Speaking of apportionment and all that good stuff, there is also good reason to believe that Section Two of the 14th Amendment was designed to advance a feminist purpose.
No, your eyes aren’t fooling you. I said a feminist purpose.
“But” I hear you say, “I was always told that Section 2 was the first time the word ‘male’ appeared in the constitution. This was decried by feminists. How could it possibly have a feminist purpose?”
Well, it’s given away when you look at how it might have functioned. In truth, Section 2 never went into effect. They literally never applied it, in large part because the Fifteenth Amendment mooted it two years later. But if you think about how it operates, you start to see something very curious: it creates an incentive for racist white men to allow white women to vote.
Background on Section 2
Now, for background, let me explain the purpose of Section 2. In the original constitution, slaves were counted as 3/5 of a person for representational purposes. Back at the original founding, the South had wanted to count slaves as full persons, because they felt that having a larger population to worry about, the voters of the South should have been given greater representation. The North, on the other hand, insisted that the slaves shouldn’t count at all, because after all, they couldn’t vote, and thus counting the slaves would only serve to increase the political power of those who were oppressing them. It was noxious. This was eventually settled with the 3/5 compromise resulting in the language of the 3/5 clause.
At the end of the Civil War, then, the North had a problem. By abolishing slavery, this meant that the black people in the south would be counted as full persons. But, they still wouldn’t have the right to vote. So they needed to ratify a constitutional amendment to correct this.
Thaddeus Stevens had a very simple proposal which said basically that apportionment would be by the number of voters. This was rejected for a scheme that was slightly more complicated but according to its proponents was still supposed to have a very similar effect. So the main goal they had in passing this was to force the South to choose either give African Americans the right to vote, or face a commensurate reduction in representation.
But when you look at how the rules operate, you realize that by the way it is written, it allowed for 1) explicitly racial voting laws that 2) dramatically change the racial demographics of the voting class, without any penalty in apportionment.
How Section 2 Works
Let’s start with the first line of the amendment. It says:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.
Now this clearly meant that apportionment, that is the distribution of representatives, would be according to the full population of the state, whether they are male or female, black, white, or whatever.
Then it says that under certain circumstance that a state is punished by having its apportionment reduced. It says:
But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
So to break it down into easier steps, you would first ask whether anyone had been excluded from the franchise who was 1) male, 2) an inhabitant of the state and 3) citizen of the United States, 4) over 21 years of age, and who is not a 5) former Confederate or 6) criminal.
Then if any such persons were excluded, then you reduce the apportionment of representation by a complicated formula, that frankly you don’t have to worry about for the purposes of my argument.
The key thing to get is that while the whole population is counted when figuring out the initial “baseline” of apportionment, the penalty is only triggered if men (who are citizens, etc.) are excluded.
So the effect is to say that you can do whatever you want to the voting rights of women, and apportionment is not affected. And that creates a loophole that bigots can easily exploit.
How the Loophole Works
As stated, by inserting the word “male” into Section 2, this allowed for 1) explicitly racial voting laws that 2) dramatically change the racial demographics of the voting class, 3) without any penalty in apportionment.
But let’s make this concrete to show how this loophole worked. So let’s imagine a scenario where two thirds of the population is black, and two thirds of the population is white. Don’t scoff, this was exactly the case in South Carolina during Reconstruction. Let’s further imagine that the population is divided evenly between men and women. And just to keep our math simple, let’s imagine that there are 300,000 people in the state broken down to 100,000 black men, 100,000 black women, 50,000 white men and 50,000 white women..
Now imagine three different legal regimes:
First, universal male suffrage without regard to race. That would be result in 100,000 black men, to 50,000 white men, a 2/3 majority in favor of African Americans in the voting class.
Second, universal suffrage, without regard to race or gender. That would result in 200,000 black people voting, and 100,000 white people, still a 2/3 majority in favor of African Americans in the voting class.
Third, universal suffrage for men, but suffrage for white women only. That would result in 100,000 black men, and 100,000 white people (50,000 men, 50,000 women), and now you would have a 50/50 split along the races in the voting class.
But in all of those scenarios, the apportionment would be the same. In the initial apportionment, all women are counted whether they have the vote or not, but the penalty only kicks in when men (who are citizens, etc.) are excluded.
So once again, you could have 1) explicitly racial voting laws that 2) dramatically change the racial demographics of the voting class, 3) without any penalty in apportionment.
And that is the loophole.
Let’s try the same thing in only in a scenario where half the voters in a state are white, and half are black. That was how it was in Mississippi. So let’s now imagine 200,000 African Americans (being 100,000 men, and 100,000 women), and the exact same number of white people with the same gender breakdown. Now let’s rerun two of the scenarios from the South Carolina example:
First scenario: universal male suffrage without regard to race. That would be result in 100,000 black men, to 100,000 white men, an even 50/50 split in the voting class.
Third scenario, universal suffrage for men, but suffrage for white women only. That would result in 100,000 black men, and 200,000 white people (100,000 men, 100,000 women), and now you would have a 2/3 majority in favor of whites in the voting class.
And once again the apportionment in each scenario is exactly the same. And once again, racial bigots would be able to game the system to increase the proportion of white voters without suffering any penalty in apportionment.
Implications
Now the next question would be, “okay, but would the founders of the Fourteenth Amendment understand that?” In other words, would this have been an oversight, or their design? Is this a bug or a feature?
I will say frankly that I have read a lot on the founders of the Civil War Amendments, and I have never seen a single breath of this as a plan.
On the other hand, this is apportionment we are talking about, something they pay very close attention to. So I would have a hard time believing they didn’t realize what this would do.
So that leads to the question of what the founders were trying to accomplish. In other words, were the founders planning to screw black people in order to help white women?
Well, that depends on what the founders expected those white women to do.
Certainly the Southern racist would assume that those women would have voted by color. But the Republicans in the North had seen an alliance grow up between the feminist movement and the abolitionist movement. So it was reasonable to think that if white women were given the vote, that enough of them would be willing to make common cause with African American voters in order to do something really radical, like extending the vote to all African Americans, regardless of sex, creating an even greater majority than before in favor of equality of opportunity.
And I have studied the Republicans of that era enough to know that they very often used racism against itself in order to advance racial equality. The most obvious example was Thaddeus Stevens demanding that the Union begin to use black troops because he was sick of only white people dying. Everyone who knew him, knew he was full of shit when he said that. He wanted black troops in the war, because he wanted black people to be seen participating in their own liberation, to increase their standing when the war was won. But he had no qualms about using racism as a tool to accomplish that goal.
So putting in a loophole in order to encourage the bigots to give white women the vote, on the hope that then they would expand the franchise to all men and all women? Yeah, that is exactly their M.O.
But that is a theory based on a supposition based on an almost mathematical proof of how a law operated in a fashion that no one at the time mentioned, and decades of constitutional scholars apparently failed to notice. In other words, I could be wrong. But I think it is fair to say that this is an intriguing theory.
And as a final note, I would like to point out one other thing. Although in reality, the Fifteenth Amendment came in about 2 years later to prevent anyone from exploiting this loophole, obviously when they were writing and ratifying the Fourteenth Amendment, they expected it to be the last word on the subject for a long time. I am not sure what happened to accelerate that timetable, but it was not part of the original plan to pass the Fifteenth Amendment so quickly after the Fourteenth. So when they put in this rule in Section 2, they expected it to remain the law of the land for a while.
Updated and Bumped: I have frankly rewritten about half the post in response to some online feedback mostly to say what I was trying to say the first time, better. The person providing feedback didn’t give me permission to give his name, so my default is not to. But basically the content is the same, but I think it is presented a little more clearly.
