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A SUFFRAGE AMENDMENT PROPOSED.
essentially, to make permanent the security of the right to vote, irrespective of race, color or previous condition.
While the Fourteenth Amendment was under discussion in Congress, several joint resolutions had been offered, both in the Senate and House, proposing a suffrage amendment to the Constitution. One of the earliest of these originated with Senator Henderson of Missouri. It was introduced on the seventh of March, 1867, and is of interest because it ultimately became the Fifteenth Amendment.1 But the proposed Fourteenth then dominated the attention of both Houses and it was not until December of the following year, six months after the Fourteenth had become part of the Constitution, that Congress seriously addressed itself to the question of further securing impartial suffrage. Several resolutions were then offered in both Houses, and though differing quite widely in their phraseology, they agreed in substance, that neither race nor color should be sufficient to exclude a man from the exercise of the right to vote.2 A resolution was brought up by its author, George S. Boutwell, in the House, for discussion, on the twenty-third of January. At the same time, the Judiciary Committee had under consideration a
1 See Congressional Globe, First Session, 40th Congress, 1867, p. 13. This was known as Senate Resolution No. 8.
2 See the resolution of Mr. Craigin of New Hampshire, in the Senate on the 7th of December, and of Mr. Pomeroy of Kansas, Mr. Kelly of Pennsylvania, Mr. Eldridge of Wisconsin, Mr. Stokes of Tennessee and Mr. Boutwell of Massachusetts, December 7January 11. Globe, Third Session, 40th Congress, Part 1.
3 Its language is: Section 1. The right of any citizen of the United States to vote shall not be denied or abridged by the United States or any State by reason of race, color or previous condition of slavery of any citizen or class of citizens of the United States. Section 2. That Congress shall have the power to enforce, by proper legislation, the provisions of this article. Globe, 286.
GEORGE S. BOUTWELL.
bill to enforce the provisions of the Fourteenth Amendment.
The measures were reported together. As Boutwell said, they were the last of a series of great acts growing out of the rebellion and necessary for the pacification and reorganization of the country. If the privilege of the elective franchise was secured to all its people, without distinction of race or color, the institutions of the country, both State and National, would be established upon the broadest possible basis of representative equality. The Republican party, he said, was responsible for the consummation of these measures.
Some believed a constitutional amendment for securing the suffrage unnecessary, and that its ends could be effected by an act of Congress. Others believed that the subject was not within the proper scope of legislative power, and that equality of suffrage without distinction of race or color could be secured only by an amendment of the Constitution. Those familiar with the debates which took place in the convention that framed the Constitution, and especially in the ratifying conventions, had evidence that the friends of the Constitution then believed that it gave the National Government power over the elective franchise sufficient to preserve its own existence independently of any action by the States. This must be true in the nature of the case, if the General Government was not a mere confederacy. If, as some maintained, the whole question of the suffrage was vested in the States, then, should they refuse to choose electors or to send members to Congress, or to choose Senators, they could bring the Government of the United States to an end.
The theory that the National Government could not control the suffrage for its own protection, was destructive of our existence as a people and a vestige of an ancient and
1 Globe, 655.
GEORGE S. BOUTWELL,
false tradition. Nowhere did the Constitution tolerate the idea that the existence of the Government was at the mercy of the States. The control of elections, which the Constitution plainly gave to Congress, also clearly intimated the nature of its control over the suffrage. But did the States possess any powers except those given them by the Constitution? Was it not the established rule of construction that the National Government has no powers except those explicitly granted to it? Divested of all the theories and traditions put upon the Constitution by Statesovereignty men, could anything be more clear than that Congress had all the power which the States could exercise, except that of declaring where Senators should be chosen ? Therefore, when it was proved that a State has the right to decide who shall exercise the elective franchise, it was also proved that Congress might do the same thing under the provision empowering it to make any regulations it might choose on the subject of elections, except as to the place of choosing Senators. In the ratifying conventions of 1788, the ablest opponents of the Constitution had based their objections on the ground that it gave this power to Congress, and its defenders had never denied the soundness of the theory. It had the support of Hamilton and Madison in the Federalist, and of Wilson in the Federal Convention. Indeed, was not the substance of the whole matter so stated in Wilson's argument, "that it was not a crime to sow the seed of selfpreservation in the Federal Government ?” Four States, New Hampshire, Massachusetts, Rhode Island and New York, in ratifying the Constitution had demanded as an amendment, that the exercise of the right of Congress to regulate elections should be strictly limited. But not one of the twelve amendments submitted in 1789, and they
1 Mr. Boutwell, January 23, 1869. Globe, 556.
had been composed from the mass of recommendations made by the States, touched the question.'
The conclusion of the whole matter, therefore, in reference to the question of the suffrage, was clearly that the power to make regulations concerning elections was vested in the States; and, secondly, that the power of the General Government over the subject of the franchise was equally comprehensive. The theory of national existence compelled this conclusion. It, too, was supported by the debates in the Federal Convention and of the ratifying States. The explicit provision of the Constitution by which the United States guarantees to each State a republican form of government was further evidence of the right of the general government to regulate the suffrage. “The right of suffrage,” said Wilson, in the Pennsylvania Convention, "is fundamental to republics."
No State which denied the elective franchise could be said to have a republican form of government. By this test the governments of Delaware, Kentucky, Maryland, Ohio and Pennsylvania, in 1868, were not republican. But it was asked here, whether the Constitution prohibited any State from regulating the right of suffrage ? Did not the tenth amendment proposed by the State of Massachusetts in 1788 clearly intend to protect the rights not specially delegated to the United States, nor prohibited by it to the States as reserved to the States respectively or to the people? To this it was answered, that the power given to the States to regulate the time, place and manner of holding elections was specified and distinct, and was not disturbed by the tenth amendment, nor did that amendment affect the power of Congress to alter its State regulations. But if any doubt remained of the power of
1 See the chapters on the ratification of the constitution for verification of Boutwell's assertions, Index, “Ratification."
THE RIGHT TO VOTE.
Congress to regulate the suffrage, it should be dispelled by the Fourteenth Amendment. It defined citizens and made United States citizenship a privilege and an immunity which could not be abridged by any State. The term, privilege, as applied to members of the House, meant the same, as a matter of equal right among them, as when applied to citizens of the United States. Their privileges by the amendment were equal. It applied to all the people of the country, and Congress could not discriminate between the immunities and privileges of citizens whether white or black, native or naturalized.
But was the right to vote one of the privileges of a citizen? "To be a citizen," it was answered, “it was necessary that a person should be entitled to the enjoyment of those privileges and immunities on the same terms on which they are conferred upon other citizens.” At this point the question was raised, whether, at the time of the adoption of the Fourteenth Amendment in Congress, it was not conceded that it would not confer political rights upon the negro, and that it recognized the right of the States to regulate the suffrage, without the control of Congress, but subject to the penalty that their representation might be curtailed if they should exclude persons of color from the right to vote. To this the same reply was given, that the right to vote is an essential quality of citizenship. If one man in a State had a right to vote, then every man, possessing like qualifications of education and property, had the same right. But, it was further asked, if the Fourteenth Amendment was intended to prevent a State from determining who should and who should not vote, why, when it provided that no State should make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, did it not add,