The Constitution's Complex Legacy: Voting Rights

The original United States Constitution did not contain the words slave or slavery within its text, but it directly addressed American slavery in at least five of its provisions and indirectly protected the institution in other sections. The Thirteenth Amendment to the Constitution, passed on January 31, 1865, and ratified on December 6, 1865, abolished slavery in the United States. However, it did not grant African Americans the right to vote. This was achieved through the Fourteenth Amendment (1868), which granted citizenship to formerly enslaved Americans, and the Fifteenth Amendment (1870), which established the constitutional right to vote for African American males.

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The Three-Fifths Compromise

Slaveholding states wanted their entire population to be counted to determine the number of Representatives they could elect and send to Congress. Free states, on the other hand, wanted to exclude the counting of slave populations in slave states, as those slaves had no voting rights. The Three-Fifths Compromise was a compromise that counted three-fifths of each state's slave population toward that state's total population for the purpose of apportioning the House of Representatives. This effectively gave the Southern states more power in the House relative to the North.

In 1868, Section 2 of the Fourteenth Amendment superseded and explicitly repealed the Three-Fifths Compromise.

Fugitive Slave Clause

The Fugitive Slave Clause, also known as the Slave Clause or the Fugitives From Labour Clause, is Article IV, Section 2, Clause 3 of the United States Constitution. The clause requires a "Person held to Service or Labour" in one state who escapes to another to be returned to their master in the original state. The 13th Amendment to the US Constitution, which abolished slavery, has rendered the clause mostly irrelevant.

The Fugitive Slave Clause states:

> No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The clause was unanimously approved by the Convention without further debate, despite objections from James Wilson and Roger Sherman, who argued that it would oblige the state to seize fugitive slaves at public expense. The Fugitive Slave Clause was also included in the Northwest Ordinance of 1787, which abolished slavery in the Territory.

The Supreme Court interpreted the Fugitive Slave Clause as granting the owner of an enslaved person the same right to seize and repossess them in another state as the local laws of their own state granted them. State laws that penalised such a seizure were deemed unconstitutional. However, a state statute providing a penalty for harbouring an escaped slave was held not to conflict with the Clause, as it did not affect the slaveholder's rights.

The Fugitive Slave Clause was enforced through the Fugitive Slave Act of 1793, with further enforcement provisions added in 1850 as part of the Compromise of 1850. The Act was met with resistance in Northern states, which enacted "personal liberty laws" to protect free Black residents from kidnapping and provide safeguards for accused fugitives.

Thirteenth Amendment

The Thirteenth Amendment abolished slavery and involuntary servitude in the United States, with the exception of those duly convicted of a crime. Passed by Congress on January 31, 1865, and ratified on December 6, 1865, the Thirteenth Amendment was a final constitutional solution to the issue of slavery.

The Amendment's first section, Section One, bans slavery and involuntary servitude. Some argue that this section not only abolished slavery but also all the racially discriminatory practices that accompanied the institution of slavery. This interpretation suggests that the Amendment bans discrimination and promises a full measure of freedom. However, this interpretation renders the subsequent Fourteenth and Fifteenth Amendments redundant. The Fourteenth Amendment defines citizenship and promises equal protection under the law, while the Fifteenth Amendment prohibits the denial of the right to vote based on race, colour, or previous servitude.

The second section of the Thirteenth Amendment, Section Two, empowers Congress to enforce the ban on slavery and involuntary servitude through appropriate legislation. This provision allows Congress to pass laws pertaining to practices that violate the Amendment, such as the Anti-Peonage Act of 1867, which prohibits peonage. Peonage, a form of debt bondage, was practised in the Southern United States after the Civil War, entrapping former slaves and poor citizens in cycles of unpaid work. The Thirteenth Amendment has been invoked to empower Congress to address modern forms of slavery, such as sex trafficking, bidding practices that exclude minority contractors, and electoral practices that limit minority political participation.

The Thirteenth Amendment came about after President Lincoln's 1863 Emancipation Proclamation, which declared that all persons held as slaves in rebelling states would be "forever free." Lincoln recognised that this proclamation would need to be followed by a constitutional amendment to guarantee the abolishment of slavery. Lincoln made the passage of the Thirteenth Amendment his top legislative priority after winning reelection in 1864. The Amendment was passed by Congress and ratified by three-fourths of the states, including those that had been in rebellion, by December 1865.

The Thirteenth Amendment did not expressly use the words "slave" or "slavery" but included provisions regarding unfree persons. Notably, the Three-Fifths Compromise (Article I, Section 2, Clause 3) allocated Congressional representation based on "the whole Number of free Persons" and "three-fifths of all other Persons." This clause was a compromise between Southern politicians who wanted enslaved African-Americans counted as 'persons' for representation and Northern politicians who rejected this idea due to concerns over Southern dominance.

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Fourteenth Amendment

The Fourteenth Amendment to the U.S. Constitution, passed by Congress on June 13, 1866, and ratified on July 9, 1868, was a landmark piece of legislation that extended liberties and rights granted by the Bill of Rights to formerly enslaved people. This amendment was part of the Reconstruction program following the Civil War, aiming to guarantee equal civil and legal rights to Black citizens.

One of the key provisions of the Fourteenth Amendment was the definition of citizenship. It stated that "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." This marked a significant shift from the pre-Civil War era, where enslaved people were considered property and counted as only three-fifths of a person in state populations. The amendment granted citizenship to formerly enslaved individuals, ensuring they were recognised as equal citizens under the law.

The Fourteenth Amendment also included provisions related to voting and representation in Congress. It amended the Three-Fifths Clause (Article I, Section 2, Clause 3), stating that population counts would be based on the "whole number of persons" in a state, ensuring that all people were counted equally. Additionally, it protected the right to vote for all male citizens aged 21 or older, although it took the Fifteenth Amendment (ratified in 1870) to ban voting restrictions based on race, and the Nineteenth Amendment in 1920 for women to secure the right to vote.

Another important aspect of the Fourteenth Amendment was its protection of civil rights. It mandated equal protection under the law, providing a legal basis for African Americans and other marginalised groups to challenge discrimination and demand equal rights. This amendment ensured that no state could deprive any person of "life, liberty, or property, without due process of law".

The Fourteenth Amendment played a pivotal role in shaping the legal landscape of the United States, addressing the fundamental questions about the status of newly freed African Americans and laying the groundwork for the continued fight for equal rights and protections under the law.

Fifteenth Amendment

The Fifteenth Amendment to the US Constitution, passed in 1870, established a constitutional right to vote for African American males. This was one of the three Civil War amendments that significantly expanded the civil rights of Americans, the other two being the 13th and 14th Amendments. The 13th Amendment abolished slavery, and the 14th Amendment granted citizenship to formerly enslaved Americans.

Despite these new amendments, when Reconstruction ended in 1877, states across the US implemented various laws to restrict the voting rights of Black citizens. One such example was the use of "grandfather clauses". For instance, Oklahoma passed a constitutional amendment in 1910 that stated only citizens whose grandfathers had voted in 1865 could vote, thereby disqualifying the descendants of formerly enslaved people.

The National Association for the Advancement of Colored People (NAACP) was formed around this time by activists who believed in the need to protect and expand the rights of African Americans. One of the strategies employed by the NAACP to secure equal rights was legal action. They were able to persuade the US attorney general to challenge the "grandfather clause" in the Oklahoma constitution as a violation of the 15th Amendment.

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