Section 1.
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
Section 2.
The Congress shall have power to enforce this article by appropriate legislation.
Passed by Congress March 23, 1971. Ratified July 1, 1971.
Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.
Amendment XXVI:
Section 1: The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.
Section 2: The Congress shall have the power to enforce this article by appropriate legislation.
18-Year Olds Right to Vote
Section 2. The Congress shall have the power to enforce this article by appropriate legislation.
Perhaps one of the few instances where the issue of congressional power was litigated prior to passage of the amendment, section 2 of the 26th amendment has this distinction. Many Americans today do not realize that the debate over the minimum age to vote in the U.S. began during World War II and the issue continued to grow even as the War wound down. President Dwight Eisenhower was the first U.S. president to officially endorse lowering the voting age to 18. For most of its history, the U.S. had adopted 21 as the minimum age.
President Eisenhower, like a growing number of American policymakers, recognized a clear disparity between 18 year olds being old enough to fight for their country in war and yet they were not considered responsible enough to cast a vote in electing the representatives that could decide the policy. This sensible argument was powerful enough to persuade Georgia and Kentucky to lower the minimum voting age during World War II.
Unfortunately the process of state-by-state reform didn’t appear to be moving fast enough for its advocates. By the time of the Vietnam War, it had become increasingly clear that Congress had to take some action in this area. Between the budget pressures, anti-war efforts, and the need to rely on the draft, Washington policymakers determined that they should act affirmatively to lower the voting age.
Taking the lead nearly 20 years after serving as Vice-President to President Eisenhower, President Nixon agreed to sign a law that amended the Voting Rights Act to lower the voting age to 18 for all Federal, State, and local elections. There was a problem with this solution: it didn’t meet Supreme Court muster.
The act signed into law in 1970 was challenged in the federal courts. In Oregon v. Mitchell the Supreme Court declared that the Congress didn’t have the authority to set a minimum age requirement for voting in state and local elections.
President Nixon would then call upon Congress to adopt a Constitutional amendment to remedy the matter. It passed Congress in March 1971 and would set a record – 4 short months – as the fastest ratification of any of the amendments to the Constitution. By July, President Nixon would certify that the amendment had indeed been ratified.
Horace Cooper is a legal commentator and the Director of the Center for Law and Regulation at the Institute for Liberty
June 12, 2012
Essay #82
Amendment XXVI:
The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.
The Twenty-Sixth Amendment: Empowering America’s Youth
Throughout our nation’s history the right to vote has remained a cornerstone of cherished civil liberties and democratic processes. This right, however, was granted to select members of the populace until a century and a half ago. The end of the Civil War brought about 3 “Reconstruction Amendments” aimed to bring constitutionally granted “blessings of liberty” to the black male populace – the 3rd of these, the 15th Amendment, ratified in 1870, granted voting rights regardless of “race, color, or previous condition of servitude.” Half a century later, women were also granted the right to vote, after various organizations staged a protracted series of processions and protests. Several countries, such as Sweden, Finland (then known as the Grand Duchy (Dutch-ee)), Britain and Australia, had already forged ground in this area at the end of the 19th century. The resulting 19th Amendment was ratified in 1920, which prohibited state and federal sex-based voting restrictions. Additional suffrage privileges were granted with ratification of the 24th Amendment in 1964 – which guaranteed that voting rights of citizens
“shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”
Age was the next obstacle to overcome.
The Constitution allowed states to dictate voting qualifications, subject to restrictions incorporated into Amendments. One of these Amendments, the 14th, mandated an age 21 minimum for male suffrage, with the caveat of withholding any state’s representation in Congress should this right be denied. With the onset of World War II, many young men and women under age 21 entered military service, sparking discussions about reducing the voting age to 18. It seemed ironic that one could be called up for military service at 18 and denied the right to vote for the country one was entrusted to defend. So, in 1942, four Congressmen introduced resolutions to reduce the age to 18. Over 150 proposals were initiated, some setting the age to 19. In the early 1950s, Senate debated one of “18” resolutions, but it failed by a vote of 34 to 24. By the late 1960s, the Vietnam War was rapidly escalating and thousands of young Americans enlisted, or, were drafted for active duty overseas. As of 1968, 25% of the troops were under age 21 and made up an even higher percentage of casualties. ‘Old enough to fight, old enough to vote’ became a mantra for the burgeoning Baby Boom generation.
The resolutions for lowering the voting age began to gain momentum once again. Congress held hearings on the subject between 1968 and 1970. These hearings touched on the link between military service and voting, but primarily focused on the increased educational levels of modern youth. Their discussions also focused on the ever-increasing responsibilities of the 18-21 year old demographic: attending college, driving automobiles, drinking alcohol (in subsequent years, states raised this age to 21), holding jobs, starting families, being tried as adults in court. Concurrently, in a narrow 5-4 vote, the United States Supreme Court ruled in Oregon v. Mitchell (1970) that 18 year olds could vote in federal elections, but not in those held at the state, or, local levels.
