The constitutionality of these disfranchising enactments has not been made a direct issue in the Supreme Court of the United States. The case of Williams vs. State of Mississippi[14], the decision of which is commonly supposed to have sustained their constitutionality, only brought the question up collaterally without proper allegations or sufficient proof. From an intimation made by the Court in this case, it is not improbable that when a direct issue upon their constitutionality is properly presented, it may render a decision consonant with that which it rendered in the case of Yick Wo vs. Hopkins, wherein the Court said:
“Though the law in itself be fair on its face and impartial in appearance, yet, if it be applied and administered by public authority with an evil eye and an unequal hand, so as to practically make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”[15]
There are other grounds for the belief that the Federal Supreme Court will refuse to sustain these instruments of disfranchisement, even though it has not of recent years acted in a manner to inspire faith.
These enactments have never received the approval of the people of the states. Of a total of 235,604 male citizens of voting age in South Carolina in 1890, more than 102,000 of whom were white men, only 60,925 participated in the election of November 6, 1894, at which the members of the constitutional convention were elected. Of the number thus voting only 31,402 were counted in favor of holding the convention. Thus one-seventh of the citizens called a convention and enacted a constitution which disfranchised more than one hundred thousand electors. The constitutions of Mississippi and Louisiana were adopted in the same way.
These so called constitutions, besides being repugnant to the spirit and purpose of the Fifteenth Amendment are also violative of the acts of Congress restoring the rebellious states to the Union, which acts the Federal Supreme Court has on several occasions declared constitutional.[16]
Pursuant to the reconstruction legislation, these states adopted constitutions admitting the Negro to the ballot and then asked to be readmitted to representation in Congress. Congress, having approved of their constitutions, enacted that they be entitled to representation in Congress, “upon the following fundamental conditions: That the constitutions of neither of said states shall ever be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote in said states, who are entitled to vote by the constitution thereof herein recognized.”[17]
These states accepted these fundamental conditions and are consequently bound by them.[18]
III
What effect have these disfranchising enactments had upon the status of the Negro? Has he lost nothing more than the bare right to vote? Has he been deprived of nothing but an abstract right to a voice in the affairs of government and of no other privilege than the possibility of a share of political power?
Surely the loss of any one of the foregoing is not unimportant in a democratic form of government. But he has lost much more, and the probabilities are that, if these obvious discriminations are allowed to continue, he will be brought to his deepest humiliation. The law which deprives him of the badge of citizenship, changes at once his legal status and cuts him off from respect. His disqualification as an elector shuts him out of the jury box in courts where what few rights he has left are adjudicated and his grievances redressed. His disqualification as an elector and as a juror discredits him as a witness. In the states which have adopted these disfranchising constitutions, more than three hundred thousand citizens have been thereby disqualified as jurors. This is all the more outrageous, because in the same states advantage has been taken in criminal legislation of what the Supreme Court of Mississippi has termed “certain peculiarities of habit and character of the Negro” whereby “furtive offenses,” which in other communities are treated as mere misdemeanors, are made felonies and are usually visited with greater punishment than are the “robust crimes” of the whites. In South Carolina, for instance, the breach of a labor contract has been made a crime, the object being to reduce the Negro to a state of serfdom.