In 1866, an Army officer named Robert Avery was stationed in North Carolina when he began hearing disturbing reports: Former rebels were rounding up as many Black men as they could find, dispensing summary justice, and whipping them in public view. Avery, an agent of the Freedmen’s Bureau there, alerted his superiors in Washington. The press got hold of his dispatch and began to chronicle the situation. Harper’s Weekly told of 500 people in Raleigh gathering to watch “the public whipping of colored men.”
The whippings were about more than bloodlust. They served a political purpose. Under North Carolina law, a crime punished by public whipping would cost the offender the right to vote. The white rebels plotted to “seize negroes, procure convictions for petty offenses punishable at the whipping post, and thus disqualify them forever from voting in North Carolina,” Avery reported. He had overheard members of the state legislature celebrating that it would “head off Congress from making the negroes voters.” One had bragged, “We are licking them in our part of the State and if we keep on we can lick them all by next year, and none of them can vote.”
Just a few months earlier, Congress had passed the 14 th Amendment and sent it to the states for ratification. In the second section of the amendment, the antislavery Republicans sought to enfranchise the freedmen in the South. But rather than affirmatively extend the franchise, they devised a way to punish states that did not allow Black men to vote: Should a state disenfranchise its Black men, its congressional delegation would be reduced in proportion to the number of those excluded from the vote. But the architects of this approach left a loophole: States would not see their delegations reduced for citizens disenfranchised “for participation in rebellion, or other crime.” In North Carolina, white supremacists decided to turn every Black man they could into a convict, taking away his right to vote while preserving their power in Congress.
Or other crime. Three small words that continue to shape America today. It is a great irony of our history that the 14 th Amendment, which enshrined in the Constitution the promise of equal protection under the law, is today the principal source of Black disenfranchisement. But there’s no reason to accept this fate. At a time when the public is increasingly aware of modern attempts at suppression, the tools for resurrecting the fundamental right to vote are waiting to be put to use. Our future could depend on how seriously we decide to take the rest of the words in Section 2.
THE 14 TH AMENDMENT, SECTIONS 1 & 2
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.
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.
The white supremacists in North Carolina had figured out something important: The 14 th Amendment was a weapon that could be turned against itself if Congress and the courts did not intervene. And that’s precisely what happened throughout the South. Black criminality was constructed to fit the needs of the prevailing racial order. Freed from federal oversight after Reconstruction, most Southern states by the 1900s had rewritten their constitutions to deny Black people the vote through nominally race-blind provisions, including expanded criminal disenfranchisement. These measures, alongside poll taxes, literacy tests, grandfather clauses, fraud, registration restrictions, and vigilante violence, were part of the toolkit used by white supremacists to maintain a system of racial subordination. Felon disenfranchisement was not strictly a regional phenomenon—more than 80 percent of states had felon disenfranchisement laws on the books by the end of the 19 th century—but the South became its epicenter after Reconstruction, continuing into the age of mass incarceration.
The rest of Section 2 was more or less ignored. Congress never invoked its penalty, and instead turned a blind eye to the mass disenfranchisement that more deeply entrenched white supremacy. The curtailment of Black voting rights inflated the white supremacists’ power in Washington. Political scientist Richard Valelly estimates that it gave white Southerners an extra 25 seats in the US House in the first half of the 20 th century. Black disenfranchisement effectively created a one-party system in the South that gave seniority to Jim Crow lawmakers in Congress, placing them atop powerful committees where they stymied economic opportunities for Black people, most significantly in the New Deal. Failure to enforce the penalty, Valelly argues, contributed to the election of Woodrow Wilson in 1912. An unrepentant racist, Wilson oversaw the segregation of the civil service, effectively federalizing Jim Crow, and the transformation of the District of Columbia into a stratified Southern-style capital. It’s impossible to imagine how else our history might have unfolded had Black interests been allowed a voice in the federal government.
In 1965, the Voting Rights Act did what Congress had failed to do with Section 2 by finally protecting Black Southerners’ right to vote. During its second Reconstruction, the nation banned poll taxes and literacy tests, and began blocking myriad local voting restrictions. Voting, Congress and the Supreme Court declared in a series of landmark laws and decisions, was a fundamental right. But like some sort of tragic flaw, the ambivalence built into Section 2 would continue to shape the plot of American history.
In 1974, the Supreme Court, now in conservative hands, ruled that Section 2 allowed states to disenfranchise ex-offenders permanently. The opinion was both a product and producer of the era of racial retrenchment that worked to beat back the gains of the ’60s. This was the dawn of mass incarceration. Within decades, millions of Black Americans had been incarcerated and stripped of the right to vote, some for the duration of their sentences, many for the rest of their lives. In addition to warping local politics, this mass disenfranchisement had profound national effects. In 2000, George W. Bush was elected by 537 votes in the state of Florida, a state that had permanently banned an estimated 827,000 people at that time from voting, a disproportionate number of them Black. In 2016, Hillary Clinton lost the state by about 113,000 votes, while nearly 1.5 million Floridians were disenfranchised—including 21.4 percent of eligible Black voters, according to estimates from the Sentencing Project. Again and again the history of the country has turned on those three forgotten words in the Constitution.
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