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p. 605. Representationlocked

  • David J. Bodenhamer

Abstract

More than most constitutional issues, questions of representation and suffrage have exposed the fault lines of class, race, and gender in American society. Popular sovereignty was the touchstone of republican liberty, but only grudgingly did rulers admit the ruled into their circle. The world-view of the framers had no room for women, blacks, Indians, or the poor as citizens worthy of the ballot. It took a series of constitutional amendments, all spurred by war or mass movements, to expand the electorate and redefine “we the people” to include all adult citizens as rulers. ‘Representation’ describes the various Amendments to the Constitution and the Voting Rights Act of 1965 that have reshaped what representation means.

More than most constitutional issues, questions of representation and suffrage have exposed the fault lines of class, race, and gender in American society. Popular sovereignty was the touchstone of republican liberty, but only grudgingly did rulers admit the ruled into their circle. The worldview of the framers had no room for women, blacks, Indians, or the poor as citizens worthy of the ballot. It took a series of constitutional amendments, all spurred by war or mass movements, to expand the electorate and redefine “we the people” to include all adult citizens as rulers.

Western societies traditionally viewed hierarchical authority as natural, but revolutionary republicanism embraced a different premise: the people could rule themselves. Representation was the means to express consent, but the American experience required that the connection between the representative and the represented be direct, or local. (Great Britain practiced virtual representation whereby members of Parliament represented all Englishmen everywhere.) Without the bonds of shared geography and mutual interests, the people could not give consent; without the people’s consent, no legitimate representation existed. After independence, this formula of popular consent and representation became the measure for republican government.

p. 61Popular sovereignty had radical implications for government because it made democracy part of the new Constitution. At first, it was a nebulous link. With the popular unrest of the 1780s fresh in their minds, the framers sought to restrain and guide democracy. The Constitution contains no right to vote, although it guarantees to each state a republican form of government, an implicit recognition of the right, and specifies the nature of the electorate for the House of Representatives. Elsewhere, the institutions of government relied upon a careful architecture to ensure that the will of the people could emerge deliberately rather than as an unrestrained impulse.

But who were the people? The Constitution not only failed to define national citizenship, it left the question of who could vote to the discretion of the states. Few delegates supported an expanded vote, much less universal suffrage. Practical considerations were at play. State constitutions already established qualifications for citizenship and voting, and they differed significantly. An attempt to define these terms could jeopardize ratification, especially because slavery complicated the question of citizenship. Most states agreed, however, that only men of property could cast a ballot.

Property qualifications for voting had a long history. Colonists had adopted the English practice that required a man to own property taxed at forty shillings to be eligible to vote. In England, few adult males owned property worth this much tax. America was different; abundant, cheap land meant that most adult males qualified to vote. The knowledge that so many men could participate in government outweighed concern about the ones who could not. These voters were responsible for ensuring fidelity to liberty—and a duty to elect (and defer to) wise leaders.

But the idea of the people as rulers carried an internal dynamic that set it at odds with beliefs about the virtues of deference. The Revolution unleashed a democratic spirit—the later French visitor p. 62Alexis de Tocqueville termed it a “habit of the heart”—based on equality combined with the civic obligations of republicanism. All men had a duty to participate in government. Americans took this obligation seriously.

Suffrage was the means of ensuring representative and responsive government. Two waves of state constitution-making, the first in the 1820s and the second in the 1850s, led to the abolition of property requirements, resulting in nearly universal white adult male suffrage. Even aliens (foreigners) could vote in most states outside the Northeast, on the belief that it would induce them to settle. The United States was not alone in this democratic impulse—western Europe too experienced it—but nowhere was the right to vote more broadly defined than in America.

It is tempting to attribute this development to an unalloyed desire to expand democracy. The idea was powerful but more was at work. The growth of urban areas meant that fewer men met property qualifications, which meant fewer men eligible to serve on juries or in the militia. A limited electorate also raised questions about the legitimacy of government, the exercise of power, and even what it meant to be free. Partisan politics played a role as well. Federalists and Republicans and then Democrats and Whigs vigorously sought voters who shared their respective visions for society.

Few advocates of a broadened franchise thought they were extending it to the lower classes, immigrants, and former farm laborers who worked for wages in the nation’s new factories. Rhode Island offers a case in point. Its textile mills and small manufacturing attracted thousands of immigrants to Providence and other urban areas. The landowner-dominated legislature rejected a new state constitution in 1841 that included universal male suffrage, in large measure because of nativist concerns. What followed was an armed march on the capital and the subsequent p. 63arrest of protest organizers. In an 1849 case stemming from Dorr’s Rebellion (named after its leader), the US Supreme Court declined to interpret the Constitution’s guarantee of “a republican form of government” to require states to be democratic or more completely representative.

