I wrote and had published in the Washington Post a letter in which I took strong grounds in favor of having the representation in Congress,—from States where the colored men had been practically disfranchised through an evasion of the Fifteenth Amendment,—reduced in the manner prescribed by the Fourteenth Amendment. In that letter I made an effort to answer every argument that had been made in opposition to such a proposition. It had been argued by some fairly good lawyers, for instance, that the subsequent ratification of the Fifteenth Amendment had so modified the Fourteenth as to take away from Congress this optional and discretionary power which had been previously conferred upon it by the Fourteenth Amendment. I tried in that letter,—and I think I succeeded,—to answer the argument on that point. It was also said that if Congress were to take such a step it would thereby give its sanction to the disfranchisement of the colored men in the States where that had been done. This I think I succeeded in proving was untrue and without foundation. The truth is that the only material difference between the Fourteenth and Fifteenth Amendments on this particular point is that, subsequent to the ratification of the Fourteenth and prior to the ratification of the Fifteenth Amendment, a State could legally disfranchise white or colored men on account of race or color, but, since the ratification of the Fifteenth Amendment, this cannot be legally done. If, then, Congress had the constitutional right under the Fourteenth Amendment to punish a State in the manner therein prescribed, for doing what the State then had a legal and constitutional right to do, I cannot see why Congress has not now the same power and authority to inflict the same punishment upon the State for doing or permitting to be done what it now has no legal and constitutional right to do.
No State, in my opinion, should be allowed to take advantage of its own wrongs, and thus, by a wrongful act, augment its own power and influence in the government. To allow a majority of the white men in the State of Mississippi, for instance, to appropriate to themselves through questionable methods the representative strength of the colored population of that State, excluding the latter from all participation in the selection of the representatives in Congress, is a monstrous wrong, the continuance of which should not be tolerated.
For every crime there must be a punishment; for every wrong there must be a remedy, and for every grievance there must be a redress. That this state of things is wrong and unjust, if not unlawful, no fair-minded person will deny. It is not only wrong and unjust to the colored people of the State, who are thus denied a voice in the government under which they live and to support which they are taxed, but it also involves a grave injustice to the States in which the laws are obeyed and the National Constitution,—including the war amendments to the same,—is respected and enforced. I am aware of the fact that it is claimed by those who are responsible for what is here complained of that, while the acts referred to may be an evasion if not a violation of the spirit of the Constitution, yet, since they do not violate the letter of the Constitution the complaining parties are without a remedy, and therefore have no redress. This contention is not only weak in logic but unsound in law, even as construed by the Supreme Court of the United States, which tribunal seems to be the last to which an appeal can be successfully made, having for its object the enforcement of the Constitution and laws so far as they relate to the political and civil rights of the colored Americans. That a State can do by indirection what it cannot do directly, is denied even by the Supreme Court of the United States.
That doctrine was clearly and distinctly set forth in a decision of the Court rendered by Mr. Justice Strong, which was concurred in by a majority of his associates. In that decision it was held that affirmative State action is not necessary to constitute race discrimination by the State. In other words, in order to constitute affirmative State action in violation of the Constitutional mandate against distinction and discrimination based on race or color, it is not necessary that the State should pass a law for that purpose. The State, the Court declared, acts through its agents, Legislative, Executive and Judicial. Whenever an agent or representative of the State acts, his acts are binding upon the State, and the effect is the same as if the State had passed a law for that purpose. If a judge, for example, in the selection of jurors to serve in his court should knowingly and intentionally allow a particular race to be excluded from such service on account of race or color, the effect would be the same as if the State, through its Legislature, had passed a law for that purpose. The colored men in the States complained of, have been disfranchised in violation of the spirit if not the letter of the Constitution, either by affirmative State action, or through and by the State's agents and representatives. Their acts, therefore, constitute State action as fully as if the Legislature had passed a law for that purpose.
CHAPTER XXVI
MISSISSIPPI AND THE NULLIFICATION OF THE FIFTEENTH AMENDMENT
The defeat or abandonment of the Lodge Federal Elections Bill was equivalent to a declaration that no further attempts would be made for a good while, at least, to enforce by appropriate legislation the war amendments to the Constitution. Southern Democrats were not slow in taking advantage of the knowledge of that fact.
My own State, Mississippi, was the first to give legal effect to the practical nullification of the Fifteenth Amendment. On that question the Democratic party in the State was divided into two factions. The radical faction, under the leadership of Senator George, advocated the adoption and enforcement of extreme methods. The liberal or conservative faction,—or what was known as the Lamar wing of the party under the leadership of Senator Walthall,—was strongly opposed to such methods. Senator George advocated the calling of a Constitutional Convention, to frame a new Constitution for the State. Senator Walthall opposed it, contending that the then Constitution, though framed by Republicans, was, in the main, unobjectionable and should be allowed to stand. But Senator George was successful, and a convention was called to meet in the fall of 1890. In order to take no chances the Senator had himself nominated and elected a member of the Convention.
When the Convention met, it was found that there were two strong factions, one in favor of giving legal effect to the nullification of the Fifteenth Amendment, and the other opposed to it. The George faction was slightly in the majority, resulting in one of their number,—nullificationists, as they were called,—Judge S.S. Calhoun, being elected President of the Convention. The plan advocated and supported by the George faction, of which Senator George was the author, provided that no one be allowed to register as a voter, or vote if registered, unless he could read and write, or unless he could understand any section of the Constitution when read to him and give a reasonable interpretation thereof. This was known as the "understanding clause." It was plain to every one that its purpose was to evade the Fifteenth Amendment, and disfranchise the illiterate voters of one race without disfranchising those of the other.