The Right to Vote
Page 6
On noneconomic fronts, however, proponents of suffrage reform fared better. The disfranchisement of Roman Catholics and Jews was brought to an end—although in South Carolina it remained necessary to “acknowledge the being of a God.”66 Free African Americans were tacitly enfranchised in North Carolina, Massachusetts, New York, Pennsylvania, Maryland, and Vermont.67 (They remained voteless in Georgia, South Carolina, and Virginia.) In New Jersey, the revolutionary-era constitution permitted women to vote (a development to be discussed at length in subsequent chapters).
Alongside these substantive matters, several important legal and jurisdictional issues also were shaped, or structured, during the revolutionary period. The first was that suffrage was defined as a constitutional issue: all of the early state constitutions (except that of Delaware) treated the right to vote as a matter of fundamental—and thus constitutional—law, rather than statute law. Implicit in this treatment was the notion that suffrage requirements ought to be durable and difficult to change; legislatures and governors alone were not entrusted with the power to tamper with the right to vote. In theory at least, the franchise could be broadened or narrowed only through constitutional revision or amendment.68
In addition, the revolution witnessed the perpetuation and, in some instances, the reinforcement of the distinction between state and municipal voting rights. In cities that possessed charters from the colonial period, the right to vote in municipal elections continued to be determined by city officials and charter rules; in almost all of the twenty-five cities incorporated during the revolutionary era, municipal voting rights were specified in new charters. Despite the constitutional character of state voting requirements, legislatures—which could grant new charters—were granted the power to define the electorate for nonconstitutional (including local) offices.69
The most common manner in which municipal voting rights differed from the state suffrage was in the configuration of property restrictions: increasingly, urban residents who did not own real property could vote if they met either a personal property or a taxpaying requirement. The principles of state law were, in effect, adapted to urban conditions. In some locales, however, the differences were more substantial. Nine of the cities chartered during the revolution granted the franchise to nearly all adult males, and Massachusetts, in the 1780s, passed a series of laws that gave the right to vote in town meetings to all men who could meet a minimal taxpaying requirement.70
On the whole, municipal voting rights tended to broaden more rapidly than did the right to vote in state elections, probably because of pressure from propertyless urban citizens.71 There were important exceptions to this trend, however, notably among cities with prerevolutionary charters. In Norfolk, Virginia, for example, a closed corporation of merchants continued to govern the city without the electoral participation of most inhabitants; only in the late 1780s did the state government, responding to petitions from the populace, grant municipal suffrage to those who could already vote for state legislators. In so doing, the commonwealth was tacitly setting a precedent, ruling that municipal charters were not inviolable. In Philadelphia and New York, similarly, local elites sought to preserve, or impose, a restrictive municipal suffrage in order to retain political control of their cities: in both urban centers sharp conflict over the suffrage—and over the state’s right to intervene in the affairs of municipal corporations—persisted into the postrevolutionary era.72
The States and the Nation
It was at the end of the revolutionary period that the role of the federal government in determining suffrage requirements was written into constitutional law. Under the Articles of Confederation, the states had retained complete control over the franchise. But the Constitution of the United States forged a link between state suffrage rules and the right to vote in national elections: those who participated in elections for the “most numerous Branch of the state legislature” were automatically entitled to vote for members of the House of Representatives. These were the only national offices for which the Constitution demanded a popular electoral process of any kind.
This rather peculiar and indirect national mandate was a compromise, an outgrowth both of an ideologically divided constitutional convention and the practical politics of constitutional ratification. The issue of suffrage came to the floor of the convention in late July 1787, when the delegates were fatigued from months of debate and speech-making; after a brief discussion, the issue was consigned to a committee of detail, with instructions for the committee to consider designing property and citizenship requirements for voting in national elections. The committee of detail worked for more than a week, while other delegates took a break: Washington and several of his colleagues went fishing. In its deliberations, the committee weighed the possibility of a federal property requirement, as well as several proposals that would have given the federal government the power to impose its own suffrage laws at some future time. The issue was “well considered by the committee,” claimed James Wilson, who noted further that it was “difficult to form any uniform rule of qualifications for all the states.” In the end, the committee’s recommendation was to tie suffrage for the House of Representatives to state franchise requirements in elections to the lower house of each state legislature. 73
The committee’s proposal prompted a short but sharp debate in the convention early in August. That debate revolved around concerns that the franchise would be too broad. Pennsylvania merchant Gouverneur Morris, sounding an array of familiar conservative notes, led the attack, insisting that a national freehold requirement was necessary to prevent the growth of aristocracy:The aristocracy will grow out of the House of Representatives. Give the votes to people who have no property, and they will sell them to the rich. . . . We should not confine our attention to the present moment. The time is not distant when this country will abound with mechanics and manufacturers, who will receive their bread from their employers. Will such men be the secure and faithful guardians of liberty? Will they be the impregnable barrier against aristocracy?74
His views were seconded by Madison, who argued that the corruption of Parliament in England had occurred because the “qualification of suffrage” was too low in the “cities and boroughs.” Madison also maintained that “the freeholders of the country would be the safest depositories of republican liberty,” although he acknowledged that it might be impolitic to impose a freehold requirement on those “states where the right was now exercised by every description of people.”75