4. George Caleb Bingham’s The County Election (1852) depicts the polling place at the county seat where, over a few days, farmers would vote—though not in secret. The words on the banner, a variation of the Missouri motto, read, “The will of the people, the supreme law,” suggesting faith in the democratic process.

Dorr’s Rebellion was a harbinger of class-based efforts in the late nineteenth century to restrict the vote as waves of eastern and southern Europeans, Jews, and Asians flooded the nation’s cities. But it was an outlier during the pre–Civil War decades. Democracy, with its emphasis on popular consent, was the new American gospel. It roiled the nation with its promise of individual equality in a more perfect union: “The country is full p. 64of rebellion; the country is full of kings,” essayist Ralph Waldo Emerson observed in the mid-1840s. Participation in the nation’s affairs did not apply to women, blacks, and certain categories of white men, most often paupers, migrants, and felons, but few people doubted that the United States had birthed a new democratic age.

The Civil War and Reconstruction embedded representative democracy as the mode of constitutional government in the United States. Modern warfare has a leveling influence—the battlefield does not honor class distinctions—and the emphasis on equality and democracy as core constitutional values stemmed in part from its effects. The Reconstruction amendments made this clear by advancing a new, inclusive definition of citizenship depending solely on place of birth (or naturalization). They also pledged national power to ensure equal protection of law for all citizens and introduced a new equation that linked liberty, equality, and democracy. Freedom for all people (Thirteenth), unconditional equality before the law for all citizens (Fourteenth), and guaranteed access to the ballot box (Fifteenth) provided the constitutional frame for this turn.

From Reconstruction to 1920, two stories of democratic constitutionalism emerged. One was its formal expansion to excluded groups, as expressed through the right to vote; the more disturbing story was restriction of the right in law and practice. In 1876, the Supreme Court held that the Fifteenth Amendment did not confer the right to vote but only prohibited exclusion on racial grounds; it also eviscerated key provisions of the law passed to enforce the amendment. Throughout the South blacks effectively lost the right to vote by literacy tests, grandfather clauses, poll taxes, and intimidation because it was easy to deny the vote by legitimate means. As one black Georgia voter poignantly testified before a Senate committee, “You may vote till your eyes drop out … [but] there’s a hole in the bottom of the boxes some way and lets out our vote.”

p. 65A desire to limit voting by class also was common, as witnessed by an Alabama leader’s promise to keep “ignorant, incompetent, and vicious” white men from the polling booth. The effort worked. In Mississippi, for instance, turnout plummeted from 70 percent in the 1870s to 15 percent in the early twentieth century, a level that suggests how severely the new restrictions curbed not only black but also poor white voting.

The issue in the North centered on the 25 million new immigrants who flooded its cities from 1870 to 1920. Most arrivals were poor laborers—“dangerous classes”—from southern and eastern Europe who supported big-city political machines. Middle-class reformers sought to lessen their electoral influence by repudiating the notion that voting was a right and pushing for restrictions to purify the electorate. Literacy requirements (use of the Australian or secret ballot, a widely adopted reform, meant that voters must be able to read), exclusion of paupers, residency requirements, and elimination of alien suffrage were common. The Constitution posed no barrier because the Supreme Court interpreted the Reconstruction amendments to bar only official, overt discrimination. In practice, states had a free hand in determining who could vote and how.

The campaign for woman’s suffrage offered both a confirmation and a counterpoint to efforts to restrict the vote for other Americans. The Fourteenth and the Fifteenth Amendments specifically guaranteed the vote in federal elections to male citizens over 21 (Fourteenth) and by barring abridgement of suffrage based on “race, color, or pervious condition of servitude,” a standard that excluded white women. Woman suffrage implied an equality that went against cultural assumptions and held the unwelcome potential for wholesale restructuring of domestic and property law.

The US Supreme Court was no friendlier to women than drafters of the Reconstruction amendments had been. The justices shared p. 66the cultural assumptions of the age. In 1875, they ruled unanimously that the Fourteenth Amendment did not prevent states from confining the right to vote to men alone. Two years earlier they decided that it did not protect a woman’s petition for membership in the Illinois bar, with a concurring opinion noting, “[T]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”

Blocked by the Court and by an equally resistant Congress, woman suffragists adopted a state-by-state strategy. The territory of Wyoming granted women the vote in 1869, and reaffirmed it upon statehood in 1889. By the mid-1890s three other western states—Utah, Colorado, and Idaho—had enfranchised women. Elsewhere, women made small gains in state and local elections, such as municipal and school offices, that were not governed by constitutional restrictions. To gain traction, advocates for woman suffrage argued that white, middle-class women outnumbered immigrants, blacks, and paupers and would counterbalance the ballots of these less desirable groups. This antidemocratic claim had little success. Among suffragists, the period from 1896 to 1910 became known as “the doldrums” because it produced so few victories.

