Thursday, February 6, 2020

Live-blogging the Fifteenth Amendment: January 29, 1869 (3)

- by New Deal democrat

Later in the evening debate, Representatives Boutwell (who supported the narrow 15th Amendment language) and Shellabarger (Republican from Ohio) (who supported broader “right to vote” language similar to that espoused by Bingham) had the following exchange on the issue of State voter registration laws:
Boutwell [discussing the narrow non-discrimination based on race proposal]: I am not sure that it will not go so far as to put it out of the power of States to establish a registration law. It certainly does abolish those qualifications in some States which require the voter to pay a small capitation tax .... I think that by arraying against this proposition all the peculiarities of the different States we put the proposition itself in danger. I think it better, therefore, as a matter of practical wisdom, to address ourselves exclusively to those great evils which have existed [already].
Shellabarger: [T]he [braoder, right-to-vote] proposition which I submit is not amenable to the objection ... that by it the States would be deprived of the power of passing registration or election laws. Plainly that cannot be so. The Constitution itself in express terms provides that ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.’ 
Hence, ... if the power to regulate elections or registrations resides with the States under the Constitution in its present form, then my proposition will not take it away.... 

Boutwell: The difficulty, in one word, is that the gentleman’s amendment, if made a part of the Constitution, vests the right of suffrage absolutely in every person covered by the amendment; and if any State should provide that the voters shall be registered ten days before the election it will be in the teeth of the provisions of the gentleman’s amendment as I understand it....
Source: Congressional Globe, 40th Congress, 3rd Session, p. 727

As we know, the broad “right to vote” language was rejected by the Congress. We also know that, contrary to Boutwell’s opinion, the Supreme Court upheld “poll taxes” until they were specifically outlawed as to Federal elections only  by the 24th Amendment, passed in 1964.

I have highlighted the above exchange because the members of Congress debating the proposed amendment were not unaware of the complications that could ensue. Bingham and Shellabarger were worried that a narrow amendment focused on race would leave the States free to discriminate on other grounds; while Boutwell and others were worried that a broad mandate would throw out the proverbial baby with the bath water, and that States would recoil from ratifying the amendment.