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06/15/2021

The Fourteenth Amendment and Voting Rights
Earl Maltz

[Ed.: For this guest post we again welcome Earl M. Maltz, Distinguished Professor of Law at Rutgers Law School.]

In his recent statement on voting rights, Attorney General Merrick Garland declared that “John Bingham—the principal author of the Fourteenth Amendment—called the right to vote the source of all institutions of democratic government.”  This statement was clearly intended to imply that Bingham designed section one of the amendment with the idea of protecting voting rights in mind.   In fact, nothing could be further from the truth.

Section one was an alteration to a five-part constitutional amendment that had been proposed by Republican activist Robert Dale Owen.  Among other things, the Owen amendment would have barred racial discrimination in “civil rights” and also provided that, after July 4, 1876, “no discrimination shall be made…as to the enjoyment of the right to suffrage…on the basis of race, color, or previous condition of servitude.”  Almost immediately after the Owen amendment was presented to the Joint Committee on Reconstruction, on April 21, 1866, Bingham moved to have the current language of section one added to the proposal.  Although Bingham was initially successful in convincing all of the Republicans on the committee to support his motion, four days later the committee reversed itself and at one point voted to report the Owen amendment, including the section dealing with voting rights, without the Bingham language.

However, the proceedings of the joint committee took a very different turn after it became clear that many moderate and conservative Republicans objected to the idea of including protection for voting rights in the constitutional amendment.  Seeking to mollify this group, on April 28, Bingham was one of a group of Republican committee members who banded together with Democrats to remove the prohibition on racial discrimination in voting rights from the proposal.   It was only after this action had been taken that the committee voted to replace the civil rights provision of the Owen amendment with the race-blind language that Bingham had proposed the week before. 

Speaking on behalf of the committee, Republican Sen. Jacob M. Howard of Michigan described the import of these changes in introducing the proposed constitutional amendment to the Senate as a whole.  While noting that he would have preferred language that would have required states to allow Black people to vote, Howard insisted that section one “does not give [African-Americans] the right of voting” and that the amendment as a whole “leaves the right to regulate the elective suffrage still with the states, and does not meddle with that right.”  In short, whatever else one might say about the original meaning of section one or the intentions of John Bingham, one point should be crystal clear:  section one was neither designed nor originally understood to confer voting rights on anyone.