I’ve always been uncomfortable with the phrase “grandfathered in.” We hear it when a rule or policy change allows some who enjoyed privileges under the previous situation to retain them; the new rules bind only a new clientele.
President Lyndon B. Johnson signs the Voting Rights Act of 1965 while Martin Luther King Jr. (fifth from right) and others look on.
One hundred years ago the Supreme Court struck down a grandfather clause. In this case, it was an Oklahoma law, typical of the post-Reconstruction South, that granted voting rights to those whose grandfathers were eligible to vote. That was a not-so-veiled way to deny African-Americans, supposedly enfranchised by the 15th Amendment but whose enslaved grandfathers had no such opportunity, their right to vote.
The Court finally insisted that the 15th Amendment meant what it said. But it would take another half-century for Congress to catch up and legislate enforced protections in the Voting Rights Act of 1965, whose 50th anniversary we mark this year.
That is why I cringe when the phrase is used today — innocuously but ignorantly — to describe any just guarantee of continuing protection when new rules are imposed. Does anyone who uses it today remember where the concept came from? More importantly, do we today know how long and hard the path has been to open the “franchise” to everyone?
That’s our story on this Constitution Day 2015.
The most basic civil right
The American civil order, resting on British precedent, turns traditional definitions of nationhood on its head. Where once the sovereign was, well, sovereign, here the people are sovereign.
Revolutionary ideology, brilliantly laid out in Jefferson’s Declaration of Independence, held that (1) all are equal (in political standing), (2) all enjoy basic rights, the protection of which is (3) the primary duty of government, which is therefore (4) created and empowered “by the consent of the governed.” To “consent” to be governed occurs through the ballot. In formal language, as free citizens we choose our leaders by “exercising our franchise,” when we actually use the “suffrage” granted us.
Therefore, the franchise is the most fundamental of civil rights, that is, the central means by which the people choose to be ruled in order to enjoy their natural rights to life, liberty, and the pursuit of happiness. Accordingly, voting has two simple purposes: Vote in the good guys — the effective custodians of the public good, and vote out the bad guys — those violating their trust as rights-guardians.
To its credit, the United States has become ever more and more expansive and inclusive in who can vote. This process began not long after independence. The Court (as we have seen), Congress, and the states have all contributed. But the most important advances had to be done by formally amending the Constitution. Six of the 17 amendments since the Bill of Rights have explicitly broadened the definition of who gets to vote.
Early grass roots expansion of voting rights
The so-called Founding Fathers came from America’s elite. To varying degrees, however, they had a faith in the competence of ordinary folk to choose their political leaders through the ballot. In the first six decades of independence, the franchise broadened without resort to amending the Constitution until nearly all white males of age could vote.
And most of the newly enfranchised voted. (As we shall see, this obvious consequence now seems noteworthy.)
Various mechanisms made this happen, most through state or local action. Two bear mention. Most obvious was the gradual removal of property qualifications for voting. The old view was that you needed a stake in society: If you had nothing to lose, why would you vote prudently? This prejudice, along with the restrictions, gradually withered. Most subtle was the rise of political parties — “ins” and “outs” — as an unexpected check to the power of politicians. The old view was that parties were always destructive; rival factions would pander to the ignorant rabble for self-interested advantage. But when the republic’s future was at stake, an organized “loyal opposition” offered the protection of a self-correcting accountability system that channeled the people’s will when leaders veered off course. Parties vied for support among the propertyless new voters.
One other early expansion of the franchise that was both bottom-up and top-down must be noted: “naturalization.” Granting citizenship equivalent to those naturally born was an invention of the British Parliament in colonial times. The flood of 18th century immigrants from European continent to British colonies (think the German Pietist sects in Pennsylvania) forced Britain to secure their loyalty to a new crown, different from their birth, through offering naturalized status. The young United States embraced the concept. Newcomers could pass through a process that would lead to co-equal citizenship and eligibility to vote.
To be sure, the possibility and pace of naturalization for immigrants has been fiercely contested from those early days until now. But the principle of openness to “the huddled masses yearning to breathe free” has a long and proud history.
The voting rights amendments
Thus by the Civil War two inter-connected commitments had been enshrined: American government was an instrument of its citizens, and the most basic privilege of those citizens was to vote. When the war ended, a whole new class of citizens was created, and thus a dramatic expansion of the right to vote.
