Live-blogging the Fifteenth Amendment: January 28, 1869

Live-blogging the Fifteenth Amendment: January 28, 1869

Note: I have fallen a little behind, due to traveling. My apologies! I am making a concerted effort to catch up. Today’s installment is particularly important on the issue of gerrymandering.

On January 28, Rep. Charles Stewart, a Republican from New York, spoke with reference to the proposed Amendment that had been voted out of the Judiciary Committee, which had been amended from:

No State shall deny or abridge the right of its citizens to vote, and hold office, on account of race, color, or previous condition of servitude.

to read:

The right of citizens of the United States to vote, and hold office, shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude.

Here is a brief excerpt from his speech:


[T]his great question … is the culmination of a contest which has lasted for thirty years. It is the logical result of the rebellion, and the abolition of slavery…. and now we are to place the grand result, I hope, in the Constitution of the United States…. This question can never rest until it is finally disposed of. This amendment is a declaration to make all men, without regard to race or color, equal before the law. The arguments in favor of it are so numerous, so convincing, that they carry conviction to every mind….

It must be done. It is the only measure that will really abolish slavery. It is the only guarantee against peon laws and against oppression…. You may put this in the form of legislative enactment; you may empower Congress to legislate; you may empower the States to legislate, and they will agitate the question. Let it be made the immutable law of the land; let it be fixed; and then we shall have peace.

Probably much more significantly, he addressed an issue *directly* relevant to the present crisis caused by extreme gerrymandering, in connection with a proposed second section of the amendment which would extended Congressional power to mandate the manner that Electors in Presidential elections also be determined.
He proceeded form Article I, Section 4 of the US Constitution, which provides:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

Relying on that power, he noted:

Many years ago the Congress of the United States abolished the general ticket system in the States for choosing Representatives in the lower house of Congress, because it was seen to be attended with great evils, inconveniences, and mischiefs which required the hand of reform. Fortunately the power existed in Congress to apply reform, and Congress did. It required that each State electing more than one Member of the House of Representatives should divide itself into single districts, and that one Member should be elected from each. It was only because that power existed in Congress that that reform was possible at the time it was secured. Some of the States in fact resisted it.  I believe two or three States continued to elect by general ticket in spite of the act of Congress; but they were finally compelled to conform themselves to the new and improved system which was established by Federal law; and we now have, therefore, in the election of Representatives in the other branch of Congress, a single district system established and enforced by congressional power.


Source: Congressional Globe, 40th Congress, 3rd Session, p. 668.

As we know from 150 years of history, even a straightforward Constitutional amendment cannot survive a Supreme Court majority that is determined to eviscerate it.

More compelling is Stewart’s point that it is within Congress’s power to determine the manner in which States can elect Representatives to Congress.  The “general ticket” system allocated *all* Representatives to the party which won the most votes. Thus if, e.g., Jacksonian Democrats got 51% of the vote, they got 100% of the elected Representatives. The individual district system was designed to be much closer to the actual will of the electorate.
In our day, there is much wailing and gnashing of teeth about the US Supreme Court’s unwillingness to deal with extreme gerrymandering. Stewart crucially points out that, at least as to federal Representatives, it is within Congress’s power itself to determine the manner of elections. Congress could, e.g., mandate that the percentage of winners from each party be proportionate to that party’s statewide vote. Or it could mandate the methods (such as compactness and avoidance of “wasted” votes) by which districts are shaped. This is a crucial and absolutely vital lesson.

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