I’m delighted to welcome my friend and former colleague Kurt Lash to the ELB Book Corner, for the third of three guest posts on his exceedingly important collection, The Reconstruction Amendments: Essential Documents. Here’s Kurt:
In my last two posts, I’ve described the basic theory and contents of the new historical collection, The Reconstruction Amendments: Essential Documents (2 volumes) (Kurt T. Lash, ed.) (University of Chicago Press, 2021). In this final post, I describe the collection’s documents relating to the issue of Black suffrage and the framing and ratification of the Fifteenth Amendment—materials likely of special interest to readers of the Election Law Blog.
Sensing that the window for constitutional change was closing, Republicans in the final days of the Fortieth Congress rushed to pass a proposed suffrage amendment and send it to the states before the end of the current state legislative session. The result was procedural chaos as competing drafts flew back and forth between the two houses of Congress. Within this chaos, however, are extended and sophisticated discussions of congressional power and constitutional meaning. Just as the Fourteenth Amendment drafting debates contained extended discussions of the meaning and scope of the Thirteenth Amendment, so the Fifteenth Amendment drafting debates contain substantial commentary on the meaning and scope of the Fourteenth Amendment, especially the Citizenship Clause and the Privileges or Immunities Clause of Section One and the suffrage provision of Section Two. Also, as was true during the Fourteenth Amendment debates, the suffrage amendment debates included significant discussion of the scope of congressional power under the original Constitution (particularly the Republican Guarantee Clause and the “Comity Clause” of Article IV) as well as repeated references to and debates about the theories of Madison and Hamilton in the Federalist Papers and the original ratification debates.
Even before debating a Fifteenth Amendment, Congress had already taken significant steps towards securing the right to vote for southern Black Americans. The 1867 Reconstruction Acts, for example, required southern Black citizens be allowed to register and vote on the creation of a new state constitutions and new state assemblies (assemblies that would hold new votes on ratifying the Fourteenth Amendment) (see Volume 2, Part 1B, docs. 74 and 77). Congress also had imposed “fundamental conditions” on the readmission of former rebel states such as Arkansas, North and South Carolina, Louisiana, Georgia, Alabama, and Florida, prohibiting these states from denying blacks the right to vote any time in the future (Vol. 2, Part 1B, docs. 74, 77, 89 and 93).
Nevertheless, even in those southern states that were required by federal law to permit Black suffrage, the exercise of Black political power faced stiff resistance. In Georgia, for example, although Black citizens had been permitted to vote for members of the state legislature, the Georgia State Assembly voted to excluded elected Black representatives (claiming that blacks had the right to vote but not the right to hold office). The exclusion outraged congressional Republicans who responded by refusing to seat Georgia Senator Joshua Hill at the opening of the third session of the Fortieth Congress (Vol. 2, Part 2A, doc. 1). By that time, Republican congressional leaders had decided that the time had come to take the final step toward constitutionally securing the equal political rights of freedmen: passage of a fifteenth amendment abolishing racial discrimination in voting.
Congress drafted and debated the Fifteenth Amendment during the third session of the Fortieth Congress, between December 7, 1868, and March 3, 1869. A widely shared sense of urgency to see it completed before the end of the session resulted in both houses of Congress working on various suffrage amendments at the same time. The multiplicity of versions and votes, with drafts bouncing back and forth between the two houses, inevitably produced periods of substantive and procedural confusion. (see, Introduction, Vol. 2, Part 2A) Although members like John Bingham proposed broad amendments prohibiting states from denying any qualified male “the equal right of suffrage” (Vol. 2, Part 2A, doc. 8), on February 6, 1869 Congress passed a narrow amendment prohibiting the denial of the right to vote “on account of race, color, or previous condition
of servitude.” (id. at doc. 21). Discussed but ultimately not included was language protecting the right to office holding (id. at doc. 20), and protection against discrimination on the basis of wealth, property, or education. (see, e.g., docs. 3, 6, 8, and 11).
Although a number of reconstructed southern legislatures quickly ratified the amendment, northern opposition emerged in Democrat-controlled state legislatures and, most startlingly, from women’s rights advocates like Susan B. Anthony and Elizabeth Cady Stanton. In language increasingly racist in tone and content, Stanton and Anthony called for the defeat of the Fifteenth Amendment (see Stanton’s “All Wise Women Should Oppose the Fifteenth Amendment,” Vol.2, Part 2B, doc. 23). At the 1869 Equal Rights Association, with Frederick Douglass seated on the same stage, Stanton announced that she “did not believe in allowing ignorant negroes and ignorant and debased Chinamen to make laws for her to obey.” (id. at doc. 18)
In fact, significant pockets of opposition to Black suffrage remained both north and south. Ohio ratified the Amendment by a single vote. New York ratified, but then rescinded its ratification. When the newly readmitted state of Georgia refused to seat newly elected Black state representatives, Congress expelled the state of Georgia and demanded the ratification of the Fifteenth Amendment as the price of re-readmission. Similar “Requirement Bills” were passed for the readmission of Virginia, Mississippi and Texas—acts which prompted newspaper editorial concerns about legitimacy). (see, e.g., id. at doc. 13)
Finally, on March 30, 1870, President Ulysses S. Grant announced the ratification of the Fifteenth Amendment, what he called “a measure of grander importance than any other one act of the kind from the foundation of our free Government to the present day.” (id. at doc. 34) Frederick Douglass agreed. In a message to a group celebrating the passage of the Fifteenth Amendment, wrote, “[h]enceforth, we live in a new world, breath a new atmosphere, and have a new earth beneath and a new sky above us.” (id. at doc. 35).
To date, scholarship on the history of the Fifteenth Amendment has been relatively rare (though there are some signs of renewed interest). This new collection should help lower the bar to new historical scholarship on the history of constitutional suffrage rights. Even beyond questions of the right to vote are broader questions of racial equality, congressional enforcement power, and the role of federalism in our post-Civil War Constitution. All of these issues were hotly debated for what amounted to a five-year “moment” of public constitutional debate. The collection is meant to be an introduction this extraordinary moment and a prompt to further and deeper investigation and scholarly debate.
My thanks to Rick Hasen for giving me the opportunity to present these three posts on “The Reconstruction Amendments: Essential Documents.” In the next few months, I’ll be speaking about the collection at a variety of conferences and symposia around the country. I look forward to meeting and talking with readers of the Election Law Blog at those events.