In taking this step, however, Congress did not intend to allow the legal and constitutional rights of the blacks to be waived without a contest. Reports reached the North concerning the activities of the southern whites—reports which in no way minimized the amount of intimidation and violence involved—and in response to this information Congress passed the enforcement laws of 1870-1871, generally known as the "Force Acts."[3] These laws laid heavy penalties upon individuals who should prevent citizens from exercising their constitutional political powers—primarily the right to vote. As offences under these acts were within the jurisdiction of the federal courts and as the federal officials manifested an inclination to carry out the law, the number of indictments was considerable. Convictions, however, were infrequent. The famous Ku Klux Act of 1871 amplified the law of 1870 and was aimed at combinations or conspiracies of persons who resorted to intimidation. It authorized the President to suspend the privilege of the writ of habeas corpus and made it his duty to employ armed force to suppress opposition.
Additional sting was given the enforcement laws by provision for the superintendence of federal elections, under specified conditions, by federal officials called "supervisors of election." The supervisors were given large powers over the registration of voters and the casting and counting of ballots, so as to ensure a fair vote and an honest count. Since here, again, federal troops stood behind the law, it was manifest that the central government would show some degree of determination in its handling of the southern situation. Nevertheless, the result was merely to delay the gradual elimination of the blacks from political activity, not to prevent it. In practice the Republican state governments in the South were continued in the seats of authority only through the presence of the federal soldiery. In one way or another the whites gained the upper hand, so that by 1877 only South Carolina and Louisiana had failed to achieve self-government unhampered by federal force.
In the meantime the enforcement acts were being slowly weakened by the
Supreme Court in several decisions bearing upon the Fourteenth
Amendment. The significant portion of Section I of the Amendment is as
follows:
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.
In several cases involving the enforcement acts, the Court found portions of the laws in conflict with the Constitution and finally, in 1883, the decision in United States v. Harris completed their destruction. Here the court met a complaint that a group of white men had taken some negroes away from the officers of the law and ill-treated them. Such conduct seemed to be contrary to that part of the Ku Klux Act which forbade combinations designed to deprive citizens of their legal rights. The Court, however, called attention to the important words, "No State shall make or enforce," and was of opinion that the constitutional power of Congress extends only to cases where States have acted in such a manner as to deprive citizens of their rights. If individuals, on the contrary, conspire to take away these rights, relief must be sought at the hands of the state government. As the great purpose of the Ku Klux Act had been to combat precisely such individual combinations, it appeared that the Court had, at a blow, demolished the law. Not long afterwards the Court declared unconstitutional the Civil Rights Act of 1875, which had been designed to insure equal rights to negroes in hotels, conveyances and theatres. Here again the Court was of opinion that the Fourteenth Amendment grants no power to the United States but forbids certain activities by the states.[4]
Stuffing the ballot box was common in South Carolina and other states. In one election in this state the number of votes cast was almost double the number the names on the polling list. In some places the imposition of a poll tax peacefully eliminated the impecunious freedman. In Mississippi the state legislature laid out the "shoestring" election district, 300 miles long and about 20 miles wide, which included many of the sections where the negroes were most numerous, in order that their votes might have as little effect as possible. By hook or by crook, then, in simple and devious ways, the dangers of negro domination were averted. Nevertheless the provisions of the law for federal supervision of elections remained, becoming a bone of contention during a later administration.
About 1890 there began a new era in the elimination of the negro from politics in the South. The people of that section disliked the methods which they felt the necessity of using, and searched about for a less crude device. Furthermore the rise of a new political movement in some parts of the South in the late eighties and early nineties was making divisions among the Democrats and was encouraging attempts by the two factions to control the negro vote. Suddenly, a relatively small number of negro voters became a powerful and purchasable make-weight. Both sides, perhaps, were a bit disturbed at this development. At any rate, additional impetus was given to the movement for the suppression of the negro. Eventually plans were originated, some of which were clearly constitutional and all of which carried a certain appearance of legality.
The first steps were taken by Mississippi in 1890. The new state constitution of that year required as prerequisite to the voting privilege, the payment of all taxes which were legally demanded of the citizen during the two preceding years—a provision to which no constitutional exception could be taken, and which effectively debarred large numbers of colored voters. Further, it provided that after January 1, 1892, every voter must be able to read any section of the state constitution or be able to give an interpretation of it when read to him. As the election officials who would judge the ability of the applicant properly to interpret the constitution would certainly be whites, it was clear that the ignorant black would have scant chance of passing the educational test. Several other states followed in the wake of Mississippi, until in 1898 Louisiana discovered a new barrier through which only whites might make their way to the voting lists. This was the famous "grandfather clause." In brief, it allowed citizens to vote who had that right before January 1, 1867, together with the descendants of such citizens, regardless of their educational and property qualifications. As no negroes had voted in the state before that date, they were effectively debarred. Under the influence of such pressure, the negro vote promptly dwindled away to negligible proportions. In Louisiana, to cite one case, there were 127,263 registered colored voters in 1896, and 5,354 in 1900. Between these two years the new state constitution had been passed. In 1915 the Supreme Court finally declared a grandfather clause unconstitutional on the ground that its only possible intention was to evade that provision of the Fifteenth Amendment which forbids the states to abridge, on account of color, the rights of citizens of the United States to vote.
The history of the effects of the war and of reconstruction on the political status of the negro has been concisely summarized as falling into three periods. At the close of the war: (1) the negroes were more powerful in politics than their numbers, intelligence and property seemed to justify; (2) the Republican party was a power in the South; and (3) the negroes enjoyed political rights on a legal and constitutional equality with the whites. By 1877 the first of these generalizations was no longer a fact; by 1890 the Republican party had ceased to be of importance in the South; and by the opening of the twentieth century, the negro as a possible voter was not on a legal and constitutional equality with the white.
In the sphere of government the war and reconstruction were of lasting importance. Preeminently it was definitely established that the federal government is supreme over the states. Although the Constitution had seemed to many to establish that supremacy in no uncertain terms, it can not be doubted that only as a result of the war and reconstruction did the theory receive a degree of popular assent that approached unanimity. Temporarily, at least, reconstruction added greatly to the prestige and self-confidence of Congress. During the war the powers of the President had necessarily expanded. The reaction, although hastened by the character and disposition of President Johnson, was inevitable. The depression of the executive elevated the legislature and not until the beginning of the twentieth century did the scales swing back again toward their former position.