Video
U.S. Grant History Chat, Episode 3: Travis Crum
Transcript
- All right, hello everybody this is Nick Sacco at Ulysses S Grant National Historic Site in St. Louis Missouri. And this is episode three of the US Grant History Chat. And today joining me is professor Travis Crum. He is a Bigelow fellow and lecturer in law at the University of Chicago Law School. And later this summer he'll be joining the faculty at Washington University St. Louis. He'll be a little bit closer to the park starting this summer. And professor Crum, he specializes in the 15th Amendment and we are in the 150th anniversary of the 15th Amendment right now. So a very timely and relevant topic. And I guess just to kinda kick things off for us here, Travis, you can tell us a little bit about your interest in the 15th Amendment. What kind of sparked the historical interest in this topic?
- Thanks Nick for having me on to interview with you and I'm really looking forward to moving to St. Louis this summer. So let's spark my interest in the 15th Amendment. I guess there's two things. The kind of broader thing is that I've always been interested in issues of democratization and political theory. And the reconstruction period is one of our nation's attempts to better live up to our ideals. And there was a very brief period of time in the mid to late 19th century where the U.S was a multiracial democracy before Jim Crow was established. And so that kinda historical aspect of things caught my eye. More immediately the reason I delved into the 15th Amendment actually relates to my last work on the Voting Rights Act. And there was a provision of the Voting Rights Act that allows you to put States and counties under federal supervision if they violate the 14th or 15th Amendments. And when I was doing research for that it occurred to me that there was very little case law on what the 15th Amendment means. The Supreme Court has never decided whether a racist or intentional discrimination is needed to show a violation of the 15th Amendment. The Supreme Court has never decided whether or not a vote dilution or why the ordinary person on the street would call Gerrymandering is prohibited by the 15th Amendment. So there's all these open doctrinal questions when it comes to that amendment to the constitution. And when I dug into the history, there was a lot of history that and yet to be written about 15 amendment. It's oftentimes treated as an afterthought in the legal history as a reconstruction. They focus along the 13th amendment, a lot of ink has been spilled talking about the 14th amendment, But the 15th Amendment is kind of viewed as an inevitability. And I hope my research shows that that wasn't necessarily the case during reconstruction. And I'm trying to shine a new light on that amendment given the 150th anniversary that you mentioned.
- Yeah definitely and just to clarify for folks who are watching. So the 15th Amendment, sometimes it's kind of incorrectly described as granting the right to vote African Americans, but in reality, it was really about just banning racial discrimination. So in some places that, through the Military Reconstruction Act of 1867 you had African Americans in the South who were already voting. And so the 15th Amendment basically just removes racial discrimination as a barrier for voting. And in reading your article, what I found very interesting is that a lot of political thinkers in the 19th century, they made this distinction between civil rights and political rights. And today we kind of combine both of those concepts together and we would think of something like voting as a part of civil rights but that wasn't necessarily the case in the 19th century. Maybe you kind of expand upon that a little bit.
- Yeah, absolutely Nick. You're right that today the term civil rights is much more capacious and that term was used during reconstruction. So during reconstruction civil rights was a narrower category. There were referring to things like the right to Sue in DC the right to own property, the right to sign a contract, the right to be treated equally under the criminal law. Political rights, and that's how they were referred to back then they weren't referred to as voting rights. Political rights were the right to vote the right to hold office the right to sit on a jury. So it was kind of a bundle of rights. And the reason why the reconstruction generation distinguished between civil and political rights I think is two fold. One, is that these rights in many ways are different from one another. And that civil rights tend to be more atomistic. It tends to be, you signing a contract with your neighbor or me needing to own property and have a deed on file with the government. But political rights and the right to vote necessitates some sort of coalition building. It's more of an aggregate right. And so, that distinction was something to reconstruction framers, thought about. But the other and someone more insidious reason is that the difference between civil and political rights was a unifying a hierarchy and doling out political power in a very real way. And so the reconstruction generation did not view citizenship as synonymous with the right to vote the way that we do today. And the classic example here are relates not necessarily to African-Americans, but to women. White women were often cited as the example of people who are citizens, who could sign contracts, who could own property but they were not given the right to vote during reconstruction. And so that sort of distinction was in the minds of the reconstruction framers as they were drafting the 14th amendment which they viewed as primarily concerning civil rights. And later on when they drafted the 15th Amendment which was concerned with political rights.