States now were tasked with evaluating their suffrage-age laws, and sixteen states did just that in 1970. Six states lowered the age and ten remained unswayed. Other states began to weigh administrative and cost advantages in matching the new federal framework. Congress then added a provision to the Voting Rights Act in 1970 setting the minimum voting age to 18 for both national and state elections, arguing it had broad power to protect voting rights under Section 5 of the 14th Amendment. With that, Congress accelerated its commitment to incorporate the youth suffrage movement within the framework of the Constitution. Congress passed the 26th Amendment March 23, 1971. In the fastest ratification process on record (107 days), three fourths of the states ratified this landmark proposal July 1, 1971.
Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.
Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery. From 1999 to 2000, Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh(Grow), Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.
June 11, 2012
Essay #81
Amendment XV:
1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
2: The Congress shall have power to enforce this article by appropriate legislation.
The Fifteenth Amendment to the United States Constitution was passed by Congress on February 26th 1869, and ratified by the States on February 3rd, 1870. Although many history books say that it “conferred” or “granted” voting rights to former slaves and anyone else who had been denied voting rights “on account of race, color, or previous condition of servitude,” a close reading of the text of the amendment reveals that its actual force was more idealistic. It basically affirmed that no citizen could rightfully be deprivedof the right to vote on the basis of that citizen’s race, color or previous condition of servitude – in other words, that such citizens naturally had the right to vote. That is how “rights” should work, after all; if something is a right, it does not need to be conferred or granted and cannot be infringed or denied.
It is worth noting that the Fifteenth Amendment only clarified the voting rights of all male citizens. States have the power to define who is entitled to vote, and at the time of the signing of the Constitution, that generally meant white male property owners. The States gradually eliminated the property ownership requirement, and by 1850, almost all white males were able to vote regardless of whether or not they owned property. A literacy test for voting was first imposed by Connecticut in 1855, and the practice gradually spread to several other States throughout the rest of the 19th Century, but in 1915, the Supreme Curt ruled that literacy tests were in conflict with the Fifteenth Amendment.
Section 2 of the Fifteenth Amendment sets forth the means of enforcing the article: by “appropriate legislation.” It was not until nearly one hundred years later, with the passage of the Voting Rights Act of 1965, that the enforcement of the Fifteenth Amendment was sufficiently clarified that no State could erect a barrier such as a literacy test or poll tax that would deny any citizen the right to vote, as a substitute for overtly denying voting rights on the basis of race or ethnicity. The Civil Rights Act of 1957 had taken a step in that direction, but practices inconsistent with the Fifteenth Amendment remained widespread. The Nineteenth Amendment. ratified in 1920, had granted women the right to vote. The only remaining legal barrier to citizens is age, and that barrier was lowered to 18 by the Twenty-Sixth Amendment, ratified in 1971. Many people do not realize that a State could permit its citizens to vote at a lower age than 18, and none has.
The moral inconsistency between a Declaration of Independence that proclaimed that all men (and, by widely accepted implication, all women) were created equal, and a Constitution that tolerated inequality based on race and gender, required more than 150 years to be resolved. The ratification of the Fifteenth Amendment in 1870 was one of the major milestones along that long path.
Colin Hanna is the President of Let Freedom Ring, a public policy organization promoting Constitutional government, economic freedom, and traditional values. Let Freedom Ring can be found on the web at www.LetFreedomRingUSA.com.
May 8, 2012
Essay #57
Amendment XIV, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The citizenship clause of the 14th Amendment is one of four amendments to the Constitution that were intended to overturn or clarify Supreme Court rulings (the 11th, 16th, and 26th were the others). Prior to 1857, there had been much scholarly discussion and political debate, but no resolution or consensus, whether the basis of American citizenship was dependent or independent of state citizenship. Many supported the view expressed by South Carolina’s John C. Calhoun in his famous Senate speech on the Force Bill in 1833, “[Every] citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.” On the other hand, James Madison, discussing the need for Congress to provide uniformity in naturalization in Federalist 42, appears to assume that American citizenship cannot be left to the vagaries of state definitions.
The Supreme Court thoroughly examined the issue in the Dred Scott case in 1857. Chief Justice Roger Taney’s majority opinion addressed the interplay between state citizenship and American citizenship. He reasoned that “people of the United States” in the preamble and “citizens” in other parts were synonymous. The people of the United States were composed of the people of the States, as it was they who were the parties to the Constitution in light of the adoption process by state conventions. The “people” of those states were the “free” inhabitants. This was a concept of specific meaning, referring to whites only, not people brought to the colonies as slaves or their descendants, even if thereafter they had been freed. Accordingly, only those descended from white inhabitants and those people naturalized under federal law (since the first statute in 1790, only whites) could be American citizens. This fundamental principle overrode later decisions by individual states to recognize additional classes of state citizens. Scott had no basis claiming citizenship as that term was used in the Constitution. Therefore, he had no power to sue in federal court as a “citizen” of Missouri.
