How the Fifteenth Amendment, like the Fourteenth, was almost strangled in its cradle.
On the morning after Election Day 1989, history had been made in a normally dull “off-year” race. The Democrat Douglas Wilder won the governorship of the Commonwealth of Virginia, although the margin was so thin the Republicans demanded a recount. Wilder would be the first black governor ever elected in an American state—and the state, no less, that sheltered the capital of the Confederacy. He is, to be sure, no racial activist. But he is the grandson of slaves, and his showing overshadowed the election, the same day, of David Dinkins as the first black mayor of New York. Black mayors are no longer a novelty in American cities.
Well, then, two cheers for democracy (to quote E. M. Forster) in the Old Dominion. Two only, because a touch of skepticism intrudes. The Fifteenth Amendment, which guarantees the right to vote regardless of race, was ratified in 1870. What took so long for blacks to show their voting strength?
The answer is, of course, that the Fifteenth Amendment, like the Fourteenth, ratified in 1868, was almost strangled in its cradle. Both amendments aimed at equalizing the rights of black and white Americans. And both were widely flouted during almost all of their first century of existence. How that happened is worth a closer look and some sober post-election thoughts on the repetitive patterns of history.
Let’s consider voting rights first. If you went to school many years ago, you may be surprised that no black man held down a governor’s chair during Reconstruction (1865–77). For one of the staples of older textbooks was that Reconstruction was a time of “Negro rule,” when, supposedly, the government of the occupied Southern states was turned over to ex-slaves and their white “scalawag” and “carpetbagger” collaborators—scoundrels one and all. It’s the legend embodied in The Birth of a Nation, a cinematic masterpiece and historical fraud. A popular literary variant was Claude G. Bowers’s 1929 book The Tragic Era, in which the author depicts the South Carolina legislature in session: “The Speaker … looks down upon members mostly black or brown or mahogany, some of the type seldom seen outside the Congo. Some pompous in glossy, threadbare black frock coats, some in the rough, soiled costume of the fields. … the members’ feet upon their desks, their faces hidden behind their soles. Chuckles, guffaws, the noisy crackling of peanuts and raucous voices. …”
Page after page in this vein left unwary readers to assume that control of the South rested in black and clumsy hands. Bowers was a persuasive writer—a “Jeffersonian Democrat” from Indiana, with some political virtues, but fairness distinctly not among them. And the facts show that he was, in this case, not a historian but a hysteric.
Reconstruction regimes were, on the whole, about as good or as bad as most state governments in a freewheeling era of growth and spoils. They were definitely not black-dominated. In South Carolina, and only South Carolina, black members were a majority of the lower house for a six-year period. Though they outnumbered white lawmakers 87 to 40 in the legislature as a whole in 1869, they did not control the Senate, and they lost the Assembly, too, in 1874. (Nor, incidentally, did they or the whites vote as a bloc.)
Mississippi had 40 black members in its first legislature chosen under a new constitution enfranchising the exslaves. Virginia elected 27. Not a majority in either case. Louisiana elected 133 all told, spread out over many years. Blacks—usually educated—did achieve some high state positions. South Carolina and Mississippi had black Speakers of the House at different times as well as Secretaries of State and superintendents of education. (Both states, of course, had majority black populations.) Florida also had a black chief of its school system. In Louisiana Pinckney B. S. Pinchback, a Northern black and former Union officer, won the office of lieutenant governor and actually served as acting governor for a few weeks in 1872 and 1873 when Gov. Henry Clay Warmoth was under indictment.
Southern blacks were represented in Congress by two Mississippi senators, Blanche K. Bruce and Hiram Revels, both Northern-educated. Two black representatives were in the Congress that met in 1869, five in the next, and seven in the following two. That was the peak.
Then, in the 1880s and 1890s, it all was brought crashing down, first by a combination of terror and fraud and then by constitutional evasions like the poll tax and discriminatory literacy tests. By such dodges the Southern states, with full Northern consent, simply wiped out the black vote. Black officeholding withered away, and George H. White, the last black representative of the post-Civil War group, said a poignant farewell to his House colleagues in 1901. Not for another twenty-seven years did a black member of Congress walk the Capitol corridors, and he was from Chicago. For all practical purposes, the Fifteenth Amendment was dead and stayed so until very, very recently.
