The Curious Case of Amendment XXIV

As the nation considers its half-century-and-counting dry spell of meaningful formal constitutional change, and how and whether to break out of it, it is interesting to consider the curious reception that attended the Twenty-Fourth Amendment as it made its way through Congress. Specifically, it is interesting to consider that in the early stages of its ratification process, the National Association for the Advancement of Colored People (NAACP) opposed the would-be-amendment, which as passed and ratified reads:

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The ultimate enshrining of the amendment in the Constitution was a major victory for civil rights. In addition to the obvious small-d democratic objection to a poll tax—that by putting a price on democratic participation it tends to prevent poor people from voting—Southern legislatures had for decades targeted poll taxes specifically at black citizens. Some poll taxes, for instance, were waived for any citizen whose grandfather could vote: which is to say, for any white citizen.1

Poll taxes were an important part of the Jim Crow regime, eliminating them was therefore a major aim of the civil rights movement, and one might expect the NAACP to have supported the amendment. Yet as it was making its way through the Senate in 1962 under the name S. J. Res. 29, NAACP Executive Secretary Roy Wilkins apparently wrote to several of his allies in the Senate urging them to vote against it. I have not been able to find Wilkins’s letters, but I have the allies’ replies, mostly asking Wilkins to pardon their Ayes. “Your writing to me and expressing your opinion on this matter is indeed helpful,” wrote one, who had not found Wilkins’s opinion quite helpful enough to follow it. The vote had taken place “while your letter was in the mails,” explained another. Estes Kefauver, Democrat of Tennessee, expressed his disgreement with Wilkins directly and so left a clue as to Wilkins’s stated reasons for opposing the amendment. Wilkins’s “suggestion that the constitutional amendment procedure would bury the proposal in State legislatures for the next forty years” was unwarranted, he wrote. After all, just a few years earlier had seen the congressional passage and speedy ratification of the Twenty-Third Amendment, which had given Washington, D.C., representation in the Electoral College.2

While Wilkins’s opposition to the Twenty-Fourth Amendment may come as a surprise to modern-day observers, the Senators who received his letters might have been less fazed. By 1962, the NAACP had a track record of opposing efforts to get rid of the poll tax via constitutional amendment. In 1956, an NAACP press release stated that since “the poll tax can be eliminated by Congressional action without an amendment,” pursuing the latter would constitute “an unnecessarily cumbersome approach to the problem.” In 1944, Wilkins’s predecessor Walter White even accused Republican Senators who had introduced an anti–poll tax amendment of playing electoral games: Since getting a constitutional amendment ratified was a monthslong process, with only eight state legislatures even scheduled to meet that year, the GOP was evidently trying to win black votes without risking the “embarrassment” of actual policy change.3

Though I have been able to find no record of anyone saying it aloud, it seems likely that the NAACP’s reluctance to pursue an anti–poll tax amendment, even to the point of opposing its congressional allies’ attempts at one, was a response to Southern pro–poll tax talking points. For decades, opponents of civil rights had attacked the movement’s aims as unconstitutional. A favorite rhetorical device of such opponents was to suggest that some or another civil rights goal be achieved via constitutional amendment, and thereby to suggest that an amendment was the only way to legally achieve that aim. This rhetorical device was not exclusively the province of civil rights opponents, but it was used by them for all it was worth to oppose measures from public school integration to federal anti-lynching legislation.4 Thus in 1950, Sen. Sam Hobbs, Democrat of Alabama, testified to the House of Representatives as follows: “Whether or not there should be a poll tax may be debatable, but not in the Congress except on the question of submitting a constitutional amendment to the states for ratification.” Hobbs did not maintain his detached tone for long. Just a bit later he nicely modeled the slippage between descriptive assessments of anti–poll tax legislation’s constitutionality and normative assessments of its merits: “There is no reason why we should adopt the unconstitutional, statutory way [of opposing the poll tax] when we have a perfect right to submit a constitutional amendment which might do legitimately what the proponents of this heinous bill want done.” Somewhere between “perfect” and “heinous,” Hobbs’s irony dissipated into moralism.5