- Right, so the view of voting, in some cases it could be viewed as more of a privilege than a right. And so you have certain groups of people who are citizens through the 14th Amendment, but not necessarily eligible voters to participate in elections as well. So yeah, that definitely makes sense. And another aspect of your scholarship that stuck out was the what you described as the article five debate and essentially in determining the nature of Black voting rights in America would this be done through congressional legislation? Would it be done through a constitutional amendment? So I'd love to hear about the article five debate as well.
- Thanks Nick, So the article five debate that you're talking about or you're referencing is something that I explicate in my new Northwestern University law review article the surplus 15th Amendment. And so to understand this debate, I think it's helpful to kind of go back in time and understand the political context of 1868, 1869. So in 1868, president Grant wins election and he does so in an electoral college landside but he only wins the popular vote by 300,000. And at the time that was largely attributed to the 500,000 African-American men who have been enfranchised by the first Reconstruction Act. And moreover, Grant won every Southern State but two where clan related violence stopped Blacks from going to the polls. And so Grant and the Republican Party really owe their political fortunes to African-American men coming out and supporting the Republican Party. And so in early 1869, when the radical Republicans came to Congress, you had a divided nation. You had a nation where 17 States had racially discriminatory laws on the books. And those States were mostly in the Mid-Atlantic, Midwest and the West Coast. By contrast in 17 States the former Confederacy or Congress had enfranchised Blacks some States in the Midwest and five of the six new England States African-American men could vote. And so there was a debate about how best to achieve nationwide Black male suffrage. And the radical Republicans like Senator Charles Sumner and representative George Boutwell. They thought that the newly ratified 14th Amendment gave Congress authority to pass the statute. And they advocated first passing a statute that would have been franchised blacks nationwide but also passing an amendment. And they thought that the newly enfranchised Black men in border States like Maryland and Missouri in Delaware and in swing States like Connecticut and New York would help push the 15th Amendment over the three fourths requirement for advocation under article five. Now moderate Republicans put a stop to this plan and they did so for two reasons. One is constitutional. Throughout the debate over the 14th Amendment ratification from 1866 to 1868, moderate Republicans insisted that the 14th Amendment did not confer suffrage. It did not go so far as to enfranchise Black men in border States and elsewhere where they were currently barred from the polls. And so they thought that that commitments throughout the debate limited the 14th amendment scope. And then secondly, and relatedly, they thought that there would be a political cost from going back on that promise. They worried that the newly enfranchised Black voters would be outnumbered by White voters who would turn to the Democratic Party and be upset about this change of political affairs. And so this debate, the moderate Republicans eventually won and given the small number of Democrats in Congress at the time, the moderate Republicans were able to essentially scuttle Voting Rights act of 1869 and push for a 15th Amendment. And from a constitutional law perspective it needs to meet is really important because it's the first post ratification debate about what the 14th Amendment means. And it also tells us that we should treat the 15th Amendment as an independent constitutional provision that gave new rights to Black male voters and gave new authority to Congress to remedy racial discrimination in voting.
- Yeah, and what's interesting is that with the the 14th Amendment there, very interesting about whether or not, it sort of left an opening for potential future legislation to be passed. And by going the route of the constitutional amendment with the 15th Amendment, perhaps supporters of the 15th Amendment thought that in the long run that would be the more stable and harder barrier to overcome and the constitutional amendment is just simply overturning a law with the next session of Congress or what have you. But in the end, the 15th Amendment still kinda got thrown to the side anyway, even though it was a constitutional amendment.