Taney’s argument had a weak link in that there were freed blacks, some of whom could vote in 5 of the 13 states at the adoption of the Constitution. Moreover, the privileges and immunities clause of the Articles of Confederation (the pre-cursor to its counterpart in the Constitution of 1787) had discussed the body of the states’ citizens in terms of their “free inhabitants.” An amendment proposed by South Carolina to insert “white” after “free” was overwhelmingly rejected in 1778. If that was correct, slaves could not claim citizenship, but free blacks could. Just in case, Taney cut off that argument by stating that Scott’s residence with his master in Wisconsin territory could not transmute his status from slave to free.
The main dissenting opinion, by Justice Benjamin Curtis, exploited that weakness, insisting that the Constitution established an understanding of American citizenship that plausibly could extend to all free persons born in the United States. Curtis agreed, however, that the states determined the basic parameters of citizenship, and that American citizenship was derived from the scope of citizenship recognized by the state of birth. The laws of Scott’s state of birth, Virginia, treated him as a slave; therefore he was not at that time a citizen of the United States. Nor would a slave who was temporarily taken into a free state thereby be made free. But when his master took him to reside in a free territory, Wisconsin, that action made Scott a free man and a citizen of the United States. When taken back to live in Missouri, he returned as a free man and became a citizen of that state.
Curtis accepted a unitary basis of citizenship for those born in the United States, one that was determined basically by state law. Taney, on the other hand, accepted a duality: United States citizenship was established by the understanding of the Framers of what made someone part of the “people of the United States.” While states could define state citizenship for themselves, they (or the Congress) could not go against this fundamental principle. Hence, even after the Civil War, freed blacks could not be citizens of the United States, short of a constitutional amendment.
Accepting Taney’s constitutional argument, Congress took that path with the 14th Amendment. United States citizenship was de-coupled from state citizenship, and the latter was made subordinate to the former. National citizenship appears based on place of birth (“jus soli”), the English common law principle going back to feudal antecedents when one’s station was connected to the soil where one was born. However, the amendment also adds that the person must be “subject to the jurisdiction” of the United States. This clearly excludes those children born in the United States to foreign diplomats. Does it also exclude those who are born in the United States to parents who happen to be here temporarily or illegally?
The Supreme Court addressed that clause in 1898 in U.S. v. Wong Kim Ark. The majority ruled very broadly that anyone (other than the children of foreign diplomats) born on U.S. soil was a U.S. citizen. The dissent argued that the competing international law doctrine of blood relationship (“jus sanguinis”) applied, which required not only birth in the U.S. but that the child’s father did not owe allegiance to a foreign power. This was an old principle of Roman law and ancient Greek practice still used in many countries today. It would keep the native-born children at least of those who are here merely as visitors from claiming birthright citizenship.
How does this affect the current debate about “anchor babies” in connection with illegal entrants into the United States? Proponents of unrestricted citizenship argue for the broad language of Wong Kim Ark that generally has prevailed in the courts. However, there are several weaknesses. First, the issue of illegal entrants, or even of temporary visitors, was not addressed there. Mr. Wong himself had lived in the U.S. all of his life. Wong’s parents had been duly admitted as immigrants to the U.S. with a permanent domicile and were engaged in a business. They were not mere passers-through. Nor were they here illegally, a concept that was not an issue in American immigration law until the Chinese Exclusion Act of 1882, years after the Wongs arrived. It was unnecessary for the Court to give such a broad reading to the 14th Amendment, and the justices simply may not have been aware of the ramifications of their language.
Second, the law-of-the-soil tradition carried with it “indelible allegiance.” Thus, a British subject could not renounce British citizenship, which led the British navy, after American independence, to search American vessels and “impress” into British service naturalized American citizens of British ancestry. Americans have roundly rejected that principle.
Third, the debates over the 14th Amendment included remarks by Senator Jacob Howard of Michigan, the amendment’s sponsor, that seem to say that the amendment does not apply to children of any foreigners or aliens, even if those children are born in the United States.
Fourth, Congress on several occasions throughout American history has employed jus sanguinis, for example, in legislation to recognize as citizens by birth the children born abroad to American citizens. This suggests that the 14th Amendment’s jus soli principle applies, unless Congress, as part of the sovereign powers of the national government, passes a law that rests on a different principle.
Overturning a century-old precedent is difficult, but distinguishing it due to changed social circumstances unanticipated at the time is more persuasive. Still, eroding the jus soli interpretation of the citizenship clause is a longshot, but the public debate likely will intensify the pressure for some political or constitutional accommodation.
An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.
April 25, 2012
Essay #48
Amendment XXVI
1: The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.
2: The Congress shall have the power to enforce this article by appropriate legislation.
