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The Fifteenth Amendment

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Index to posts in this series

After the 14th Amendment and the Reconstruction Act of 1867 were adopted the Freedmen in the former slave states had the vote. That left all the Black men in the Union and Border States and Tennessee, and that eventually was seen to be untenable. The Democrats, then the right-wing party, made universal Black suffrage an issue in the election of 1868. In The Second Founding, Eric Foner says this campaign “… witnessed some of the most overt appeals to racism in American political history.” P. 97. Grant won, but the popular vote was close, and Democrats made gains across the Union. That gave impetus to passage of an amendment to ensure the vote to all Black men.

Several amendments were introduced. The main choice was whether to support universal suffrage or only for Black men. The Radical Republicans wanted a bill setting national standards for voting, a position consonant with Art. 1 § 4 of the Constitution.

But here the true level of US bigotry revealed itself. Several Union states made it clear they wouldn’t support suffrage for Germans and/or Irish Catholics (and as one of the latter, I’d say we’re pretty harmless). In the West, prejudice against Chinese immigrants was a powerful force, evoking racist comments akin to those directed at Black people. As time expired, we got the Fifteenth Amendment in its most limited form:

1. 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.

Section 2 authorizes Congress to make laws enforcing Section 1.

Section 1 is not a positive grant of suffrage to Black people. Instead, it authorizes the states to control suffrage as they see fit as long as they don’t use race as a condition. Thus it authorized Ohio to deny suffrage to German immigrants, and Rhode Island to grant suffrage only to Irish Catholic property owners; and it enabled the states to use non-racial laws to exclude Black men from the polls.

The Republicans worried that Northern states wouldn’t ratify a positive version, granting suffrage to all adult males, let alone a broader version, barring discrimination on the basis of, for example, religion. There was no question of enfranchising women or Native Americans. The final draft of the bill in each house included the right to hold office, but that was eliminated in conference, and the House version of a positive enfranchisement was dropped in favor of the Senate’s negative version.

Foner points out that legislators knew that the negative version could be gamed by the states, but assumed, or perhaps hoped, that the 14th Amendment would make that poisonous to the slave states, because discriminatory requirements would affect White people too. But that turned out to be a false hope, thanks in large part to the efforts of the Supreme Court. Also, it turns out that rich white Southerners weren’t opposed to blocking poor whites from the ballot box, or shielding them from the laws with other techniques.

The first few years after the Civil War saw the creation of a number of White vigilante groups, including the Ku Klux Klan. These groups wreaked terror on Black people across the former Confederacy, murdering and raping, pillaging and burning. The slave states did nothing to stop this hideous violence, and they did nothing for decades, leaving their Black populations to die, leave, or suffer in silence.

In the early 1870s Congress began consideration of laws to enforce the Reconstruction Amendments. Three bills, the Enforcement Acts, gave the federal government the power to punish violence against Black people, using federal courts and marshals. But they were inadequate to force the slave states to protect their Black citizens. Eventually Congress enacted the Civil Rights Act of 1875, which was a comprehensive effort to protect Black people from all kinds of private violence intended to deny Black people the rights guaranteed by the Reconstruction Amendments.

In the debates over all these laws, a substantial number of federal legislators called these laws violations of the principles of federalism. As we will see, the Supreme Court agreed, and struck down the new laws. Eventually because of the intransigence of the Court, the 13th Amendment was ignored, the 14th Amendment was gutted, and the 15th Amendment was barely useful.

Discussion

1. Foner integrates into his text excerpts from the debates in Congress over the Amendments, and from newspaper articles, giving a flavor of the rhetoric and feelings of the speakers and perhaps those of the elites. Here’s a nice example:

“Tell me nothing of a constitution,” declared Joseph H. Rainey, a black congressman from South Carolina whose father, a successful barber, had purchased the family’s freedom in the 1840s, “which fails to shelter beneath its rightful power the people of a country.” By the people who needed protection, Rainey made clear, he meant not only blacks but also white Republicans in the South. If the Constitution, he added, was unable to “afford security to life, liberty, and property,” it should be “set aside.” P. 119. Fn omitted.

The other side was equally direct and eloquent:

In the debate over the Ku Klux Klan Act, Carl Schurz, representing Missouri in the Senate, said that preserving intact the tradition of local self-government was even more important than “the high duty to protect the citizens of the republic in their rights.” Lyman Trumbull complained that the Ku Klux Klan Act would “change the character of the government.” P. 120.

These anecdotes make this book a real pleasure to read. They remind us that our ancestors were thoughtful and forthright, or even bombastic, whether or not we agree with their sentiments today. I do not think the same of the former members of the Supreme Court, whose opinions are very difficult to read, and reek of unwillingness to deal with the Reconstruction Amendments and the facts of the cases they decided.

2. These quotes illustrate the issues around federalism. Both of the books in this series claim that the Reconstruction Amendments changed the nature of the US governing structure, by giving the federal government the power to protect the Constitutionally guaranteed rights of its citizens from private parties and from the states themselves. As we know, this hasn’t exactly worked out in practice. Even today and even in the supposedly less-racist cities and states, police and private citizens violate the civil rights of citizens, use all sorts of tricks to strip the power of minority voters, and treat citizens differently. SCOTUS is fine with that, as we saw in the ridiculous advisory opinion in 303 Creative.