- No, I just sort of pick up when you're on point I mean, the decision to non make it a statute to not pass it but the rights Act of 1869 Two examples kinda come to mind. One, is that Congress would later pass a civil rights act of 1875 that prohibited racial discrimination in public accommodations. Things like railroads, things like hotels. And in 1883 of the Supreme Court struck down that law under the 14th Amendment saying that it targeted private action as opposed to state or governmental action. And so it's possible that something like that could have happened to a VRA in the reconstruction era. And then your point about Congress repealing these laws something like that did occur in the 1890s during the sort of early days of Jim Crow, Congress repealed many of the enforcement acts, not all, but many of the enforcement acts that had been passed during reconstruction to protect the right to vote. And so something like that could have happened if we did not have the 15th Amendment embedded in try and into the constitution.
- Sure, absolutely that's very interesting. And then just to kinda wrap up our conversation here another central argument of your scholarship is that the courts today or in more recent history in trying to define who's an eligible voter and sort of the parameters of fair elections and fair voting, oftentimes they ironically go to the 14th Amendment but then less often they go to the 15th Amendment although the 15th is primarily focused on voting. So if you just kind of break that down for us. And why in your view the federal courts may be not giving as much attention to the 15th Amendment as they should.
- Yeah so I think on that front, there's two reasons and there is somewhat path dependent. One is to kinda go back to the point that you made earlier that the 15th member was forgotten during Jim Crow. And during that period the 14th amendment started to be interpreted to protect the right to vote. Much like we do today, when we use the term civil rights to include the right to vote. The 14th Amendment beginning in the 1920s but really accelerating in the 1960s, 1970s was interpreted capaciously to encompass the right to vote. And the most famous example of these cases or this broader interpretation of 14th Amendment is the one person one vote line in cases. And so in the 1960s you had what we would call rotten boroughs. You had places that would have 1000, 2000 voters controlling a state legislative district and next door in a city you would have 50,000 voters and they would each get one member of the state house delegates. And so when the Supreme Court started striking down there was discharged. It relied on the 14th Amendment as the constitutional hook to do that. And that kinda reshaped how we think about the 14th amendment. But the other is a little bit more recent and that's the Voting Rights Act. And so ever since the Voting Rights Act was amended in 1982 to make it clear that it applied to Gerrymandering, and to discriminatory effects claims, the VRA or the Voting Rights Act has been the primary engine of voting rights litigation as opposed to the 14th or 15th Amendments. Because it's a lot easier to prove a statutory claim than a constitutional claim. To prove that someone is infringing on the right to vote because of race under the constitution, you need to show discriminatory intent. Whereas under the Voting Rights Act is just a discriminatory effect showing. And so let me illustrate that with a very simple example. Imagine you have a city that is 25% African-American, and you have 10 city council seats. Now it might be for groundswell African-American should have two legislative seats or three legislative seats but if they had only one legislative seat that would be a very easy claim to bring under the Voting Rights Act because they're only getting one tenth of the seats on that legislature. By contrast in order to bring a claim under the 14th Amendment, you have to show that that city council plan was enacted or maintained with a racist or discriminatory intent. And that requires a good deal of discovery is very fact intensive and courts and judges are very reluctant to say that politicians are doing things for racist reasons. And so the discriminatory effects standard allows you to avoid the sidestep a lot of those problems and protect the right to vote in a much more straightforward way.
- Fascinating, fascinating, absolutely. So there's a lot to unpack with the the potential power of the 15th Amendment and then kind of connecting that to future civil rights legislation and the Voting rights Act and what have you as well. So that's really great information and I know all of us in St. Louis will be looking forward to your arrival to work with WashU in the law department there. And once again, this is Travis Crum. Thank you so much for speaking with us today and we'll see you around here in St. Louis.
- Thanks Nick, looking forward to moving there.
- All right, thank you.
Description
Travis Crum is a Law Professor at Washington University in St. Louis. He joined Park Ranger Nick Sacco to discuss his scholarship on the 15th Amendment and how it has shaped civil rights laws in the United States. Crum also discussed why Congress chose to enshrine African American voting rights with a constitutional amendment instead of a statutory law.
Duration
15 minutes, 33 seconds
Date Created
05/21/2020
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