Well, it's possible that the 1865 South Carolina
constitution-writers may have been playing that deep a game. I remain
skeptical.
As to Prof. Kousser's reference to "those who cling desperately
to the view that felon disfranchisement has or has had no racial purpose
or effect," I prefer to try to unearth the facts than to try to cling
desperately to some view. So far:
(1) According to Behrens, Uggen & Manza themselves, of the
slave states Delaware, Kentucky, Louisiana, Maryland, and Virginia
disenfranchised felons pre-1860.
(2) Contrary to Behrens, Uggen & Manza, I have found that
Alabama first disenfranchised people "convicted of bribery, forgery,
perjury, or any other high crime or misdemeanor" in *1819*, and not
after the Civil War.
(3) Pre-Civil War constitutions in Florida, Misissippi, and
Texas *obligated* state legislatures to disenfranchise people convicted
of "high crimes or misdemeanors." I'm still looking for whether the
state legislatures somehow failed to comply with their obligations. So
far I've found a pre-1857 Mississippi statute that disenfranchised those
"who shall have been convicted of bribery, perjury, forgery, or any
other crime or misdemeanor for which the loss of the right of suffrage
shall or may be imposed as a part of the penalty by any law of this
State"; this shows that the Mississippi did disenfranchise some felons,
though I'm investigating how broad the disenfranchisement was (I
recognize that it might have been limited only to the listed felones).
There is evidence, as I noted in my original post, that North Carolina
also disenfranchised felons.
(4) Pre-Civil War constitutions in Missouri and Tennessee
certainly authorized state legislatures to disenfranchise people
convicted of "infamous crime[s]," which as best I can tell generally
included felonies. I am now looking into whether in fact the
legislatures indeed acted on this.
This at the very least makes it quite plausible that South
Carolina would have acted the same way for nonracial reasons -- that the
racist impulses of the 1865 Constitution's drafters were reflected in
the explicit disenfranchisement of blacks, and the disenfranchisement of
felons flowed from other reasons. Of course, the contrary view is
possible, too, though as I said still remains skeptical.
But in any event, it seems to me quite clear that much felon
disenfranchisement in the slave states originated for reasons quite
unrelated to race. Now as best I can tell, many of the late 1800s
statutes broadening, narrowing, or otherwise changing the
disenfranchisement provisions were indeed motivated by racism -- I have
surely never denied this. But the genesis of many felon
disenfranchisement provisions, including those in many slave states,
seems to be an attempt to disenfranchise felons, not to disenfranchise
blacks. And this further lends credit to the notion that one can't
simply dismiss these provisions as having been caused simply by racism.
Eugene
Morgan Kousser writes:
Despite the strong efforts of Andrew Johnson to get all of the
governments of Presidential Reconstruction to make nice about
slavery and
accept the results of the War, the constitutional conventions
of 1865 in
South Carolina and in other states, according to Dan Carter's
book "When
the War Was Over," "horrified" northern observers with their
racism. The
S.C. convention reluctantly voted to accept the reality of
emancipation,
but explicitly blamed it on the federal government, and
delegates, reported
a Boston journalist, dismissed African-Americans off the record as
"animal[s] whose presence is endured but is in no way
desirable." Any
action of that constitutional convention is suspect for its
racial intent,
just as, according to then-Justice Rehnquist in Hunter v.
Underwood, any
action of the 1901 Alabama Constitutional Convention was suspect.
With regard to the possible racial intentions of the criminal
disfranchising amendment adopted by S.C. in 1865, it must
have been clear
to the conventioneers that the Republicans who dominated the
North were
pretty unlikely to accept their radical neo-slavery
positions, from the
Black Codes to their reluctance to repudiate the Confederate
debt. By
1865, an increasing number of Republicans in the North were
calling for
racially impartial suffrage, and even if they feared to
impose it in the
North, Republicans had an overwhelming self-interest in
insuring black
voting in the South. White upper-class South Carolinians,
who had led
secession in 1861 on the distant possibility that Lincoln
would set slavery
on the road to ultimate extinction, surely had much better
reason in 1865
to fear that the hated black suffrage would be fastened on
them much more
swiftly than they had had in 1861that slavery would soon be
abolished.
While it's true that other southern states disfranchised
men for some
crimes before 1865, it's also true that free people of color
could vote in
N.C. and TN before 1835.
In any event, the argument that if a law was ever passed for a
non-racial purpose, it can't be amended or administered in different
circumstances for a racial one is obviously invalid.
The S.C. constitutional provision of 1865 is no help to
those who cling
desperately to the view that felon disfranchisement has or has had no
racial purpose or effect.
Morgan
Prof. of History and Social Science, Caltech
snail mail: 228-77 Caltech, Pasadena, CA 91125
phone 626-395-4080
fax 626-405-9841
home page:
<http://www.hss.caltech.edu/~kousser/Kousser.html> > (Newly
Revised!) to order Colorblind Injustice:
http://uncpress.unc.edu/books/T-388.html
"Peace if possible, Justice at any rate" --
Wendell Phillips