The final (or, more accurately, most recent) amendment to the US Constitution is the 26th. It lowered the national voting age from 21 to 18 years of age.
The founders initially left it up to the several states to determine various eligibility requirements for voting. But following nearly a century of reform, including the passage of the 19th Amendment ensuring suffrage for women and various civil rights laws operating under the auspices of the 14th amendment, national leaders began to grapple with pressure to lower the overall voting age nationally from the generally-accepted 21 to 18.
President Eisenhower was the first chief executive to publicly support such a move, but Congress’ attempts to nationally require states to do so were met with constitutional opposition from the Supreme Court. The High Court found that Congress had exceeded its authority under the Constitution, and that amending the Constitution would be required.
Contrary to popular belief, it wasn’t simply the anti-war movement that was pressuring national leaders to lower the voting age. Young adults from all walks of life, who had already assumed the full mantle of adulthood (marriage, children, sole self-support, etc), were eager to ensure that they had a voice in public policy. But it was the anti-war movement that captured the popular sentiment, with the concept that “if I’m old enough to be drafted to fight for my country, I ought to be able to vote those policies facing my country.”
The issue of the draft isn’t a small one, either. The fact that young men were facing the possibility of involuntarily putting themselves in harm’s way is a compelling justification for allowing these same young men a voice in their own futures.
By 1971, the White House had become a champion of the push to lower the voting age as well—which, given the ire the anti-war movement felt towards the Nixon administration, was nothing short of ironic. In fact, in one of the oddest instances of changing places, The New York Times, incapable of seeing anything good coming from the Nixon White House, came out in opposition to the lowered voting age—stating that young people were simply too immature intellectually to be good voters.
But the proposed amendment did pass Congress, and Nixon signed it in March of 1971. The amendment rocketed through state legislatures, and by July 1 it had been ratified.
The force and effect, however, has been somewhat limited. Rates of voting for the 18-21 year old segment of the population was at its highest for the 1972 election. After that, even considering important contributions in the 1984, 1996, and 2008 Presidential elections, voter turnout among this demographic has remained tremendously low. Despite this fact, there are some calling for lowering the voting age even more—to 16![1]
It is doubtful that this will happen, given a host of factors—including one trend that has run parallel through the 40 year history of the under-21 vote.
While there may have been some justification in the late-1960s and early-1970s for lowering the age due to the factors facing a disenfranchised segment of the population, those factors have continued to shift. Not only do we have an all-volunteer military, wherein nobody is forced to join without their own-free choice, but the age we consider “adult” today continues to increase.
Currently, for instance, we have the greatest percentage of individuals under 30 living in their parents’ homes. Few have families, fewer own homes. It has become acceptable to consider adolescence to extend well-beyond age 18, and some believe it to extend beyond 30 years of age!
This belief became enshrined now in federal public policy as well. One of the central issues in Obamacare is the mandate to health insurance companies that they allow parents to put their children on their insurance plans up to the age of 26. I believe such a consideration would have been unthinkable in the era when the 26th Amendment was being considered.
Nobody is suggesting that the voting age be raised again—though many believe that young people do squander their franchise rights. What is certain is that the 26th Amendment is illustrative of the idea that pressing issues of the day ought not drive the amendment process. Rarely does such tinkering with the founders’ vision produce the results that we want.
[1] This organization, the American Youth Rights Association, believes that voter turnout will increase, and that because young people may retain better knowledge of historical facts than the general population, that they will be a more informed segment of the voting electorate.
Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/
Amendment XIX
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate legislation.
It is hard to imagine that only 90 years ago, one half of the population of the United States could not vote because of their gender. But the passage of the Nineteenth Amendment in 1920 mandated that states could no longer deny women this fundamental right. It was named the Susan B Anthony Amendment, after the foremost leader for women’s suffrage.
On that first Election Day, November 2, 1920, single and married women, young and old, exercised a right they had fought for in their homes and churches, in town halls, and on the streets. Polling places swelled almost beyond capacity with voters who had never before done such a thing. Mothers, daughters, sisters, and aunts proud and eager, rushed to their polling location as early in the morning as possible, as if vying for the front row seat at the theater. Flustered by the idea of a secret ballot, one woman thought she needed to sign the back of the card. Others carried their groceries on their hips, maneuvering the crowds and chatting enthusiastically over screaming children.
The New York Times reported that while approximately one in three women, who were eligible, voted, more women than men actually voted in some districts. The Chicago Tribune credited Republican Harding’s landslide victory to the woman’s vote.
Unlike some other amendments to the constitution, the 19th Amendment was hard fought. For instance, the 26th Amendment passed in 1971, which granted the right to vote for citizens 18 years of age, took only 3 months and 8 days to be ratified. As a matter of fact, of the 27 amendments to the Constitution, 7 took only 1 year or less to become the law of the land.
