The Lack of Federal Voting Rights Protections Returns Us to the Pre-Civil War Era

tags: Reconstruction, 13th Amendment, voting rights, 14th Amendment, 15th Amendment

Kate Masur is associate professor of history at Northwestern University and author of the new book Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction, and An Example for All the Land: Emancipation and the Struggle over Equality in Washington, D.C.

As Senate Democrats push to extend federal protection of voting rights, bills to restrict citizens’ access to the vote — many based on models produced by the conservative Heritage Foundation — have been introduced in 43 states. On Thursday, Georgia enacted a law that constrains voters’ options and makes it easier for the state legislature to interfere with election results. President Biden and others, criticizing the measure, have drawn parallels to the Jim Crow era from the 1890s to the 1950s. In a broader sense, though, the current absence of strong federal protection for voting rights better resembles the United States before it was transformed by the Civil War and Reconstruction.

From the nation’s founding through the Civil War, the rights and protections that African Americans could expect varied dramatically from place to place. Free Black people might enjoy a broad range of civil rights in some jurisdictions, while elsewhere they faced drastic restrictions on their liberty, even to the point of enslavement. Meanwhile, no slave states permitted Black men to vote and only a handful of free states did, though in the 1840s and 1850s, northern Black activists and their White allies had agitated on the issue and were slowly gaining White support.

The states had virtually unchallengeable power to define the status and rights of their residents. Slavery was only the most extreme example. Northern states such as Massachusetts and Pennsylvania chose to abolish slavery in the years following independence from Britain, but across the Southern tier of states, legislatures perpetuated slavery and codified it in law. Congress admitted new slave states to the Union, putting its imprimatur on states’ “right” to legalize slavery and to people’s right to hold Black people in bondage, denying them rights that many considered fundamental to personhood.

Beyond slavery, all slave states and some free states placed strictures on the basic rights of free African Americans. After joining the Union as a free state in 1803, for example, Ohio adopted laws that required free African Americans who wanted to live in the state to prove their freedom and register with local officials. Laws forbade them from testifying in court cases involving White people, and barred Black children from public education. Ohio’s constitution granted voting rights to White men only. By contrast, Massachusetts placed no racial restrictions on men’s right to vote and had no racist or testimony residency laws. It did, however, bar interracial marriage and prohibit Black men from serving in the state militia.

As a consequence of this patchwork of race and rights, the antebellum struggle for racial equality looked different in every state. In Ohio, Black activists pressed for repeal of the “Black laws” that marginalized them and made them vulnerable to exploitation and violence by White people.

Yet, Black Ohioans were just 1 percent of the state population, and Black men could not vote. As a result, there was little they could do about the laws besides organize, petition the state legislature for justice and call on White neighbors to see the world from their eyes and do what was right. In 1843, a convention of Black men called on White Ohioans to recognize the injustice of the laws, insisting that the state government’s policy toward them was “utterly at variance” with the promises of the Declaration of Independence.

Read entire article at Made By History at the Washington Post

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