The look within: property, capacity, and suffrage in nineteenth-century America.

• Author: Cogan, Jacob Katz

Wishing to see the trajectory of American history as progressive and democratic,(1) historians have ignored the complexities of suffrage expansion in the nineteenth century--especially the interrelation of exclusion and inclusion.(2) This Note looks at the trajectory of suffrage reform from the late eighteenth century to the adoption of the Fifteenth Amendment and argues that reformers were obsessed with the inner qualities of persons. Whereas the eighteenth century had located a person's capacity for political participation externally (in material things, such as property),(3) the nineteenth century found these qualities internally (in innate and heritable traits, such as intelligence).(4) Both enfranchisement and disenfranchisement reflected this change of perspective, this look within.(5)

To chart the transformation, this Note examines the debates over suffrage in the state constitutional conventions of the late eighteenth and nineteenth centuries, as well as contemporaneous commentaries. Between 1787 and 1861 every state in the Union convened a constitutional convention in order to create a new constitution or revise an old one.(6) This intense period of constitutional change seldom gets the attention it deserves, partly because the Federal Constitution casts such a long shadow and partly because the scattered state conventions lack the same presence across time and space. Even so, it was inside and outside these conventions that the constitutional texts of the eighteenth century underwent revision; their assumptions questioned, abandoned, and replaced; the very meaning of American democracy defined. Many of these conventions allowed stenographers to listen, transcribe, and publish their debates, permitting their constituents and delegates in future conventions in other states to listen in and call upon the words of those who went before them. These words were repeated in pamphlets and newspaper and magazine articles, in effect creating a national conversation that spanned decades. It is over the course of this long conversation that we can detect the perspectival change discussed here.(7)

This Note is more interested in describing a change in the normative perspective of nineteenth-century constitutional thought than in explaining the "instrumental" motives of the individual actors whom it highlights.(8) Such motives are important, but they do not explain why certain outcomes were desirable (or even possible) at any particular moment, nor do they tell us why once solid political positions eventually turned to mush. Attention to language does not deny the instrumental motives of individual actors. Just the opposite. A speaker's intention to communicate and convince must be presupposed; it is the intention that allows the historian to take the speaker's words seriously (which is different from taking them at face value).(9) At any moment in history, actors use and invent certain words and arguments because those utterances uniquely resonate at that place and time with their intended audience, resolving the contradictions of the surrounding world in ways other words and arguments simply cannot.(10) A conclusion that the language of the look within simply perpetuated old status relations in new skins(11) would ignore the significance of the fight itself to the contestants, if not also the changes (however modest) that resulted.(12)

Part I will describe the external view that characterized the eighteenth century, and how its explanatory force gradually faded. Part II will describe the creation of the internal view, how it led to manhood suffrage, and how, at the same time, it continued to disenfranchise women and blacks. Pail III will offer a brief conclusion, tying in some additional categories of excluded persons and exploring the limits of the look within.

1. THE EXTERNAL VIEW

   1. Imagining the People

      The crux of the Constitution's successful unification of a diverse country was its implementation of the invitingly vague concept of popular sovereignty on a national scale.(13) The people would rule, and rule actively. But if this process of accepting the concept of "the people" was complete,(14) the more dangerous course of imagining who constituted "the people" had barely begun.

      That was left to the states. In the name of conciliation and practicality, the federal constitutional convention recognized that "[t]he right of suffrage was a tender point. . . . The States are the best Judges of the circumstances & temper of their own people."(15) Pierce Butler of South Carolina noted that "[t]here is no right of which the people are more jealous than that of suffrage."(16) James Madison, in The Federalist Papers, concurred: "To have reduced the different qualifications in the different States to one uniform rule would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention."(17) So the delineation of the nuts and bolts of political participation-suffrage, representation, apportionment, and citizenship itself-devolved almost entirely upon state legislatures or, more often, upon constitutional conventions.(18) Inside and outside these forums, the idealized fiction of popular sovereignty met its uncertain reality. There, the uncomfortable question was asked again and again: Who are the people?

   2. Property and Suffrage

      When the Federal Constitution was ratified in 1788, nearly every state required some form of property ownership to qualify for the vote.(19) Most often this requirement rested on ownership of a freehold estate.(20) The advantage of a freehold was twofold. First, a freehold demonstrated a permanent interest in the community. Second, a freehold proved a person's disinterestedness and independence. As Blackstone wrote, "The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own."(21) John Adams agreed, noting that "[s]uch is the Frailty of the human Heart, that very few Men, who have no Property, have any judgment of their own."(22) Some states also allowed a certain net worth to serve as an alternative qualification to a landed interest.(23) Either way, the requirements sought to insure virtue amongst the electorate and its representatives. To this end, some colonies supplemented the freehold with religious qualifications.(24) Others excluded persons on the basis of sex(25) and race.(26) But these last two restrictions were articulated less frequently, if only because (as a consequence of coverture or slavery) they were so often subsumed within the freehold qualification itself.

      By the early nineteenth century, with a new market society taking shape,(27) property was not the stable force it once had been. Now prized for its malleability and productivity, property no longer connoted the qualities that had made it synonymous with virtue and independence.(28) The assault on the freehold qualification, the paragon of trust for the old order, would not be far behind.

      Propped up by supports that were no longer stable, the justification for freehold qualifications would gradually collapse.(29) Every state admitted to the Union after the ratification of the Constitution, save one,(30) rebuffed a property requirement; and of the original thirteen states, Maryland, New Jersey, and South Carolina eliminated their restrictions in the years between the ratification of the Constitution and the War of 1812.(31) But the landowners and wealthy merchants who retained political power, particularly the plantation owners of eastern North Carolina and Virginia, and the rural landowners of Connecticut, Massachusetts, New York, and Rhode Island, did not go gently.(32) While a number of states would retain property requirements for white men after 1830,(33) the conventions of the 1810s, 1820s, and 1830s marked the culmination of the attack on property that had begun in the eighteenth century.

      Confronted with this challenge, property defenders held onto their power ever more tightly and devised new theories of government to legitimate old political structures. They did so by refashioning the very logic of corruption and self-interest that had undermined their rule into a new political theory of interest.(34) Property defenders contended that there were two interests in society, personal rights and property rights, each "indispensable to every"(35) movement of Government. Property represented a "peculiar interest" and therefore required an "authority proportioned to that interest and adequate to its protection."(36) This goal could be accomplished in several ways: by a freehold suffrage requirement to vote for representatives to either or both houses of the legislature, by a freehold requirement for office holding, or by the inclusion of property in the formula of legislative apportionment (in a similar fashion to the U.S. Constitution's Three-Fifths Clause,(37) which defined the apportionment of the House of Representatives).

      Advocates of property representation did not impute evil motives or wickedness to those without property, only envy. "[A]s all men know now," Richard Morris explained, "unless property is protected, it will be invaded."(38) The principle of government, this theory stressed, should "not [be] confidence, but jealousy and watchfulness" of persons.(39) Only fools, argued Benjamin Watkins Leigh, would base a government on "the moral sense of mankind" when "self-love is the great spring of human actions."(40) Even "the highest degree of moral virtue, the most pure and unblemished integrity, and . . . sublime intelligence, afford us no adequate protection: for men always have differed, and always will differ, in questions involving great and expensive objects of national enterprize."(41) If the power to determine taxation and appropriations were given to those who did not contribute their own earnings, "they may...