Unconstitutionality of the Black Codes and Voting Restrictions on Blacks

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The Black Codes:

Blacks were promised voting rights in 1870 with the passage of the 15th amendment, 5 years after the Civil War along with American citizenship. Although freed blacks were given citizenship and some of the rights that accompany it they were unable to vote until the passing of the 15th amendment. Even after the passing of the 15th amendment much was done to limit black voters in the poll booths. Southern lawmakers devised the black codes to try and maintain systemic white supremacy. The black codes were a set of laws that included the white primaries, the grandfather clause, and the poll tax to name a few.  After being freed from slavery many blacks lived in poverty and were illiterate, the codes also confined poor white southerners. The black codes attacked and exploited their inabilities and silenced them for the following century.

Voting protesters outside the White House 1965 (Leffler 1965, African American Demonstrators Outside the White House, with Signs “We Demand the Right to Vote, Everywhere”)

Upon the removal of Freedman’s Bureau troops from southern states in 1877, after the end of the Reconstruction era, restrictions on black voters were enacted. Literacy tests, poll taxes, and laws like the grandfather clause, and the grandfather clause were passed to silence black voices in matters that involved the nation in which they lived. Voting Rights explains the somewhat spontaneous birth of the voting restrictions placed on black voters. Following the conclusion of the Reconstruction Era, Freedmen’s Bureau agents were withdrawn from the south. Without the presence of law enforcement officers the ex-confederate states reverted back to their prior condition henceforth excluding blacks (Library of Congress 2019, Voting Rights). This being said a lot of what was done to get blacks into politics was reversed. Simultaneously black voters were silenced with the black codes. Those who attempted to vote were met with violence, and landmark court cases pushing for desegregation intensified hostile grounds. It furthermore states the importance to blacks of having a say in law and the actions the government carries out.


Black historian and author, Charles H. Wesley, published the book, The Negro has Always Wanted the Four Freedoms in 1944. In his essay he contradicts the theory that blacks living in America are satisfied taking a passive role in society, are okay with being second class citizens, and do not want a say in political matters. He argues blacks want the Four Freedoms Franklin Delano Roosevelt said all men were entitled to. The Four Freedoms were; freedom of speech, freedom of religion, freedom from want and the freedom from fear. His book is a compilation of different literary works, statements, and contains essays from some of the successful black politicians and civil rights activists (Wesley 1944, 889). A few of his focal points include that African Americans are warranted to freedom without restrictions based on race, and freedom permitted to other Americans include the right to vote and participate in democracy. Silencing the black vote is exploitation, exclusion, and suppression.

Several preeminent civil rights leaders such as W. E. B. DuBois, Malcolm X, and Martin Luther King spoke out on the importance of Black’s obtaining voting rights. DuBois, a civil rights activist, politician, writer, and the first black man to earn a Ph.D from Harvard, wrote the revolutionary book, The Souls of Black Folk in 1903. While in Chicago, DuBois criticized fellow African American Leader, Booker T. Washington’s, Atlanta Address. In his speech Washington identified civil disagreement as the most efficient and successful route to achieving voting rights (Washington 1895, The Atlanta Address). DuBois blatantly disagreed in The Souls of Black Folks. DuBois claimed the only way to get equality is to abandon the fear of repercussions and for blacks to get involved in organizations and earn political positions to impact the future (DuBois 1903, The Souls of Black Folks). The relationship between Booker T. Washington and DuBois was similar to that of Martin Luther King Jr. and Malcolm X. Both Washington and King believed that peaceful nonviolent protest was the best way to achieve voting rights. While Malcolm X and DuBois supported a more radical reform.

Extremist Muslim minister, Malcolm X delivered his speech, The Ballot or the Bullet in 1964. He explains how he believes blacks should go about procuring rights that have been promised to them, “Any kind of act that’s designed to delay or deprive you and me right now of getting full rights, that’s the government that’s responsible. And any time you find the government involved in a conspiracy to violate the citizenship or the civil rights of a people, then you are wasting your time going to that government expecting redress. Instead, you have to take that government to the World Court and accuse it of genocide and all of the other crimes that it is guilty of today” (Malcolm X. 1964). In his speech he also declares that Southern Democrats, often referred to as the “Dixiecrats”, who lack the support of black Americans wish to handicap black voters to keep Northern Republicans from gaining more votes. His solution to the issue of the government continuously promising and then limiting the given rights of blacks is not to trust them and make their crimes a public affair. By broadcasting the issue he believes the subject will be recognized for its hypocritical nature, and further action will be taken to amend it.

By 1965 the Civil Right Movement had received enough support from black and white parties alike, the voices of the people could no longer be pushed to the wayside. The Voting Rights Act of 1965 was put into motion by President John F. Kennedy and was overtaken by Vice President Lyndon B. Johnson succeeding Kennedy’s assassination. During the heat of the Civil Rights Movement LBJ, a Southern Democrat, had a major choice to make. He could do what is right and give black voters their rights, gaining the support of some blacks while losing the support of the Dixiecrats, one of his major supporters. Or, he could ignore the needs demanded by the Voting Rights Act thereby keeping the support of Southern Democrats and promising a higher chance of success in the presidential campaign for 1965.  

“To those who seek to avoid action by their national government in their home communities, who want to and who seek to maintain purely local control over elections, the answer is simple: open your polling places to all your people. Allow men and women to register and vote whatever the color of their skin. Extend the rights of citizenship to every citizen of this land. There is no Constitutional issue here. The command of the Constitution is plain. There is no moral issue. It is wrong–deadly wrong–to deny any of your fellow Americans the right to vote in this country.

There is no issue of state’s rights or national rights. There is only the struggle for human rights. I have not the slightest doubt what will be your answer. But the last time a President sent a civil rights bill to the Congress it contained a provision to protect voting rights in Federal elections. That civil rights bill was passed after eight long months of debate. And when that bill came to my desk from the Congress for signature, the heart of the voting provision had been eliminated.

This time, on this issue, there must be no delay, or no hesitation, or no compromise with our purpose. We cannot, we must not, refuse to protect the right of every American to vote in every election that he may desire to participate in” (Johnson 1965, We Shall Overcome).

Johnson passed the act, Blacks were given full granting rights and he was reelected.