14th and 15th Amendments: African-Americans
As discussed in my 2011 essay, three Constitutional amendments were passed during the post-war Reconstruction period. The 13th abolished slavery, the 14th conferred citizenship on everyone “born or naturalized in the United States,” and, lest anyone doubt the point, the 15th granted the vote to all those former slaves.
But as we have seen from the grandfathering gimmick, to establish a constitutional right is not to guarantee it. Unreconstructed Southerners gradually moved to disfranchise African-Americans. The “grandfather clause” was just one blatant mechanism. It was actually made necessary so that uneducated poor whites, running afoul of literacy and other tests concocted to block black voters, could still cast their ballots. Other tactics from intimidating obstacles (“first explain the bill of attainder clause, boy”) to outright violence (“see that lynch rope, boy?”) proved highly effective.
But the right to vote now sat firmly in the charter.
19th Amendment: Women
The Progressive Era (c 1900–20) that saw the Court strike down grandfather clauses also brought the culmination of a nearly 100-year crusade to gain the vote for women. The heirs to Elizabeth Cady Stanton and Susan B. Anthony continued their foremothers’ demand to join the electorate.
It was men, of course, who had to let them in. The Progressive impulse made it easier to yield. Women activists were the ground troops for many of the reforms that Progressive men sought, from curbs on child labor to the prohibition of alcoholic beverages. And states paved the way, starting in the West. Wyoming Territory granted its few women the right to vote in 1869, Mormon-dominated Utah Territory a year later. Idaho and Colorado, now admitted as states, followed in the 1890s. Nine more Western states, plus Alaska Territory, jumped on board between 1910 and 1918.
Washington was an interesting case. Territorial women could vote, but statehood in 1889 brought a referendum that failed to add woman suffrage to the new state constitution. Washington women had to wait until 1910.
The west-to-east wave engulfed the rest of the nation as a by-product of the First World War. Both presidential candidates in 1916 endorsed the idea. With the U.S. at war in 1917, the House approved a constitutional amendment. When the Senate balked, women’s organizations persuaded the mostly male voters to oust three hostile senators in the 1918 election. That sent the message. The 19th Amendment cleared Congress in June 1919 and received sufficient state ratifications to let all women vote in the 1920 presidential election.
Relentless campaigning had won the vote, but war service had provided the final boost. As President Wilson said in publicly calling for Senate passage: “We have made women partners in the war. Shall we admit them only to a partnership of suffering and sacrifice and toil and not to a partnership of privilege and right?”
24th Amendment: African-Americans
Striking down a grandfather clause hardly expanded the ranks of black voters. States and municipalities continued to find a variety of means to keep African-Americans away from the polls. But out of the depths of anti-black discrimination — ironically precisely in the same decade as that 1915 grandfather ruling — emerged a new black professional class, new tactics and new militancy in fighting discriminatory practices, and , eventually breakthroughs in the law, its interpretation by the Court, and in the Constitution itself.
World War II, as in so many aspects of American life, was the watershed. On the one hand, fighting a blatantly racist Nazi regime began to erode some of the racial prejudices long held by white Americans, including Northerners. On the other, African-Americans, increasingly strategic contributors in uniform and in war industries, demanded fairer treatment. Two potent symbols of the sea change came in the immediate postwar years. One came in the federal government — President Harry Truman ordering the desegregation of the armed forces in 1948. And one affected society at large — Brooklyn Dodger General Manager Branch Rickey signing Jackie Robinson to integrate Major League baseball.
President Truman also appointed a Commission on Civil Rights whose recommendations eventually made their way into legislation proposed by President Dwight Eisenhower and finally enacted in two Civil Rights Acts in 1957 and 1960. These focused on strengthening court protection of the franchise in the South. Administrations and Congress were on board, though modestly and cautiously.
Thurgood Marshall photographed in 1967 in the Oval Office
But the key leader in upholding basic human rights for African-Americans was the Supreme Court, consistent for several decades, in advance of public opinion, in taking the guarantees of the 14th and 15th Amendments as applicable and absolute. And the prominence of judicial ruling was by design. The Legal Defense and Education Fund of the National Association for the Advancement of Colored People (NAACP), headed by the brilliant and relentless future Supreme Court justice, Thurgood Marshall, orchestrated an assault on Jim Crow through systematic, strategic litigation. Marshall’s calculated lawsuits won victory upon victory, most famously the unanimous Brown v Board of Education of Topeka in 1954, banning segregated schools.
