Revisiting the Fifteenth Amendment

by P.A. Madison on July 30th, 2006

Summary: The Fifteenth Amendments sole purpose was to remove “white” from former rebel State statutes so black citizens could have equal footing as whites in voter qualification laws. This had no effect on stringent State voter laws that could easily disqualify most blacks on conditions other than race because there was no likelihood such an amendment would be ratified by more than 3 States.

Today when one speaks of the Fifteenth Amendment they usually do under the belief the Amendment provides an outright constitutional mandate granting citizens the right to vote. The Fifteenth Amendment is not a constitutional right to vote. This is because the right of suffrage was left with the independent States to grant or withhold and where the jurisdiction over such matters was left.

Pro-abolitionists were hoping to amend the Constitution with a strong universal right to suffrage, however, the Joint Committee on Reconstruction concluded there was little chance of universal manhood suffrage to ever be adopted by a majority of the Northern States because it would take away the power of regulating who can vote. Instead, pro-abolitionists settled on the goal to simply remove the word “white” from State laws (16 States required by law or constitution for voters to be white), leaving the power in determining who shall be voters with the individual States.

The court in United States vs. Reese provided the finest explanation of the Amendment that could ever be written:

The Fifteenth Amendment does not confer the right of suffrage upon anyone. It prevents the States or the United States, however, from giving preference, in this particular, to one citizen of the United States over another on account of race, etc. Before its adoption, this could be done. … Now it cannot. If citizens of one race having certain qualifications are permitted to vote, those of another having the same qualifications must be. … It follows that the Amendment has invested the citizen of the United States with a new constitutional right which is within the protecting power of Congress. That right is exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.

History

When Rep. Boutwell of Massachusetts presented his proposed draft of the Fifteenth Amendment before the Reconstruction Committee of the 40th Congress, it included the words “nativity and religious belief.” This language set off alarm bells because undesirable immigration was sweeping the Nation and States (specifically the Pacific States) did not want to surrender their right to exclude suffrage to foreigners.

Rep. Thomas Fitch (NV) approached Boutwell and suggested to him that if the words “nativity and religious belief” were not removed from the proposed Fifteenth Amendment that Nevada might not be able to ratify the amendment. Fitch argued that if the words “nativity and religious belief” became part of the US Constitution Pacific states would be prevented from excluding Chinese from the right to suffrage. The committee being concerned with the potential troubles of ratification even with southern States coerced to ratify, eventually removed such language.

A potential hurdle against adoption of the Fifteenth Amendment centered around concern of every State that such an amendment might act to nullify all their voter qualification laws and policies. An example of this occurred on February 15, 1871 between John Bingham and Rep. Samuel S. Cox (NY) over the limitations of Congress’ power to intervene in State registration policies:

Cox: I would like to ask my friend [Bingham], when he seeks to make uniformity as to suffrage in this country, what sort of provision he would make for Rhode Island, for instance, where there is a real estate qualification of $134 over and above all encumbrances; or with reference to Massachusetts, where the ability to read and write is a qualification?

Rep. John Bingham of Ohio, responded: “[T]he qualification of electors and the manner of holding or conducting elections are as distinct from each other as light and darkness,” and the “State prescribes the qualifications of the electors, subject to the limitation of the Constitution.”

Speakers in favor of the amendment stressed there was nothing prohibiting a State, such as Rhode Island or Massachusetts, from enforcing their voting qualifications as long as they did not single out any one class of citizens because of race. Sen. Jacob Howard, member of the Committee of Reconstruction, pointed out the weakness of the amendment this way:

So far as a State Legislature or a State convention should trench upon the rule expressed in the Fifteenth Amendment relating to race, color, and previous condition of servitude, and to those subjects only, its legislation would be void, and Congress could interfere under the second clause of the amendment to correct that legislation. To that, I agree; but suppose the State affixes as a qualification of a voter the necessity of being the owner of, say, two hundred dollars’ worth of property. Suppose the State should alter its Constitution so as to require from the colored man the possession in his own right of two hundred dollars’ worth of property, which is the old rule in the State of New York, does the Senator from Nevada hold it to be in the power of Congress to alter in any way by congressional enactment that qualification of the State?

