The Voting Bonus During Jim Crow

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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5 Responses

  1. Joe says:

    “Not because they thought slaves were people”

    They did realize that slaves were people (e.g., by holding them guilty of crimes, unlike animals) though whatever the motivation here, if not “the people” as in a political class. Another historian challenged the 1800 election theory; at the very least, noting the footnote that if the Federalists truly played fair in PA that Jefferson would have won anyway.

    The 14A provision in question to my knowledge was never put into effect. In the mid-20th Century, an attempt was made to enforce it in court, but it was deemed a political question. Saunders v. Wilkins, 152 F.2d 235 (4th Cir. 1945), cert. denied, 328 U.S. 870 (1946).

  2. Ken Rhodes says:

    One way to look at the question is as you have done; i.e., was the South overrepresented?

    A different take would be to suppose they had followed the Constitution (15th A) and accorded every citizen his vote. Then the South would not have been overrepresented, but the voting results might have been very different. Or maybe not.

  3. mls says:

    How exactly was Section 2 supposed to be enforced? It appears that one would take the census results and reduce them by the percentage of disenfranchised male voters over 21. This calculation would presumably be made by Congress after it received the census results and before it enacted a reapportionment law. Thus, there would be no way of enforcing the provision without a congressional enactment, which presents some obvious political problems.

    But it should be simple enough to take the census results from Southern states and calculate how much their census results would have changed based on the assumption that the entire African-American population was disenfranchised, and then figure out how this would have altered representation under the applicable formula. Has no one done this?

  4. Very interesting information. I was not really aware of how this all went down. It clearly had an impact, but I am not sure what it all means as far as shaping our future. In any event, very interesting.

  5. Reply to Ken says:

    We know the result would have been different because when blacks were allowed to vote during Congressional Reconstruction, Republicans dominated state government. Those Republican state governments spent money on education, health, and all sorts of things that ordinary people want. When blacks were prevented from voting, Democrats dominated state governments and funding for education, etc. almost disappeared. So, it’s hardly speculation to say that Jim Crow distorted American politics, making both the South and Congress more conservative.