When court victories met unabashed unified nullification in the South, the movement took to the streets. Mass protests led by Martin Luther King Jr. and others pressured Congress to do more after John Kennedy’s election in 1960. JFK agreed that more federal help to protect black rights was needed. The first step was a precisely targeted Constitutional amendment outlawing “poll taxes.” Some states — but only in the South after 1900 — had imposed a small tax on each voter, a tax that grew if unpaid. Here was another not-so-subtle way to discourage black voting. In each session of Congress from 1937 on, bills to ban the tax were introduced but went nowhere. In 1962, however, the 24th Amendment quickly cleared both Houses; the states approved in time for the 1964 election.
Congress didn’t stop there. When former Senator Lyndon Johnson assumed the presidency after Kennedy’s assassination, he browbeat Congress into finally passing a comprehensive landmark Civil Rights Act in 1964, followed by the equally momentous Voting Rights Act of 1965 — spurred by well publicized marches in Selma, Alabama.
Fifty years ago, 50 years after the grandfather-clause case, and a full 100 years after the Civil War ended, African-Americans in a recalcitrant South finally had the Constitutional, Court, and Congressional clout needed to secure their right to vote.
23rd and 26th Amendments: African-Americans and more
Meanwhile, some previously disfranchised black and white voters had gained their own long-denied franchise — at least for presidential elections. Washington, D.C., had grown into a substantial residential city, but its status was something like a territory (e.g., Puerto Rico). Its citizens, many of them African-American, and many of them federal workers, ironically, gained Constitutional authorization to vote for president. The 23rd Amendment authorized three votes in the Electoral College, as if D.C. were a state.
The Civil Rights movement culminated in a decade also known for the activism of baby boomer youth, many of whom enlisted in the marches for black rights. The old English common law “age of maturity” — and voting age — had always been 21. But the World War II draft age was set at 18. Ever since, lobbyists had campaigned to lower the voting age: “If you’re old enough to fight, you’re old enough to vote.” This seemed especially relevant during the Vietnam War, another 1960s phenomenon. The combination of demographic bulge, youth activism, momentum of the Civil Rights movement, and antiwar protests won the day. First the Civil Rights Act of 1970, then the 26th Amendment (ratified 1971) lowered the age threshold to 18.
Impact: The right and the duty
A constitutional democracy rests on the fundamental civil right to cast a free ballot. That’s the chief means to find leaders who will do government’s job: protect individual human rights and secure the safety and well-being of the whole community. So said, at least, a Founding Mother: Mercy Otis Warren. Sister of one Boston patriot leader, wife of another, Mrs. Warren became one of the earliest historians of the Revolutionary War. And a fierce critic, remarkably, of the newly drafted Federal Constitution of 1787.
Mrs. Warren’s objection centered on the length of presidential and congressional terms. She so treasured the right to vote – a vote denied her – that she thought every office holder should have to stand for re-election every year. She wrote, anonymously because she was a woman,
“Power without limitation may endanger the brightest virtue — whereas a frequent return to the bar of their constituents is the strongest check against the corruptions to which men are liable, either from the intrigues of others ... or the propensities of their own hearts.”
We who are heirs to the Constitution which, against her wishes, was adopted, and perfected through subsequent amendments which enlarged the franchise she held so dear, have sadly failed her and those who shared her dream of good government.
Because we don’t vote!
All sectors of the 21st century electorate — from the “men of property and standing” who alone cast ballots in Warren’s world to college-age black women — regularly fail to show up at the polls — even when “the polls” are a mail-in ballot. Particularly discouraging for the legacy of the 26th Amendment is that the youth demographic so consistently chooses to ignore that precious right to vote. Those white males who alone owned the franchise in the 19th century turned out at a 75 percent rate (of the voting-age population). Today’s numbers barely top 50 percent — and that’s in presidential years.
Let it be said that African-Americans, by contrast, have made an impact. Black voters have not only significantly altered social conditions, they have become faces in national leadership, up to and including a president. Still, the recent turnout figures for these long-excluded Americans are worrisome too.
In sum, the right so dearly won is also a duty — a duty of free citizens whose Constitution confers an opportunity to shape their destiny. To decline the right is to shirk the duty, and invite Warren’s worst-case scenario to prevail.
“Suffrage,” “the franchise,” the right to vote is by any name a treasured American Constitutional gift. In off-year elections this November, might you buck the trends and exercise that right?