Reform had rested too much on the energies of activists, many of whom did not represent the interests of either elite or working women. Once the movement became more diverse and better organized, it built an irresistible momentum for constitutional change. One key to its success was an ideological shift from xenophobia and class politics to social reform. Suffragists tied their cause to wider Progressive Era concerns about economic power and exploitation of workers and promoted the vote as a protection for working women.

The engagement of working-class women brought new support from trade unions and socialist groups. This coalition began to p. 67earn victories, with eight states granting women the vote by 1913. Two year later the various national woman suffrage organizations settled on a strategy of amending the Constitution. World War I became a catalyst for victory; entry into the conflict, justified as a democratic crusade, spurred a demand to extend the vote to women. Congress quickly passed a constitutional amendment and submitted it for ratification. In August 1920, the Nineteenth Amendment became part of the Constitution.

5. The first woman suffrage organization in Tennessee was founded in Memphis in 1889, and many similar groups followed over the next three decades. Not only did they organize rallies and business meetings and distribute literature, but they also hosted social events such as a barbecue featuring a race between an automobile with a female driver and an airplane with a female pilot.

War once again was important in crystallizing support for a more democratic Constitution. Both the Fifteenth Amendment and the Nineteenth Amendment—and, later, the Twenty-Sixth Amendment (1971) lowering the voting age to 18—followed p. 68conflicts in which excluded groups made important contributions to the war effort. In a limited sense, these amendments were products of the moment. But they also had a long gestation. Democratic constitutionalism was more than an impulse; it was the result of social, economic, and political changes that persuaded the nation to redefine its fundamental law. Formal access to the ballot box, however, did not remove the obstacles to political participation for either blacks or women. Southern white opposition and northern indifference left African Americans politically marginalized, a circumstance that did not change until the civil rights movement of the 1950s and 1960s. For women, gender bias hindered their entry into politics, and they too had to wait decades before reaping the fruits of their democratic labors.

Constitutional democracy scored another success in the Progressive Era with the ratification in 1913 of the Seventeenth Amendment requiring the popular election of US senators. Election by state legislatures had become marked by corruption and political chaos. Rejecting the debased system, twenty-nine states adopted direct election, and after the fraudulent election of an Illinois senator in 1911, a recalcitrant US Senate finally supported the measure. The amendment was part of a package of reforms designed to cure the ills of democracy by creating more democracy. State-controlled direct primary elections, restrictions on campaign contributions and lobbying activities, and initiative and referendum were intended to circumvent state legislatures and allow voters to pass state laws directly. Recall of elected officials also was part of the prescription for reform. These changes usually were aimed at state and local governments, although some had counterparts in federal law (such as limits on lobbying and campaign contributions), and they reflected a desire to keep government close to the people.

Another amendment, also part of the progressive agenda, made it possible for the national government to become an engine of national reform. The Sixteenth Amendment, ratified in 1913, p. 69legitimized a federal income tax, which the Supreme Court had declared unconstitutional in 1895 despite its use during the Civil War. Although its impact was not immediate, the income tax gave the central government the financial means to respond vigorously to important national problems, including demands for an energetic democratic constitutionalism that arose again after World War II.

Democratic revisions of the Constitution did not end in 1920. The Twenty-Third (1961), Twenty-Fourth (1964), and Twenty-Sixth (1971) Amendments all advanced this aim. The Twenty-Third Amendment forbade states from levying a poll tax; the Twenty-Fourth granted residents of the District of Columbia the right to vote for electors in presidential contests; and the Twenty-Sixth guaranteed eighteen-year-olds the right to vote. These amendments were a clear public commitment to universal suffrage, which now was central to representation.

Other amendments aimed to increase the national government’s responsiveness to popular rule. Shifting the start of a new presidential term from March 4 to January 20 (Twentieth Amendment, 1933), prompted by the emergency of the Great Depression, was an effort to vest authority and accountability more quickly in the people’s choice. Limiting the president and vice president to two terms (Twenty-Second, 1951), a Republican-led reaction to Franklin D. Roosevelt’s four consecutive electoral victories, mandated a turnover in office that recalled Andrew Jackson’s call for democratic rotation.

