The Constitution of the United States of America: Analysis and Interpretation Part 216

(Griffin's Case, 11 Fed. Cas. No. 5815 (1869)). Nor were persons who had taken part in the Civil War and had been pardoned therefor by the President before the adoption of this Amendment precluded by this section from again holding office under the United States. (18 Op. Atty.

Gen. 149 (1885)).

The phrase, "engaged in Rebellion" has been construed as implying a voluntary effort to a.s.sist an insurrection and to bring it to a successful termination; and accordingly as not embracing acts done under compulsion of force or of a well grounded fear of bodily harm. Thus, while the mere holding of a commission of justice of the peace under the Confederate government was not viewed as involving, of itself, "adherence or countenance to the Rebellion," action by such officer in furnis.h.i.+ng a subst.i.tute for himself to the Confederate Army amounted to such partic.i.p.ation in a Rebellion unless said action could be shown to have resulted from fear of conscription and to have sprung, not from repugnance to military service, but from want of sympathy with the insurrectionary movement. (United States _v._ Powell, 27 Fed. Cas. No.

16,079 (1871)).

[1226] Perry _v._ United States, 294 U.S. 330, 354 (1935) in which the Court concluded "that the Joint Resolution of June 5, 1933, insofar as it attempted to override" the gold-clause obligation in a Fourth Liberty Loan Gold Bond, "went beyond the congressional power."

_See also_ Branch _v._ Haas, 16 F. 53 (1883), citing Hanauer _v._ Woodruff, 15 Wall. 439 (1873) and Thorington _v._ Smith, 8 Wall. 1 (1869) in which it was held that inasmuch as bonds issued by the Confederate States were rendered illegal by section four, a contract for the sale and delivery before October 29, 1881 of 200 Confederate coupon bonds at the rate of $1000 was void, and a suit for damages for failure to deliver could not be maintained.

_See also_ The Pietro Campanella, 73 F. Supp. 18 (1947) which arose out of a suit for the forfeiture, prior to our entry into World War II, of Italian vessels in an American port and their subsequent requisition by the Maritime Commission. The Attorney General, as successor to the Alien Property Custodian, was declared to be ent.i.tled to the fund thereafter determined to be due as compensation for the use and subsequent loss of the vessels; and the order of the Alien Property Custodian vesting in himself, for the United States, under authority of the Trading with the Enemy Act and Executive Order, all rights of claimants in the vessels and to the fund subst.i.tuted therefor was held not to be a violation of section four. An attorney for certain of the claimants, who had a.s.serted a personal right to a lien upon the fund for his services, had argued that when the Government requisitioned s.h.i.+ps under the applicable statute providing for compensation, and at a time before this country was at war with Italy, the United States entered into a binding agreement with the owners for compensation and that this promise const.i.tuted a valid obligation of the United States which could not be repudiated without violating section four.

[1227] Civil Rights Cases, 109 U.S. 3, 13 (1883). _See also_ United States _v._ Wheeler, 254 U.S. 281 (1920) on which it was held that the United States is without power to punish infractions by individuals of the right of citizen to reside peacefully in the several States, and to have free ingress into and egress from such States. Authority to deal with the forcible eviction by a mob of individuals across State boundaries is exclusively within the power reserved by the Const.i.tution to the States.

[1228] Virginia _v._ Rives, 100 U.S. 313, 318 (1880); Strauder _v._ West Virginia, 100 U.S. 303 (1880).

[1229] Ex parte Virginia, 100 U.S. 339, 344 (1880).

[1230] United States _v._ Harris, 106 U.S. 629 (1883). _See also_ Baldwin _v._ Franks, 120 U.S. 678, 685 (1887).

[1231] 325 U.S. 91 (1945).

[1232] 18 U.S.C.A. -- 242.

[1233] No "opinion of the Court" was given. In announcing the judgment of the Court, Justice Douglas, who was joined by Chief Justice Stone and Justices Black and Reed, declared that the trial judge had erred in not charging the jury that the defendants must be found to have had the specific intention of depriving their victim of his right to a fair trial in accordance with due process of law, that this was the force of the word, "willfully," in section 20, and that any other construction of section 20 would be void for want of laying down an "ascertainable standard of guilt." To avoid a stalemate on the Court, Justice Rutledge concurred in the result; but, on the merits of the case, he would have affirmed the conviction. Justice Murphy announced that he favored affirming the conviction and therefore dissented. Justice Roberts, with whom Justices Frankfurter and Jackson were a.s.sociated, dissented for reasons stated in the text.

[1234] 100 U.S. 339, 346 (1880).

[1235] 313 U.S. 299, 326 (1941).

[1236] 325 U.S. 91, 114-116 (1945). _But see_ Barney _v._ City of New York, 193 U.S. 430, 438, 441 (1904).

[1237] Ibid. 106-107. The majority supporting this proposition was not the same majority as the one which held that "State" action was involved.

[1238] 341 U.S. 97 (1951).

[1239] Ibid. 103-104.

[1240] 342 U.S. 852.

[1241] Ibid. 853-854.

