Sunday, November 11, 2012

Unabridged: Reservations About the Tenth Amendment and the Right to Vote

One hundred and fifty years ago, Union forces built bridges and began assembling to face Lee's Army near Fredericksburg, Virginia wholly unaware they were about to lose one of the most lopsided fights in Civil War history.  That war is prominent this Veteran's Day as the battles enter their sesquicentennial anniversaries and cinema brings the era into a new realism.  But, also because we are still chasing its ghosts.

Spoiler alert - the Union wins, the Confederacy dissolves and the states in rebellion re-enter the Union with considerable conditions placed upon them.  Among these conditions was mandatory ratification of the Reconstructionist Amendments to the United States Constitution: the Thirteenth Amendment prohibited slavery and indentured servitude, the Fourteenth Amendment defined citizenship and declared equality for all, and the Fifteenth Amendment enfranchised those who had been denied the vote by stating, "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."  Due to the opposition by the states in insurrection and a general concern about the administration of these mandates, all three Amendments endow Congress with the power to enforce them by appropriate legislation.

So, when Congress first set out to enforce the article in 1870, it did so rather forcefully, in 16 Stat. 140, by authorizing criminal penalties for officials who denied the right to vote based upon race.  In perhaps the first case determining the validity of that statute, Justice Strong (acting as Circuit Justice) upheld convictions in United States v. Given, 25 F.Cas. 1324 (1873).  He explained the constitutional powers of Congress to enforce the Fifteenth Amendment's right to vote (or, more precisely, prohibition of discrimination to vote) through clever analogy.  He asserted that there was no power bestowed upon Congress to enforce the third paragraph of Sec. 2 of Art.4 of the United States Constitution but that legislation enforcing it had been upheld by the Court.  Reasoning that the language in the Fifteenth Amendment was stronger and more directed, congressional action - even to criminal penalties - was appropriate.

Art. 4 of the United States Constitution originally affirmed the permanence of servitude for anyone born into slavery who was not granted manumission.  It was silent in regard to enforcement.  Yet, Congress acted twice with the Fugitive Slave Act of 1793 and then again in 1850 creating criminal penalties for those seeking freedom and remedies for those seeking to reclaim their "property"; both times the Court upheld fugitive slave legislation.  In this punctuated vein, Justice Strong upheld Congress' authority and power to enforce the Fifteenth Amendment via criminal sanctions. 

The Givens case mentioned the general powers of the states to enact rules and regulations for voting but remarks,
But the recent amendments have introduced great changes. If prior to 1870, when the fifteenth amendment became a part of our organic law, the right of a slave holder to the ownership of his fugitive slave in any state of the Union, and his right to delivery of such slave, was a right which congress was authorized to enforce and protect by penal legislation against individuals obstructing it, much more are the rights secured, recognized, and guaranteed by the thirteenth, fourteenth, and fifteenth amendments objects of legitimate protection by the law-making power of the federal government. Those amendments have left nothing to the comity of the states affecting the subjects of their provisions. They manifestly intended to secure the right guaranteed by them against any infringement from any quarter. Not only were the rights given—the right of liberty, the right of citizenship, and the right to participate with others in voting, on equal terms, without any discrimination on account of race, color, or previous condition of servitude—but power was expressly conferred upon congress to enforce the articles conferring the right. The second section of the fifteenth article ordained that ‘the congress shall have power to enforce this article by appropriate legislation.’ Manifestly this section was adopted for a purpose. It must be so construed as to confer some effective power.
United States v. Givens, 25 F.Cas. at 1327 (emphasis added).

Fast forward to 2012 where the Court granted certiorari in the matter of Shelby County, AL v. Holder to determine whether Congress exceeded its authority under the Fourteenth and Fifteenth Amendments when it reauthorized a section of the 1965 Voting Rights Act requiring certain localities with a history of racial discrimination to obtain preauthorization from Congress before they changed their voting rules thereby violating the Tenth Amendment and Art. 4 of the Constitution. The Tenth  Amendment declares that powers not specifically designated to the federal government nor prohibited to the states would be reserved by the states or the people.  Art. 4 avers that citizens of each state would enjoy the privileges and immunities of citizens in the several also was the original home of the guarantee that a slave would be a slave no matter where he resided leading to the ill considered decision in Dred Scott v. Sandford announcing that no African American was a citizen anywhere in the United States.  The grant of certiorari under these two sections of the Constitution should send shivers down the spines of every American.

In 1873, Justice Strong- appointed by President Grant (the same person who accepted Lee's surrender at Appomatox Courthouse) - affirmed that the Fifteenth Amendment radically changed the relationship of the states to the federal government.  He lived through the ratification period and the emergence of liberty in Reconstruction and was quite convinced that the Tenth Amendment did not apply to enforcement of the Fifteenth.  By granting certiorari the current Supreme Court is opening up these old wounds of war that have scabbed over and over with time and struggle through a Tenth Amendment vehicle that ran out of steam by 1873.

Following the war that claimed 700,000 American lives, countless lynchings, intimidation, brutal violence, outrageous poll taxes and literacy tests continued to deny the vote.  Undeterred by this irrational savagery, courageous, powerful movements of the 1940's, 50's and 60's persisted.  Finally President Johnson and the heroic 89th Congress passed the Voting Rights Act of 1965.

The Reconstructionist Amendments were war reparations reserving little ambiguity about their meaning, purpose and design.  To ensure their life in perpetuity, they reformed the entire relationship between the individual states and the federal government granting significantly more power in the federal government than initially occurred (a point Madison would have loved) and left nothing to comity.  These Amendments were not a compromise - they were an affirmation intended to instill the promise of the second sentence of the Declaration of Independence upon all people by redirecting certain powers to Congress.  That change is permanent. 

Together, as a nation, we have united to defeat the Nazis, we have struggled with the inequities of our first compromise and have emerged stronger with each member of society fully enfranchised, we have pulled and strained against the notion of liberty to a point where we are ensuring civil rights at the ballot box (which has its drawbacks, but is a remarkable achievement), and we have just affirmed, by popular (and our quirky electoral) vote that we do believe in the promise initially embraced by the Enlightenment that emboldened our forbears.  That unified nation - the one that reveres our brave armed forces on this Veteran's Day- began with the end of the Civil War and is continually evolving, in the hopeful words of James Madison, in order to form a more perfect Union, establish justice and ensure domestic tranquility.

We ought not and cannot and shall not permit the frayed edges to unravel this great nation. Congress is now elected by popular vote; it has deemed that certain localities must receive approval before changing voting laws; the unelected Courts must accept this under the Fifteenth Amendment which, by its own terms, denied states their prior powers under the Tenth Amendment.  Even though it took Congress 100 years to act, separation of powers assures that any and every action to enforce the Fifteenth Amendment shall be upheld. 

The mournful magnitude of 20,000 casualties in Fredericksburg 150 years ago was not in vain.  Our tragic division united us; and in that unification we agreed - however reluctantly by some - to welcome all Americans as equals.  Every vote counts and if takes Congressional approval to so ensure then that is a tiny price to pay for all of the blood that has spilled over the unalienable right to take part in one's own government. 


  1. incredible article, i think that the past election is putting a lot of this history into a different light. i just read an article that 30 states are starting petitions to succeed from the union (forbidden by the fourteenth amendment) it is a difficult think to parse legal history with current events and make them pertinent... you do it beautifully...

  2. Thank you so much! Today's movements to leave the Union are the equivalent of the teenager slamming the door and screaming "I hate you!" to her parents when she does not get her way. The Republic will survive, but only if the people retain the vote.