The voting amendments embraced democracy as a core value, but they were not self-enforcing. Throughout the last half of the nineteenth century and well into the twentieth, neither Congress nor the Supreme Court actively pursued remedies when state actions blocked black access to the ballot box. By the mid-twentieth century, however, the success of the civil rights movement persuaded both legislators and justices to make p. 70democratic values part of statutory and constitutional law. In 1953, the Court finally outlawed the southern white primary, concluding a three-decade long series of cases that whittled away at its exclusion of black voters. Soon a more liberal Court, led by Chief Justice Earl Warren, increasingly interpreted the Fourteenth Amendment’s due process and equal protection clauses as outlawing practices that violated fairness and representative self-government.

A radical break with precedent came in the early 1960s when the Court turned to legislative redistricting. When the Tennessee legislature in 1962 failed to reapportion every decade as required by the state constitution—a failure that effectively disenfranchised urban voters—the majority justices warned that failure to do so would violate the Fourteenth Amendment’s equal protection clause. Two years later, in Reynolds v. Sims (1964), the Court settled on the standard of “one person, one vote” to govern these politically volatile questions. The Constitution required that each person’s vote count the same, or as Warren wrote for the Court: “Legislatures represent people, not trees or acres.” The decision has wide-ranging impact. At least one house in nearly all the states and both houses in most were unrepresentative. Soon the principle of equal representation extended to the local level. These cases reaffirmed that “fair and effective representation for all citizens,” as Warren asserted in Reynolds, was a central tenet of democratic constitutionalism.

What this principle meant in practice was a more vexing question, especially because Reynolds also had spoken of unconstitutional arrangements that diluted the weight of a person’s vote, as, for example, when legislators drew equal but intentionally white-majority districts. The Voting Rights Act of 1965 anticipated some of these issues. It mandated national supervision of voting, especially in southern states where hostile legislatures and unsympathetic federal judges had barred African Americans from the polls. Not only could federal marshals be used to ensure p. 71minority suffrage, but states with a history of discrimination had to obtain preclearance from the Justice Department for any changes in their election laws.

Challenged by the affected states, the Supreme Court affirmed the measure in 1966 as a valid exercise of power under the Fifteenth Amendment’s enforcement clause. It also invoked the equal protection clause of the Fourteenth Amendment by upholding the provision that banned New York from using English-only ballots to exclude the large number of Spanish-speaking Puerto Ricans in New York City. The Court’s decisions clearly affirmed two basic precepts: all racial barriers to voting were illegal, and the national government had the power to ensure race-neutral elections.

The Voting Rights Act also attacked wealth as a barrier to voting by instructing the attorney general to seek a test of the constitutionality of state poll taxes, which resulted in a 1966 Supreme Court decision forbidding the practice. (The Twenty-Third Amendment banned poll taxes only in federal elections.) For the first time in the nation’s history, a majority of justices rejected all economic restrictions on voting. Three years later the Court adopted a “strict scrutiny” standard for evaluating the constitutionality of voting statutes because these laws “constitute the foundation of our representative society.” Over the course of a decade, both the Court and Congress had linked the Fourteenth Amendment’s equal protection clause to the Fifteenth Amendment and extended it to other forms of voting discrimination not expressly forbidden by the Constitution.

Broadened several times to include Latinos, Asian Americans, and American Indians, most recently in 2006, the Voting Rights Act resulted in substantial increases in both minority voters and officeholders. It also raised an important new question about the meaning of representation and constitutional democracy. Were minorities as groups entitled to a proportionate number of representatives or, at a minimum, to districts in which they were p. 72the majority? The question was not abstract because legislators still had legitimate means to dilute the impact of minority votes, for example, through creation of multimember districts.

Americans were too individualistic to accept the idea that representation could be tied to racially defined groups. Consistent with this belief, the Supreme Court in 1993 held that racial gerrymandering, that is, ensuring a majority for any racial group, normally would not be constitutional. The vote was an individual right that belonged to all adult citizens equally. The true constitutional measure was whether each vote was meaningful. By the twenty-first century, with numerous examples of black candidates elected by majority white electorates, including the first African American president, many people found it difficult to argue otherwise.

By the early 1970s, with the right to vote nationalized, the United States had near universal suffrage as a matter of constitutional law. Wealth, race, gender, and literacy, among other characteristics, no longer disqualified adults from voting. The Voting Rights Act nationalized voting standards, and in 1993 the National Voter Registration Act, also known as the Motor Voter Law, required states to enlist voters when they visited local motor vehicle bureaus or applied for social services. The act was the final step in removing impediments to voting and meet the demands of democratic constitutionalism. Under it, registrations increased dramatically, disproportionately drawn from the young, black, and high-school educated who tended to vote Democratic, the result feared by Republicans who had opposed the bill.

