NO area of Negro rights considered by the 39th Congress was so extensively discussed as Negro suffrage.1 The issue was crucial to the maintenance of Republican ascendancy, a goal boldly proclaimed by Stevens at the very outset. Such ascendancy, the mass of Republicans believed, was to be assured through the reduction of Southern representation in the House of Representatives in proportion as a State denied or abridged suffrage, the device embodied in §2 of the Amendment.2 Some strongly doubted whether the rebel ruling class, outnumbered by blacks, could be induced to “divest itself of the government and hand it over to a subject and despised caste.” 3 But it was more important, Senator George H. Williams of Oregon, member of the Joint Committee, candidly avowed, to limit Southern representation than to provide “that negroes anywhere should immediately vote.” 4 The fact that Negro suffrage was unmistakably excluded from the ambit of the Civil Rights Bill, which proceeded on a parallel track with debate on “representation,” lends substance to his avowal. The intention to exclude suffrage from the Amendment as well5 need not rest entirely on its incorporation of the Civil Rights Act, for there is ample affirmative evidence of that purpose.
Chief Justice Warren held in Reynolds v. Sims, a State reapportionment case, that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” The premise, he said, that a State may not deny suffrage was derived from a “conception of political equality . . . [that] can mean only one thing—one person, one vote.” 6 Equality, however, did not carry that meaning for the framers;7 and in a powerful dissent, Justice Harlan reproached the Court “for its failure to address itself at all to the Fourteenth Amendment as a whole or to [its] legislative history.” 8 Even one who regards the reapportionment decisions with favor, Carl Auerbach, lamented that “the failure of the Court to mention, let alone deal with, [Harlan’s] argument is indeed, as he charged, remarkable and confounding.” 9 Another proponent of those decisions, William Van Alstyne, states that “the majority seems tacitly to have conceded the argument.” 10 In 1970 Justice Harlan amplified his dissent in Oregon v. Mitchell;11 both of his dissents are models of scholarly exactitude. Having combed the debates for myself, I can confirm his accuracy and scrupulousness in drawing inferences from the facts; one can only complain that he left so few gleanings for those who came after. Since his discussion in the two opinions covers many pages, and since it is contained in law reports that only scholarly specialists are likely to consult, I have undertaken to compress the materials into smaller compass, particularly because they furnish the springboard for much that is to follow.
The Grant of Suffrage Was Excluded From §1
Senator Sumner labeled the right to vote “the Great Guarantee; and the only sufficient Guarantee,” 12 without which, said Senator Samuel C. Pomeroy of Kansas, the Negro “has no security.” 13 Similar sentiments were expressed by James A. Garfield and James M. Ashley of Ohio, George S. Boutwell of Massachusetts, Ignatius Donnelly of Minnesota, and William A. Newell of New Jersey—Republicans all.14 Nevertheless, as Senator Trumbull emphasized, it was not included in the Civil Rights Bill. Why not? Because, in the words of David Donald, it was “political dynamite.” 15 The reasons have been so admirably compressed by Professor Van Alstyne as to bear quotation in extenso. He notes that the Joint Committee considered a forthright proposal to abolish “any distinctions in political or civil rights . . . on account of race” and states,
The decision was made, however, not to propose a limited, single purpose amendment; not to advertise the particular issue of Negro suffrage and to dispose of it through a provision instantly invalidating the laws of all states where equal suffrage regardless of race was denied. The reluctance of the Republicans bluntly to dispose of the issue in this fashion is readily explainable; there was not sufficient prospect that the necessary number of votes would ratify such an amendment.
There were, in 1866, but five states in the nation that permitted Negroes to vote on equal terms with whites: Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. Together, these states contained a mere 6 per cent of the Negro population. New York also permitted Negro suffrage, but only for those possessed of at least a $250 freehold estate, an added “qualification” that whites were not obliged to satisfy. No other state permitted Negroes to vote, regardless of qualification. Moreover, in late 1865, shortly before the Thirty-ninth Congress convened, Connecticut, Minnesota, and Wisconsin voted down impartial suffrage by popular referendum. The Territory of Colorado defeated a referendum for impartial suffrage by a wide margin in September, 1865, and was, nevertheless, admitted to the Union by Congress.
The admission of Colorado, with its ban on Negro voting, followed the admission of Nevada, which had a similar ban, and was in turn followed by the readmission of Tennessee on July 24, 1866. The readmission of Tennessee [ after submission of the Fourteenth Amendment with its equal protection clause for ratification] was accomplished, moreover, with complete awareness that its general assembly had, on June 5, 1865, restricted the franchise to white males only. Indeed, all these facts were well known to the Congress, and were gleefully recited by some of the Democrats who challenged the Republicans to dare make an issue of Negro suffrage.
All these things and more had a conspicuous and significant influence on the Thirty-Ninth Congress.16
Indeed they had! They explain why the framers rejected Negro suffrage, as may immediately be gathered from two statements among many. Senator Pomeroy stated: “This nation . . . has not yet reached the point of giving all men their rights by a suffrage amendment; three-fourths of the States are not ready.” 17 In opening the debate on the Amendment, Senator Jacob Howard stated on behalf of the Joint Committee, “it was our opinion that three-fourths of the States . . . could not be induced to grant the right of suffrage, even in any degree or under any restriction, to the colored race.” 18 These views were repeated in the Final Report of the Joint Committee on Reconstruction.19
If Negro suffrage was unacceptable to the great mass of Republicans, how can we read into the general terms “equal protection” the very grant they could not swallow? Van Alstyne also notes a number of proposals that would expressly abolish distinctions “in the exercise of the legislative franchise on account of race or color” (including one by Sumner that was rejected by a vote of 38 to 8),20 and explains that “there was not sufficient prospect that the necessary number of States would ratify such an amendment.” Are we to impute to the framers an intention to shroud in ambiguity the Negro suffrage they dared not “advertise” by a “blunt,” unequivocal proposal? Something of the sort is suggested by Van Alstyne,21 but there is no evidence of representations that the Fourteenth would mean one thing in 1866 and the very thing then “feared” in the future. A legislative intention to have words mean one thing in 1866 and the opposite in the future is so remarkable as to call for strict proof, not speculation, particularly when disclosure spelled political disaster.22 But let me defer comment on this “open-ended” theory, fathered by Alexander Bickel, embraced by Alfred Kelly and Van Alstyne, and then picked up by Justice Brennan, to a later chapter, and for the moment permit the framers to speak for themselves. Because the suffrage issue is so vital for my subsequent discussion