We need a discussion of the purposes of federalism in this country, and we need to discuss publicly what it means to be an American citizen as opposed to a citizen of Mississippi or Minnesota. Why is it that our fundamental rights arise from citizenship in Mississippi or Minnesota, instead of from our national document, the Constitution? I’m pretty sure most uses of federalism are to discriminate against or punish people the benighted legislature doesn’t like.

3. Constitutional amendments and laws don’t change people’s minds. The Civil War didn’t really change any minds. Is it possible that elites, including supreme courts can’t get out of their own privileged pasts?

Introduction And Index To Series On The Second Founding

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Posts in this series
The Intent Of The Declaration Of Independence
Problems With The Standard Story Of The Revolutionary War And The Constitution
States Rights
The Better Story
Democracy Is Our Hope For A Better Future
The Thirteenth Amendmeent
The fourteenth Amendment
The Fifteenth Amendment
The Slaughterhouse Cases
Cruikshank, Gun Control, And Bad Rulings
The Major Questions Metadoctrine and The Slaughterhouse Cases
The Supreme Court Has Always Been Terrible

The term “second founding” refers to the fundamental changes made to the US Constitution and in our society by the 13th, 14th, and 15th Amendments. I had not heard this term before did some reading for this this post praising Justice Ketanji Brown Jackson’s questions at oral argument on the recent Alabama redistricting case. Justice Jackson actually knows her history, unlike the Fox News members of SCOTUS, and, well, me.

Shortly after writing that post I heard a podcast featuring Kermit Roosevelt discussing his book, The Nation That Never Was: Reconstructing America’s Story. I read it and was discussing it with a friend who recommended I look into the work of Eric Foner. That led me to his recent book, The Second Founding: How the Civil War and Reconstruction Remade the Constitution.

In this series I’ll take up these two books. They’re short and very readable, and they complement each other. Foner focuses on the events of the period, while Roosevelt focuses on the legal/theoretical side.

The Nation That Never Was

Roosevelt teaches law at Penn, and yes, he’s the great-grandson of Teddy Roosevelt. The premise of his book is that we are telling the wrong story about our constitutional history. The conventional story starts by describing the Declaration Of Independence and the Constitution as our founding documents, incorporating our national values of freedom and equality for all, but hmmm, slavery was bad so we had a Civil War and Reconstruction and cured that problem, but then we found out about racism, and then Martin Luther King solved that problem and now things are great. It’s a story that the right-wing fetishizes.

The rest of us have a more adult view of our history. It doesn’t question starting point of the standard story, the part about the Declaration and the Constitution. But it adds all the horrors of the Jim Crow Era, the abuses of a perverted capitalism against workers of every description, and the horrifying treatment of Native Americans. It’s grim and unsatisfying, but at least it’s more accurate.

Roosevelt thinks we need a story that gives us real heroes, people who give us hope and inspiration for the future. He also thinks we need to look very closely at the founding documents, and the decisions of the First Founders as well as their omissions.

Roosevelt suggests a new story. First we had a system that was OK with the most brutal forms of slavery. Then we fought a war to wipe it out. We won that war at huge cost in blood and treasure. We changed the very nature of our society and we can take pride in that effort and the people who did it. We aren’t perfect. But the Civil Rights Amendments gave us the tools we need to reach for freedom and equality for all, and it’s a task for which we as citizens are all responsible.

Roosevelt discusses reparations, but I’m not going to address that, except to say this. I urge readers to take the time to read this article by Ta’Nehisi Coates. It’s a tough read. I certainly know I have benefited from the current structure of society, almost certainly at the expense of others who have suffered unfairly. I don’t know what to do about that, but it is unjust.

The Second Founding

Foner teaches history at Columbia. I haven’t finished the book yet, but so far there’s a lot of detail about our history I didn’t know or ever think about. Much of that has to do with the sausage-making behind the Civil Rights Amendments, and the arguments made by opponents of those Amendments. I read Heather Cox Richardson’s Letters From An American substack every day, in large part because she is attuned to the parallels between the politics of the Civil War Era and those of today. Here’s an example. In the same way, Ibram X. Kendi shows that arguments by racists never die, and Hannah Arendt shows that anti-Semitism is an endemic hate virus. White supremacy and Christian Nationalism seem to be ineradicable.

Plan

My current plan is to do a fairly short series. I’ll start with the Roosevelt book. There is a conventional view of the Declaration of Independence and the Constitution, but that story is utterly inadequate. Then I’ll turn to Foner’s book to look at the politics of the Reconstruction Amendments, and the way they were weakened by centrists and subverted by White Supremacists and the Supreme Court.

We’ll see what else pops up.

Taken together, I think these two books give us a good introduction to a different way of thinking about our history, one in which we can take pride, one that gives us heroes we can respect, one that sets our aspirations and hopes for our future and our descendants. The history is suitable for grown-ups, and therefore is probably illegal in Florida and Texas.

We can’t fix the past, but we can do better for the future, just as the Second Founders did. That’s what it means to be a citizen.