A leading thinker on constitutional law has given the unpublished opinion that the “Grandfather Clauses” are in violation of the tenth section of the first article of the Constitution of the United States, which says that no State shall grant any title of nobility. His idea is that an order of nobility is created whenever a class of persons is granted exceptional political privileges, that the old soldiers and lineal descendants constitute such a class, and that the title of nobility is “Elector,” whether expressed or not.
If the “Grandfather Clause” should be declared unconstitutional on the ground just suggested or on any other ground, the next question would be whether that would nullify the other sections of the suffrage laws, such as the educational and property tests. This depends upon whether the different sections of the laws are separable, whether the legislature or the people would have adopted the educational and property tests, etc., if they had thought the “Grandfather Clause” unenforceable.[[728]] North Carolina prepared for just such a contingency by inserting the following section in its Suffrage Amendment: “That this amendment to the Constitution is presented and adopted as one indivisible plan for the regulation of the suffrage, with the intent and purpose to so connect the different parts, and to make them so dependent upon each other that the whole shall stand or fall together.”
MARYLAND AND FIFTEENTH AMENDMENT
In the preceding section it has been assumed that the Fifteenth Amendment is an integral part of the Constitution of the United States. Whether or not this assumption is warranted is brought into question by a recent action of the legislature of Maryland.
As has been said earlier in this chapter, Maryland has made two unsuccessful attempts to amend its suffrage laws in such a way as would disfranchise a large number of the present Negro voters in that State. The letter of the Constitution of Maryland at present restricts suffrage to white male citizens; but it has been taken for granted that the word “white” became inoperative under the Fifteenth Amendment.
Out of the discussion of Negro suffrage in Maryland has arisen the question whether or not the Fifteenth Amendment itself is valid. At the last session of the legislature of that State, that of 1910, the so-called Digges Bills were introduced and passed by both houses. The purpose of these bills was to disfranchise all Negroes who have not owned five hundred dollars’ worth of property for two years before their application for registration, upon which all taxes have been paid during those two years. This disfranchisement applied only to State and municipal elections. The bills failed to become laws only because they were vetoed by the Governor of the State.
Upon the failure of the Digges Bills to be passed, a constitutional amendment[[729]] was drafted and approved by the required three-fifths of all the members of both houses of the legislature, which embodied the same features as the Digges Bills. This amendment is to be voted upon by the people at the general election in November, 1911. This amendment provides for the Australian ballot and for uniform election laws throughout the State. In the event of the amendment being declared unconstitutional, the laws now in force in Maryland are to be revived automatically.
The validity of the proposed Maryland amendment is directly dependent upon the invalidity of the Fifteenth Amendment. Under the proposed amendment, no property qualification whatever is required of white male citizens applying for registration, while a heavy property qualification is required of every other male citizen—and this must include Negroes—applying for registration. Thus, in violation of the Fifteenth Amendment, the right of citizens of the United States to vote would be denied or abridged by the State of Maryland on account of race or color.
The validity of the Fifteenth Amendment is questioned on the following grounds, among others: (1) The fifth article of the Federal Constitution provides that Congress, “whenever two-thirds of both houses shall deem it necessary,” shall propose amendments to the Constitution. It is claimed that only thirty-nine of the sixty-six members of the Senate, less than two-thirds, voted to submit the Fifteenth Amendment to the States for their ratification. (2) Maryland was one of the two States—the other being Delaware—that refused to ratify either the Thirteenth, Fourteenth or Fifteenth Amendment. It is claimed, therefore, that Maryland is not bound by the Fifteenth Amendment, which it did not ratify. (3) The fifth article of the Constitution, after providing the two ways in which the Constitution may be amended, adds that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” Upon this last clause, Mr. Arthur W. Machen, Jr., in a recent article in The Harvard Law Review,[[730]] has founded an ingenious argument that the Fifteenth Amendment is void. His reasoning on this point is, in brief, that the State meant here is the citizens or voters or the government of the State, and not the territory. By the enfranchisement of the Negroes after the War, the composition of the State was changed, a body of persons became part of the State who were not a part of it before, and thus the State was deprived of its equal suffrage in the Senate. Mr. Machen says: “The Fifteenth Amendment amounts to a compulsory annexation to each State that refused to ratify it of a black San Domingo within its borders. It is no less objectionable than the annexation of the San Domingo in the Spanish main.”
Whether or not any or all of the above objections and the others that are urged against the Fifteenth Amendment are valid cannot now be answered, because the validity of the Amendment has been assumed by the courts rather than decided upon after argument. Until after the election of November, 1911, attention will be centered upon Maryland. If the proposed amendment to the State Constitution is ratified by the people, then haste will no doubt be made to have its constitutionality tested, in which case the validity of the Fifteenth Amendment will be directly raised. The Southern States, as a rule, deplore this action on the part of Maryland because they fear that it will open up the whole suffrage question. It is deplored by people over the country as a whole because they fear that it will revive the ill feeling among the sections occasioned by Reconstruction.