POST RACIAL AMERICA: PART ONE

Legacy of Racial Subjugation: Denying the Right to Vote

By Ira Glasser

During slavery, when African slaves and their descendants were kept like cattle, and denied every and all rights of citizens, they were nonetheless counted as part of the population to enhance the electoral college votes of Southern states as well as to increase the number of representatives to which they were entitled in Congress. This was the infamous three-fifths rule, in which each slave was counted as three-fifths of a person in determining the amount of political representation Southern states enjoyed. This despite the fact that in 1857, in the Dred Scott case, the only case in which the U.S. Supreme Court ever considered the constitutionality of slavery, it upheld it, ruling that blacks had "no rights which the white man was bound to respect."

African-Americans as a matter of our highest law were in fact no more citizens than cattle. Yet they were counted as people, or at least as three-fifths of a person, in order to increase the population of the slave states and enhance those states' political power in Congress and in presidential elections. That dreadful principle is still reflected today in felony disenfranchisement laws. More about that later. But first some contextual history.
A few years after the Dred Scott ruling, the Civil War began, and shortly after it was over, Congress passed, and the states ratified, the 13th, 14th and 15th Amendments to the U.S. Constitution. These Amendments were intended to herald a new dawn of equal citizenship for former slaves. It didn't work out that way.
The 13th Amendment prohibited slavery and involuntary servitude except as punishment for crime. This exception turns out to be significant, because in the aftermath of the 13th Amendment abolishing slavery, the criminal law and race-targeted prosecutions became an instrument of racial subjugation and involuntary servitude, literally a replacement system for slavery. Vagrancy, domestic violence and vague offenses like "moral turpitude," were, for example, widely used but selectively enforced against newly-freed slaves, and became the basis of imprisonment, chain gangs and a new regime of virtual slavery engulfing many so-called "freedmen."

The 14th Amendment seemed to enforce the first 10 on state and local governments, thereby endowing citizens, including the newly-freed slaves, with all the rights guaranteed by the Bill of Rights, against state governments. But in 1873, the U.S. Supreme Court eviscerated those protections, leaving states free to violate the Bill of Rights at their discretion, which they did for many decades, deep into the 20th century, until the Supreme Court, slowly and incrementally, began to revitalize the 14th Amendment, utilizing it, as many believe it was originally intended, to apply the Bill of Rights to state and local governmental acts. But after 1873, and for nearly another century, the states of the old Confederacy were free to strip former slaves of nearly all of the rights most Americans consider as their birthright.

The Black Codes during this era defined blacks as anyone having a single black ancestor, no matter how distant; employment was required in order to avoid a criminal charge of vagrancy but virtually all forms of employment except agricultural or domestic work at serf-like wages were legally barred to former slaves, in effect re-creating peonage as a replacement system for slavery, if not outright conscription into chain gangs of people convicted of vagrancy and other crimes. Former slaves were also prohibited from learning to read or write, and were barred from meeting or assembling outside of the presence of a white person's supervision. Strict separation of all public facilities was required by law. These kind of laws became widespread, and violating them led to public whipping and other punishments reminiscent of slavery. The Black Codes were the predicate for what came to be known as Jim Crow laws, which lasted until the mid-1960’s.
The 15th Amendment guaranteed the right to vote without regard to race, skin color or former condition of servitude. But as with the 13th and 14th Amendments, the South found a way around that, aided by a complicit Supreme Court. By the late 19th century, and into the early 20th, the Supreme Court interpreted the guarantee of the 15th Amendment very narrowly, and the South marched through the opening. They passed a range of restrictions on the right to vote, apparently race-neutral, but selectively enforced against blacks, and often, as a practical matter, applying differentially to blacks. These restrictions included poll taxes and bogus literacy tests (which whites were usually exempt from under so-called grandfather clauses, under which you weren't subject to those restrictions if your grandfather wasn't!). Literally, seven Southern states passed laws between 1895 and 1910 exempting anyone from these barriers, including many poor and illiterate whites, who had voted before 1866 or 1867. Since the 15th Amendment giving former slaves the right to vote didn't become law until 1870, these barriers operated to exclude only blacks.

Another exclusionary device was the "white primary," a fiction that construed primary elections as private affairs, and barred blacks from voting in them. Since throughout the South, elections were effectively a one-party affair, the nominating primary was the only election that mattered, and blacks were excluded. These devices in effect nullified the apparent guarantees of the 15th Amendment, and were augmented by terrorism, including beatings and killings, against blacks who persisted in trying to vote. With one exception, these mechanisms were abolished, either by the Supreme Court (for example the white primaries, struck down in 1944) or more generally by the landmark civil rights legislation of the mid-1960’s. That one exception, which persists to this day, and now bars millions of blacks from voting -- one of every 13 black adults! -- is felony disenfranchisement.

Felony disenfranchisement was an invention of the Southern states, designed to bar blacks from the right to vote, like the other mechanisms described above. No other Western democracy uses it (except in some cases for election fraud convictions) and it has its roots in this country in the post-Civil War period when the Black Codes, Jim Crow laws and enabling Supreme Court decisions combined to create a replacement system of separation and subjugation based on skin color once slavery had been abolished. The replacement system was explicitly designed to force blacks into penurious servitude, and deny them all basic rights of citizenship.

From the start, the criminal law was used to target blacks, get them into prisons, subject them there to involuntary servitude (which, remember, was permitted by the 13th Amendment), and when they got out, if they got out, deny them the right to vote. Eventually, such laws spread to all but a very few states, and remained intact even as Supreme Court decisions and the civil rights laws of the mid- to late sixties swept away the legal underpinnings of most of the other Jim Crow laws. But felony disenfranchisement laws remained.

For a long time, although these laws denied many individuals the right to vote, they didn't have much large-scale effect because as late as 1968, there were fewer than 200,000 people in state and federal prisons for all crimes. Then, in 1968, something happened. 1968 marked the culmination of the civil rights movement. In 1964, the Civil Right Act was passed, outlawing skin-color discrimination in employment and public accommodations like hotels, restaurants, swimming pools, theaters, sports stadiums, water fountains, parks and toilets. A year later, the Voting Rights Act passed, outlawing racial discrimination in voting, and finally abolishing most of the exclusionary devices like literacy tests. (Poll taxes were abolished in 1964 by the 24th Amendment for federal elections and by the Supreme Court in 1966 for state elections.) And in 1968, the Fair Housing Act was passed, outlawing racial discrimination in the rental, sale and purchase of housing. Thus by 1968, the legal infrastructure of Jim Crow laws was destroyed and a new legal infrastructure of civil rights enforcement constructed.  

Ira Glasser is the Executive Director of the American Civil Liberties Union

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