century. In this essay, we will consider the first one-hundred years, ending with the election of Ulysses S. Grant to the presidency and the difficulties of Reconstruction.
A cardinal principle in the American theory of republican government, the type of government that the Americans wanted to establish in 1776, is that the people are sovereign by natural right. Related to this principle is another, that each of the sovereign people must be equal before the law inasmuch as they are equal by nature. That is, if the law limits liberty in any fashion, the disability must fall on all alike. The principles of republican government forbid the law from disabling or privileging one class of citizens separate from another.
Such laws based on nature may discriminate only if the classes of citizens differ by their natural function or by their natural capacity. For example, a baby is a citizen but, by nature, lacks the developed natural capacity to intelligently exercise liberty. Therefore, it is not unjust or inconsistent with natural right to withhold the suffrage, that is, the privilege of voting, from that class of citizens.
Republicanism was popular when America achieved independence, despite the fact that the only political societies in the new nation that actually lived and governed themselves according to its principles were in New England. Proceeding southward, the practice of republicanism weakened. Nevertheless, even in aristocratically governed Virginia, a majority of the ruling aristocrats preferred what they did not practice. Immediately after American Independence, these Virginia aristocrats, led by Jefferson, set about reforming their state government, aiming for New England’s republican model.
Therefore, a good guide showing how a republican government ought to address the question of race is the first state constitution of Massachusetts, drafted by John Adams, and ratified in 1780. African slavery did exist in Massachusetts before Independence, and freed slaves lived there. But the constitution is silent about black and white and none was prohibited from voting based on color. It affirms natural equality, and on that basis, the high court of Massachusetts decided that slavery could not exist there shortly after the ratification of the constitution.
Similarly, the Constitution of the United States, ratified in 1788, was modeled after the Massachusetts constitution and is also silent about black and white. The U.S. Constitution also rested upon the moral foundation of natural equality, though explicitly stated in a separate document, the Declaration of Independence. If the Declaration could have been determined to have had standing in federal constitutional law, just as the statement of natural equality in the Massachusetts constitution had standing in Massachusetts constitutional law, it is possible that slavery could have been nationally abolished by a federal court.
But although a majority of American statesmen during the Founding Era denounced and opposed African slavery in principle, many of those conscientious opponents were divided on the practical question of when and how the institution could and should be totally extirpated. Political opposition to hasty abolition rested on one good argument that we ought to remember: Although nature had endowed slaves with the natural right and capacity to participate in republican self-government, the experience of slavery had, in the words of Virginian St. George Tucker, “unfitted” the slave for liberty. Any human being emerging from such a condition was not expected to exercise liberty well. In states like Virginia where the raw numbers and density of slaves was very high, immediate emancipation would inject great numbers of former slaves into the population, and endanger the survival of republican government yet in its infancy. For this reason, emancipation policy in many states was gradual, and accompanied by plans to assist freed slaves in adopting the republican culture of good citizenship. Benjamin Franklin drafted such a plan for Pennsylvania.
In many states during the Founding Era, former slaves and their descendants could and did vote. Later, a new wave of discrimination grew and spread, along with the rise of a new breed of southern statesmen who proclaimed the “positive good” of African slavery. The proslavery argument and the spreading wave of discrimination rested on a new premise, that people with black skin were inferior by nature and lacked the natural capacity to be equal citizens. This claim directly attacked the moral premise of natural equality in the Declaration, from which derived our republicanism, the form government required by Article IV, section 4 of the Constitution.
Restrictions on the liberty of black Americans spread throughout the Union. Yet, as late as 1833 in Maryland, 1835 in North Carolina and 1834 in Tennessee, black Americans could still vote. It was not only historically false, but apostasy, when Chief Justice of the Supreme Court Roger B. Taney wrote in the 1857 Dred Scott case, that during the Founding Era, black Americans “had no rights which the white man was bound to respect.” In fact, many slaveholding American Founders acknowledged the natural rights of black Americans, and the laws of many states recognized those rights. Taney falsely appropriated the revered reputations of the American Founders, as many did, to justify discrimination and slavery.
In 1865 the Republican-dominated Congress originated a resolution that became the Thirteenth Amendment, prohibiting slavery in the Constitution. The abolition of slavery presented a new question – what to do about the legal status of the emancipated.
In 1866 Congress originated the Fourteenth Amendment, which the states ratified in 1868 during the height of the presidential campaign between Ulysses S. Grant and Horatio Seymour. The Fourteenth Amendment corrected the false gospel of Taney, affirming equal citizenship and prohibiting states from violating equality or liberty. This amendment explicitly confirmed the ideas bound up in the simple statement that all state government shall be republican in form, as per Article IV, section 4 of the Constitution. But the growing prevalence of false constitutional doctrines after the Founding Era necessitated the explicit confirmation.
Many who fought for abolition and believed in natural equality expressed skepticism about immediately vesting freed slaves with the right to vote. Their position echoed the problem understood by St. George Tucker, that despite natural capacity of all human beings to exercise liberty, slavery “unfitted” anyone from exercising liberty well. However, the fearful strength of principled opposition to republicanism in the nation rallied support for black suffrage, most eloquently advanced by Senator Charles Sumner in February, 1866.
If states did withhold the vote from a class of citizens, section 2 of the amendment gave Congress the punitive power to reduce representation in the House of Representative by the exact numbers of of the class disenfranchised. This provision was immediately invoked in 1868 when it became clear that states were disenfranchising freed slaves. But because the delegations of most southern states had been readmitted to Congress, the Republicans faced considerable difficulty in applying the statutory remedy to reduce their representation.
In response, newly elected President Grant threw his prestige behind another resolution that became the Fifteenth Amendment, prohibiting the denial of the right to vote based on “race, color, or previous condition of servitude.” After a tough ratification campaign, this amendment became part of the Constitution in 1870.
Forrest A. Nabors is Assistant Professor of Political Science at the University of Alaska, Anchorage, a founding partner of Alyeska Venture Management, and a political news commentator. He has recently completed The Great Task of Reconstruction which is now under review for publication.