AMENDMENT 15

RIGHT OF CITIZENS TO VOTE

Page Affirmative interpretation 1183 Negative application; the "Grandfather Clause" 1184 Application to party primaries 1185 Enforcement 1186

AMENDMENT 15.--RIGHT OF CITIZENS TO VOTE

Amendment 15

Section 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.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

Affirmative Interpretation

In its initial appraisals of this amendment the Court appeared disposed to emphasize only its purely negative aspects. "The Fifteenth Amendment," it announced, did "not confer the right * * * [to vote] upon any one," but merely "invested the citizens of the United States with a new const.i.tutional right which is * * * exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude."[1] Within less than ten years, however, in Ex parte Yarbrough,[2] the Court ventured to read into the amendment an affirmative as well as a negative purpose. Conceding "that this article" had originally been construed as giving "no affirmative right to the colored man to vote," and as having been "designed primarily to prevent discrimination against him," Justice Miller, in behalf of his colleagues, disclosed their present ability "to see that under some circ.u.mstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Const.i.tutions the words 'white man' as a qualification for voting, this provision did, in effect, confer on him the right to vote, because, * * *, it annulled the discriminating word _white_, and thus left him in the enjoyment of the same right as white persons. And such would be the effect of any future const.i.tutional provision of a State which should give the right of voting exclusively to white people, * * *"

Negative Application; the "Grandfather Clause"

The subsequent history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various attempts by States to disfranchise the Negro either overtly through statutory enactment, or covertly through inequitable administration of their electoral laws or by toleration of discriminatory members.h.i.+p practices of political parties. Of several devices which have been voided, one of the first to be held unconst.i.tutional was the "grandfather clause." Without expressly disfranchising the Negro, but with a view to facilitating the permanent placement of white residents on the voting lists while continuing to interpose severe obstacles upon Negroes seeking qualification as voters, several States, beginning in 1895, enacted temporary laws whereby persons who were voters, or descendants of voters on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirements. Unable because of the date to avail themselves of the same exemption, Negroes were thus left exposed to disfranchis.e.m.e.nt on grounds of illiteracy while whites no less illiterate were enabled to become permanent voters. With the achievement of this intended result, most States permitted their laws to lapse; but Oklahoma's grandfather clause was enacted as a permanent amendment to the State const.i.tution; and when presented with an opportunity to pa.s.s on its validity, a unanimous Court condemned the standard of voting thus established as recreating and perpetuating "the very conditions which the [Fifteenth] Amendment was intended to destroy."[3] Nor, when Oklahoma followed up this defeat with a statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916 (sick persons and persons absent had a second opportunity to register between May 11 and June 30, 1916) should be perpetually disfranchised, did the Court experience any difficulty in holding the same to be repugnant to the amendment.[4] That amendment, Justice Frankfurter declared, "nullifies sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race."[5] More precisely, the effect of this statute, as discerned by the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registry lists in 1914 by virtue of the hitherto invalidated grandfather clause; whereas Negroes, prevented from registering by that clause, were afforded only a twenty-day registration opportunity to avoid permanent disfranchis.e.m.e.nt.

Application to Party Primaries

Indecision was displayed by the Court, however, when it was first called upon to deal with the exclusion of Negroes from partic.i.p.ation in primary elections.[6] Prior to its becoming convinced that primary contests were in fact elections,[7] the Court had relied upon the equal protection clause to strike down a Texas White Primary Law[8] and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primaries to members of State political parties as determined by the central committees thereof.[9] When exclusion of Negroes was thereafter perpetuated by political parties acting not in obedience to any statutory command, this discrimination was for a time viewed as not const.i.tuting State action and therefore not prohibited by either the Fourteenth or the Fifteenth Amendments.[10] But this holding was reversed nine years later when the Court, in Smith _v._ Allwright,[11]

declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a State agency, and hence may not under this amendment exclude Negroes from such elections.

At a very early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face, and in the absence of proof of discriminatory enforcement could not be viewed as denying the equal protection of the laws guaranteed by the Fourteenth Amendment.[12] More recently, the Boswell amendment to the const.i.tution of Alabama, which provided that only persons who understood and could explain the Const.i.tution of the United States to the reasonable satisfaction of boards of registrars was found, both in its object as well as in the manner of its administration, to be contrary to the Fifteenth Amendment. The legislative history of the adoption of the Alabama provision disclosed that "the ambiguity inherent in the phrase 'understand and explain' * * * was purposeful * * * and was intended as a grant of arbitrary power in an attempt to obviate the consequences of"

Smith _v._ Allwright.[13]

Enforcement

Two major questions have presented themselves for decision as a consequence of the exercise by Congress of its powers to enforce this article, an amendment which the Court has acknowledged to be self-executing.[14] These have pertained to the limitations which the amendment imposes on the competency of Congress legislating thereunder to punish racial discrimination founded upon more than a denial of suffrage and to penalize such denials when perpetrated by private individuals not acting under color of public authority. Rulings on both these issues were made very early; and the Court thus far has manifested no disposition to depart from them, although their compatibility with more recent holdings may be doubtful. Thus, when the Enforcement Act of 1870,[15] which penalized State officers for refusing to receive the vote of any qualified citizen, was employed to support a prosecution of such officers for having prevented a qualified Negro from voting, the Court held it to be in excess of the authority conferred upon Congress.[16] The Fifteenth Amendment, Chief Justice Waite maintained, did not confer "authority to impose penalties for every wrongful refusal to receive * * * [a] vote * * *, [but] only when the wrongful refusal * * * is because of race, color, or previous condition of servitude, * * *" Voided for the like reason that this amendment "relates solely to action 'by the United States or by any State,' and does not contemplate wrongful individual acts" was another provision of the same act, which authorized prosecution of private individuals for having prevented citizens from voting at a Congressional election.[17]

Notes

[1] United States _v._ Reese, 92 U.S. 214, 217-218 (1876); United States _v._ Cruikshank, 92 U.S. 542, 556 (1876).

[2] 110 U.S. 651, 665 (1884); citing Neal _v._ Delaware, 103 U.S. 370, 389 (1881). This affirmative view was later reiterated in Guinn _v._ United States, 238 U.S. 347, 363 (1915).

[3] Guinn _v._ United States, 238 U.S. 347, 360, 363-364 (1915).

[4] Lane _v._ Wilson, 307 U.S. 268 (1939).

[5] Ibid. 275.

[6] Cases involving this and related issues are also discussed under the equal protection clause, p. 1163.