The views of Morris and Madison were challenged both by conservative advocates of higher property qualifications and by proponents of a more popular suffrage. George Mason of Virginia maintained that “every man having evidence of attachment to, and permanent common interest with, the society, ought to share in all its rights and privileges.” Nathaniel Gorham, a Boston merchant, correctly pointed out the flaws in Madison’s understanding of British politics and observed that he had never “seen any inconvenience from allowing such as were not freeholders to vote . . . the elections in Philadelphia, New York, and Boston, where the merchants and mechanics vote, are at least as good as those made by freeholders only.” Franklin vehemently maintained that “depositing the right of suffrage in the freeholders exclusively” would “injure the lower class of freemen. . . . The common people of England,” he maintained, “lost a great portion of attachment to their country” because of their disfranchisement. Franklin also advanced his argument that a freehold suffrage requirement would undermine the loyalty of sailors and soldiers; not coincidentally, perhaps, a few hours before Franklin spoke, the city of Philadelphia had welcomed home 800 militiamen who had been serving on the northwestern frontier.76
Although Morris’s proposal for a national freehold requirement was beaten back, it was notable that no argument was put forward on the convention floor in favor of a uniformly broad national suffrage. Perhaps owing to the absence of some of the revolution’s most democratic leaders (including Jefferson, Paine, Samuel Adams,
and Patrick Henry), there was no formal debate about the possibility of a national standard more inclusive than the laws already prevailing in the states. Indeed, the records of the federal convention and state constitutional conventions suggest that most members of the new nation’s political leadership did not favor a more democratic franchise: Madison’s views were more typical of the founding fathers than were those of Jefferson or Franklin. The well-to-do Elbridge Gerry of Massachusetts (whose name would be immortalized in the word gerrymander), speaking at the end of the convention, described “Democracy” as “the worst . . . of all political evils.”77 This conservative consensus also was expressed in the Northwest Ordinance of 1787 (an act reaffirmed by the first Congress in 1789), which instituted a freehold requirement in the territories northwest of the Ohio River. In the largest piece of terrain directly controlled by the federal government, citizens and aliens alike had to own fifty acres of land in order to vote.78
The decision made by the Constitutional Convention, however, stemmed at least as much from practical politics as from ideology. The convention accepted the committee of detail’s formulation, with slight revisions, largely because of its desire to avoid jeopardizing the ratification of the new constitution. Any national suffrage requirement was likely to generate opposition in one state or another, and a narrow national suffrage, such as a freehold qualification, seemed capable of derailing the Constitution altogether. As Oliver Ellsworth of Connecticut observed, “the right of suffrage was a tender point, and strongly guarded by most of the state constitutions. The people will not readily subscribe to the national Constitution, if it should subject them to be disfranchised.” Madison reiterated the point in the Federalist Papers: “One uniform rule would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention.”79 By making the franchise in national elections dependent on state suffrage laws, the authors of the Constitution compromised their substantive disagreements to solve a potentially explosive political problem.
The solution they devised, however, had a legacy—a long and sometimes problematic legacy. The Constitution adopted in 1787 left the federal government without any clear power or mechanism, other than through constitutional amendment, to institute a national conception of voting rights, to express a national vision of democracy. Although the Constitution was promulgated in the name of “We, the people of the United States,” the individual states retained the power to define just who “the people” were. Stated somewhat differently, citizenship in the new nation—controlled by the federal government—was divorced from the right to vote, a fact that was to have significant repercussions for almost two centuries.80
Also problematic—in the long run—was the Constitution’s failure to guarantee to any Americans the right to vote for the highest office in the land, the presidency of the United States. Presidents were to be chosen through a complex mechanism that later came to be known as the “Electoral College.” “Electors” in each state were to meet and cast ballots for two persons, and those ballots were to be transmitted to Congress, where they would be opened and counted: the person receiving the largest number of votes would be elected president and the runner-up would become vice-president. 81
But the Constitution left entirely to state legislatures the question of how the electors themselves would be chosen. Article 2, section 1 specified that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” The states were not required to hold popular elections to choose presidential electors, and state legislatures could, whenever they wished, change the “manner” of appointing electors. Not surprisingly, during the early years of the republic, some state legislatures chose presidential electors by themselves, leaving the people of their states no role whatsoever in determining who would wield the executive power of the new federal government.82
The American Revolution, in sum, produced modest, but only modest, gains, in the formal democratization of politics. In more than a third of the states, colonial restrictions on suffrage (or close approximations thereof) remained in force; elsewhere the suffrage was broadened, in some places significantly, in others not. Overall, the proportion of adult men who could vote in 1787 was surely higher than it had been in 1767, yet the shift was hardly dramatic, in part because changes in the laws were partially offset by socioeconomic shifts that increased the number of propertyless men. By 1790, according to most estimates, roughly 60 to 70 percent of adult white men (and very few others) could vote.83
Yet the contribution of the revolution went beyond the legal changes etched in the state constitutions. The experience of the revolution—the political and military trauma of breaking with a sovereign power, fighting a war, and creating a new state—served to crack the ideological framework that had upheld and justified a limited suffrage. The concept of virtual representation was undermined; the notion that a legitimate government required the “consent” of the governed became a staple of political thought; and a new, contagious language of rights and equality was widely heard. For many participants, values and principles at the heart of the revolution were difficult to reconcile with the practice of denying voting rights to men simply because they were poor or African American. At the same time, the experience of fighting a long and drawn-out war, with a popular rather than professional army, illuminated the importance of the “common people” to the fate of the new nation. By the end of the revolution, the policy of keeping those common people from the polls had become significantly harder to defend than it had been in 1770.84
TWO
Democracy Ascendant
The course of things in this country is for the extension, and not the restriction of popular rights.
