8 Shameful Things Our Founders Believed–V

Picking up from Monday:  Shameful Thing Eight—Voting Rights.


  1. Each State could decide who gets to vote and under what circumstances.

When the 55 participating delegates began meeting in Philadelphia in late May 1867, they were already in crisis mode. The intoxication of independence had worn off, the six-year-old confederacy—13 independent States, connected formally only by a weak and debt-ridden Congress—was an acknowledged failure; inflation was out of control; and Shay’s Rebellion was still fresh in their memories.  James Madison, supported by the Virginia delegation’s deep bench—George Mason, Governor Edmund Randolph, and General Washington in the presider’s chair—and New York’s Alexander Hamilton, made the case for a stronger central government with specific powers, from divergent philosophical vantage points.  (John Jay, the third author of the Federalist Papers, was kept away by his duties in the Foreign Office in New York.)  It was a steep hill to climb in front of 13 sovereigns who naturally saw a stronger central government as a diminution of each of their rights and power, both political and economic.  As I’ve noted specifically in the other installments, getting the delegates to cede authority always involved a lot of acrimonious debate; brinksmanship; back-room and tavern deals; and, ultimately, word-weary compromise.

One of the native powers most jealously guarded by the states represented—Rhode Island took a pass—was control over the franchise to select leaders.  There were few provisions in the adopted document that gave the new federal legislature any authority to affect those processes and their outcome.  Senators were to be appointed by state legislators and the President and Vice President would be selected by state-elected electors.  While new Members of Congress were to be chosen by vote of the people, each state’s electorate—defined by privilege and gender, rather than right—was comparatively small.  For example, the 1777 New York State Constitution required that a man have considerable wealth to be able to vote for the state Assembly—he had to pay taxes, as well as own property worth at least 20 pounds or pay an annual rent of 2 pounds.  Ten of the original 13 states had similar property or tax requirements, or both, when the federal Constitution took effect in 1789.  These weren’t fashioned out of whole cloth; they were based on well-established British precedents that extended democratic rights to White elites with land.

Besides creating, defining, and establishing general qualifications for federal officers appointed and elected by the States—and bearing in mind that taxation and representation are determined by periodic census—there were only two other provisions in the original Constitution affecting their selection:

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”  Art. II, Sec. 1

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  Art. VI, third clause.

Fun Facts:  Besides that last clause, the original Constitution laid out the oath each President is required to take upon inauguration:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States. Art. III, Sec. 1

By contrast, no oath is specified for Members of Congress and Senators.  The current administered oath was adopted in 1884:

 I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.


U.S. Constitution, Bill of Rights

Note that the last four words in the latter are not found in the former.  According to Senate records, George Washington brought his Bible to the first inauguration—his, in 1789—ad-libbed those words, and delivered an address.  All three have been customary since.  And, contrary to popular belief, no religious documents or texts are used on either floor when the oath is taken by new members, en masse.  Those “photo ops” are taken afterward, usually in the member’s office, for the benefit of constituents.  In 2009, Rep. Keith Ellison, (D-MN), the first African-American elected to the House from Minnesota and the first Muslim from anywhere, borrowed a Koran (transliterated from “Quran”) from the Library of Congress for his personal ceremony.  The original owner?  Thomas Jefferson.  Isn’t that exquisite?

Over time, usually after the investment of sweat, tears, and sometimes blood, the franchise has been expanded beyond propertied White males:

    •  1812-1860:  The rise and election as President of War of 1812 commander and hero Andrew Jackson, together with dramatic realignment in political party loyalties, marked the period during which property qualifications for white men to vote were abolished.  Older states abandoned them, and newly-admitted ones simply didn’t adopt them.
    • 1868:  Following the Civil War, and after the 13th Amendment abolished slavery, over time the Congress and the States (at least, those who ratified or did not resist congressional proposals) broadly redefined citizenship and its guarantees:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

For voting purposes, the Congress defined “citizens” as “any of the male inhabitants of such State, being twenty-one years of age.”  Its second clause superseded the provisions in Article I, Section 2 that counted slaves as three-fifths of a whole, and provided that any State denying or abridging the vote of any such citizen would be penalized in determining subsequent national representation.

    • 1870: The 15th Amendment was ratified, providing that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
    • 1913: The 17th Amendment gave voters rather than State legislatures the right to elect Senators.
    • 1920: After a campaign that began before the Civil War, women were awarded the right of universal suffrage by the 19th Amendment.
    • 1924:  While Native Americans were granted residential or voting rights by States on a piecemeal basis throughout the 19thCentury, citizenship for voting purposes wasn’t conferred nationally until after World War I.  Native veterans with honorable discharges were permitted to vote in the 1920 national election and all were awarded citizenship in general by the Indian Citizenship Act of 1924.
    • 1961:  Ratification of the 23rd Amendment gave residents of the District of Columbia the right to vote for President and Vice President for the first time since 1801.
    • 1964:  The 24th Amendment and a nearly simultaneous Supreme Court decision (see below) signaled the end of nearly a century of State polling restrictions on the poor by prohibiting imposition of poll tax in Federal elections.
    • 1965:  The Voting Rights Act of 1965 provided African-Americans and other state population subgroups and interests the legal tools to challenge voting qualifications that operated to deny or abridge their rights to vote, such as literacy tests.  Section 5 of the Act that required states with a history of discriminatory practices to first demonstrate to the federal Department of Justice that proposed qualifications would not violate the mandate of the 15th Amendment.  These provisions applied to states and political subdivisions, mostly in the South, that had used a “device” to limit voting and in which less than 50 percent of the population was registered to vote in 1964.  The Act has been renewed and amended by Congress four times, the most recent being a 25-year extension signed into law by President George W. Bush in 2006.  Litigation of Section 5’s mandate has been responsible for enlarging and protecting the franchise by both subpopulations and communities of common interest.  (See below.)
    • 1971:  The 26th Amendment was ratified in 1971 to lower the national voting age for “adult citizens” from 21 to 18, in large part due to returning Vietnam War veterans under 21 who pressed for the right.  (I’ve already speculated about how different our world might now be if my cohort and I had been able to vote for Hubert Humphrey in 1968.)
    • 1973: The Congress enacted “home rule” legislation that, for the first time in 172 years, empowered District of Columbia to elect their own city officials and to govern themselves in some respects—which still can be modified or repealed pursuant to its enumerated power over the city in Article I, Section 8.
    • 1986:  The Uniformed and Overseas Citizens Absentee Voting Act required all States, D.C., and territories to permit members of the military, their families, and government-employed and private citizens stationed abroad to register to vote and to vote by absentee ballot in federal elections.

Voting rights have also been enforced and enlarged through litigation to protections conferred both by constitutional amendment and congressional enactment.  For example, it took almost a century for the Supreme Court—using the due process and equal protection clauses of the 5th and 14th Amendments, as applied to States in broader civil rights litigation—to rule in 1966 that state poll taxes were unconstitutional, just as the federal voting prohibition in the 24th Amendment took effect.  More recently, in 2008, the Supreme Court declined to strike down an Indiana “pre-certification” requirement; it has been argued that the more recent decision ignored this precedent.  Challenges to state and local election requirements under the Voting Rights Act, remain active, especially in “pre-clearance” States subject to Section 5 like Florida and South Carolina, and may figure in the outcome of November’s election, especially if it’s as close as in 2000.


Next MondayThe Rest of Shameful Thing 8–Redistricting.

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