In light of this, it seems likely that the main reason the NAACP urged its congressional allies to vote against what became the Twenty-Fourth Amendment was that the organization feared legitimating these segregationists’ claims. In the event, in 1962, the eventual Twenty-Fourth Amendment had to be pushed through the Senate over and against a statutory alternative. Sen. Jacob K. Javits, Republican of New York, attempted to pass a law banning states from using poll taxes as requirements for suffrage, but Majority Leader Mike Mansfield, Democrat of Montana, tabled Javits’s bill in favor of the would-be constitutional amendment. Upon this, supporters of the would-be statute like Thomas H. Kuchel (Republican of California), future Vice President Hubert Humphrey (D - Minn.), and Javits himself voted for the eventual amendment.6

Javits tried to make partisan hay over the difference in 1963, claiming that John F. Kennedy’s White House had thrown its weight behind a constitutional amendment rather than a statute because it meant the measure would take longer to go into effect. Internal documents from the administration suggest otherwise: relative to the constitutional approach, the statutory one would be “quicker and as simple”, wrote one lawyer in a memo to the President, but there was “certainly no objection” to the latter if Congress thought this the “most effective” course of action. In either case, the amendment was ultimately ratified reasonably soon after its passage through Congress, in early 1964. Javits’s attempt to accomplish the same task by statute and Wilkins’s opposition to the would-be amendment at the congressional stage became minor incidents in its history, blips on the path to success that had finally no effect whatsoever.7

Ineffectual does not equal unimportant, however, and Wilkins’s blip carries two signficances for latter-day students of history. First, it suggests one theory of how we got into our current amendatory drought: the most important force for social and political change in midcentury America, the civil rights movement, rejected constitutional amendment altogether as a means of change. Activist movements feed into each other, today’s activists look to yesterday’s activists for their cues, and constitutional amendment was simply not a major part of the language of most activism in the nineteen-sixties.

The constitutional amendments of the Reconstruction were central to the change that the Reconstruction wrought; ditto those of the Progressive Era. In contrast, the amendments of the sixties were only tangentially related to the most significant ways in which the times were a-changin’. The Twenty-Third Amendment tinkered with the Electoral College; the Twenty-Fifth patched up the presidential succession process after the shock of Kennedy’s assassination; and the Twenty-Sixth lowered the voting age in response to the protests against the Vietnam War—just about the least that could have been done in response to those protests. The only amendment of the era to do with civil rights was the Twenty-Fourth, and the most important civil rights organization in the country initially opposed it. On closer examination, the “wave” of amendments that appears to have broken on America’s shores during the sixties and seventies looks like a mirage, a series of coincidences giving the impression of a pattern. The crowning achievements of the civil rights movement took the form of statutory legislation; what would have been the crowning achievement of so-called second-wave feminism, the Equal Rights Amendment, never came to pass. We have not had even a substantive amendment for a half a century, but we have not had a major amendment—that is, an amendment effecting the great change sought by a radical movement—for twice that time.

But the story of the NAACP and the Twenty-Fourth Amendment is also significant because of what it shows about vision, and where vision can come from. We are accustomed to thinking of activists as visionaries and politicians as pragmatists. What the Twenty-Fourth Amendment shows is that this does not need to be the case. And why, after all, should it be? Why shouldn’t elected officials have vision, and why should people who devote their lives to particular sets of issues care about costs and benefits and hedging one’s bets? It is no insult to the NAACP to say that, in the sixties, it was a ruthlessly practical organization; that ruthless practicality yielded arguably the most important legislation in American history and started to fulfill the promise of the revolution the Civil War had begun. Yet had Mansfield et al. not decided that, notwithstanding the higher hurdles, pursuing a constitutional amendment was worth it, anti–poll tax measures would have remained statutory.

In this century, the Supreme Court has struck down multiple provisions of the Voting Rights Act on the grounds of unconstitutionality. No one speaks of doing anything similar to the Twenty-Fourth Amendment, for it is in the Constitution. It alone among the achievements of the civil rights movements has been etched into the nation’s strongly change-resistant basic law.8

Our current paradigms for thinking about how state actors and non-state actors work in concert to produce change fail to circumscribe historical reality; all the more do they fail of imagination. And imagination is what the constitution’s fifth article demands anything of us if it demands anything at all.