However, women struggled for72 years to pass the Nineteenth Amendment. Anti suffrage organizations were most popular in the New England states. Opponents claimed that the female brain was of inferior size. Others claimed that women did not possess a soul. Humorous postcards portrayed women taking too long to get all their petticoats on to get to the polls. Some newspaper editorials said that women would only vote the way their husbands told them to anyway.
But even the movement that supported votes for women was ripe with internal dissention. The passage of the 15th Amendment, giving the Negro the right to vote in 1869, caused a 20 year split in the women’s movement. Some felt that Negro suffrage should only be passed if it also gave women suffrage. Others felt that the country was not prepared to enfranchise both and therefore women had to take a back seat.
Did the rights of the Negro have to diminish the rights of women, black and white?
That question was also being asked about women’s rights as it related to motherhood and family life. Would freeing women to participate in government put at risk the care of children? In other words, could the rights of all coexist?
Against this backdrop, suffrage leaders took seriously these portrayals of power and domination by their gender. They exercised their greatest skill in combating this perception put forth by their opponents that they would abandon their children. Nowhere was this made more apparent than in their opposition to ‘Restellism,’ the term given to abortion, the most heinous form of child abandonment. It was named after the infamous abortionist Madame Restell, frequently arrested and discussed in Susan B Anthony’s publication The Revolution. Suffrage leaders saw opposition to ‘ante-natal murder’ and ‘foeticide’ as an opportunity to clear their name of unfair accusations against them by anti-vice squads, who believed the decadence of the Victorian Era lay at women’s independence.
But opposing abortion was more than a political strategy. It was support for a human right, a right that was integral to their own. The organizer of the first women’s rights convention in 1848, Elizabeth Cady Stanton, made these connections in a letter to suffrage leader Julia Ward Howe. Howe believed war was the enemy of women because it destroyed their sons and husbands and brothers. Stanton made this same death connection with mothers who destroyed their children: “When we consider that women are deemed the property of men, it is degrading that we should consider our children as property to destroy as we see fit.”
Not only were anti-suffrage crusaders misinformed about the care for children that was integral to the suffrage agenda, they misunderstood that women wanted the vote not so much for their own self aggrandizement but for ‘life over material wealth’ or for the good of families and children. Child labor laws, poverty, and universal education were issues for which they sought the vote. They sought the vote for themselves because they were mothers who knew the needs of everychild. It was their maternity that they saw as their greatest gift of citizenship. As political artist J Montgomery Flagg’s winning 1913 poster proclaimed, Mothers bring all voters into the world.
Susan B Anthony did not live to see the passage of the Amendment that was named for her life’s work. A radical young new woman leader, Alice Paul, was jailed with 66 colleagues for their protest at an event honoring President Wilson and the US participation in World War I. This sparked the nation’s awakening and compassion, but more importantly, weakened the President’s opposition to the justice they demanded.
Paul created a flag with the suffrage colors: gold for the sunflower of Kansas (an early state to grant women suffrage), white for purity, and purple for eminence. She sewed on it a star for each state that ratified the Amendment. Only one more state was needed, and on August 18, 1920, Paul received a telegram proclaiming the ‘yes’ vote by the Legislature of the State of Tennessee. Paul draped the flag over a balcony in Washington DC. Women now could exercise the right to shape and determine the course of history.
Resources:
· Boston Daily Globe, Nov. 3, 1920
· NY Times, December 19, 1920
· Chicago Daily Tribune, Nov. 3, 1920
· Archive collection, Susan B Anthony Birthplace, Adams, MA
Carol Crossed is the Owner and President of the Susan B Anthony Birthplace Museum in Adams, Massachusetts.
Amendment XV
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
The Congress shall have power to enforce this article by appropriate legislation.
The Fifteenth Amendment to the United States Constitution was passed by Congress on February 26th 1869, and ratified by the States on February 3rd, 1870. Although many history books say that it “conferred” or “granted” voting rights to former slaves and anyone else who had been denied voting rights “on account of race, color, or previous condition of servitude,” a close reading of the text of the amendment reveals that its actual force was more idealistic. It basically affirmed that no citizen could rightfully be deprived of the right to vote on the basis of that citizen’s race, color or previous condition of servitude – in other words, that such citizens naturally had the right to vote. That is how “rights” should work, after all; if something is a right, it does not need to be conferred or granted and cannot be infringed or denied.
It is worth noting that the Fifteenth Amendment only clarified the voting rights of all male citizens. States have the power to define who is entitled to vote, and at the time of the signing of the Constitution, that generally meant white male property owners. The States gradually eliminated the property ownership requirement, and by 1850, almost all white males were able to vote regardless of whether or not they owned property. A literacy test for voting was first imposed by Connecticut in 1855, and the practice gradually spread to several other States throughout the rest of the 19th Century, but in 1915, the Supreme Curt ruled that literacy tests were in conflict with the Fifteenth Amendment.