—NATHAN SANFORD, NEW YORK
STATE CONSTITUTIONAL CONVENTION, 1821
THINGS CHANGED RAPIDLY IN THE NEW NATION. The population of the United States was less than four million in 1790; by 1820 it was nearly ten million, and by 1850, more than twenty million. Cities grew, seaboard counties became more densely inhabited, and millions of settlers spilled into the western reaches of Massachusetts, New York, Pennsylvania, Virginia, and the Carolinas. Vast new territories were added by purchase or conquest, and wars were fought against Britain and Mexico. Commerce expanded, thousands of workers carved canals through the earth, steam-powered ships made their way up and down the Mississippi, and the South grew dependent on the cash crop of cotton. In the Northeast, particularly after the War of 1812, manufacturing industries, led by textiles, became increasingly prominent features of the economic and physical landscape.
This fast-moving assembly of changes created pressures for the states to significantly revise the blueprints for governance that they had drawn during the era of the revolution. To many citizens of early-nineteenth-century America, the first state constitutions, written during the tumult of the revolution, appeared either flawed or obsolete—or both. Between 1790 and the 1850s, every state (there were thirty-one by 1855) held at least one constitutional convention, and more than a few held several. The issues addressed by these conventions were many, but almost invariably a key concern was the distribution of political power among the increasingly diverse residents of each state. Indeed, disputes over political power, rights, and influence—including the breadth of the franchise and the apportionment of state legislative seats—were often what prompted states to call constitutional conventions in the first place.
That these conventions could gather at all, that the people of the states could select delegates to reshape their governing institutions, was itself a highly valued legacy of the political leadership of the revolutionary generation. In 1820, members of the Massachusetts Constitutional Convention paid tribute to that legacy by standing in silence and removing their hats as eighty-five-year-old John Adams, a delegate from Quincy, slowly entered the State House to take his seat. They ev
en elected Adams—the principal author of the document they were about to revise—president of the convention, but he declined the honor. Nine years later in Virginia, in an eerily similar scene, seventy-eight-year-old James Madison, weakened by a recent illness, nominated his even more frail but slightly younger colleague, James Monroe, to be president of that state’s convention. Monroe accepted the position, but had to be helped to the speaker’s chair by Madison and the somewhat more spry seventy-four-year-old Chief Justice of the United States, John Marshall.1
Once these conventions settled down to work, however, the founding fathers played minor roles. While Adams sat in the State House, his fellow delegates opened the Pandora’s box of suffrage reform that he had been so eloquently describing since 1776. Madison could do little to prevent Virginia’s warring factions from producing a constitution so unsatisfactory that it would have to be replaced within twenty years. For better or worse, the torch had been passed to a new generation of political leaders equipped with different ideas and compelled to confront significantly altered historical conditions.
The Course of Things
To attempt to govern men without seeking their consent is usurpation and tyranny, whether in Ohio or in Austria. . . . I was looking the other day . . . into Noah Webster’s Dictionary for the meaning of democracy, and I found as I expected that he defines a democrat to be “one who favors universal suffrage.”
—NORTON TOWNSHEND,
OHIO CONSTITUTIONAL CONVENTION, 1850
Nearly everywhere, the laws governing the right to vote in the United States were greatly elaborated and significantly transformed between 1790 and the 1850s. In addition to the fundamental changes wrought by constitutional conventions, state legislatures frequently supplemented (and sometimes altered) constitutional provisions with statute law. Meanwhile, courts intervened to interpret both the constitutions and the statutes.2