No, sir. Why not? Because the qualification does not relate to color, race, or slavery, but only to property, the subjects being as distinct from each other as the sun is from the moon. No, sir; Congress in such a case as that would have no authority whatever to interfere to correct the evil. …

The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them; and that will be the case until the Fifteenth Amendment shall have been adopted, that amendment relating only to color, race, and slavery, not to property, not to educational qualifications, or anything except these three specific subjects. (Cong. Globe, Vol. 42, pg. 600)

On February 17, 1870, Sen. Lyman Trumbull, Chairman of the Senate Judiciary, described the limitations of the 15th Amendment this way:

[A]ny State may require a property qualification, may require an educational test, may impose such conditions upon voting as it thinks proper, so they are uniform on all classes of citizens. That power has not been taken away from the States. The only power that has been taken away from them is the authority to discriminate on account of race, color, or previous condition.

On January 30, 1871, the House Judiciary Committee, lead by John Bingham, released H.R. No. 22 on the interpretation of the Fifteenth Amendment that established legislative precedent:

The proposition is clear that no citizen of the United States can rightfully vote in any State of this Union who has not the qualifications required by the Constitution of the State in which the right is claimed to be exercised, except as to such conditions in the constitutions of such States as deny the right to vote to citizens resident therein “on account of race, color, or previous condition of servitude.” The adoption of the Fifteenth Amendment to the Constitution imposing these three limitations upon the power of the several States, was by necessary implication, a declaration that the States had the power to regulate by a uniform rule the conditions upon which the elective franchise should be exercised by citizens of the United States resident therein.

The limitations specified in the Fifteenth Amendment exclude the conclusion that a State of this Union, having a government republican in form, may not prescribe conditions upon which alone citizens may vote other than those prohibited. It can hardly be said that a State law, which excludes from voting women citizens, minor citizens, and non-resident citizens of the United States, on account of sex, minority or domicile, is a denial of the right to vote on account of race, color, or previous condition of servitude. [Source: House of Representatives, Committee on the Judiciary, Victoria C. Woodhull. H.R Report. 22, 41st Cong., 3d sess., January 30, 1871]

Two principles were clearly laid in Karem vs. United States: (1) the Amendment relates solely to state action, and (2) solely to discrimination on account of race, etc. It follows from these principles that appropriate legislation for enforcing the Amendment must be directed to state action in some form, by which otherwise qualified voters are denied the elective franchise on account of race, etc.

No agencies except the States are capable of denying the right to vote because they alone have the power to confer it. Private individuals can interfere with the enjoyment or exercise of the right to vote, but are impotent to take away the right itself. The right to suffrage still belongs with the States and not the federal government, and the States can elect to withhold the right to anyone, for say crime, property ownership or length of legal residency without regard to voters color, ability to pay a tax to receive a ballot, or gender.


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5 Responses | Leave a Comment
  1. DeeWhite says:

    The statement “…the States alone have the power to confer it [the right to vote]” is not correct. The People within each state held that right prior to statehood and retained that right after entry into the Union of the States. Otherwise how could the People have ratified their state constitution??

  2. B. Willi says:

    Damn, wish I had been aware of that House Report you draw attention to earlier in the year. But I reckon it will be needing it soon in other arguments. Great insights you provide, Madison.

  3. Jeesica says:

    In Reply to W. Cobb:

    previous condition of servitude relates only to slavery….have you read the 13th amendment?!!!!

  4. W. Cobb says:

    Eileen,

    “previous servitude” is a reference to slavery only. Your brother will not be able to vote automatically. However, he can seek to have his civil rights restored, at which time he would regain his right to vote.

  5. Eileen says:

    Previous servitude? Does this mean that a person released from prison and no longer on parole can get their right to vote restored?

    If so, when my brother gets done serving his time he can vote to evict the judge who sent him up the river.

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