Section 2 of the Fifteenth Amendment sets forth the means of enforcing the article: by “appropriate legislation.” It was not until nearly one hundred years later, with the passage of the Voting Rights Act of 1965, that the enforcement of the Fifteenth Amendment was sufficiently clarified that no State could erect a barrier such as a literacy test or poll tax that would deny any citizen the right to vote, as a substitute for overtly denying voting rights on the basis of race or ethnicity. The Civil Rights Act of 1957 had taken a step in that direction, but practices inconsistent with the Fifteenth Amendment remained widespread. The Nineteenth Amendment. ratified in 1920, had granted women the right to vote. The only remaining legal barrier to citizens is age, and that barrier was lowered to 18 by the Twenty-Sixth Amendment, ratified in 1971. Many people do not realize that a State could permit its citizens to vote at a lower age than 18, and none has.
The moral inconsistency between a Declaration of Independence that proclaimed that all men (and, by widely accepted implication, all women) were created equal, and a Constitution that tolerated inequality based on race and gender, required more than 150 years to be resolved. The ratification of the Fifteenth Amendment in 1870 was one of the major milestones along that long path.
Colin Hanna is the President of Let Freedom Ring, a public policy organization promoting Constitutional government, economic freedom, and traditional values. Let Freedom Ring can be found on the web at www.LetFreedomRingUSA.com.
Article 1, Section 2, Clause 3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Amendment 14, Section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the 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, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Amendment 26, Section1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
The so-called “three-fifths” clause of the U. S. Constitution is actually a provision for determining the number of representatives allotted to the several states in the Union. However, it provides the most frequently circulated charge against the Constitution. Simply put, for a long time almost everyone in America has misunderstood the three-fifths language in the Constitution. Here we speak directly and only to the origin of that language, in order to correct the record. We begin, however, by listing the Fourteenth Amendment and the Twenty-Sixth Amendment, because of their implications for the original text. Note that the Fourteenth Amendment supersedes the three-fifths clause, in particular directly tying the rule of representation to eligibility to participate in elections. That was not the case originally. Moreover, it ties eligibility to participate in elections (in relation to penalties for the denial of that privilege) to an age of majority listed as “twenty-one years of age.” However, the Twenty-Sixth Amendment establishes the age of eligibility for voting at “eighteen years of age” without having altered the language of the Fourteenth Amendment. Thus, once again the eligibility to vote has become disconnected from the rule of representation, as it was in the original constitution.
Now, regarding the three-fifths clause, the general account is that the Framers regarded black people as only three-fifths human (whatever that might mean). That, in turn, is supposed to prove that the Framers were bigots and that their opinion of black people was low indeed. The palpable surface of the framing documents reveals the truth. Consider what they did in fact mean, then judge how well the Framers confronted their moral dilemmas.
In April, 1783 (not 1787) in the Confederation Congress the three-fifths compromise emerged after six weeks of debate. An eighth article was proposed for the Articles of Confedration, apportioning expenses for the Confederation on the basis of land values as surveyed. There the discussion opened, only to reveal how difficult it was to assess land values 2
and, in the rude conditions of those times, to produce accurate surveys. Thus, they resorted to numbers instead, speaking of population as a rough approximation of wealth. Taking the numbers of people in the respective states, they hit upon the following language:
expenses shall be supplied by the several states in proportion to the whole number of white and other free inhabitants, of every age, sex, and condition, including those bound to servitude for a term of years, and three fifths of all other persons not comprehended in the foregoing description, except Indians not paying taxes in each state.
What, then, does three-fifths apply to? Slaves, carefully and legally defined. But re-read the opening clause, delimiting “the whole number of white and other free inhabitants.” To whom does that apply? Surely not whites only, nor only males, since “every age, sex, and condition” is further appended. Clearly, they aimed at every free human being, white and non-white. As is generally known, the only significant number of free non-whites in the United States in 1783 were American blacks (another 10,000 of whom were emancipated between 1776 and 1787). There were not in the United States of 1783, for example, any Asians. Thus, these legislators included American blacks among the free inhabitants; the following three-fifths clause applied not to blacks generically but rather to persons in the peculiar legal relation of slavery. Three-fifths of the number of slaves were counted, not in terms of their humanity but with respect to their legal status in the respective states.
The Confederation Congress fully affirmed the humanity of American blacks through the language of “white and other free inhabitants.” Was that recognition of humanity withdrawn when this same language was taken up again in 1787 in the Constitutional Convention? Here is the provision:
Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
The lapse of four years has brought changes. But what are the changes? On the surface the changes are primarily editorial, introducing economy and exactness of language. As any composition teacher would point out, the first thing to notice is the elimination of redundancy. Why should it be necessary to say the “whole number of white and other free inhabitants, of every age, sex, and condition,” when the “whole number of free persons” says the same thing? Further, “adding three fifths of all other persons” at the end is less awkward than the inclusion clause of 1783. Finally, the substitution of “Service” for “servitude” continues the liberal impulse of 1776. Moreover, this rule of representation says nothing about who gets the right to vote. Thus, 1787’s freedom language includes women and blacks; it does not exclude them.
