The Failure of the 14th Amendment’s Second Section

On February 3, 1870, the 15th Amendment to the United States Constitution was ratified by the required three-fourths of the states after the Iowa State Legislature became the 28th state to ratify*. (The Republican-majority in the New York State Legislature approved the amendment in April 1869, but a new Democrat majority attempted to “rescind” the state’s ratification in January 1870. New York nevertheless re-ratified on March 30th, which is the date listed on the official certification of the amendment). The amendment states that the right to vote could not be denied by the U.S. or any state “on account of race, color, or previous condition of servitude.”

I’ve been thinking a lot about not just the transformative nature of the amendment, but also its shortcomings and general ineffectiveness for much of its history since 1870. On the one hand, the amendment ostensibly created a biracial society where all men, regardless of color, were enabled to vote and hold office. The amendment lays down the foundation for legal and political equality throughout the country. Black men who had been enslaved and were legally considered property ten years earlier were now constituents, voters, and citizens. The presidential election of 1872 between Ulysses S. Grant and Horace Greeley was one of the fairest elections in the U.S. during the 19th century and African American voters played an integral role in Grant’s reelection (Black Southerners who had previously been enfranchised by the Military Reconstruction Act of 1867 had also played a role in electing Grant to his first term in 1868). The 1872 election signaled a promising future of color-blind electoral politics in the United States.

On the other hand, the 15th Amendment ultimately failed to protect African American men in their right to vote in the long run. One underappreciated but extremely important reason whey the amendment failed lies in a provision of the 14th Amendment that has never been enforced.

Section 2 of the 14th Amendment

When debates about the 14th Amendment began in 1866, supporters were concerned that including any language allowing for universal manhood suffrage would kill further support for the amendment. Ratifying an amendment is intentionally difficult and requires support from two-thirds of both houses of Congress and three-fourths of the states to ratify. Radical Republicans in Congress argued that it would be far better to confer citizenship and equal protection of the laws to African Americans without pushing for black voting rights rather than losing on all three counts because of national hostility towards the latter provision. And yet, a major problem existed. The pre-Civil War Constitution included the “three-fifths Clause.” This clause stated that representation in Congress would be based on “the whole number of free persons” and “three fifths of all other persons,” which was a politically correct way of saying “slaves.” But with the end of slavery came the end of the three-fifths clause and the new practice of counting African Americans as full persons for representational purposes. This change meant that Congressional representation in the former Confederate states would actually increase by almost two dozen seats. If African American men could not be guaranteed a right to vote, how else could Southern power in Congress still be curbed?

The answer comes in Section 2 of the 14th Amendment. Section 2 was a compromise measure. It states that yes, Southern states could disenfranchise their population, but at the expense of their representation in Congress. Disenfranchisement would carry a heavy price with it through the terms of the 14th Amendment. And, of course, Section 2 was the first time the word “male” was inserted into the Constitution, pushing the women’s rights movement into a state of rage for basing Congressional representation on the male population.

When the 15th Amendment was ratified two years later in 1870, the new amendment stated that voting could not be denied on the basis of race. However, the 15th Amendment was also a compromise measure by still not guaranteeing universal manhood suffrage. Ostensibly “race-neutral” tactics such as literacy tests and poll taxes could still be used to keep blacks away from the polls. And that is exactly what happened. By 1900 the spirit of the 15th Amendment was replaced by Jim Crow practices and the near-complete disenfranchisement of all black voters. Congress and the courts were empowered through Section 2 of the 14th Amendment to lower the South’s Congressional representation as a punishment, but that authority was never exercised.

A great counterfactual to consider during this 150th anniversary of the 15th Amendment is how much more effective it would have been in guaranteeing black voting rights and a genuine biracial democracy in the South had Section 2 of the 14th Amendment been invoked as a punishment for Jim Crow tactics.

Cheers