What resurrected it was the Voting Rights Act of 1965. That particular contribution of the civil rights revolt of the 1960s— sometimes called the Second Reconstruction—had a dramatic and almost immediate effect. In 1970 the Negro Almanac counted some 1,300 black officials, including 10 representatives, 1 state treasurer, 48 mayors, 168 state legislators, and hundreds of city officials, school-board members, judges, and law-enforcement officials. Now, twenty years later, the totals are much higher, the black vote is a significant force in Southern and metropolitan politics, and plainly a growing percentage of white voters seems willing to be color-blind.
This is a long way short of full representation. Any rosiness of outlook is dampened by the stark facts of black America’s economic and social disasters. Yet the new generation of black officeholders is larger, sawier, and more securely entrenched than that of the first Reconstruction, and it’s clear as of now that history will not record a second nullification of the Fifteenth Amendment.
With the Fourteenth, however, the picture is darker and more confusing. That amendment conferred citizenship and the “equal protection of the laws” on blacks, and in 1875 Congress passed a Civil Rights Act to give it effect by providing for equal treatment of whites and blacks in a variety of public settings. But the Supreme Court quickly blunted the edge of the new law. In 1883, in a series of civil rights cases, it invalidated large portions of the new statute. The Court argued that the Fourteenth Amendment only forbade states to restrict the rights of blacks but that “individual invasion of individual rights is not the subject matter of the amendment.” This meant that within each state, “individuals” or corporations operating hotels, restaurants, apartment houses, streetcars, theaters, and so on could ban blacks as they pleased. Thirteen years afterward in Plessy v. Ferguson, the Court approved “separate but equal” accommodations on Louisiana railway trains. This despite the blistering dissent of Justice John M. Harlan, scion of a Kentucky slaveowning family and grand-father of a future justice of the same name. He insisted, in vain at the time, that “our Constitution is colorblind.”
It was a short step from there to Cummings v. Board of Education (1899), upholding “separate but equal” schools. Of course, with the practical denial of the vote to blacks (sanctioned by the Court in U.S. v. Reese, 1876) there was no way to prevent the separate Jim Crow facilities from becoming grotesquely unequal.
The present-day federal law putting teeth into the Fourteenth is the Civil Rights Act of 1964. It—along with some of the remaining legislation from the First Reconstruction—has run into some trouble with the current Supreme Court. In Patterson v. McLean Credit Union (1989) the justices held that a provision against racial discrimination in hiring may not necessarily allow a minority employee to sue in protest against on-the-job harassment or denial of promotion. In Wards Cove Packing Co. v. Atonio (1989) the plaintiffs showed statistically that minorities were underrepresented in higher-paying jobs in the company. But the Rehnquist Court told them that merely showing the numbers was not enough; intentional discrimination had to be proved. And in Martin v. Wilks white would-be Alabama firemen, charging “reverse discrimination,” overturned an affirmative-action agreement in which Birmingham would parcel out new Fire Department jobs to blacks in a fixed ratio to offset past exclusion.
The long-range impact of these decisions is controversial and, when debated by lawyers, murky to nonlawyers. I believe, however, that in conjunction with other decisions curbing affirmative action, they encourage a strong potential for sub rosa discrimination and therefore spell a setback for the Second Reconstruction—though nothing on the order of what happened a century ago.
The broad question of equal justice for all races is still very much alive. The Civil War dealt not only with the future of the Union, which it settled, but with the future of black and white in the reunited nation, which it did not. Paradoxically, slavery—despite the denials of both sides—kindled the war and then was consumed in the fire. But racism was left to be dealt with.
As usual, Lincoln put it best. In the Second Inaugural Address he said: “Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding.”
Fundamental indeed. And astounding how far we have come since the 1860s. But the part of the Civil War that brought the American promise into conflict with the American racial psyche is not over.