W. B. Allen
Havre de Grace, MD
Posted in Analyzing the Constitution Essay Archives | 18 Comments »
Wasn’t the three fifths clause also intended to prevent slave owning states from gaining an unfair advantage over free states by preventing them from including slaves in a count of a state’s population and giving the slave states permanent control of the House of Representatives?
This would go along with the “life, liberty, and pursuit of happiness clause of the Declaration of Independence which was originally written as “life, liberty, and property”, but changed to “life, liberty, and happiness” to prevent slave states from making the case that the word “property” must include slaves.
Between the two wouldn’t slavery have become constitutionally protected and recognized legal institution? It would have given the slave states permanent control of Congress because the slave state would have used control of Congress to insure that all future states admitted to the Union would have been slaves states, would it not?
Why is the “indians not taxed” language included?
“including those bound to Service for a Term of Years”
Of whom does the Constitution refer? These individuals do not appear to be identified as slaves, but rather a specific legal class of free persons.
?prisoners…? debtors?…
I think the majority of those who misunderstand or misinterpret this whole three fifths thing either do it on purpose to use to their advantage, or simply have not done the research to find out for themselves.
The first category knowingly and willingly try to change what was in the hearts of our founding father’s. This frustrates me to no end. I believe for America to continue to be free we must keep in mind the hearts and minds of our founding fathers. We must take the time to know their morals and deeply held beliefs.
We must also keep in mind that they were not from our time. We cannot judge them based on who we are today. We must see them and understand them in their own time for who they were then and what our country was like then. I love this stuff.
We’re having our First Patriot’s club on March 4th and I’m so excited to teach these young Patriots the constitution and their founding father’s. I believe we must know them as well as the document to gain true understanding.
Brad, at the time of the writing I think there was still indentured servitude. This was a contracted period of servitude for the payment of transport and relocation to America.
@Joe Short: Indians not taxed are the Indians who ware not particularly US Citizens. The Indians were and are a protectorate of the federal government where the Indians were treated as a foreign country. It is interesting to note that during the Treaty of Paris meetings led by Benjamin Franklin that Franklin secured the welfare of the American Indians from the European powers citing that they were a people “not able to defend themselves.” The Treaty of Paris then kept Europe out of the affairs of the American Indian. Had this not been done; the perpetual European wars may have persisted to intermeddle with the American Indian affairs. As was then, and in the years afterward, there were intents among the British Crown to keep arming the American Indians and incite war with the American “rebels”.
@Brad: bound to Service for a Term of Years are those of indentured servants primarily from Europe. These are people who either contracted their fare of transport to the states or were in debt already and arrangements were made with the shipping companies conveying goods of trade to the Americas. Many were debtors who were subject to the ill-gotten practice of being jailed for their debt where they could not work off their debt and so in a somewhat not-by-choice fashion were made indentured servants to the shipping companies. The shipping companies then would sell the contract of labor in the Americas to bidders. The indentured servants typically served a term of no more than seven years under the Judeo-Christian ideal of a seven year’s release.
@Susan and Ralph: Thank you for the clarification. This dialogue is wonderful.
You guys should look at David Barton’s explanation on utube. Fabulous.He explains how Frederick Douglas realized the 3/5 clause was an anti-slavery clause.Talks about Georgia, NC & SC wanting to count all their slaves so they could have more votes.Northern states came back saying – you want to count your “property” we’ll count our horses and goats!(All from the Constitutional Convention notes). The neat thing he points out is that the 3/5 clause actually applied to the population of slaves – not each individually meaning that a state would have to have 50,000 slaves to enable them to get one representative. That clause is so cool because it’s true – everyone misunderstands it – and it’s fun to set them straight!!
Interesting, so women and blacks had the right to vote since the beginning?? Yet were denied that right because of incorrect readings of the original Article within the Constitution? Am I understanding this correctly? that is amazing, if it’s true!! I had to re-read the explanation regarding the 3/5 clause several times, but it does make sense now.
@Barb: That is correct; but the right to vote for women in particular was not uniform among the states. If you think about it; in order for their to be a women’s suffrage amendment to the U.S. Constitution there had to be 3/4ths states that ratified the amendement. Do you think that all of a sudden 3/4ths the states went from seeing the error of their ways to suddenly advocating a woman’s right to vote?
In colonial times, for example, Pennsylvania voting rights were orchestrated around property ownership to land holders. Men were the primary land-owners of estates; but if a woman’s husband passed away, then the property fell to her and she then had the right to vote in his stead. Later, states like Idaho made law that give women the right to vote without any such land-holding impediments and gave an cablanche right to vote for women. They did this to encourage women to risk pioneering the unclaimed lands mostly populated by men and populate the territory.