Critics of the measure began to charge that easy access was a cover for voter fraud across the nation. Even though registrations grew, turnout did not increase, in part because new restrictions appeared in many states requiring official identification to receive a ballot. In 2008, a conservative but sharply divided Supreme p. 73Court upheld a strict Indiana law against what the legislature deemed to be the risk of voter fraud, even though the state offered no evidence that it was a problem.

The next decade witnessed a host of new laws to tighten access to the ballot box, especially in states controlled by Republicans who were concerned about the effect of unfavorable demographic trends on their electoral prospects. Even with the new demands for stringency, the historically long list of restrictions on voting had dwindled to only a few, good behavior chief among them. The largest disenfranchised group was ex-felons, mostly African American and Latino men, estimated at more than four million in 2010. Many recent state and national restoration efforts have sought to end this last major impediment to voting, even though it has been deemed constitutional by the Supreme Court.

Other problems remained with the voting process. A sharply divided Court halted the bitterly contested recount in the presidential election of 2000 because the majority held that the lack of uniformity in how to count votes violated the equal protection clause, but the decision affected only Florida (Bush v. Gore, 2000). More recently, in 2013, the justices by a narrow margin invalidated the preclearance provisions of the Voting Rights Act, which led to efforts to tighten voting requirements in most of the previously affected states. These problems were not insignificant but they did not change the result of several decades of reform: after two centuries, voting was clearly established as a right of all adult citizens in the nation’s fundamental law as well as in public opinion.

Of course, the story of constitutional democracy does not end with universal suffrage. Class, wealth, gender, and race no longer are qualifications for suffrage but they are not inconsequential in shaping what representation means in fact. The power of money is evident in every presidential election and increasingly in state and local elections. Campaign costs in 2016, for example, exceeded p. 74well over one billion dollars, a circumstance that appeared to heighten the influence of wealthy interests.

Congress first sought to control the effects of money on elections in 1907 when it prohibited corporate contributions, but this restriction and others were rarely enforced. The first meaningful limits on campaign financing came in 1971, with establishment of the Federal Election Commission to regulate and monitor contributions and expenditures. The Watergate scandals following the election of 1972 led to even tighter limits in 1974. Two years later, in Buckley v. Valeo (1976), the Supreme Court rejected an argument that the restrictions controlled conduct rather than speech but decided that the First Amendment’s protection of speech could be overcome by a compelling government interest in preventing corruption. However, the justices struck down limits on total campaign expenditures from a candidate’s own funds, as well as any spending made independently by supporters, as unacceptable restraints on speech. The ruling dramatically increased the use of “soft money” by groups or individuals supportive of or opposed to a candidate.

Legislation in 2002, commonly known as the McCain-Feingold law, placed new limits on a variety of political activity, and extended the regulations to state parties in any election in which federal candidates appeared on the ballot. The Court upheld the law in 2003 as legitimate to protect the “integrity of the process,” a standard more relaxed than the need to guard against narrowly defined corruption. This criterion changed dramatically in 2010, when the Supreme Court declared unconstitutional any statutory restrictions on campaign contributions made by corporations and unions (Citizens United v. Federal Elections Commission). The controversial decision, based on the First Amendment’s guarantee of unrestricted political speech, overturned Court precedents and federal law dating to the Progressive Era. The congressional and presidential elections that followed unleashed a flood of campaign p. 75cash, much of it so-called dark money that did not need to be reported.

The story of political representation in modern America is more complicated than a simple narrative of wealth and special interests. Counterbalancing the Citizens United case is a decades-long increase in the use of direct democracy, such as initiative and referendum, to bypass reluctant or captured legislatures. In the 1970s and 1980s the trend was to limit property taxes but in the 1990s and first decade of the twenty-first century voters resorted to this device to address social issues such as same-sex marriage, abortion, the use of medical marijuana, environmental justice, and educational requirements, among other causes both conservative and liberal. These developments suggest that the nation’s impulse remains toward more democracy.

The framers distrusted direct democracy, preferring instead the indirect form of a democratic republic, but the theories on which they based the Constitution, popular sovereignty and representation, had their own internal dynamic that pointed toward more, not less, citizen participation in government. Democracy was not the inevitable outcome of this citizen involvement, and in fact, democracy, as signified by the right to vote, came only after much resistance from interests bound by considerations of race, class, and gender. But ultimately it came and with such force that it redefined the Constitution and the nation.