Twenty Years of Congress, Volume 2 / From Lincoln to Garfield, with a Review of the Events Which Led to the Political Revolution of 1860

by James Gillespie Blaine

The gradual progress of public opinion in the United States on questions relating to slavery and to the personal and political rights of the negro race, may be clearly traced in the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution.

—The Thirteenth Amendment, proposed by Congress while the war was yet flagrant, simply declared that neither slavery nor involuntary servitude shall exist within the United States or in any place subject to National jurisdiction.

—The Fourteenth Amendment advanced the negro to the status of a citizen, but did nothing affirmatively to confer the right of suffrage upon him. Negatively it aided him thereto, by laying the penalty of a decreased representation upon any State that should deny or in any way abridge his right to vote at any election for the choice of electors for President and Vice-President of the United States, representatives in Congress, the executive and judicial officers of a State, or the members of the Legislature thereof.

—The Fifteenth Amendment, now proposed, did not attempt to declare affirmatively that the negro should be endowed with the elective franchise, but it did what was tantamount, in forbidding to the United States or to any State the power to deny or abridge the right to vote on account of race, color, or previous condition of servitude. States that should adopt an educational test or a property qualification might still exclude a vast majority of negroes from the polls, but they would at the same time exclude all white men who could not comply with the tests that excluded the negro. In short, suffrage by the Fifteenth Amendment was made impartial, but not necessarily universal, to male citizens above the age of twenty-one years.

The adoption of the Fifteenth Amendment seriously modified the effect and potency of the second section of the Fourteenth Amendment. Under that section a State could exclude the negro from the right of suffrage, if willing to accept the penalty of the proportional loss of representation in Congress, which the exclusion of the colored population from the basis of apportionment would entail. But the Fifteenth Amendment took away absolutely from the State the power to exclude the negro from suffrage, and therefore the second section to the Fourteenth Amendment can refer only to those other disqualifications never likely to be applied, by which a state might lessen her voting population by basing the right of suffrage on the ownership of real estate, or on the possession of a fixed income, or upon a certain degree of education, or upon nativity, or religious creed. It is still in the power of the States to apply any one of these tests or all of them, if willing to hazard the penalty prescribed in the Fourteenth Amendment. But it is not probably that any one of these tests will ever be applied. Nor were they seriously taken into consideration when the Fourteenth Amendment was proposed by Congress. Its prime object was to correct the wrongs which might be enacted in the South, and the correction proposed was direct and unmistakable; viz., that the Nation would exclude the negro from the basis of apportionment wherever the State should exclude him from the right of suffrage.

When therefore the nation by subsequent change in its Constitution declared that the State shall not exclude the negro from the right of suffrage, it neutralized and surrendered the contingent right before held, to exclude him from the basis of apportionment. Congress is thus plainly deprived by the Fifteenth Amendment of certain powers over the representation in the South, which it previously possessed under the provisions of the Fourteenth Amendment. Before the adoption of the Fifteenth Amendment, if a State should exclude the negro from suffrage, the next step would be for Congress to exclude the negro from the basis of apportionment. After the adoption of the Fifteenth Amendment, if a State should exclude the negro from suffrage, the next step would be for the Supreme Court to declare that the act was unconstitutional, and therefore null and void. The essential and inestimable value of the Fourteenth Amendment still remains in the three other sections, and pre-eminently in the first section.

The contentions which have arisen between political parties as to the rights of negro suffrage in the Southern States, would scarcely be cognizable judicially under either the Fourteenth or the Fifteenth Amendment to the Constitution. Both of those Amendments operate as inhibitions upon the power of the State, and do not have reference to those irregular acts of the people which find no authorization in the public statutes. The defect in both Amendments, in so far as their main object of securing rights to the colored race is involved, lies in the fact that they do not operate directly upon the people, and therefore Congress is not endowed with the pertinent and applicable power to give redress. By decisions of the Supreme Court, the Fourteenth Amendment has been deprived in part of the power which Congress no doubt intended to impart to it. Under its provisions, as construed by the Court, little, if any thing, can be done by Congress to correct the evils or avert the injurious consequences arising from such abuses of the suffrage as distinguished the vote of Louisiana in the Presidential election of 1868, and in the numerous and flagrant cases which followed that baleful precedent of unrestrained violence and unlimited wrong. Those outrages are the deeds of individual citizens or of associated masses, acting without authority of law and in defiance of law. Yet when a vitiated public opinion justifies their course, and when indictment and conviction are impossible, the injured citizen loses his rights as conclusively as if the law had denied them, and indeed far more cruelly.

Undoubtedly a large proportion of the members of Congress, while following the lead of those who constructed the Fourteenth Amendment, sincerely believed that it possessed a far greater scope than judicial inquiry and decision have left it. It is hazarding little to say that if the same political bodies which submitted the Amendment to the people could have measured both the need of its application and the insufficiency of its power, it would have been seriously changed, and would have conferred upon the National Government the unquestioned authority to protect individual citizens in the right of suffrage, so far as that suffrage is used in the choice of officers of the United States. The opportunity was neglected and may never return. It is not at all probable that any political party will succeed in time of peace, upon financial and industrial issues, in electing two-thirds of the Senate and two-thirds of the House of Representatives. No further change in the Constitution of the Republic is probable therefore, within any period whose line of thought or action may now be anticipated with reasonable certainty; and if a sudden political convulsion should possibly give two-thirds of each branch of Congress to one political party, it would be found impracticable to propose any change in the Constitution, in the direction of enlarging the scope of liberty, that would be likely to secure the support of three-fourths of the States of the Union.

The Constitutional Amendments were proposed and adopted under the belief that they would be honorably observed and enforced in all the States alike. The presumption was certainly in favor of that loyal obedience to the organic law of the Republic without which Anarchy has already begun its evil work. If however, by reason of infidelity to the Constitutional provisions in some sections, if by violence in resisting them in others, it be suggested that they should have been drawn with greater circumspection, with a broader comprehension of all the contingencies of the future, the fact yet remains that they are of priceless value to the Government and the people. They have added largely to the muniments of personal liberty; they have immeasurably increased the just power of the National Government; they have exerted a constantly growing force against the spirit that organized the Rebellion; they have strengthened the bonds of the Union against every form of danger which it has hitherto encountered.

Without the Fourteenth and Fifteenth Amendments the Thirteenth would have proved of little value to the oppressed race which it declared to be free. In every step taken after the simple article of emancipation was decreed, the Republicans who controlled the Government met with obstacles from without and from within. There were thousands in their own ranks who did not wish the negro advanced to citizenship; there were tens of thousands who were unwilling to see him advanced to the elective franchise. But happily there were hundreds of thousands who plainly saw that without the rights of citizenship his freedom could be maintained only in name, and that without the elective franchise his citizenship would have no legitimate and (if the phrase be allowed) no automatic protection.