The 3/5ths clause is a penchant play on political correctness.
Michele Backmann was right. The founders did wrestle with the slavery issue.
During the constitutional convention [or ConCon] debates August 21, 22, 1787 the premise was that each state was an independent nation and the auspices of the convention was not much more than a trade union. When it came to the issue on slavery there certainly were a variety of views and it was recommended to ban the importation of slavery and/or abolish slavery; but it was passed over to the states as a state matter as the purpose and scope of the convention was not that of religion, morality, or humanity. The original submitted draft of the Constitution brought to the ConCon 1787 actually forbade outright the blocking of the slave trade and forbade imposing a tax provision on the importation of slaves, so it appears. The draft evidently was revised to instead postpone the blocking of the slave trade and allowed a tax on the trade instead of none. So the end result of the draft constitution going into the ConCon was a marginally tougher instrument on slavery that what was proposed.
As James Madison made record in his ConCon notes, Mr. Rutledge noted: “Interest alone is the governing principal with nations. The true question at hand is whether the Southern States shall or shall not be parties to the Union.” Mr. Ellsworth noted: “The morality or wisdom of slavery are considerations belonging to the states themselves.” And, “[t]he old confederation had not meddled on this point, and he did not see…bringing it within the policy of the new one…” Mr. Sherman also noted that the slavery issue, being the purview of the several States, was already addressed by the abolition movement “and that the good sense of the several States would probably by degrees compleat [the abolition].”
So what we have on the table was the making of a stronger union versus a very loose, virtual one. The confederate congress really had no power to speak of and figuratively had to have permission of ten states to sneeze, and then had to have permission of ten states again to get a handkerchief. Yet, if the abolition of slavery was promulgated in the Constitution, then the southern states would not have ratified it. Hence, the 3/5ths compromise was retained in order to deter the southern states from not ratifying; and by implication, leaving the union. And abolition was allowed passively by the Constitution, by leaving with the states their own accord to abolish slavery as some statesmen like Mr. Sherman thought the abolitionist movement was already showing much success in that direction. Mr. Pickney also concurred thinking the Southern States will eventually block the importation of slaves of their own volition.
A comparitive could be if the USA, Canada, and Mexico took NAFTA and upgraded to a federal union while cartels still exist.
I know that the women of New Jersey voted in elections up until about 1800 when sufferage was rescinded.
Personally, I am so annoyed with the excuse or the complaint, “The founding fathers only saw blacks as three fifths of a person.” No. Stop. Grow up. Fredrick Douglas figured this out. The founders put the three fifths clause into the Constitution so that the South wouldn’t have so much power. If slaves were counted as a whole person the founders knew they’d never get rid of slavery. It was a way to undermine slavery, not keep it going. Do your homework.
Interesting, so women and blacks had the right to vote since the beginning?? Yet were denied that right because of incorrect readings of the original Article within the Constitution? Am I understanding this correctly?
I think not. I see nothing in A1S2C3 that addresses suffrage, which was, like citizenship, left to the states to deal with originally.
My take from what I read above, ignoring the “did they or didn’t they” this or that, is that the founders knew they couldn’t get rid of slavery in the new Constitution because the southern states would then not likely approve the Constitution. They figured that the growing abolition movement would eventually take care of the problem in the individual states, without federal involvement, so let’s not upset the cart and let’s get the Constitution we need into law now so the greater benefits would accrue to the weak, but growing nation. Let it be a state problem that will resolve itself. Unfortunately, they were not correct in this assessment, and the Civil War erupted 80 years later. It’s like life; you give it your best shot with your most pragmatic decision based on the greater good, and pray that you are making the optimal choice with respect to the things over which you have little or no control.
Great dialogue!! Learning alot here.
Another tid-bit people don’t know is not only were the several states under the AoC considered separate countries, and that the Crown of England issued a treaty for each and every colony than that of the gamut moniker of “these United States of America”, is that Quebec was invited into the union twice. Quebec was simply viewed as another colony of British pesuasion…though it was also under control of the French for a time. Quebec was invited first under the AoC and invited a second time during the ratification of the US Constitution. Quebec choose not to but may very well have been another state in the US. To date, the border between the US and Canada has been arguably the most peaceful border between two countries in the history of the world. In WW1&2, and much of the NATO alliances thereafter, Canada has continued to be an ally. How Americans and Canadians managed border disputes is remarkable.
Thank you, Mr. Allen for your enlightening essay! It is truly informative and powerful in it’s honest representation of what is to be interpreted from both the Articles of Confederation and the Constitution on this subject. Your essay is a fabulous reference for those who choose to study our founding documents. Firstly, I am grateful that our founding fathers did not use land values to account for representation and instead used populace. Secondly, I am grateful for your interpretation and clarification of the 3/5 clause. Thirdly, I am eternally grateful that our founding fathers had the insight to leave to their posterity the right to amend the Constitution. They knew changes were going to be needed.